Tough-on-crime rhetoric is reshaping bail laws to correct a perceived imbalance that “tips the scales in favour of the criminals against the victims.”
But do these changes reflect what victims actually want and need?
We argue that victims are positioned as both “sword and shield” in bail reform debates — as a sword, to advocate for more restrictive laws, and as a shield, to defend those laws from criticism.
The appeal of ‘jail not bail’
Victims have been a central focus of those arguing in favour of changes to the bail system as they suggest a need to “crack down with tougher rules” to “protect victims” and to stop turning “loose the most violent, rampant criminals into our communities to destroy our families.”
These concerns culminated in the passage of the federal government’s Bill C-48, which introduced additional reverse-onus provisions — shifting the burden onto the accused to demonstrate why they should be released as opposed to the Crown — in cases involving weapons and repeat intimate partner violence.
Largely absent from these discussions is the possibility that more restrictive measures may actually have negative consequences for victims.
In cases of intimate partner violence, for instance, dual charging policies — when both parties involved in a domestic incident are charged with an offence, even when one person may be primarily the victim and the other primarily the aggressor — risks criminalizing and incarcerating women pre-trial. These victims are also disproportionately Indigenous, Black and racialized. This risks deepening systemic inequalities rather than providing meaningful protection for survivors.
Furthermore, victims may hesitate to call the police, knowing that doing so may result in indeterminate detention before trial. Expanding reverse-onus provisions could also lead to false guilty pleas to avoid pre-trial detention.
Politicizing crime victims
While media coverage on victims’ experiences at bail hearings is emotionally compelling and expedient, it does not necessarily reflect what victims want with any accuracy.
Certainly, some victims view the bail system as a slap in the face. Others call for a stronger social safety net to address the root causes of crime.
Read more: The grieving mother of a murdered teen pleads for a stronger social safety net
Our preliminary research exploring how victims are presented in news media amid bail proceedings supports other evidence that victims’ voices are often used strategically by politicians and lobbyists to amplify concerns about public safety.
News media can be an effective tool to provide education about the causes and consequences of victimization. When it comes to bail, however, victims are often characterized as “ideal types” — people who were subjected to severe violence at the hands of a stranger while engaging in “respectable” activities at the time of the offence.
In reality, victims represent a diverse group, with a wide range of needs, identities and experiences that are not always captured in media coverage or political debates.
What do victims really need at bail hearings?
Prior research focuses on the rights of the accused concerning bail reform, yet pre-trial decisions are a pivotal moment for crime victims. They can determine whether those accused of crimes are detained or released with conditions.
The Canadian Victims Bill of Rights stipulates victims have the right to be informed of case matters, to express their views and to have their perspectives considered at all stages of the legal process, including at bail. During bail proceedings, justices must record that they have considered victim safety and security when imposing conditions, and victims may receive a copy of a bail order upon request.
In practice, however, victims are rarely consulted on how the release of an accused may affect their safety, and are often left unaware of bail outcomes. That’s because there’s no legal requirement for police or Crown attorneys to inform them.
While programs are available to support victims during the pre-trial phase — such as those offered by Victims Services and Victim/Witness Assistance — access can vary widely across jurisdictions.
4 ways to support victims’ needs at bail
We offer four strategies to create more responsive and equitable bail processes to better support victims:
- Better understand victims’ needs: Victims have diverse perspectives and differing priorities regarding how to protect their safety, and their voices deserve to be meaningfully included in decision-making processes.
- Uphold victims’ rights: Protecting the rights of the accused at bail is not incompatible with upholding victims’ rights. Access to information and communication concerning bail decisions should be better prioritized to position victims to undertake informed safety planning.
- Invest in victim resources: Dedicated and sustained funding for community-based supports will directly enhance the safety and well-being of victims, including access to social services, advocacy and legal resources, as well as counselling.
- Address the causes of crime: Long-term victim and community safety depends on addressing underlying causes of crime like poverty, mental health, addiction, trauma and systemic discrimination.
Systemic reform needed
Throughout the criminal legal system, victims’ voices are frequently ignored, disbelieved or dismissed. Too often, victims are excluded from the very policy decisions made in their name.
While high-profile bail cases tend to dominate media coverage, policy on criminal and legal matters must be guided by evidence, not headlines.
Without broader systemic reform, legislation will remain an important but insufficient tool for upholding victims’ rights and community safety.
Carolyn Yule receives funding from the Social Sciences and Humanities Research Council (SSHRC).
Kaitlin Humer, Laura MacDiarmid, and Sophia Lindstrom do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
This article was originally published on The Conversation. Read the original article.
