Poilievre’s take on bail system is wrong, lawyers say

Poilievre’s take on bail system is wrong, lawyers say

“I’m surprised that he said that. That wasn’t simply slightly inaccurate, it was flat out untrue … it was irresponsible and misleading at the very least.”

“Completely false.” “Laughably wrong.” “Irresponsible and misleading.”

These are some of the reactions legal experts have to Conservative Party leader Pierre Poilievre’s comments about Canada’s bail system, which he made during his stop in Kelowna earlier this week.

During the media appearance at Summerhill Winery Wednesday, Poilievre criticized Prime Minister Justin Trudeau over a number of wide-ranging subjects, including inflation, housing and crime.

While speaking about the criminal justice system, he said: “Trudeau and the NDP have brought in automatic bail for repeat, violent offenders.”

Robert Diab, a professor at Thompson River University’s Faculty of Law, was surprised Poilievre made such a statement.

“It’s completely false. That has never been the case. There’s never been automatic bail for anybody, let alone repeat offenders,” Diab said.

“I’m surprised that he said that. That wasn’t simply slightly inaccurate, it was flat out untrue … it was irresponsible and misleading at the very least.”

Iain Currie has been practising law for 30 years. He spent 17 years working solely as a Crown prosecutor and he now runs a private practice in Kamloops. He was also left confused by Poilievre’s comments.

“There’s nothing automatic about [bail], there’s a process,” Currie said. “Calling it automatic is laughably wrong.”

Poilievre blamed Bill C-75, which became law in 2019, calling it “a deliberate decision by Justin Trudeau and the NDP” to make it easier for offenders to get bail.

But Diab says: “Bill C-75 did not make it easier for repeat offenders. Period. That’s it … For a very long time, it’s been very hard for repeat, violent offenders to be released on bail. Bill C-75 did not change that.”

With regards to bail, the bill codified a “principle of restraint” that had already been ruled upon by the Supreme Court of Canada, to “give primary consideration to the release of the accused.” Lower court judges are bound by Supreme Court of Canada decisions, even before these principles are codified in legislation.

But while the Crown must convince a judge why an offender should remain in custody while awaiting trial, Bill C-75 actually put that onus on some offenders charged with particular crimes, such as domestic violence, making it more difficult to obtain bail.

“[Bill C-75] put into legislation decisions of the Supreme Court of Canada interpreting the constitutional right to bail,” Currie said.

And for those who are charged with a crime while already out on bail, the onus is on the offender to show a judge why they should be granted bail again, something Diab says has been the case “for decades.”

Touting his “common sense plan,” Poilievre said if his Conservative Party formed government in the next election, he would “make repeat, violent offenders ineligible for early bail or parole.”

But Diab and Currie both say eliminating the right to bail for a certain class of offender would fly in the face of the Charter.

“My hunch is that he wouldn’t even try, this is the rhetoric we’re hearing now,” Diab said. “Any bill that Conservatives are likely to table would not make it significantly harder than it already is to obtain bail. It would probably tinker at the edges of what is already the case, just so they can say they made it harder to obtain bail.”

Both Diab and Currie point to the presumption of innocence in Canada’s justice system – which Currie says is “fundamental to a democracy” – and Section 11(e) of the Canadian Charter of Rights and Freedoms, which guarantees the right “not to be denied reasonable bail without just cause.”

“We need to have a system that protects people from offenders, I get that, I totally agree. And so there’s sort of a back and forth required between different constitutional rights and the protection of the public,” Currie said. “But to simply say that the results of someone being charged with an offence is that they should be held in jail is an extremely serious thing.

“Saying we’re going to take away the rights of often the most vulnerable people we have in our society – including Indigenous people who are still grossly overrepresented in the justice system, people with untreated mental health issues are grossly overrepresented in the population of people who are charged and on remand – … rather than appropriately resourcing mental health services, rather than appropriately resourcing Indigenous justice programs, the sort of knee-jerk reaction is to put more people in jail.”

Currie ran in the last federal election as a Green Party candidate, and he thinks Poilievre knows he’s not being accurate when he speaks about the current system.

“I understand that bail is an easy scapegoat and easy boogeyman for certain politicians, but it’s frustrating because it’s narrow-minded and you can’t possibly be the leader of a national party and not know that you’re getting it wrong when you’re using slogans like ‘automatic bail.’ That’s a slogan, that’s not a reality,” Currie said, adding that Poilievre is “pandering” to his Conservative Party base.

Diab says politicians using crime to scare up votes is not a new concept.

“It goes back at least as far as the War on Drugs, in the 60s and 70s. Criminals are an easy group to beat up upon, an easy group to point to as a scapegoat for violence and disorder in society. And it’s an easy solution to suggest that you’ll make laws tougher,” he said.

“It’s misleading to think that it has, until now, been easy to obtain bail, easy to obtain parole, and that’s the source of our current problems … That’s just not true. Our laws have been stringent on these points for a long time.”

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