Dec 5, 2020
Over the years, Smart Justice has identified many areas of problematic law and law application. Bail has been a constant concern because often issues of law are ignored in favour of personal prejudice and fear of public opinion. This Lauzon hearing raises some questions that may be the key to how a faltering justice system can get itself back on the right tracks in the question of bail.
Here are some concerns from our past newsletters. First, a special report from the Ontario Attorney General authored by Raymond E. Wyant called Bail and Remand in Ontario and published in December,2016: (Full report: Bail and Remand in Ontario (Downloadable pdf) https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/wyant/ ) (Available in English and French)
(Ed note: 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.)
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.)
- 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.
Further, 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
The first principle of law is that the person is innocent until proven guilty and an accused should not be deprived of liberty except under three conditions: danger to re-offend, a flight risk, or that the accused crime is so offensive that the public would lose confidence in justice itself. Note that for release, the Crown must agree. The usual practice is that the accused appears before video link (not supposed to happen without consent but expediency is the more usual rule) and the bail consent is based on a demand by the Crown that certain conditions be fulfilled. The Justice of the Peace has to decide if the bail conditions are reasonable, especially since almost all accused will promise anything to avoid jail.
Canadian Law Times – Yamri Tadesse
Lawyers predict more overcrowding after St-Cloud
The SCC recently ruled in R. vs. St. Cloud that, beyond the two normal reasons for denial of bail – danger to offend again or flight risk – the third and rarely used reason is both acceptable and may be used more frequently. The third reason is that the public would lose confidence in the administration of justice if the court granted bail. Lawyers drew a connection immediately to the likelihood that the ruling will result in even more over-crowding of the system due to denial of bail. “With all due respect for the reviewing judge, I believe he erred in stating that s. 515(10) (c) Cr.C. must be interpreted narrowly and applied only in rare cases,” wrote Supreme Court Justice Richard Wagner. http://www.lawtimesnews.com/201505254697/headline-news/lawyers-predict-more-overcrowding-after-st-cloud?utm_medium=Email&utm_campaign=CLNewswire_20150525&utm_source=Act-On%20Software&
Unreasonable bail conditions can be a major reason why bail is revoked. It can even be a set-up for failure:
The Megaphone / Tyee (BC) – Stefanie Seccia
‘Red Zones’ Set the Marginalized Up for More Trouble, Study Finds
The link offers a connection to a couple of sources where the questions around bail conditions include “red zones,” or place where, in about 20% of cases, someone released on bail is not allowed to go or face additional charges. The article is part of a study in four major Canadian cities of how bail conditions impact the life of the person charged and the legal system. While the number of charges is decreasing, breaches of court orders, also known as administrative justice offences, is one of the areas in the justice system that is increasing and contributing to court delays. https://thetyee.ca/News/2017/03/01/DTES-Red-Zones/
How did we get where we are:
Toronto Star – Jim Coyle
Age of the omnibus: Mike Harris’s Bully Bill was passed 20 years ago
Bill 26 was the beginning of the practices of omnibus legislation, bills that were huge, filled with widely different, smaller elements, and pressured through parliament without any opportunity to examine the content. The then Ontario Premier Mike Harris was the designer but the practice spread to the Harper government through people in the Ontario government who moved to the federal scene, people like John Baird, Jim Flattery, and Tony Clement. This week is the 20th anniversary or courageous resistance by Ontario Black Liberal Alvin Curling. The article is a helpful reminder of where we have been as a country. http://www.thestar.com/news/canada/2015/11/28/age-of-the-omnibus-mike-harriss-bully-bill-was-passed-20-years-ago.html
The Criminal Law Notebook: Grounds for Detention outlines the law as it applies to bail with clarity and rigour. http://criminalnotebook.ca/index.php/Grounds_for_Detention The onus is on the crown to justify the refusal to agree to bail and must present to the court the rationale for the withholding of consent to bail. Instead, what seems to happen frequently is that the consent to bail depends on the agreement of the accused to the conditions of bail.
CBC News – Mark Gollom
Provincial jails clogged with legally innocent Canadians – Majority of people appearing at bail court are charged with non-violent offences
Abby Deshman, public safety director of the Canadian Civil Liberties Association (CCLA), who co-authored the just released report Set Up to Fail: Bail and the Revolving Door of Pretrial Detention, says: “We know that failure to comply with your bail conditions is the No. 1 reason for people to be brought into pretrial detention.” Anthony Doob, professor emeritus of criminology at UofT says there are two reasons for pre-trial detention: if there is a serious concern the person won’t show for trial or if there is a serious concern that the person may commit a serious offense if released. http://www.cbc.ca/news/canada/provincial-jails-clogged-with-legally-innocent-canadians-1.2716225
There is a further problem with pre-trial detention of refugee claimants who are held without bail in detention facilities which are mostly prisons.
There seems that there is widespread agreement that we have a problem. Recently (March 14, 2016), a Justice of the Peace Julie Lauzon wrote an op ed for the National Post laying out her frustrations with the malfunctioning bail system: Julie Lauzon: When bail courts don’t follow the law – A justice of the peace in Ottawa’s main bail court explains how Canada’s bail system is broken https://nationalpost.com/opinion/julie-lauzon-when-bail-courts-dont-follow-the-law
Lauzon was brought before the Judicial Council for announcing publicly what she felt was wrong with how the bail system works in Ottawa. This past week the hearing panel announced the recommendation that Lauzon be removed from office. Ottawa Citizen: Shaamini Yogaretnam Justice of the peace ought to be removed from office: disciplinary panel – The majority of a disciplinary panel found that removing Justice of the Peace Julie Lauzon from office “is necessary to restore public confidence in the judiciary and the administration of justice.” Justice of the peace ought to be removed from office: disciplinary panel | Ottawa Citizen Here is the record of the Panel Hearing of the Justices of the Peace Review Council: Notice of a Hearing into Three Complaints about the Conduct of Justice of the Peace Julie Lauzon https://www.ontariocourts.ca/ocj/jprc/public-hearings/lauzon/
Did Justice of the Peace Julie Lauzon offend against some expectation of conduct? Readers can judge for themselves.