Opinion: BC's updated bail policy for prolific offenders seems to be all bark, no bite

Nov 25 2022, 3:41 pm

Written for Daily Hive by Sarah Leamon, a criminal lawyer living in Vancouver, BC, who works on high-profile cases. Leamon founded the Sarah Leamon Law Group in 2018.


Earlier this week, the BC Prosecution Service announced a new policy for bail hearings in the province.

On the request of the attorney general, and in response to an eroding sense of public safety in communities across BC, the prosecution service went back to the drawing board and revised their bail policy in relation to prolific offenders.

Previously, Crown counsel members were advised not to seek the detention of an accused person unless a fit sentence upon conviction would include a term of incarceration.  In other words, prosecutors were instructed to consent to the release of an accused person, so long as jail was not a reasonable outcome if the person were to be found guilty of the offence in question.

This meant that most accused persons were released by consent of the Crown. But this has now changed.

Crown counsel has received a mandatory direction to seek the detention of repeat violent offenders who are charged with an offence against the person or an offence involving a weapon. The only exception to this is if the prosecutor can be satisfied that the risk to public safety can be reduced to an acceptable level through bail conditions.

In making their assessment, prosecutors have been explicitly advised to consider a number of factors.

These include — but are not limited to — considerations like whether the accused had outstanding charges alleging an offence against another person or involving the use of a weapon. They should also consider whether the accused has allegedly breached prior conditions or a weapons prohibition.

The direction is quite clearly targeted at repeat offenders, as well as those who have been accused of violent crimes, particularly crimes involving weapons.

The timing of this announcement is no coincidence

Our province has been struggling with complex issues that have contributed to a rise in random, violent crime. Although these issues include a health care crisis, a housing crisis, an opioid crisis, and continuing fallout from the COVID-19 pandemic, the so-called “catch-and-release” bail system is most often cited as the problem.

Directing Crown to oppose bail in particular circumstances certainly gives the appearance of a tougher-on-crime justice system… but will it make a difference?

In order to answer this quintessential question, we must consider the fact that our bail system does not operate in isolation.  It operates within a much larger and well-established legal context.

Bail hearings must comply with the Charter of Rights and Freedoms, which guarantees that persons charged with an offence have the right not to be denied reasonable bail without just cause. They must also comply with rulings from the Supreme Court of Canada, which confirm that pre-trial release is the rule and that detention is the exception to that rule. The highest court in our country has also notably emphasized the obligation of all parties, including Crown counsel prosecutors, to act with restraint on matters related to bail.

Still, though, Crown are able to seek the detention of an accused person where they are of the view that it is necessary and appropriate in order to protect the safety of the public or to maintain confidence in the justice system itself. This discretion is the foundation upon which the new bail policy is built.

But, at the end of the day, it is not up to prosecutors whether or not bail is granted in any particular case — it is up to the court.

The new bail policy is, ultimately, just that — a policy. It does not inform the court of its decisions, it simply informs prosecutors of their positions.

This means that it may be all bark and no bite.

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