Monday, January 28, 2013

Bail and misguided media outrage

A dreadful murder where the suspect was on bail has, once again, led to media outrage.  Calls to restrict or even prohibit bail have been made.  Even the Justice of the Peace who heard the bail hearing has been pilloried for making a publication ban required by the Criminal Code itself.

What is striking about the media outrage is how ill informed the response seems to be about bail itself.

There is a Constitutional right to reasonable bail not to be refused without good reason.  People charged with offences have not been convicted and while most people charged are, in fact, ultimately convicted, someone who is innocent can never get back the months or even years of detention in jail pending trial.

Bail is usually decided very soon after arrest. If police do not release a person who has been arrested (and most people charged are not held by police), the accused must be brought before a Justice of the Peace for a bail hearing within 24 hours or as soon as possible.

In most cases bail is granted on the consent of the Crown. Only when release is opposed by the Crown is a full bail hearing held. Bail hearings are serious matters thoroughly considered by Justices of the Peace. Justices of the Peace have specific and extensive legal training, both when appointed and on an ongoing basis. They are specialists in bail and are often far more knowledgeable and probing than the lawyers appearing before them.

In most cases the Crown has to justify why bail ought not to be granted – the presumption is that someone is entitled to be released.  Bail can only be refused on one or more of the following grounds:

a. to ensure that the accused attends court; e.g., if the accused has a history of failing to attend court or abide by other court orders;

b. to protect the public; e.g., an accused could be detained if he has a criminal record for similar offences; in the case of an assault or threatening charge, a history of violence against the same complainant works in favor of detention; or

c. to maintain confidence in the administration of justice; the court will consider the apparent strength of the prosecution's case, the gravity of the offence, the circumstances surrounding its commission and the potential for a lengthy jail term.

Bail hearings themselves often have hours of testimony from police and civilian witnesses followed by lengthy legal submissions. Since bail hearings take place shortly after arrest, and often before police investigations are complete, some of what is said in a bail hearing later turns out to be false. In those cases it often turns out the Crown’s case was overstated – this is not because of any wrongdoing by the police or Crown but just because allegations are stated at their highest.

In large part because bail considers allegations a publication ban is mandatory if sought by an accused. The accused has an automatic right to such a ban; at the request of an accused, the court must ban publication of the evidence taken, the information given, the representations made, and the reasons given by the court for its decision. The ban remains in place until the charge is disposed of. This ban is not something a Justice of the Peace can waive – if sought by an accused the ban is automatic.

In general, albeit with rare but tragic exceptions, the bail system works well.

According to recent statistics, almost 97% of persons on bail checked by police in Toronto (on a targeted, priority basis) comply with their release conditions. Since the police only check the high-risk offenders likely to breach, the actual compliance rate is almost certainly higher. While any breach of bail conditions is troubling, most breaches are minor; a serious breach always leads to an immediate re-arrest and usually incarceration until trial.

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