Crown prosecutors will have to recommend the least restrictive form of release for people accused of crimes and weigh the unique circumstances of Indigenous people under a sweeping new bail policy issued by the province Monday.
Attorney General Yasir Naqvi announced his government's latest solution to fix what many critics have called the "broken" bail system in Ontario.
"A large number of people in our system are not a danger to society," Naqvi said in an interview with CBC News.
"They are people who are low risk … they are vulnerable by virtue of their mental health or addiction issues, or they are Indigenous or racialized."
Statistics paint a grim picture of the problem in the province's jails, where about 70 per cent of inmates are not serving a sentence, but are awaiting trial while presumed innocent.
Fixing the bail system was one of the key items on Naqvi's mandate letter from Premier Kathleen Wynne last year.
The new bail policy directive, to be released in the coming weeks, will now be part of the Crown prosecution manual distributed to give Crown attorneys "support and guidance" on exercising their discretion at bail hearings, the province said in a news release.
A bail advisory group created in December 2016 travelled to Indigenous communities and consulted with legal experts to develop the new guidelines.
Ottawa-based criminal defense lawyer Mark Ertel said no one should be in custody until a court finds them guilty of an offence.
"There is a very narrow set of circumstances where there is real on-going danger, and the danger cannot be mitigated by an appropriate bail plan," said Ertel.
'Realistic' release conditions
The focus of the new bail directive is to keep more people accused of crimes — especially those considered low-risk — out of jail while awaiting crime. The new policy should release more people into the community with "realistic" conditions when warranted, and to use sureties only when necessary. A surety is someone appointed by the courts to monitor an accused after release and ensure they're adhering to their conditions.
"The prosecutor should not request a surety unless all the less onerous forms of release have been considered and rejected as inappropriate," according to the nine-page document.
The new guidelines recommend Crowns adopt a "ladder" principle at bail hearings, meaning they would have to first recommend the least onerous form of release at the onset before considering a more restrictive one. The principle was highlighted in a June ruling from the Supreme Court of Canada.
The policy received a blessing from John Howard Society, which runs a bail supervision program for offenders released into the community.
"The John Howard Society of Ontario has long been recommending an approach to bail that places greater emphasis on the presumption of release and the presumption of innocence, and moves away from the reliance on sureties as a condition for release," said Michelle Keast, director of the centre of research, policy and program development, in the release.
'Necessary and appropriate'
Courts have come under fire for imposing unrealistic conditions on alleged offenders, only to see them breached.
Prosecutors will now refrain from adding conditions such as "no alcohol," for example, when alcohol has no connection to the alleged crime.
"It is important to limit the number of conditions that are imposed to those that are necessary and appropriate. Any condition recommended should be specific to the case and none should be automatic," the directive states.
If Crowns believe the safety of the public or victim would be in jeopardy if an accused person is released, then an order will be made to keep him or her in custody.
One of the recommendations in the revamped manual will encourage the use of "bail beds," which let low-risk offenders stay in a supervised home in the community while awaiting trial.
Concerns raised years ago
The changes have been a long time coming. Defence lawyers and prisoner advocates have been calling for changes for years, saying many alleged offenders should live in the community with court-imposed conditions instead of being thrown in overcrowded jails where support for addiction and mental health is limited.
The directive states jail "should never be used as a substitute for mental health or other social measures."
Having people released into the community is also seen as cost-saving measure for the provincial government. According to the John Howard Society, it costs taxpayers $217 per day to jail an inmate in Ontario, versus about $5 daily to monitor them out on bail.
The province also pays for the transfer of inmates to and from the courthouse.
Indigenous at 'significant disadvantage'
Detaining an Indigenous person should also be treated as an "exceptional measure" and must only be used if the release would put public safety at risk.
Prosecutors will now be told to consider the circumstances of alleged offenders who self-identify as Métis, Inuit or First Nation, giving special attention to the barriers they face as a result of the remoteness of many Indigenous communities.
"A significant disadvantage is created since the accused is unlikely to have established connections or supports in the community in which the bail hearing is taking place," the directive states.
Crowns are also urged to consider the unique circumstances facing other marginalized groups including people of colour, the homeless and those suffering from mental illness.