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Bail Reform
02/01/2006

With increased attention being paid to gun crime in Toronto, Premier Dalton McGuinty has asked the Prime Minister to consider "reverse onus" bail conditions which would require those accused of gun crimes to demonstrate why they should be released. Paul Martin says he supports the idea.

I'm not even sure what this means. How do you show that you should be released from jail? In fact, Andrew Coyne asks the same questions, while both the Potent Pew and Odd Thoughts point out that this would violate the Charter. In a Globe and Mail reality check today, a law professor confirms it, but also says that the Supreme Court could theoretically still allow it as a "reasonable limit" on our rights.

It doesn't sound like this is going to work out, so let me remind you of another bail proposal that I discovered in the comments at Let it Bleed: if a criminal out on bail commits a crime for which he is later convicted, he forfeits the original bail deposit. "The idea is to make it harder for scum who are likely to reoffend to raise the bail. The person who makes the bail payment is promising his $$$ that the charged is worthy of being free -- so you would want to be sure about his character before bailing him out, because if he truly is scum you will lose your money."

The purpose of putting up bail money is to ensure that the charged person returns to court for trial. I see no reason we couldn't also make that bond a promise that the released will not (re)offend. Will it work? I'm not sure, but it feels like it might help a bit. In the long run, I'd expect that most prisoners who are at a high risk of reoffending would find it more difficult to get bail.

Of course, I'm not a lawyer. But I think judges already deny bail in cases where they think there is a risk of reoffending. (Or maybe that's just me watching American TV.) I don't know how this squares with the the Charter rights mentioned above, but it sounds like judges already have the power to make things more difficult for gangland shooters who one might suspect as a threat to witnesses. That's the purpose of this discussion, since it is hypothesized that shooters out on bail is one reason we have so few witnesses speaking up in these cases.

However, if convicted gun criminals are going to jail for as little as 30 days, restricting their bail isn't going to do enough to make witnesses feel comfortable!

UPDATE January 4: A lawyer has written in to Small Dead Animals with a detailed explanation of "reverse onus" and seems to think that it could be applied to gun crimes and upheld by the Supreme Court.


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