Poilievre doubles down on 'jail, not bail' idea that experts say ignores Charter

Ford renews call for jail, not bail for criminals Doug Ford expressed frustration with the criminal code, saying he wants to see tougher sentences for offenders. Siobhan Morris reports.

OTTAWA — Conservative Party Leader Pierre Poilievre is doubling down on his pledge to bring in legislation denying repeat violent offenders access to bail if he is elected prime minister -- despite experts suggesting the move would likely be unconstitutional.

Amid criticism that his proposed policy would ignore the presumption of innocence that underpins the legal system, Poilievre insisted on Thursday that any such legislation would be "Charter-compliant."

"If someone has committed seven or eight repeat violent offences and then is newly arrested on a new violent charge, then it's clear that they are a danger to society and should be kept behind bars until the trial is over and their sentences complete," he said Thursday.

He said without citing specifics that courts have backed up that approach.

But since the Supreme Court has repeatedly upheld the right to reasonable bail, experts suggested that Poilievre's more-restrictive approach would be unlikely to pass muster.

Justice Minister David Lametti added his own criticism on Thursday.

"To the leader of the opposition, the criminal justice system, the bail system, resolves down to silly empty slogans," Lametti said.

"That's not how you create good bail policy. That's not how you create good criminal justice policy. And in addition, the direction he wants to go I think completely eviscerates the Charter."

The Opposition leader's comments came in response to the federal government announcing its own plans to reform Canada's bail laws. A new bill aims to make it harder for some repeat violent offenders to seek pretrial release by putting the onus on them to prove why they should be granted bail.

The Liberals introduced the proposed changes in response to mounting pressure from provinces, police associations and victims' rights groups to strengthen the system amid a spate of high-profile crimes.

Brian Sauve, President and CEO, National Police Federation, said in a statement the new bill is a "good first step," but improving the system will require more resources, data collection, policy development and monitoring. He declined to comment on Poilievre's proposal.

The association representing Canadian police chiefs also endorsed the Liberals' legislation.

When asked at a Thursday news conference if those endorsements changed his own thinking, Poilievre repeated his position that the proposed law doesn't go far enough.

He wouldn't commit to voting in favour of the reforms, which are in line with what all 13 of Canada's premiers have been demanding.

"We will go through our caucus and our shadow cabinet to take a stand on it, but I can appreciate that the police want any steps that can reverse Justin Trudeau's catch-and-release policies, even if they don't go far enough."

He added that he would roll back legislation the Liberal government passed earlier in its tenure.

In a law passed in 2019, the Liberals codified a "principle of restraint" affirmed in a 2017 Supreme Court case. The principle emphasized the release of detainees at the "earliest reasonable opportunity" and "on the least onerous conditions," based on the circumstances of the case.

The Opposition Leader brushed aside concerns that his own policy idea would be in violation of the Charter.

Several victim's rights groups have also advocated for stricter bail policies, including Families For Justice, which asked in a formal submission to a parliamentary committee for the federal government to "keep anyone who poses a threat to public safety off the streets."

But experts reacted to Poilievre's alternate proposal with skepticism.

Boris Bytensky, a criminal defence lawyer, said legislation that would deny some accused people access to bail hearings would not pass constitutional muster.

The approach doesn't account for the possibility of innocence, he said.

"Somewhere in there, there should be room for a person to be found not guilty. Because presumably, we don't actually sentence people until and unless they've been found guilty beyond a reasonable doubt, he said.

"But that doesn't seem to be included in the narrative."

Bytensky said Poilievre seems to be suggesting that the existence of a prior record means people should be presumed guilty and sentenced as soon as possible so that they can remain behind bars.

"That's what he's essentially saying that his government is pledging to do, if he's elected, so I'm a little surprised by that."

Danardo Jones, an assistant professor at the University of Windsor's law school, said that from a constitutional legal perspective, the promise does not make "a tremendous amount of sense."

"I'm not really sure what society these folks are imagining, if it's a society where there is no risk, or a society where there is no crime," he said.

"I would love to live in a society like that, but I don't know if draconian criminal measures are going to usher in a society like that."

About 70 per cent of people who are already in Canadian detention facilities are there because they were denied bail, Jones said.

"Then we're going to see an even higher representation in our provincial detention facility of folks who have not been criminally convicted of the offence for which they've been charged," he said.

Nicole Myers, a Queen's University sociologist who has an expertise in bail and pretrial detention, said the idea "completely ignores the foundational principles of our criminal justice system."

Poilievre's pitch seems to be more about politics, Myers said.

"He's trying to grab onto and exploit public fear and public concern."

The slogan Poilievre is using to promote the idea that certain offenders' rights to bail hearings should be waived -- "Jail, not bail" -- is "misguided," said Myers.

"We do not have a lenient bail system in this country. We've had more people in pretrial detention than in sentence provincial custody since 2004," she said.

Moreover, she said spending time in prison makes people more likely to commit an offence after they are released.

And if people who are ultimately convicted spend more time in prison waiting for a trial, then time will be shaved off the end of their sentences after they are convicted, Myers added.

"If he were actually interested in public safety, as he says he apparently is, then we would not be trying to put more people in jail."

Experts have also pointed out that the Liberals' new legislation, which falls well short of Poilievre's idea, could be subject to a Charter challenge.

Justice Minister David Lametti said the government is trying to strike a balance between public safety and the presumption of innocence.

The StatsCanada index measuring the severity of crime in the country shows the rate of violent crime has dropped six per cent over the past ten years and more than 30 per cent over the last twenty years.

But the rate has crept up almost every year since the Liberals came into power, and it is higher now than it was in 2015 when they first formed government. Violent crime is the highest in Prairie provinces.

This report by The Canadian Press was first published May 17, 2023.