Catch and release: Bail changes mean more accused criminals sent back into community

A sex offender is released on bail after breaking into his neighbour’s home, leaving Esquimalt residents on edge.

Business owners are forced to replace windows and doors shattered by a man released from custody hours after stealing a Victoria Harbour Ferry vessel.

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Victoria police respond to stabbings, robberies, assaults and arsons where knives, crowbars, shovels, axes, bear spray and even a baseball bat studded with nails are the weapons of choice.

A five-year-old boy is slapped in the face by a stranger. An elderly woman is pushed to the ground. A family is confronted at knifepoint in Beacon Hill Park.

For all but the most violent crimes, there’s a tagline in the police community update: “Released on a promise to appear.”

In July, Mayor Lisa Helps wrote to Attorney General David Eby, expressing council’s concern about violent and repeat offenders being released on a promise to appear in court, citing growing concerns about public safety and increased pressure on the police department.

“Some public officials have publicly stated that some of those individuals, who would normally be in custody while awaiting charge disposition, are now residing in our community with insufficient supervision or access to support services,” she wrote.

Council asked if there was any way to hold someone in custody until an informed assessment of their risk to public safety could be made. Eby’s Aug. 10 reply advised that accused persons, even those facing the most serious charges, have the right to be presumed innocent until proven guilty. Bail provisions under the criminal code are the responsibility of the federal Department of Justice, said Eby, who suggested Helps write to the federal justice minister if she believes the bail provisions require amendment.

Eby said he would copy Public Safety Minister Mike Farnworth on the correspondence.

“Please be assured that in cases involving crimes where public safety is at risk, the importance of the protection of the public is taken into full and proper consideration,” he wrote.

In his quarterly update before council in September, Victoria Police Chief Del Manak said police are doing the best they can. But Victoria has the highest crime severity index of any municipal police force in the province. Officers are suffering burnout, and, at times, Victoria has asked Saanich to assist them.

“We’ve seen violent crime, crimes with weapons, crimes with guns and replica handguns playing more prominence. There are more people with mental illness on our streets. There are more people with drug addiction and mental illness in our supportive-housing units. More people have moved to Victoria who aren’t from Victoria. That’s a reality and it does create challenges,” he said.

The bigger question, however — the one Manak said he’s heard from many members of the community — is why are violent, prolific and repeat offenders being released from custody with little or nothing to prevent them from reoffending?

The answer to that, Manak told the Times Colonist, lies in recent extensive changes to the country’s bail system that were intended to address clogged courts and the over-representation of vulnerable populations, especially Indigenous people, in pretrial custody.

In June 2019, Bill C-75 updated the bail provisions in Canada’s Criminal Code for the first time since 1972. Bill C-75 directed police and judges to follow a “principle of restraint” when it came to imposing bail conditions.

It allowed police to divert matters from courts by giving them the power to impose more conditions on an accused themselves, as opposed to sending someone to court for a bail hearing.

The law makes it clear, said Manak, that police are to give primary consideration to the release of the accused at the earliest opportunity and under the least onerous conditions.

“That is a significant threshold to meet, which means more people are being released out in the community on conditions, or even without conditions, because that’s what the law stipulates,” said the chief.

The decision to release is made by the primary police investigator, often in consultation with the sergeant in charge of the jail. Sometimes outside agencies, such as the Ministry of Children and Family Development or other police departments, are consulted.

Police assess whether the person will appear in court, poses a risk to public safety or is likely to continue the offence.

In cases where there is a high level of violence or someone’s personal safety is threatened, police will seek the person’s detention, said Manak. Officers also work with Crown counsel, who provide additional guidance for holding prisoners.

Early this year, Manak said, the Crown updated its policy to say that everybody charged with an offence has a fundamental right to bail on reasonable terms and the right not to be denied reasonable bail without just cause.

“Basically, what they’re saying is: ‘If you’re going to hold somebody, you better damn well have a good reason and be able to justify and explain why you’re not releasing the person at the earliest ­opportunity.’ ”

The result is that more and more accused property offenders and criminals will be released, he said.

Bill C-75 also asks police to consider if a person is Indigenous, vulnerable or marginalized and to ensure that any conditions imposed are necessary for public safety and the administration of justice.

“So that adds another layer of review if you’re arresting someone addicted to drugs or mentally ill or homeless. That’s an added responsibility for the police by law that you shall not detain that person unless you are able to justify and explain why you are doing it,” said Manak. “The end result is fewer people kept in custody and more people released into the community.”

He points to a recent case where two people were loitering outside a restaurant in the 900-block of Yates Street. An employee of the restaurant was concerned that some customers felt intimated by the individuals.

“And she stepped out as an employee and said to them: ‘Could you please consider moving on because the customers can’t get in?’ And she was violently assaulted by one of the men,” said Manak. “That’s unheard of in Victoria.”

Then there was the woman whose van was attacked by a man with a hammer at Queens and Government streets. Her dog fled. The woman bailed out of the van while it was still moving because she was so scared, and it ran into a parked car.

Another woman was stopped in her car at traffic lights on Johnson Street. When the light turned green, two people jaywalked, slowly crossing the street.

“She kind of slowly honked her horn to say: ‘I’ve got the green light. Watch out.’ They accosted her and started banging on her windshield and damaged her car. She was just frightened to death,” said Manak.

More recently, a patrol officer was violently assaulted in Banfield Park. Two officers were treated in hospital after being assaulted by a men- tally ill man making violent threats. And on Sunday, Victoria police shot an “armed man in crisis with a weapon” near Mayfair mall after negotiations failed. The Independent Investigations Office of B.C. is investigating.

Helps and Esquimalt Mayor Barb Desjardins, co-chairs of the police board, issued a statement Wednesday denouncing the assaults against police officers.

“It is clearly not working to release people with high needs back into the community without the appropriate supports and resources to keep them and the public safe, and our officers out of harm’s way,” they said.

The law is not perfect, said Manak. “It’s not without debate and obviously, there are multiple sides to what we do.”

‘PRINCIPLE OF RESTRAINT’ DEFENDED

In 2015-2016, before the law was changed, 60 per cent of adults in provincial or territorial correctional centres were there on remand — awaiting trial, said Colton Fehr, a former Crown prosecutor who is now an assistant professor at Simon Fraser University’s school of criminology.

“They hadn’t been found guilty of anything, They weren’t able to get bail. This marked a substantial increase of 35 per cent since the previous decade,” said Fehr.

Seven out of 13 provinces had a higher proportion of inmates in remand than those sentenced to custody, he said.

“These numbers are shockingly high, in my view, and they strongly suggest a tendency to deny bail very, very quickly, perhaps far too quickly,” said Fehr.

The Supreme Court of Canada noted that Section 11 E of the Charter of Rights and Freedoms requires that bail not be denied without just cause and that any conditions imposed be reasonable and tailored to the broader purposes that underlie the law of bail, namely ensuring attendance in court and public safety.

The “principle of restraint” was necessary in light of the disconnect between the right to reasonable bail under the charter and those shocking numbers, said Fehr.

Dealing with a new law in the middle of a pandemic is difficult, said Fehr, noting judges and police are more likely to grant bail because of the pandemic.

“We know remand centres are dangerously over-crowded. It’s often very, very poor living conditions… And overcrowding in the context of COVID is very problematic because it makes it difficult to socially distance and self-isolate.”

Fehr agrees with Manak that the law is not perfect, and he said it takes time for judges to iron out the right approach to a new set of laws.

“Judges will interpret things differently at the start and really this is quite frankly inherent to law, but definitely made much more complex by the global pandemic,” he said.

“This is even more of a problem when police are taking matters into their own hands and say: ‘We’re going to release.’ You can see why an officer would do that.

“To my mind, it would be more prudent for police to say: ‘We’re going to release when we think it’s reasonable, but when it comes to public safety, leave to the Crown to come up with a unified policy.’ ”

TOO MUCH TIME WAITING FOR TRIAL

Vancouver lawyer Tony Paisana, an adjunct criminology professor at the University of British Columbia who testified before a House of Commons committee on Bill C-75, said the bail changes came on the heels of four or five Supreme Court of Canada decisions about bail that consistently said the same thing — that people are spending too much time in custody awaiting trial.

“And even when they are released, the conditions are too onerous and unconnected to the risks associated to them,” said Paisana.

Bill C-75 encourages police to release people without the need for a bail hearing, which was

intended in part to reduce court backlogs caused by breaches that have nothing to do with violence, such as being out past curfew, said Paisana.

None of the changes were intended to make it easier for violent offenders to get back on the streets, he said.

“In fact, it’s the opposite,” he said. “Though I appreciate that your city may be experiencing the things that you’re describing, that’s really not what the bill is meant to do and I do not think the bill is the explanation for what you’re seeing.”

Paisana said statistics showed people were spending more time in pretrial custody than they would serve on a sentence.

“When people are spending that much time in custody, there was a concern they would falsely plead guilty to get out because they would end up serving less time,” he said.

No doubt, there will be people who commit serious offences and are released, then commit other offences, said Paisana. That becomes very relevant when they come back for bail a second time.

There’s no requirement for police to release some- one, only that consideration be given to the least restrictive form of release, said Paisana. “There’s nothing stopping a police officer from saying: ‘This is far too serious. It will require a judge to rule on your release.’ ”

He notes that people who come from privileged backgrounds are much more likely to get bail despite the fact they may not be innocent. They have financial resources, or can offer a surety or cash bail, unlike those who are marginalized.

“I’m hoping when we look back at it, the provision will have historically, an equalizing effect for people already over-represented in the system,” said Paisana.

ldickson@timescolonist.com

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