Trying to deny bail to alleged criminals may result in more people being set free, experts say

Random violence, theft and smashed windows at businesses, have the political rhetoric in Victoria ramped all the way up.

The opposition, B.C. United, continued to hammer away at the NDP government's handling of crime and decriminalization. Earlier this week, the focus was on Crown prosecutors.

After the release of preliminary data by the BC Prosecution Service, B.C. United called on the province to provide clearer direction to Crown counsel when it comes to denying bail for repeat, violent offenders.

The party believes too many people who are accused of violent crime repeatedly, and who are also accused of breaching bail conditions are going free and putting communities at risk.

The hope, in these cases, is to increase how often Crown laywers ask for people to remain behind bars.

Asked how often Crown should seek detention for those accused of violence and breaching a court order, B.C. United MLA Elenore Sturko was clear.

"Certainly we would like to see them ask 100 per cent of the time," Sturko said Monday.

Joel Bakan is a law professor at the University of British Columbia. He told CTV News the justice system is based, in part, on the idea that prosecutors have discretion.

"It's a core part of our system that prosecutors have the discretion to decide in any given case on the basis of the unique circumstances of that case, whether or not they should pursue detention and that's something judges rely upon," Bakan added.

Another pillar, that prosecutors act based on their judgement and not bend to what politicians think.

"I hesitate to use the word thoughtless, but that seems to be the best description of the proposal," Bakan said of the B.C. United proposal.

Bakan explained if judges thought Crown counsel was pursuing a blanket policy, it may actually undermine the reason why the opposition thought the proposal was a good idea in the first place. He added, it may even lead to fewer detentions.

The BC Prosecution Service, agrees. In a statement adding, "If Crown Counsel simply sought detention as a blanket policy in every case without regard to the circumstances, they would be in breach of the law and their submissions would (be) disregarded by the presiding judges. The net result would likely be fewer, not more, detention orders."

Bakan points out there are many reasons why a Crown lawyer may not seek to hold an alleged criminal in jail until trial. He said some of those considerations may be, are they the bread winner, are there mental health issues at play, or other social issues.

Another key consideration is not putting people in jail because some studies have found that leads to a higher likelihood of reoffending.

BCPS points out in determining bail there are several factors at play, including making the argument that detention will:

• Ensure the accused attends court;
• Ensure the safety or protection of the public, including any victims or witnesses;
• Maintain public confidence in the administration of justice.

Yet, judges must exercise restraint in denying bail. That's because the Criminal Code and bail rules mean that detention is the exception, not the rule.

The NDP government's suggestion: Ottawa needs to reform bail rules. In violent cases involving a variety of weapons, they want to see the accused prove they aren’t a threat to the public.

Other premiers are also pressuring Ottawa for the same. Bakan said, that's problematic because they attack the core of the justice system -- that you are presumed innocent until proven guilty.

"I don't think these are going to help the causes of crime are very complex," added Bakan.

The answers too, he said, are complex like addressing poverty, housing, and mental health issues.

Bakan went on to say, "You talk to most criminologists and they will tell you that when you have healthy societies, housing, people are secure. Safety, public safety is much more protected."

Those hoping for a quick fix to high-profile crime and acts of random violence, are likely out of luck.