Judicial accountability has always been the expectation in Canada, but hasn’t been the reality when it comes to bail. The leniency shown to hardened criminals has saddled communities with crime. Decisions often go unpublished. Policymakers largely fly blind. Ontario Premier Doug Ford has taken notice of all this — and has wisely opted for change.
Last week, Ford announced that he had directed his attorney general, Doug Downey, to begin collecting bail statistics. While the ministry did not provide the Post with the specific metrics that might be tracked, Ford’s exchange with the press indicated that he hopes to understand the rates at which individual judges and justices of the peace grant bail.
“It’s out of control right now,” Ford told reporters on July 29. “We have some of the greatest (justices of the peace) and judges in the country … but there’s some that continuously give people bail, not once — twice, three times, four times, five times.”
Ford promised that, “We’re going to be measuring and there’ll be accountability, like I get held accountable…. There has to be accountability at all levels starting from the premier, right from the prime minister … and police chiefs and the courts. Courts aren’t exempt.”
It’s a modest change, but one that could have a huge impact. Once implemented, it will provide transparency, which doesn’t currently exist in many bail courts. Most decisions are issued orally and are thus inaccessible to the public, making any attempt to quantify decisions a monumental, if not impossible, task.
Combined with Ford’s bail system upgrades and recent commitment to appoint “like-minded judges” who are inclined to protect the public from violent rule-breakers, as is the premier’s mandate as a democratically elected leader, Ontario is headed in the right direction.
Public bail statistics will give Ontarians a more accurate view of how the courts work. If judicial appointments have been made responsibly, more accessible data on bail should build trust, rather than destroy it. If the information is so troubling that it corrodes faith in the justice system, it will provide a clear opportunity for the Ford government to change its appointment process and better lobby the federal government to fix the system.
The bits of information on bail that are currently available aren’t optimistic. In Ontario, incidents of court order breaches accompanied by violent crime rose 29 per cent between 2017 to 2021. And throughout Canada, in areas where the RCMP is responsible for policing, just over half of all homicides between 2019 and 2022 were committed by someone on release.
The stories behind these numbers are infuriating: body dismemberers violate their bail conditions, only to be re-released, as do harassers of women and cop killers; sometimes, the repeat bail breachers disappear before sentencing. Every crime committed on release is preventable.
New data will provide Ontario with the information it needs to make the case for more stringent bail laws. For many years, Canada’s bail rules have granted judges wide discretion, and the Trudeau government’s too-mild-to-be-effective reforms, which were passed in December, haven’t done much to improve the situation.
If this flexibility is statistically shown to have created a systemic risk to public safety, the case for change — whether being made in the media or at a parliamentary committee — is much easier to make.
Some legal activists will disagree with Ford. They’ll talk about crimes committed on release as if they are natural disasters, rather than products of human choice. They’ll argue that the premier is way out of line — indeed, they already have.
Speaking to the Trillium, an Ontario publication, defence lawyer Michael Spratt criticized Ford’s aspiration to hold judges accountable as an attack on judicial independence, as did the Canadian Civil Liberties Association. Retired judge Norm Douglas, meanwhile, argued that existing accountability structures — appeal courts and judicial councils — are enough.
Those aren’t the only forms of accountability, however. The bench isn’t exclusively accountable to itself; and if it was, that would be a problem.
Former Supreme Court chief justice Beverley McLachlin understood this well. Speaking at a conference in 2006, she explained the dynamic in detail. The ultimate sanction against judges lies with their corresponding legislatures — but the court of public opinion plays a role, too. None of this is radical or contrary to the rule of law: in a democracy, final calls must lie with the elected body, not the appointed one.
Ford is responsibly blazing a trail that his fellow premiers should follow. They’re already unhappy with the federal government’s soft approach to crime, having called last year for Prime Minister Justin Trudeau to strengthen bail laws. It was a futile exercise — provinces can’t change the Criminal Code, and Ottawa hasn’t been receptive, beyond making small, mostly ineffective adjustments.
Provinces can, however, do their best to show why reforms are necessary. Most aren’t leveraging all the available tools to do so, but Ontario is trying. So should the rest. Vaguely complaining about Trudeau’s justice policies and relying on Statistics Canada to publish the odd crime stat doesn’t cut it anymore.