Tuesday, August 4, 2009

In Defence of our System of Justice (by David Andrews)

If his killers weren’t released on bail, Keni Su’a would be alive today! In the light of any tragedy we can always point to something, if it had been different, would have caused a different result.

In this case, we learned that the first, and ultimately second but not the third individuals charged with the triple homicide at a restaurant in Southeast Calgary on New Years Day were released on bail prior. The first accused had been released on bail just days before he was alleged to have participated in killing three people, one of whom was totally unconnected to the recent spate of gang violence in our city. The circumstances of the prior charge involved his having been found-in a home with 4 other individuals and a cache of illegal weapons including guns. Initially, the uninformed were quick to blame the Judicial System, the Bail provisions of the Criminal Code and specifically the Judge who released him. Those uniformed comments came from no less than our own Minister of Justice who used the occasion to point out that this was further justification for the argument that the present bail system amounted to the ‘catch and release’ of dangerous criminals and implied that our courts were not working to protect us. Subsequently, we learned that his release had not been opposed by the Crown prosecutor in Court and this paper carried an editorial on June 11 headlined; “The horror is that bail made sense”, the next day on June 12, 2009 other local paper managed an interview with the Associate Chief Judge of the Calgary Provincial Court who explained that in law, if the prosecutor doesn’t ‘show cause’ why the Accused shouldn’t be released, the judge has no legal authority to detain the Accused. The headline distorted his explanation indicating – “Judge Blames System”.

It is not the system that is to blame, nor the people working within it. Any person or persons who commit another crime while on bail are ultimately to blame and the justice system will deal with them appropriately and harshly if they are guilty. The Calgary remand centre is overcrowded with individuals who have breached their bail conditions and committed new offences while on bail. In a desperate search for easy answers to make sense of this tragedy it has been all too easy to look for answers where there are none and blame the ‘system’ when it is individuals who should be held accountable. If you believe in the right to be considered innocent until proven guilty and that there should be a high standard before your right to liberty is denied then bail is a fundamental principle of those beliefs and should not be easily dismissed as a cause or condition of a much greater problem of crime and punishment.

The Herald editorial said that “Evidentially, even those accused of serious crimes have every expectation of a quick release pending their court date, as long as their lawyer has a keen eye for who’s on the bench and the wit to work the system to place his client before those known to grant bail easily”.

While I am sure that some Defence lawyers appreciate the endorsement, the cynicism of the comment was remarkable. Although, I would not deny that there was some truth in the comment, it does a great disservice to the administration of justice to suggest that the judges, jp’s and justices of this city are so easily duped. Or that our erstwhile prosecutors or so easily outwitted by wily Defence lawyers. In fact, the law is not only what is written the criminal code, but it is also years and centuries of interpretation of the basic principles by other courts and a healthy dose of common sense. If the evidence doesn’t suggest that the accused will be convicted – why should she be denied bail? The police are equal participants in the justice system and have been let off too easily in all of this. They have effectively been unchallenged in the suggestion that they are working to take criminal s off the street only to have them quickly released by a justice system that doesn’t respect their work or understand the risk or danger to the public posed. In fact, it is the opposite. If there is a catch and release syndrome at all it has come to be because people are arrested without a proper investigation or foundation for the charge and we are tired of seeing charges without merit. It doesn’t matter how many charges there are; 23, 27 the matter is determined by evidence not volume. Crown Prosecutors are tasked with the responsibility of standing in the place of the ‘minister of justice’ as the Agent of the public interest. But they are expected to act in a way that is consistent with basic legal principles. The prosecutor has a responsibility to look at bail in light more than just how serious the charge may appear but the background of the Accused including the criminal record and more importantly the strength of the evidence. In other words, a prosecutor who does not oppose the release of an individual on serious charges when the evidence isn’t compelling and there is no record is simply making the correct decision in light of the criminal law. They recognize when the evidence doesn’t support the charge. As someone who appears each day in the Criminal courts of Calgary I can tell you that the citizens of Calgary are well-served by their prosecutors. They do not make these decisions lightly and I would invite anyone to attend the Calgary Court house on any day of the week to watch the process in action. Often decisions are made quickly, but not lightly and only with a full understanding of the issues at play.

Section 11E of the Canadian Charter of rights and Freedoms guarantees the right not to be denied reasonable bail without just cause. The most effective argument I have ever seen made for bail happened when I was a student-at-law. After listening to a beleaguered prosecutor outline a particularly weak case for a chronic offender with a horrible criminal record, the grizzled courtroom veteran who was tasked with defending the accused and making his application for bail stood up when it was his turn and said “the Charter says the Accused is entitled to reasonable bail.” And sat down. The Judge agreed and released the hapless criminal on appropriate conditions. As lawyers, when we analyze the Charter we are taught to look at it from the perspective of the ‘reasonable person’. That person is aware of general principles of law and aware of all of the circumstances. That coincidentally, is one of the tests for bail. In order to make the argument that the principle of bail is not the problem, it is important to understand what bail is and isn’t.

Section 515 of the criminal code sets out the grounds for bail: An Accused’s bail is determined by three factors; whether or not they are likely to show up in court to answer for the allegation, whether there is a substantial likelihood that they will interfere with witnesses in the case against them or commit more crimes while on bail, and the public interest. This is why a person charge with murder who has no criminal record and no reason to flee due to their deep roots to the community or a compelling defense can still be denied bail in a charge of murder, or why on a lesser charge a person might be released even if they have a criminal record or limited ties to the community.

Into this mix comes the reverse onus clause. For certain offences, or when a person is already on bail it falls on them to persuade a judge why they should be released. Alberta Minister of Justice has argued that this should be the case for more gun and drug charges that would make it harder for alleged gangsters to obtain bail. She made this argument in light of the news of the arrest of the first accused in the new years Day homicide. It did not matter that some of the charges he was released on were reverse onus charges or that his bail had gone unopposed. There is nothing sinister that is bail had been not been opposed. He had no criminal record, was found in a residence that he did not own or rent where drugs and guns and other contraband were stashed and the evidence was far from certain. I hope the outcome of those charges will be as vigoursly reported as the fact that he was on bail for them.

The imposition of a reverse onus clause will not cure the ills of the criminal justice system or work to protect the public in any significant way. It will result in a press release from the Minister of Justice congratulating herself and the rest of us will move on with the daily business of criminal justice. Bail will continue to be determined, as it should be on the basis of the evidence before the court. Prosecutors will make decision based on solid legal principles and not respond to hysteria or ill-informed hype from those who would argue that the presumption of innocence and the right to be released pending trial and conviction are getting in the way of deterring crime.

There is no question that tragedies will happen and that some criminals will commit crime regardless of whether or not they are on bail. Criminals rarely respect the rules or they wouldn’t be criminals. In the meantime – to indict the entire bail system is an overreaction. As much as it is true that an innocent bystander would not have been killed in a restaurant on new years day in southeast Calgary if the accused had been held in custody, it is equally true that he bail system in Calgary and Canada is not the cause of the ills anymore than a collective failure to predict the future on the part of all involved is. Calgarians need to know that there system is functioning properly and while far from perfect, the persons working within it are making the right decisions and doing their jobs fairly and justly without calls needless calls to reform an entire system.

Submitted by:

David Andrews
Calgary Criminal Defence Lawyer