Opinion: Don't blame BC's bail system for rise in stranger attacks

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Written for Daily Hive by Sarah Leamon, a criminal lawyer based in Vancouver and founder of Sarah Leamon Law Group.

As crime rates continue to rise in our province, many British Columbians have become increasingly critical of the justice system.

Following yet another disturbing random stranger attack involving a machete in downtown Vancouver, some people – including the victim herself – are expressing specific anger with the bail process. The question on everyone’s mind is “why?” Why are accused persons being arrested for violent offences, and then subsequently released?

This is often referred to as the “catch and release” system. It implies that criminals are caught for their criminal activity and then subsequently released back into the community without any penalty, conditions or supervision.

This characterization of our bail system is not only a dangerous simplification but also a fundamental misunderstanding of what our bail system is and how it works.

After all, the right to bail has deep roots in our criminal justice system and is an essential facet of Canadian society.

Consider the fact that our society is predicated upon basic democratic principles, including respect for the humanity of all people. It therefore follows that our justice system must also be predicated upon the same. The right to reasonable bail comes part and parcel with this notion, and it is so fundamental that it is actually enshrined in the Charter of Rights and Freedoms.

More specifically, the right to reasonable bail is protected under section 7 of the Charter, which deals with the liberty and security of the person and extends to those who have been accused of crimes. It is also expressly protected under section 11, which deals with both the presumption of innocence and all forms of pre-trial release.

The notion that all persons are presumed innocent until proven guilty is one of the most fundamental lynchpins of our justice system. It means that, generally speaking, a person who is accused of a crime should not be deprived of their liberty while waiting for the wheels of justice to turn. After all, these wheels can turn very slowly. Requiring an accused person to remain in custody – and to effectively serve a jail sentence – before any finding of guilt has been made is an afront on our core Canadian values. It would seriously jeopardize our sense of common decency, civility or due process.

The idea of reasonable bail is further impressed in the Criminal Code itself, which governs all criminal proceedings in this country. Like the Charter, the Criminal Code is a piece of federal legislation that applies equally to all people in Canada, regardless of which province they are situated in.

The Criminal Code includes a general presumption in favour of bail, subject to some exceptions. It also includes a requirement that, if an accused person is released on bail, they must be released on the least onerous conditions – if conditions are required at all.

In most cases, conditions are required; and they are handy because they can be custom-tailored to fit the specific circumstances of the offence and the accused person before the court.

Court-ordered bail conditions can be used to address concerns about the protection of the public, including the safety of any victims or witnesses, for example. Protective conditions like these may include ensuring that the accused does not contact or go near particular persons, for instance, or preclude them from possessing particular items, like weapons or tools. Conditions can also be used to ensure that the accused person continues to engage with the justice system and does not flee. This might include regular reporting to a probation officer, a curfew condition requiring them to be in their home during particular hours or even electronic monitoring.

All in all, the bail process is very complex and nuanced process. It involves a delicate balancing of various – often competing – interests. The court must consider things like the accused’ persons liberty, society’s interest, the protection of the public and the reputation of the justice system itself. This is an intensive, individualized process guided by some of our most central values.

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It is no simple task, but it is in place for a reason. That reason is fundamental to our justice system and to our society as a whole.

So, while it is easy to understand the outrage over this particular facet of the justice system – especially considering the recent uptick in violent, random attacks throughout our city – we must be careful not to oversimplify the issue at hand.

The issue isn’t the bail system, nor is it the justice system.

The increase in random violence isn’t happening because accused persons are being granted bail as they always have been. Instead, it is happening because of a myriad of overlapping challenges. These include the continuing fallout from the COVID-19 pandemic, an increase in toxic drug supply and drug deaths, an unabated housing crisis resulting in rising homelessness rates and ongoing gaps in the medical system, which has caused a strain on mental health resources.

We all want answers for what is happening. We want accountability, and more than anything, we want the violence to end – but blaming the bail system won’t get us what we want.