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New least restrictive bail policy for Ontario

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TORONTO—Crown attorneys are being told that bail considerations should start with the least restrictive form of release, as Ontario tries to cut court backlogs and reduce the number of legally innocent people in custody.

A new bail directive announced yesterday is part of Ontario's response to the Supreme Court of Canada's Jordan decision that set out time limits for criminal cases.

It also comes in the wake of another Supreme Court case that set out approaches to bail.

“There are some people who pose a risk to public safety and should rightly be denied bail, but for those people who are low risk and may just need a bed to sleep in, that's where Ontario can step up and help,” Attorney General Yasir Naqvi said.

“People should not be denied bail by the simple virtue of their disadvantage.”

About two-thirds of the people held in Ontario's correctional institutions are on remand, meaning they have not been convicted of the crime for which they are accused.

Many people end up in remand because they don't have the social or financial supports to get bail, Naqvi noted.

A disproportionate number are members of racialized or indigenous communities, he added.

Naqvi said the policy will recognize the barriers faced by vulnerable and disadvantaged accused, including those who are racialized, and take into account the unique circumstances of indigenous peoples.

The new policy, set to come next month, will emphasize that an unconditional release should be the default. And if that is not an acceptable outcome, at that point other options such as conditions should be considered.

If some form of supervision is needed, Crowns first should consider recommending some form of it in the community—such as requiring the accused to report to police—rather than in detention, the policy says.

The use of sureties—people who assume responsibility for the accused complying with their bail conditions—should be the exception and not the rule, as it is one of the most onerous forms of release, the policy notes.

“The new bail directive and our increase to community supports work hand-in-hand,” Naqvi said.

Those supports include alternatives to detention for accused people who are mentally ill and enhanced indigenous programs.

“Together, they allow Crowns to recommend less restrictive bail conditions with the knowledge that accused are still being supervised and that our commitment to public safety is still being maintained,” Naqvi said.

The current policy, dating back to 2005, emphasizes protecting public safety and refers to cases in which people on bail committed murder-suicides.

“[It] focuses significantly on risk aversion, speaks of some inquests where public safety concerns have been raised, as opposed to what we know the Criminal Code asks us to do in terms of the presumption of the accused being innocent and being released with the least restrictive conditions,” Naqvi said.

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