Doug Ford wants to livestream bail hearings. Experts say it would jeopardize the court process: 'I don't think that it serves justice'

Ford said that when bail is granted to a violent offender, there is no written justification provided and he plans “to change that to ensure clear reasoning is provided with greater consistency and make decisions easier to review.” He added that the new measures would make judges more accountable for their rulings.

“Everyone is held accountable, including our judges,” Ford said in Brockville where he announced a request for qualifications to build the new Brockville Correctional Complex and expand the St. Lawrence Valley Correctional and Treatment Centre.

Part of the premier’s broader proposal for transparency included creating an anonymous regional dashboard, which he said will identify bias, promote accountability and restore public confidence.

The evidence presented at a bail hearing is almost always covered under a strict publication ban intended to protect the fair trial rights of an accused person. The right to apply for a publication ban is specified in the Criminal Code, which means any change would require the law to be amended at the federal level.

Despite these publication bans, bail hearings are conducted in open court and are regularly attended by journalists. Records of the evidence heard at bail hearings and the decisions of judges and justices of the peace are publicly available at Ontario courthouses. These publication bans expire after the close of trial, or if an accused person is discharged.

The open court principle already exists and allows for the public to attend bail hearings in person, with some hearings made available via video, said Nikolai Kovalev, a lawyer and professor in the department of criminology at Wilfrid Laurier University.

He said we run the risk of the public taking a snippet of detail from a bail hearing that hasn’t been tested in court and jumping to a conclusion, “which can technically jeopardize the impartiality of the process and can scandalize certain aspects of the case.”

He said livestreaming could turn hearings into a public spectacle that risks placing unwarranted pressure on the justice of the peace and could impact their judgment.

“I don’t think that it serves justice,” Kovalev said. “I don’t see any value in it besides bullying those justices of the peace.”

Kovalev said in some high-profile cases, broadly livestreaming evidence shared at the bail stage could impact fair trial rights, especially if the case would eventually involve a jury. It could make it more difficult to find impartial jurors if we publicize evidentiary details of the bail hearing that have not yet been properly litigated at the preliminary hearing or trial stage.

Many bail hearings have a publication ban in order to preserve the integrity of evidence for the trial process, said Shakir Rahim, director of the criminal justice program for the Canadian Civil Liberties Association. Rahim, a lawyer, disagrees with the premier’s characterization of bail courts and bail decisions somehow being non-transparent and the claim that justices are not accountable.

“I think the idea that there isn’t some transparency is a false one,” Rahim said.

The Crown always has the option, when permissible in law, to appeal a bail decision, he said, adding “the concern I think we have is that we have to place this proposal in the context of how the premier has reacted to bail decisions that he does not approve of.”

He pointed to the case of Umar Zameer, the man charged with first-degree murder in the death of police officer Jeffrey Northrup on July 2, 2021. When Zameer was released on bail while awaiting trial, Ford commented that it was completely unacceptable that the person charged was released on bail. Zameer was later found not guilty by a jury after a trial that exposed a weak case against him.

“The concern is that this will become or could become a tool for that kind of political reaction to what should be an independent decision,” Rahim said.

Toronto defence lawyer David Shellnutt, who was a victim of a 2019 assault, said while the criminal justice system should be accountable to victims, livestreaming bail hearings will not achieve that.

“You’ve really got to be careful with what information you’re releasing about people, generally speaking, but especially people who are just accused of and not convicted or sentenced in relation to a crime,” Shellnutt said.

He said the premier should focus on improving the judicial system by hiring more judges and ensuring courts are well-resourced with technology to get through hearings quicker.

Ford said he plans to initiate discussions with the attorney general and solicitor general in the coming weeks, “so we can crack down on repeat violent offenders and keep them where they belong, and that’s behind bars.”

The premier also said his government planned to hire more judges and make a greater investment in police services.

Ford’s comments align with his ongoing efforts to strengthen what he has said is a lax bail system. Toronto and Peel police have also called for bail reform aimed at keeping violent offenders off the street.

With files from Rob Benzie