Bail and the Diminishing Presumption of Innocence

Abstract

The adoption of the recommendations of the “Ouimet Report” into the Bail Reform Act, 1972 created a universally lauded codification of the law of bail in Canada enlivened by the presumption of innocence. Clearly release was to be the rule and custody the exception in the pre-trial context. In the last twenty years however, Parliament has broadened the discretion to restrict liberty by expanding the grounds for detention and has accelerated the proliferation of reverse onus offences. Neither policy has been empirically justified. Indeed, the downward trend in the commission of serious crimes runs counter to the current “tough on crime” legislative agenda. The exponential growth in remand custody compared to sentenced incarceration is disconcerting. The total disregard of an accused’s rights in the face of police mandated bail compliance units is contemptible. The presumption of innocence in the bail process has now become an illusory concept, at best.