Special: Bailing…

June 6, 2017

(Ed note:  This edition is an attempt to gather some insight around the practice of bail in the criminal justice system, currently immersed in controversy and identified as a cause of both over-crowded jails and court delays.  Much of the focus is on the Ontario approach, but several Smart Justice people have indicated that report is accurate in its portrayal of the practices in Ontario and largely defines the problems across the country.)
The first, and the major contribution to this examination, is a December 2016 report by Raymond E. Wyant, of the Ontario Ministry of the Attorney General, called Bail and Remand in Ontario.  The report (available in English and French) has much to offer.  First, the report is comprehensive of the elements involved, paying lots of attention to the roles of police, crowns, judges, defence and Corrections in the process, including a commentary on Legal Aid.  The roles and the deficiencies in practice within the system, if it may be called a system, are clearly delineated.  Second, the report is very well written, pointed and well-articulated for easy and even lay understanding, exposing the various overlapping and competitive elements at work as the process unfolds.  Third the report makes clear the legal considerations (later also attested in the Supreme Court ruling- R vs Antic- cf below) and traces a subtle change in the legal community about what bail is and why an estimated 70% of those in jail at any given day have never been convicted of any crime.  The report also confronts bail conditions, conditions of release and supervision programs, including the use of technology.  It examines bail on domestic violence and for Indigenous people.  In conclusion, the report offers 30 recommendations (gathered towards the end of the report) calling for changes or compiling additional information.  The report (around seventy pages) is well worth the time to delve into and can even become a yardstick for progress on bail reform.  Full report:  Bail and Remand in Ontario (Downloadable pdf) https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/wyant/
Supreme Court of Canada: R vs Antic ruling

The Supreme Court re-enforces much of the legal opinion in the Wyant report around right to bail and the onus on the crown to establish the circumstances why bail and/or surety can be required.  (Thanks to Professor Anthony Doob for forwarding the excerpt.)

  1. R v. Antic (June 1), 2017 SCC 27 (S.C.C.) Para 67 (The decision was unanimous.)

67    Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a)    Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b)   Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c)    Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d)   The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, “release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”: Anoussis, at para. 23. This principle must be adhered to strictly.

(e)    If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f)    Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g)   A recognizance with sureties is one of the most onerous forms of release.  A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h)   It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.

(i)     When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.

(j)     Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person’s behaviour or to punish an accused person.

(k)   Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.

Blog of the Legal Times and Canadian Lawyer – Elizabeth Rayner

SCC clarifies correct approach to applying bail provisions 

“The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system,” Justice Richard Wagner wrote in a unanimous decision. “It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.”  http://www.canadianlawyermag.com/legalfeeds/3851/scc-clarifies-correct-approach-to-applying-bail-provisions.html

Prison Reform International –
The latest global prison trends (2017)

The report examines trends in the use of imprisonment, such as pre-trial detention and life imprisonment, prison populations, such as the specific needs of women, foreign nationals and elderly prisoners, developments and challenges in prison management, including security issues and violence, prison labour, and violent extremism in prison, the role of technology in the criminal justice system, such as e-learning and video visitation, prison alternatives, including the use of electronic monitoring and community service orders.  https://www.penalreform.org/resource/global-prison-trends-2017/   cf also Commentary on report from Blogger Russell Webster  http://www.russellwebster.com/the-latest-global-prison-trends/

The mentally ill are sick. So why do we put them in jail?

 “In an essay from his new book, Matters of Life and Death, health writer André Picard asks how a democratic society can justify incarcerating people who have committed no crime?”  http://tvo.org/article/current-affairs/shared-values/the-mentally-ill-are-sick-so-why-do-we-put-them-in-jail?utm_source=newsletter&utm_medium=email&utm_campaign=cad