Violent crime on bail up in Ontario, stakeholders agree system is broken, but not on how to fix it

Nicola Lightstone's dog, Noodle, needed to go out in the middle of the night in January. 

While outside in her central Toronto neighbourhood, Lightstone says she was approached by a man who was "in a bit of a mental health crisis" when he chased her back toward her building and cut her off. 

"I began to scream and yell for help and that was when he punched me right in the face," she said. "As soon as he punched me he booked it back the way he came."

Several of Lightstone's neighbours in her Regent Park condo building called 911, and a day later she says a Toronto police sergeant told her the man had been arrested and it wasn't the first time something like this had happened. 

"It was always women that he physically assaulted and though he was brought in on criminal charges, he was repeatedly let out on bail," said Lightstone.

'Clearly a flaw in this system'

"It saddened me to know that there's clearly a flaw in this system where this individual's not getting help, that he's still out on the streets in a state of mental crisis."

Given several high-profile violent incidents in recent months involving people out on bail and probation in Ontario, CBC Toronto went looking for data to show how frequent these incidents actually are, whether they're increasing and what systemic factors might play a role in what's happening.

Data from Statistics Canada on incidents where someone has allegedly failed to comply with a court order — primarily those concerning bail or peace bond conditions — and allegedly committed a violent crime show that the numbers are up across Ontario and the Greater Toronto Area (GTA) over five years. 

There was a 29 per cent increase in these incidents in the province — amounting to roughly 1,060 more incidents in 2021 compared to 2017 — and a 22 per cent increase in the GTA, about 240 more incidents in that same period. For both Ontario and the GTA specifically, assault and assault causing bodily harm made up about half of that increase."

"I think that my assailant was as much a victim as I am," said Lightstone, a registered psychotherapist in the qualifying stage. "When the system fails an individual — like the person who attacked me — it fails me, it fails my wider community and it fails all Torontonians."

Police, government, academic, legal aid and bail program stakeholders all told CBC Toronto about ways in which the bail system is failing to serve the public, what they believe is contributing to those failings, and what needs to be done to fix things. 

But there's a divide on where to direct reform, funds and resources to try to prevent these repeat violent offences. Calls from police and changes from provincial and federal governments are largely aimed at making it more difficult for people who allegedly continue to commit violent crimes to get bail, and putting more resources towards bail compliance units. 

In an interview, Toronto Police Chief Myron Demkiw told CBC Toronto the five-year increase is not a small number.

"It highlights precisely the importance of the work around bail reform that we need to be laser focused on — managing repeat violent offenders in the best way we possibly can to ensure the safety of our communities." 

Meanwhile, some lawyers, academics and bail program co-ordinators argue that many accused, especially those with mental health or addictions issues, often don't have access to the support needed to meet bail conditions and improve their well-being. They say government resources should be directed at creating more supportive housing and mental health and addiction supports.

Supportive housing needed for vulnerable

The Toronto Bail Program provides case management and supervision for people on bail who don't have someone in the community who agrees to put up money and supervise them. At any given time the program has a range of 1,700 to 2,000 clients from Toronto, Newmarket and Oshawa courts.

Executive director David Scott says the majority of his clients are vulnerable people with mental health issues, addiction issues, or both, who saw access to already lacking support drop-off during the pandemic. 

"People who were stable before, and were able to function in society, and all of a sudden all of their supports had been taken away and we've abandoned them. This is what happens," said Scott.

The biggest issues, Scott says, are access to safe, affordable housing and supportive housing, given what he considers a "catch and release" approach to vulnerable people in the bail system. 

While wait lists for housing were common before the pandemic, he says they're even longer now, so he's not surprised there's been an increase in incidents of violent crime when someone is on bail. 

"They're on the streets with nothing, and they're not getting their medication, or they're being released before they have a chance to allow their frontal lobe to get over the effects of the drugs they might be using, I believe you're going to get incidents like this, and you will get increases like this," Scott said.

"Without proper housing, you really can't expect much more out of people. Showing up in court is probably miraculous, in my opinion, if you're underhoused."

Assault and assault with a weapon or causing bodily harm made up almost half of the increase in violent crime incidents while out on bail or on a peace bond in Ontario between 2017 and 2021.

Across the province, those incidents involving assaults with a weapon or causing bodily harm jumped by 85 per cent, from 563 incidents in 2017 to 1,039 in 2021. In the GTA, those same assaults rose by 50 per cent, from 200 incidents in 2017 to 299 in 2021. 

Danardo Jones, an assistant professor of law at the University of Windsor and a former legal aid lawyer, says "we can't keep using jail as a stop-gap measure for our own social failings." 

"Would we rather spend several hundred dollars a day housing somebody in a detention centre or should we spend that in ensuring that we have adequate housing for people?"

In Ontario, 68 per cent of people in provincial jails were on remand, largely awaiting trial, in the last decade. Deaths in custody more than doubled in that period, from 19 in 2014 to 46 in 2021, according to an expert panel report from Ontario's Chief Coroner released in January. 

What's 'just cause' to deny bail?

The Charter of Rights and Freedoms guarantees an accused the right not to be denied "reasonable bail" without just cause. The reasonableness relates to the terms of bail including restrictions. Ontario's Crown Prosecution Manual states the restrictions imposed on the accused must be the least restrictive form of release "consistent with the public interest." 

Just cause to deny bail is limited to these three grounds for detention under the Criminal Code:

• To ensure attendance in court
• For the protection or safety of the public
• To maintain confidence in the administration of justice 

The majority of criminal defence lawyer Daniel Lerner's practice involves bail court, where he previously spent most of his time as a Crown prosecutor. 

He says to deny bail there has to be a substantial likelihood the person is going to re-offend in a way that endangers public safety or interferes with the administration of justice. 

"The problem is how to interpret that," said Lerner. "We're trying to predict the future." 

When it comes to people dealing with mental health and addiction issues, he says there's no "magic wand" and finding the right way to help a person can take years.  

"During that time if the mental illness was leading to criminal charges, the person still might be reoffending," said Lerner. 

"Sometimes it's putting the public in real, serious danger. We gotta deal with that," he said. "Sometimes it's a nuisance and sometimes it's somewhere in between. And it's all about trying to find that balance of what can society put up with while we're trying to deal with this situation." 

Ontario earmarks $112M for bail compliance

Last week, Ontario Premier Doug Ford announced $112 million in funding for bail compliance programs across the province. 

Demkiw told CBC Toronto the funds will also allow Toronto police to look at re-establishing bail compliance units at the division-level. 

"There's officers that do bail compliance as part of additional duties, but this would be an opportunity for us to take a look at a model of doing what we did before," said Demkiw.

Of the 44 shooting-related homicides in Toronto last year, police statistics show seven of the accused were on a firearm-related bail at the time of the alleged murder.

Another $26 million of the provincial funding will create "intensive serious violent crime bail teams" in the court system so there are dedicated prosecutors and experts on hand for complex bail hearings. The spending will also facilitate the expansion of Toronto police's bail compliance dashboard across the province to monitor high-risk offenders.

"So that's a lot of the pieces that are required to take a systemic approach, a strategic approach," said OPP Commissioner Thomas Carrique about the provincial announcement. 

"Now what we need are changes to the Criminal Code."

Amending legal definitions 

One of those recommended changes is an amendment to define what's considered a repeat violent offender.

"We are calling for a legal definition to guide responsible and accountable decision making," Carrique told CBC Toronto.

"That will allow judges and justices to make informed decisions as to what level of risk somebody poses based on proven past criminal behaviour."  

A change like that would have to come from the federal government. Justice Minister David Lametti has previously said he hopes to introduce bail reforms before the end of the spring session of Parliament. 

"The minister is moving forward expeditiously on targeted reforms to the Criminal Code on the law of bail," said press secretary Diana Ebadi in a statement, noting that Lametti was pleased to see Thursday's announcement from Ontario about bail compliance units.

"He firmly believes that the challenges posed by repeat violent offenders is one that must be tackled through collaboration."

Note on Statistics Canada data:

The data provided by Statistics Canada shows the number of police-reported incidents involving at least one violent offence and a failure to comply with an order, where a single accused person was identified. Failure to comply with an order is a violation category Statistics Canada uses to cover the following Criminal Code sections:

• 145(3) Escape and being at large without excuse: Failure to comply with appearance notice or summons.
• 145(4) Escape and being at large without excuse: Failure to comply with undertaking.
• 145(5) Escape and being at large without excuse: Failure to comply with order.
• 810(3.01) Sureties to Keep the Peace: Refusal to enter into recognizance.
• 810.01(4) Fear of certain offences: Refusal to enter into recognizance.
• 810.011(5) Fear of terrorism offence: Refusal to enter into recognizance.
• 810.02(5) Fear of forced marriage or marriage under age of 16 years: Refusal to enter into recognizance.
• 810.1(3.1) Where fear of sexual offence: Refusal to enter into recognizance.
• 810.2(4) Where fear of serious personal injury: Refusal to enter into recognizance.
• 810.4(1) Sureties to Keep the Peace: Prohibition on use of bodily substance.
• 810.4(2) Sureties to Keep the Peace: Prohibition on use or disclosure of result.
• 811 Breach of recognizance sections re: 83.3, 810 to 810.2.