Ontario calls for further bail reforms, including no chance of bail for some charges

Ontario is calling on the federal government to make several bail-related changes to the Criminal Code, including eliminating bail for certain offences and implementing a “three strike rule” for repeat offenders.

At a news conference Monday, Solicitor General Michael Kerzner said too many crimes are being committed by “individuals out on bail after being charged with a previous serious criminal act.” He also alleged the federal Liberal government has a “go easy on crime approach” that has resulted in a “catch-and-release bail system.”

In a public letter addressed to the federal ministers of justice and public safety, Kerzner asked Ottawa to implement a series of bail reforms, including: 

• Get rid of the option for bail for those charged with murder, terrorism, human trafficking, intimate partner violence, drug trafficking, criminal possession or use of restricted or prohibited firearms, and robbery.
• Bring in a three-strike rule mandating pre-trail detention for repeat offenders.
• Restore mandatory minimum sentencing for serious crimes.
• Remove credits for time-served awaiting trial for “repeat and violent offenders.”

Monday’s letter is the latest volley in an ongoing push by provincial and territorial premiers for Ottawa to legislate stricter bail measures in the wake of several high-profile instances of crimes allegedly committed by offenders out on bail, including the fatal shooting of Ontario Provincial Police Const. Grzegorz Pierzchala in late 2022. 

In response, the federal government passed Bill C-48 into law last year. The law expands “reverse-onus” provisions, meaning instead of a Crown prosecutor having to prove why an accused person should stay behind bars until trial, the person who has been charged has to show why they should be released.

Associate Minister of Auto Theft and Bail Reform Graham McGregor, who was appointed in June and spoke alongside Kerzner, said the law was “an attempt to rectify the problem,” but added it is not enough.

“Ontarian families need us to be more ambitious than Bill C-48,” he said.

In an email statement, federal Minister of Justice and Attorney General Arif Virani said it is “beyond frustrating” that McGregor has “opted for political gamesmanship,” adding the provincial minister never responded to an invitation to discuss bail reform in person. Virani’s office included a copy of the invitation, dated Oct. 9, in the email.

“These proposals are divorced from any evidence that they reduce crime — or that they even meet Charter standards,” Virani continued. He singled out the proposed “three strikes” rule, saying such a policy in the U.S. saw incarceration rates explode with little impact on crime.

Virani went on to say the bail system will only work once Ontario “steps up.”

“Today’s letter does not address serious concerns I have previously raised about the adequacy of court resources, ensuring Justices of the Peace have appropriate legal training to make bail decisions, ensuring enough prosecutors are hired to contest bail hearings and ensuring bail reviews are brought when they feel an error has been made, as well as the need to ensure there are sufficient jail spaces and resources for people on remand,” he said.

In June, Ontario committed $29 million to appoint at least 25 new judges to the Ontario Court of Justice, and hire 190 additional court staff, including Crown prosecutors.

Ontario jails already at capacity

The changes proposed by Ontario also raise questions about how the province’s already over-crowded jail system would handle a further influx of inmates.

Earlier this year, the province said roughly 81 per cent of inmates in provincial jails are awaiting a bail hearing or trial. That was up slightly from 2021 and 2022, when the figure stood at nearly 79 per cent, according to a report by the Canadian Civil Liberties Association.

Meanwhile, data obtained by The Canadian Press via freedom-of-information laws showed the province’s inmate population surged in 2023, with a vast majority of correctional institutions at well over capacity.

The union representing correctional officers has repeatedly raised concerns about overcrowding, saying inmates are triple-bunking in some facilities. The Criminal Lawyers Association has also said accused individuals are taking longer to get to a bail hearing, contributing to the rise in jail populations.

Provincial jails hold people accused of a crime but not out on bail, as well as those serving sentences of two years less a day. Inmates serving sentences of two years or longer spend their days in the federal prison system.

In March, Premier Doug Ford pledged to build more jails in Ontario and downplayed concerns about conditions in existing institutions. 

“I’m going to be building more jails and I’m not worried about the criminals,” he said at the time. “I’ll build as many jails as we need to put these criminals behind bars for a long time.”

Shortly after those comments, the province announced a plan to add up to 430 beds to its jail system by 2026 and $112 million for various bail compliance programs.

Speaking to reporters at Queen’s Park, NDP Leader Marit Stiles said she would review the Criminal Code changes proposed by the province, but also said the Ford government is trying to shift focus away from its own failures when it comes to court backlogs and the state of jails.

“I will say it galls me a little to see the Solicitor General and this other MPP talking about just bail reform when they are refusing to address an issue right here in Ontario that is under their control, which is the backlog and delays in our court system,” Stiles said.

“Bail reform is absolutely a part of the puzzle, but guilty people going free because our courts are understaffed and overwhelmed is something that this solicitor general and this government should and could address right now,” she continued.