Could bail reform improve public safety in the NWT?

The NWT’s premier and RCMP are advocating for stricter bail laws to protect the public, while some legal experts argue that’s not the right solution.

Premiers from across Canada have called on the federal government to change the criminal code so that some people, particularly repeat and violent offenders, find it harder to secure release on bail while awaiting trial.

RJ Simpson, who is both the NWT’s premier and justice minister, told Cabin Radio he wants to see legislative amendments that reflect the uniqueness of the North and address the increasing problem of illicit drugs and organized crime in the territory.

“We don’t want to lock people up indiscriminately, but we do want to keep communities safe,” he said.

“I’ve heard from leaders and members of some of these small communities that when someone comes into their community who’s out on bail for serious crime, there’s a lot of concern, there’s fear.”

He added the federal government can conduct analysis to ensure amendments to the criminal code that further restrict bail don’t infringe charter rights.

Mayor of Fort Smith Dana Fergusson said in a statement that “it has been a long-standing concern” in her community that “repeat offenders are often caught and released.”

“This revolving door undermines public confidence in the justice system and compromises community safety,” she wrote.

Police services across Canada, including NWT RCMP, have endorsed calls to make it harder for some people to get bail.

Chief Supt Dyson Smith, commanding officer of NWT RCMP, said amendments to bail made in 2019 have “detrimentally impacted public safety.”

In November 2024, police in the territory highlighted an example in which they charged the same man with trafficking drugs three times in the same year. Police said at the time of this third arrest he was on bail conditions to reside outside the territory

“We think the public really needs to be aware that there is an issue,” Smith told Cabin Radio.

“We’re a long ways away from where we really need to be if public safety is the goal.”

During last July’s Dene National Assembly, several chiefs raised concerns about illicit drug trafficking in communities. Delegates passed a resolution calling for effective crime prevention strategies and efforts to prevent drug dealers from entering Dene communities.

The right to reasonable bail

While many people agree more should be done to address public safety, not everyone agrees that harsher bail laws are the answer.

Jessi Casebeer, an NWT lawyer whose practice includes criminal defence, said the “current bail system is a reflection of the law regarding a person’s right to reasonable bail.”

People have the right to be presumed innocent until proven guilty – and not to be denied reasonable bail without just cause – under section 11 (e) of the Charter of Rights and Freedoms as well as under the Canadian Bill of Rights.

Casebeer pointed to Supreme Court of Canada decisions in 2017 and 2020 that state this right “is an essential element of an enlightened criminal justice system.” The court also ruled that bail conditions should be imposed only if they “are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s risks.”

“If I can put it simply, everyone is entitled to be presumed innocent of a crime when charged until they are proven guilty in court, even if you are charged with multiple different sets of charges,” Casebeer said.

“I am extremely troubled by the politicization of our bail system in Canada, as are many of my colleagues.”

Casebeer said the criminal code already has safeguards in place, including requiring courts to consider the safety of complainants and the general public when making bail decisions.

She added that accused people in the NWT “face at times insurmountable problems in seeking bail.” She noted the territory lacks resources available in larger centres such as bail supervision programs offered by the John Howard Society or trauma and addictions treatment.

Casebeer said additional amendments restricting the right to reasonable bail could further complicate the bail process and result in lengthy and complex litigation.

Some politicians want to entirely eliminate bail availability for some accused people. The Ontario government, for example, is advocating abolishing bail for certain offences including murder, intimate partner violence, drug trafficking and robbery, among other reforms that the province says will enhance public safety.

Shakir Rahim, who directs the Canadian Civil Liberties Association’s criminal justice program, called that proposal “exceptionally dangerous.”

“It legalizes arbitrary detention, and it should be a concern to each and every one of us that somebody can be denied their freedom based on an allegation that may be very weak but has no opportunity to advocate for their release,” he said.

Rahim added that only about half of criminal cases in Ontario result in a finding of guilt.

What Bill C-48 changed

The federal government recently made reforms aimed at restricting bail for repeat offenders and people accused of firearms offences or intimate partner violence.

In response to pressure from Canada’s premiers following the high-profile shooting of an Ontario police officer in 2022 – one of the two people accused was out on bail at the time – the federal government introduced Bill C-48.

Becoming law in January 2024, it expanded the use of reverse-onus provisions for several firearms-related and intimate partner violence charges. That means people accused of those crimes have to prove to the court why they should be released on bail rather than the Crown needing to prove why they should be kept in jail.

The legal changes also emphasized the need for courts to prioritize public safety and consider an accused’s criminal history when making bail decisions.

Fergusson said those amendments are “welcomed” in Fort Smith.

“Requiring courts to evaluate and articulate how their bail decisions impact public safety is an essential and overdue measure,” she wrote.

Premiers, meanwhile, have called on the federal government to conduct a detailed analysis of bail since the bill was enacted, and to consider further legislative amendments that would make it harder to get bail.

They highlighted the 2024 killing of a woman in BC, where the man accused had a lengthy criminal record and, at the time, was released on bail for an unrelated robbery.

“I haven’t really noticed much of a change,” Premier Simpson told Cabin Radio of Bill C-48. “It was a pretty minor amendment and, from what I can tell, it hasn’t had much of an impact.”

In response to the premiers’ letter, federal ministers have called on provinces and territories – who are responsible for the administration of bail – to ensure that “police and prosecutors have the tools they need for effective monitoring and enforcement.”

Some critics of Bill C-48 have argued that Canada already has high pre-trial detention rates and such bail restrictions could overburden the bail system, undermine efforts to combat systemic discrimination, and increase pressure on accused people to plead guilty before trial, possibly leading to wrongful convictions.

A Senate report on Bill C-48 highlighted concerns that bail reform does not address the root causes of violent crime and could disproportionately impact Indigenous, racialized and marginalized groups who are already overrepresented in the justice system.

Michael Spratt, a criminal defence lawyer based in Ottawa who also practices in the NWT, said Bill C-48 was “pure eyewash” and “hasn’t changed a single thing.”

He said courts already took seriously any charges related to firearms and intimate partner violence, and factored in prior offences when making bail decisions.

Spratt added that when people are charged with serious offences, the Crown often opposes their release, meaning people accused of those crimes already had to justify why they should get bail.

“It hasn’t really changed anything on the ground,” he said.

‘Looking in the wrong direction’

Spratt said calls for further bail restrictions are “a political grift.”

“It is a fraud that is being perpetrated and the public is being misled when politicians say that we need to tighten up the bail system,” he said.

“There is actually nothing to do to tighten up the bail system, it is pretty tight as it is.”

Spratt said the justice system currently has mechanisms in place that allow the Crown to challenge judges’ bail decisions through appeal.

He said the only way to ensure no accused person ever breaches bail conditions would be to detain everyone and remove the possibility of bail altogether. He said eliminating bail, as proposed by Ontario, would be draconian, “deeply unconstitutional and flies in the face of presumption of innocence.”

Instead of restricting bail access to address public safety concerns, Spratt said governments could implement measures such as more compliance checks by police, electronic monitoring, or more frequent court check-ins.

He said governments must also “take meaningful steps” to address the backlog in Canada’s courts system and provide supports to ensure people on bail have access to addictions treatment, counselling, supportive housing and employment opportunities.

“One of the best ways to stop people breaching bail, or even committing crimes in the first place, is to have robust social programs that take care of addictions, take care of mental health, take care of people that are unhoused. Those are the drivers of most offences,” he said.

“Governments across the country … they simply don’t fund those programs enough and then when they need to deflect blame, or batter the opposition, or make a political point, they say that the bail system is broken when it’s really not.”

Nicole Myers, associate professor of criminology at Queen’s University, agreed that Canada does not have a lenient bail system. She believes calls for stricter bail laws are misguided and “politically easy.”

“I think it’s the kind of thing that allows politicians to come out and argue for why they’re the person that’s going to save us from crime, that allows police forces to justify why we should continue to increase their budgets, and it taps into community concerns,” she said.

“We’re looking in the wrong direction … to best improve public safety.”

Like Spratt, Myers advocated instead for supports in communities such as bail supervision programs, beds for people who are unhoused, and addiction and mental health resources.

She said the court system also needs to be adequately resourced to ensure trials are held in a timely fashion.

“If we’re going to punish people or sanction people, in my view, we should be convicting them first rather than engaging in punishment against people who are legally innocent,” she said.

NWT lawyer Casebeer also supported addressing the root causes of crime.

“It would be helpful if instead of social and political pressure to keep people in jail, there was social and political pressure to ensure safe and adequate housing, accessible addictions and trauma treatment and better mental health and psychiatric services,” she said.

“The bail system is not a system that is at its heart a crime prevention system. It is a system that determines whether a person who is accused of a crime should be released from custody or kept in custody.”

RCMP want ‘sound judgment’ on repeat offenders

The Canadian Civil Liberties Association released a report in July 2024 advocating for evidence-based solutions to address challenges in Canada’s bail system such as long wait times.

Rahim, the association’s criminal justice program director, said further restricting bail could actually increase risks to public safety.

“If we start denying bail to a whole lot more people and sending them to conditions where they’re not receiving support, rehabilitation, family, friends, employment, they’re not going to come out of those institutions in a more pro-social state,” he said. “It’s going to be even worse.”

NWT RCMP commanding officer Smith argued he is not “trying to promote incarceration” but wants the justice system to employ “really sound judgment when dealing with certain offenders.”

“If you have someone who is being released over and over and over again, every time you’re arresting and releasing someone, they’ve committed more crimes, which means somebody else has been victimized,” he said.

“We’re not talking about the one or two-time offenders here. We’re talking about the habitual repeat offenders, dangerous criminals … the drug dealers from down south who are coming in and we’re catching them with weapons.”

Beyond advocating for bail reform, Premier Simpson said his government is working to develop a Civil Forfeiture Act and Safer Communities and Neighbourhoods legislation to improve public safety.

He also pointed to the creation of a territorial crime reduction unit to support RCMP investigations and enforcement related to illicit drugs.

“We’re also working to help address the root causes of crime,” he said, “because when someone is in the system, it’s almost too late make a bigger impact.”

Simpson highlighted the therapeutic model being piloted at the South Mackenzie Correctional Centre, the territory’s wellness courts, community policing program pilot, and integrated case management.

Ollie Williams contributed reporting.