Premiers' call for bail reform will kill more people than it saves

This column is an opinion by Lydia Dobson, Pav Gill, Lauren Grammer, Ryley Mintz, Becky McRae, Hannan Mohamud and Natalie Chiasson of the University of Ottawa's Prison Law Practicum. For more information about CBC's Opinion section, please see the FAQ.

Between 2018 and 2022, 163 prisoners died in Ontario provincial jails. 

Over the same time period, eight Ontario police officers died on duty. Based on the number of inmates in Ontario jails and the number of Ontario police officers, the data indicates that a person who became incarcerated in Ontario was about 15 times more likely to die in custody than a police officer was to be killed on duty over the past five years.

Despite this, the death of an OPP officer late last year has sparked Canada's premiers to call for bail reform that would restrict bail access for more prisoners. The man accused of killing Const. Grzegorz Pierzchala was out on bail at the time of the shooting and had a lifetime ban on owning a firearm. 

• How does Canada's bail system actually work? And where does it fall short?

The premiers' call for reform has also been taken up by the Conservative Party in Ottawa. This reform will most certainly do more to further the deaths of prisoners than save the lives of officers. 

Instead of viewing the tragic deaths of police officers in a vacuum, they must be viewed together with the hundreds of people who have died while being denied bail.

Prisoner deaths have more than doubled

As many criminologists have clearly stated, "recent police deaths do not constitute a trend." Whereas the opposite is true for the people who are dying at alarming rates inside of our prisons. In 2022 alone, 49 prisoners died in custody in Ontario. This number has more than doubled in the last 10 years, despite decreasing prison populations.

According to provincial statistics, 76 per cent of prisoners who died in Ontario jails in 2020 were between the ages of 25 and 49, clearly demonstrating shortened life expectancy for prisoners. Importantly, as the number of prisoner deaths has increased, so has the percentage of prisoners denied bail. If the government is concerned about reducing violence and death, it should be looking at how to release prisoners, not how to create more of them.

Currently if one is accused of a crime the Crown must provide evidence that pre-trial detention is necessary. But if one commits a "violent crime" the accused has a reverse onus to prove that that pre-trial detention is unnecessary. The premiers' reforms include expanding the definition of "violent crimes'' so more people will have this reverse onus, thereby locking more people in cages while awaiting their trials. 

Expanding definition of 'violent crime'

The Criminal Code of Canada does not provide for a "violent crime" classification. According to Statistics Canada, for the purposes of producing crime statistics, a violent crime is defined as follows: "Crimes against the person involve the use or threatened use of violence against a person, including homicide, attempted murder, assault, sexual assault and robbery." The premiers call for the creation of a reverse onus for those charged under Section 95 of the Criminal Code, which includes offences that do not fall under the current "violent crime" definition.

And according to the federal leader of the Conservative Party, Pierre Poilievre, "carjackings" and "stranger attacks" are two of the crimes that should be considered for more stringent bail conditions.

What the premiers and the Conservatives in Ottawa don't understand is that there are many situations which, if labelled as "violent crimes," would place vulnerable people at higher risk of incarceration. Especially, if the range of "violent crimes" becomes wider. 

A person living in poverty throwing a ticket at a police office would be considered assault. A woman fleeing domestic violence throwing a hair dryer at her abuser as he approaches to attack her would be assault. Both of these scenarios are not "what ifs" — they have both occurred and been considered assault. Under the new bail reform proposal, could both of the above examples be considered a violent crime requiring a reverse onus?

Who are we willing to sacrifice?

Bail reformers are concerned with accused persons who are out on bail and breach the conditions. But based on a 2013 Justice Canada study, only 18 per cent of people released on bail breach the terms of their release, and 98 per cent of those bail breaches do not involve violence. 

Many offences in the criminal code already attract reverse onus provisions. The recent call to reform bail policy and public statements made by government officials do not reflect an understanding of the consequences that would flow from reverse onus provisions on all "violent crimes."

Those consequences are the difference between life and death; people will die if the bail reforms are passed. We must consider whose lives we value, who we are willing to sacrifice, and in the name of what? More deaths in the name of a reform proven to be unnecessary and harmful is a sacrifice we should not be willing to make.

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