B.C. courts still granting bail in over half of cases where prosecutors sought detention

Newly-released data shows the majority of accused violent offenders that prosecutors have sought to keep behind bars have been granted bail.

The data, released by the BC Prosecution Service on Tuesday, covers nearly 4,800 bail hearings between November 2022 and December 2023.

The figures show Crown prosecutors sought detention for accused offenders in about a quarter of all cases, and in nearly a third of cases involving violence.

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Judges, however, granted bail in 59 per cent of cases overall, and in 57 per cent of the cases involving violence.

Those figures line up closely with data released by the prosecution service last April.

B.C. Attorney General Niki Sharma said the statistics do not reflect stiffer bail conditions due to changes to the Criminal Code of Canada, which only took effect in January 2024.

“We’re hopeful, although it was later than we hoped, that the federal changes to the Criminal Code which are in place in January will show some improvement,” she said.

“With those changes, we can expect that judges who are there to independently apply the law will have different tools or decision-making when they apply that law.”

The province updated its bail policy in November 2022, directing the prosecution service to seek detention of repeat violent offenders charged with violent or weapons offences unless they can be satisfied bail conditions can mitigate the threat to public safety.

Despite that direction, the number of cases where prosecutors opposed bail appears to have actually decreased, according to the data.

In a two-week period during the fall of 2022, prior to the change, Crown sought detention in 196 of 779 hearings (25 per cent) and 122 of 402 hearings (30 per cent) involving a violent offence.

In an equivalent two-week period in the fall of 2023, prosecutors sought detention in 180 of 831 hearings (22 per cent) and 96 of 378 hearings (25 per cent) involving a violent offence.

The numbers were higher for files dealing with both a violent offence and a breach of conditions, with prosecutors seeking detention in 46 per cent of cases in the 2022 period and 45 per cent of cases in the 2023 period.

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Rob Dhanu, K.C., a former Crown Prosecutor, said prosecutors’ jobs are being made more difficult by a range of social problems including mental health, addiction, homelessness and the COVID-19 pandemic.

While the root of those problems may not be criminal, how people caught up in them are being handled has become “a real hot potato,” he said, adding, “we are scapegoating the bail system.”

Dhanu said a properly functioning justice system should not automatically order detention in all or even most cases that prosecutors seek it, as individuals do have a Charter right to bail.

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Judges, who are not allowed to publicly defend their decisions, have the hard task of weighing the Crown’s arguments against information provided by defence at a hearing, and shouldn’t always be ruling one way or another, he said.

“If judges were detaining individuals 90 per cent of the time when Crown was asking for it or releasing people 90 per cent of the time when Crown was asking for it that would be an imbalance system and would raise some red flags to me,” he said.

Sharma said the judiciary must remain independent from the government, and that the province has focused on areas that are within its jurisdiction.

She said the province has been getting “results” from its now year-old Repeat Violent Offender Initiative, which tasks teams of prosecutors, police, probation officers and support workers to monitor offenders with a high rate of recidivism.