Problems with our bail system
I was in bail court last week acting as duty counsel. While in court, I ended up assisting a defendant who was in custody awaiting bail. What happened in her case is a clear example of the problems that need fixing in our bail courts.
On the morning of the day in question, the defendant was arrested on a warrant-in-the-first, for an incident alleged to have occurred nine months previously. (What that means is that on an earlier date the defendant was alleged to have committed a criminal offence. Her whereabouts were unknown at the time, so an Information – the charging document – was sworn, and the court issued a warrant for her arrest on that charge.)
It was a minor offence (she didn’t properly report as required on a court order), but she did have a minor recent, criminal record. The Crown offered a position of a nominal fine and no probation if she were to plead guilty that day. For various reasons, the defendant decided to take that offer.
Her matter was sent to a judge for a guilty plea. Prior to hearing the plea, the judge discovered that the Crown and/or police had not filed the proper paperwork. (The court was only given a copy of the charging document, not the original, and this judge did not believe he had jurisdiction over a copy.) The judge sent the matter back to bail court.
When we came back to bail court, I first argued that the court should release her due to the state missing the paperwork to keep her in custody. Alternatively, if the court believed that there was jurisdiction over her, I argued that she should be released on her own recognizance, so that she could go home and come back the next day to plead guilty for the fine.
The Crown opposed.
Actually, I’m not sure that above sentence fully described the absurdity of that position. The Crown opposed the release of a person on bail while they were presumed innocent, notwithstanding that if she pled guilty they would agree to her release unconditionally. It’s not as if she was going to put the public at harm if she was released: she was only charged for not reporting properly on a court order nine months ago. But more importantly, the Crown agreed that she could be released without conditions on her sentence if she was guilty.
What’s worse is that the presiding Justice of the Peace did not call the Crown out on it, and instead of responding to my position just adjourned her to the following day, keeping the defendant in custody in the meantime.
Well, fortunately, sanity resumed inside the courthouse. My office was able to find another judge who was willing to hear the plea. The defendant pled guilty, was given a $25 fine (plus a mandatory 30% victim fine surcharge), given 60 days to pay the fine, and sent on her way.
What I cannot get over is the position the Crown took regarding bail.
In 2010, Justice Casey Hill of the Superior Court of Justice stated the following in R. v. White, 2010 ONSC 3164:
I am satisfied that, in all of the circumstances, public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.
Justice Hill’s comments were recently affirmed by the Ontario Court of Appeal in R. v. Whyte, 2014 ONCA 269.
And the public’s confidence in our bail regime is coming into question. Since approximately 2005, the majority of individuals incarcerated in our provincial reformatory jail system have yet to be found guilty for the crime they are in custody on. The majority of prisoners in the provincial jails are individuals awaiting bail or have been denied bail. In July, the Canadian Civil Liberties Association gave a scathing report on the problems in Canada’s bail system and the over-incarceration of presumptively innocent people. This isn’t news for those us who regularly work in this area of criminal law. In September 2013, the John Howard Society released a report of their one-year review of Ontario’s bail system, concluding that “presumptive detention” has increased dramatically in the last decade, jamming the jails, clogging the courts, costing taxpayer hundreds of millions of dollars, and “making a mockery of the principle of innocent until proven guilty.”
And yet, statistics regularly show that crime – especially violent crime – is steadily decreasing. Statistics Canada reported that the national crime rate is at its lowest level since 1969. As the Toronto Star commented in a recent editorial: “Not surprisingly, the number of people convicted of crimes has fallen – yet more and more people who haven’t been found guilty of anything are being kept behind bars.”
Justice Hill in 2010, and more recently the Court of Appeal in 2014, have warned us that the public may lose confidence in the bail system if continue to detain presumptively innocent persons beyond the sentence they would get if they were found guilty. Even if there’s political will to reform our bail system, there is still a lot we can do as Crowns, defence counsel, judges, and justice of the peace, starting with the unnecessary detention of individual who have already served their sentence.
Let’s start with releasing a person whose sentence is going to be a $25 fine.