Crown attorney, Kingston Police Services Board discuss bail systemCrown attorney, Kingston Police Services Board discuss bail system

In Canada, the police and the Crown work together to bring the guilty to justice, but it is a delicate balancing act.

At its monthly meeting on Thursday, Oct. 10, 2024, the Kingston Police Services Board heard a presentation by Crown attorney Andrew Scott on how bail is administered in Ontario. It didn't take long for questions to arise about some of the systemic issues and impacts of the bail system in Kingston, the rights of the accused balanced with victims' rights and public safety, and the cost to taxpayers. 

Scott began by saying that the Crown Attorney’s Office is “extremely fortunate here in Kingston to have a great working relationship with Kingston Police. I see a number of inspectors in the back here… Kingston police has been very diligent, and we appreciate that relationship.”

With that in mind, he turned to the general principles of how bail courts operate in Ontario.

Scott’s very detailed presentation emphasized that the rights of anyone seeking bail are enshrined in the Charter of Rights and Freedoms. Section 11(e) of the charter guarantees that any person charged with an offence has the right not to be denied reasonable bail without cause. The concept of reasonable bail relates to whether the person should be released and, if so, what terms of release should be imposed. This right is grounded in the presumption of innocence as guaranteed by section 11(d) of the charter. Importantly, the legal presumption in Canadian law (subject to exceptions) is that the accused person will be out of custody prior to trial unless it can be shown why that should not be the case. 

Scott noted that police are only required to detain an accused person if they believe it is necessary to protect the public's safety or that there is a risk of the accused person re-offending. For several serious offences, a police officer cannot release an accused person, but must bring them before a court for a bail hearing before a justice or a judge within 24 hours of their arrest or as soon as possible (Criminal Code s. 503).

It is important to remember that a bail hearing is not a trial to determine guilt or innocence; it is a hearing to determine whether the accused person should remain in the community while their criminal matter proceeds through the court system. 

After Scott’s presentation, which can be read here as well as viewed along with the rest of the meeting on the KPSB Youtube channel, Police Services Board chair Jarrod Stearns seemed to anticipate that Dr. Christian Leuprecht would want to ask a question, calling on him by name.

“If you’re offering, Chair,” Leuprecht said with a wry chuckle. He then turned to Scott and asked “So you make the system sound like it works like clockwork, and it works just fine. And my sense is that many members of our community, including myself, including downtown business owners, will tell you the system is not working." He then alluded to data from Vancouver of a single person who had been arrested 4,000 times.

Leuprecht said, “The system is failing Canadians, as far as I can tell... So I'm just interested in... how we explain the difference between what you just presented to us and that perception.”

Scott answered that the presentation was not designed to present the bail court positively or negatively, but rather for information only. 

“These are the guiding principles… I certainly respect that there are those --- and it sounds like you're among them --- who don't necessarily share some positive views with respect to the operations and or consequences that are occurring in bail court,” he said.

The Crown attorney apologized that he couldn’t speak to that, saying there are “just so many variables and factors that go into it, that we’d be here for quite some time." He said that while he didn’t necessarily disagree with Leuprecht, he wasn’t the right person to engage in that discussion.

“I certainly can say,” he went on, “ that there are [many] persons in the criminal justice system, the police included, who are making significant efforts to do their best to operate within the legal framework that we have to keep people as safe as possible.”

Mayor Bryan Paterson asked whether a person seeking bail could be banned from consuming alcohol or other substances when a justice applies conditions. 

The short answer was yes, and Scott said the prohibition of alcohol, for example, was historically imposed when a person committed a crime where alcohol was a contributing factor. 

“However, since the imposition of the R v. Antic ruling,... I think the court has really indicated that it has to be reasonable,” he added.

“So more recently, the consideration for addiction to drugs or alcohol would be taken into account,” Scott said. Then he asked rhetorically, “If they're addicted and assigning a prohibition is just going to set them up to breach [the conditions of their bail], is that reasonable?”

A justice might have to tailor that expectation to the person to make it reasonable, Scott explained, giving the example of prohibiting the accused from the consumption of alcohol or having it in their system when they are outside their own home. Scott emphasized, “It really depends on what the risk is to the public, specifically given the offence before the court.”

Paterson asked a second question about whether courts balance the presumption of innocence with protecting the public. 

“We know there are examples locally where someone is arrested and as soon as they get out on bail, they commit exactly the same crime over and over again,” the mayor said, asking if that gets taken into consideration.

Scott noted that “the presumption of innocence flows into a presumption of bail and the right to reasonable bail,” but he explained that the Crown also considers the strength of its case early on. The court must then consider that strength in determining secondary ground concerns, such as risk to the public moving forward. 

“But certainly, [if an accused person has] numerous outstanding charges and continually is arrested with new allegations, likely there's a breach charge involved,” he continued, saying with a breach charge comes the reverse onus provision, whereby it falls upon the accused person to justify why they should continue to have a right to release --- an element “that will absolutely factor into the Crown's position.” 

Scott concluded that “as we all know, it's ultimately the justice of the peace’s determination,” and they base it on the framework outlined by the Supreme Court.

Chief Fraser thanked Scott for his time, saying, “Oftentimes Andrew or his colleagues can be found at the courthouse battling on our behalf to hold people in custody, but, as he says, the justice of the peace has the ultimate decision. Sometimes it works, and sometimes it doesn’t, but we appreciate all the effort that goes into it… We all have our spots in the judicial system, and sometimes the decisions we want to make are not what are made, but we keep moving forward.”

Later, in the same meeting, Fraser presented his statistical report for the third quarter of 2024 and said, "Based on the presentation we had, I wanted to just drill down into… breach of probation, breach of release conditions, and reverse onus.”

In the second quarter, Fraser said, there were 90 incidents of breach of probation and 70 incidents of breach of release conditions. He and his staff, he said, had been deep-diving into the figures to find out what more they could do regarding enforcement. “And I can tell you,” he said with emphasis, “in quarter three, [breaches of probation] went from 90 to 200, and with breach of release conditions, we went from 70 to 168.”

He noted that “many of the people we arrest are already on conditions," and he wanted to highlight the various mitigating factors that contribute to those statistics. 

“Quarter to quarter, we have fluctuations,” Fraser said, explaining that when incidents are looked at on a quarter-to-quarter basis, they are unpredictable because even things like the weather can have an impact. But, the chief said, he wanted to highlight that the bail condition breaches had “really exploded.”

However, he stressed, “[In a] reverse onus atmosphere, people have to go justify why they should be released again, which is a lot easier sometimes than proving the substantive offence.”

Lepreucht thanked the chief for his diligence in tracking the numbers, saying that although it might be “onerous and yet another cost on the organization,” it provides “evidence-based conversation for the community. And hopefully, like on many other challenges, we've developed maybe not solutions, but at least approaches and responses to some of the challenges that we face.”

Fraser responded that he also plans to use those numbers to show taxpayers the cost of recidivism: “We have a formula on what it costs for just a simple breach… and we'll attribute that to those numbers at the end of the year. So we can bring it to the board and say, here's the cost to the taxpayer.”

“It's a moving target,” the chief concluded, “but we’ll not let our guard down, and [we'll] just keep enforcing because that is what the public demands.” 

The Kingston Police Service Board meets regularly on the third Thursday of each month (unless the agenda indicates otherwise), beginning at 12 noon in the William Hackett Boardroom at Kingston Police Headquarters, 705 Division Street.