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Rob Shaw: B.C. awaits Ottawa's move to keep violent offenders in jail instead of on bail

Provinces pleading with the federal government to keep potentially violent offenders off the streets as they face trials
B.C. Attorney General Niki Sharma and Premier David Eby are arguing for stricter bail provisions to keep potentially violent offenders in jail.

B.C. judges have granted fewer than half the requests by Crown prosecutors to keep potentially violent offenders in jail on bail while facing other charges, according to new figures.

That data was released publicly by Attorney General Niki Sharma in a letter to her federal counterpart demanding Ottawa follow through on promised reforms to the federal bail laws. It highlights the core of the crime and public safety concerns currently plaguing the province’s urban centres.

“The thing that really stood out for me is that even the times that Crown prosecutors are seeking detention, this is a time where public safety is at risk or it’s about public confidence in the system, in those circumstances it is less than half the time judges are granting them,” Sharma said in an interview Sunday.

“To me this clearly points to what we’ve been advocating all along, which is that Criminal Code changes are needed.”

The independent B.C. Prosecution Service is expected to release more detailed figures this week. The preliminary bail data is from Nov. 7 to Dec. 11, 2022 and Feb. 27 to March 12, 2023. Sharma said it was provided to her in draft form ahead of its public release, and she immediately alerted federal Justice Minister David Lametti.

“This is part of the effort to keep the pressure on,” she said.

Premier David Eby also cited the statistics during a virtual meeting between Canada’s premiers and police chiefs on Friday.

“Police and prosecutors in B.C. are doing their part within existing laws to keep people safe,” he said in a statement after the meeting.

“The federal government must act on its promise to amend federal bail laws to address this national risk to public safety showing up in every province and territory.”

Sharma called the bail statistics “deeply concerning.”

The BC NDP government is under fire daily from the Opposition, municipalities and other critics for the rise in public disorder, vandalism, theft and random assaults in provincial cities. BC United leader Kevin Falcon has coined it “David Eby’s catch and release justice system.”

The new bail figures are both good and bad news for the Eby administration.

The good news is that they validate the NDP’s long-standing argument that it is the independent judges — not the provincial government — who are the ones failing to keep dangerous repeat offenders in jail while they are awaiting charges, by releasing them back onto the street where they reoffend again.

The bad news is, only Ottawa can fix this. And it’s not clear when or how the federal government is going to do it. That leaves B.C. and other provinces dangling in the wind for the time being.

Lametti has publicly said he intends to bring in bail reform legislation as early as this spring. But Sharma said he hasn’t hinted at what Ottawa is proposing to actually do.

“We asked for the broadest definition of reverse onus provisions,” said Sharma, meaning if a person has shown any silence of violence, either with a bladed weapon, or a gun, or anything, the default position would be for them to be kept in custody until they could face charges, and the onus would be on the person to argue why they should be released.

Canada’s Charter of Rights and Freedoms gives people accused of a crime the right to bail unless there’s a compelling reason to hold them in a correctional facility until trial.

Lametti made changes to bail laws in 2019, which now require judges to “consider the circumstances” of people over-represented in jails, including Indigenous people, as well as those suffering from addictions and mental health issues.

The result has been a reluctance from judges to deny bail for those people, which has in turn put some repeat offenders back out on the street to re-offend again.

“What I think remains clear, and what we’re seeing, is it’s the unintended consequences of the bail reform we are really focused on,” said Sharma.

But criminal justice experts are also warning the federal government of “unintended consequences” to the reforms the provinces are proposing as well.

That’s put Prime Minister Justin Trudeau’s government under pressure from both sides — premiers urging bail reforms, and experts telling it to hold steady.

Nicole Myers, an associate professor at Queen’s University who has studied bail and pretrial detention issues for almost 20 years, told Parliament’s select standing committee on justice last month that the rate of pretrial detention has more than doubled in the last 40 years.

“It is a slippery slope to pursue, making the system more restrictive when our provincial jails are already full of legally innocent people,” she told federal MPs.

“Tightening the bail system and increasing our reliance on pretrial detention will have discriminatory outcomes on the most marginalized, the most over-policed and the most disproportionately incarcerated in society, compounding disadvantage, having the opposite of our intended effect of making the communities less rather than more safe.”

Sharma said she thinks changes to bail can be made that will not undo progress in lowering incarceration rates for Indigenous people.

“I think the key thing is violence, we are talking about offenders who are committing violence or who have committed violence in the past,” she said.

“Our work on the Indigenous justice strategy is very separate from this work and it’s very important.”

Sharma said she’s “hopeful for a response soon” from Lametti.

In the meantime, the Eby government can point to this new bail data as part of its defence that it is neither “soft on crime” nor to blame for that part of the so-called “catch and release system.”

It will undoubtedly help deflect attacks from BC United MLAs during the rest of the spring session.

But it’s not clear whether Ottawa will bring in reforms that truly address the concerns on B.C. streets, or if it will instead waver in the face of other advocates.

That must give B.C. officials great concern. As the new data shows, the province has a lot riding on Ottawa to step up and fix the problem.

Rob Shaw has spent more than 15 years covering B.C. politics, now reporting for CHEK News and writing for Glacier Media. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio. [email protected]