Calgary’s police chief hopes to reform the bail system to hold prolific offenders to a higher standard when it comes to eligibility for bail.
But a criminal lawyer says while the system could be improved, there are already measures in place to address reoffenders.
Calgary Police Service Chief Mark Neufeld penned a column in the Globe and Mail on Monday on behalf of an alliance of other Canadian police chiefs, saying too many serious violent offenders are being released on bail conditions.
“There’s a small number of individuals in the system who are repeat and violent offenders who are bringing harm to our communities. And that’s where we need to focus,” Neufeld told Global News on Thursday.
“I think the principles around bail are right. It’s the interpretation around that small number of people who continue to perpetrate those crimes and (police) all can identify who they are, but the system isn’t working when it comes to them.”
Neufeld said those few offenders commit most of the serious crimes in the city.
Calgary police, as well as other police forces across the country, regularly do checks on individuals to ensure they are meeting their bail conditions – conditions that can include curfew, travel restrictions or access to alcohol or drugs.
“In many cases, we find that they’re not (obeying). And not only are they not now, they didn’t previously either,” the CPS chief said.
“So there’s an established pattern of behavior where individuals are noncompliant with these court-ordered conditions.”
Neufeld said the number of repeat offenders police are having to check on like this are increasing.
He said “the reality of the system” is when those people are found to have broken their conditions of release, “oftentimes they’re just re-released.”
“That’s when you hear people talking about the revolving door of the justice system and this arrest-release cycle that’s happening. It is very demoralizing.”
Calgary’s police chief said he’s short-staffed and while doing compliance checks on violent repeat offenders is a high priority for the force, allocating those officers to those checks comes with an opportunity cost: they can’t be policing elsewhere.
“An inordinate amount of time and resources are going into supervising individuals who are out on bail. And sometimes I ask myself, ‘To what end?’”
‘Hold them accountable’
Criminal lawyer Michelle Johal said there are already means in place in the Criminal Code to address people who break bail conditions.
A person who attends court to pledge bail money on behalf of a defendant becomes known as a surety in the justice system. Sureties often also promise to supervise the defendant while in the community, to make sure they stay in line with the court’s conditions.
“The Crown can commence estreatment proceedings against the surety, and essentially go after the money that they pledged on behalf of the accused person — to essentially hold them accountable for not doing their job,” Johal said.
She said estreatment proceedings aren’t often pursued.
“It certainly may restore public confidence in the bail system because if sureties are not doing their job and they’re not supervising effectively, then they should lose the money that they pledged to the court,” Johal, who also sits on the Criminal Lawyers Association (CLA) board, said.
“There are steps to ensure that they are held accountable.”
In his newspaper editorial, Neufeld advocated for a specific designation for those who are prolific violent offenders — a designation that had a “strict criteria” and would prompt “the utmost scrutiny.”
The CLA board member said judges already consider criminal history when looking at bail applications.
“If (defendants) have a long record, it’s not like they’re guaranteed bail,” Johal said. “In fact, in my experience, courts tend to be risk-averse when it comes to deciding bail.”
Johal, whose practice is based out of Brampton, Ont., said jails and remand centres are already full of people awaiting trial because they didn’t apply for bail, knowing they wouldn’t get it or whose bail application was denied.
In 2019, legislation about pretrial detention was changed to better reflect the presumption of innocence Canada’s criminal justice system is based upon.
Neufeld said he’s seeing “unintended consequences of good and valid efforts.”
“What we’re seeing is that the small number of people that we should be holding — that we would have all agreed we would have wanted to hold in custody — are not being held in custody,” the CPS chief said.
He argues the chronic violent offender definition could help address that gap.
Johal agreed that pretrial custody is a problem, especially when the number of people awaiting trial is greater than the number serving sentences.
The criminal lawyer added the early COVID-19 pandemic created a backlog in the justice system.
“There’s always a risk that someone’s going to re-offend if they’re released into the community. But you can’t just suggest that everybody should be detained because they’re charged with an offense for which we know they’re presumed innocent, because that would be completely counter to charter principles, but also completely unfeasible,” she said.
“We don’t have the resources or the space in the jails to obviously incarcerate everyone who’s facing a criminal offense, nor would we want to.
“And we don’t even have the resources in our courts to bring these people to trial quickly so they can have the matter behind them.”
Systemic issues
Mount Royal University criminology professor Kelly Sundberg said the existence of repeat offenders is an indicator of problems in the entire criminal justice system.
“If we’re having these habitual offenders, it means that the system as a whole isn’t working.”
Sundberg looked at the socio-economic conditions many of the repeat offenders come out of and exist in.
“Most of them grew up in poverty. Most of them were neglected as children. Most of them now suffer from substance abuse,” he said.
“We need to address the root cause of these. We cannot continue to have the degree of poverty and youth who live in poverty. This is what eventually will happen.”
Johal said often people who are accused of crimes have mental health or addiction problems, and while waiting for trial they don’t get access to the required treatment programs — a gap that could increase their risk to the community when they’re released.
People held in pretrial custody are likely to also lose employment, housing or other community supports.
“The reality is, one day they’re going to be released into the community, except for very extreme or rare cases. And I think we need to turn our minds to community supports and other solutions,” Johal said.
Sundberg said legal aid needs to be improved in the province, to allow those members of society better access to legal representation and to help them move through the justice system.
Alberta legal aid lawyers launched rare job action in 2022 to urge the province to invest in a system those lawyers say has faced more than a decade of underinvestment.
On Jan. 1, the province finally increased the hourly rate for lawyers providing legal aid services.
At an unrelated press conference, Premier Danielle Smith said there must be “zero tolerance” for people involved in social disorder. She said public spaces need to feel safe.
The Alberta government has rolled out embedding Alberta Sheriffs with members of the Edmonton Police Service to address social disorder. An announcement on something similar in Calgary is expected soon.
“Our sheriffs came forward and volunteered for those positions, so they want to help, too. They want to make sure that there is active policing, that there’s active presence,” Smith said.
She reiterated her government’s rollout of addiction treatment programs but did not mention harm reduction.
Sundberg said solutions for problems in the justice system could be found outside of it.
“I think that it’s time for political rhetoric to be set aside and for evidence-based, community-focused solutions to be examined. It’s going to take some time and we’re going to get it wrong and eventually will get it right,” he said.