Comments on judicial interim release (Bail procedures)

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The Association was contacted in the fall of 1980 about several instances of alleged misuse of the bail procedures or “judicial interim release” as it is technically called. One complaint alleged that psilocybe mushroom Pickers arrested for relatively minor offences were required to post bail in an amount that equalled the maximum fine that could be imposed if they are subsequently convicted. Other complaints have concerned cases in which people arrested for soliciting are granted bail on condition that they remain outside certain districts (typically the downtown core) pending their trial. It has been alleged that the charges are filed solely to obtain such conditions of bail and that there is no intent to bring such cases to trial. The allegations are supported by the fact that a considerable number of cases are dropped when they are called for trial. The Association has examined these complaints and researched bail procedures that raise civil liberties concerns and issues. The following arguments outline our position.

Almost all legal systems permit the detention of an accused pending trial or the imposition of conditions upon his or her release in some circumstances. Although such provisions are a limitation upon the right to be presumed innocent, they have been considered necessary in order to preserve order and to ensure the effectiveness of the legal system. Thus, considerations about bail require a balancing of the rights of the accused against other societal interests.

The Criminal Code provisions concerning judicial interim release (bail) were substantially revised in 1972 in the Bail Reform Act. A primary purpose of the revision was to more fully protect the rights of the accused. The new provisions stated that the terms of release should be no more onerous than is necessary in order to protect the public and ensure that the accused will appear at trial. Also, the burden of proof was changed so that the Crown has to prove the necessity of detention or other restrictions. The permissible grounds for detaining or restricting an accused are that the order is required to ensure the accused’s attendance in court or is “necessity in the public interest or for the protection and safety of the public”. The amendments greatly expanded the power of the court to control an accused who was released by granting new powers to the judiciary to impose conditions upon the accused’s release. While this power has been the source of some of the complaints we have received, it was considered at the tine to be to the advantage of accused persons since it would allow the release of persons who otherwise would have been jailed pending trial.

Nevertheless, in terns of their implications for civil liberties the amendments to the criminal law made by the Bail Reform Act must, on the whole, be regarded favourably. The liberalization of the bail procedures has ensured that more people will be allowed their freedom pending trial although many of those may have their freedom restricted in other ways. Considering our legal history and the function of arrest and bail under our law there is no question that such restrictions are legitimate in principle, just as detention before trial is obviously legitimate in appropriate circumstances. However, both detention and lesser restrictions of freedom continue to offer a potential threat to notion of fundamental civil rights. In viewing the precedents in the area, we note that conditions have been imposed requiring an accused to reside with a certain person until trial, to retain or find work, to go to school, or to avoid the consumption of alcohol or to avoid drinking establishments or liquor stores. Also, curfews have been ordered and accused persons forbidden to return to the scene of the offence or to go to a certain area of the city. Accused have also been prohibited from possessing firearms, marrying, or altering their appearance and have been ordered to remain in Alcoholics Anonymous and to submit to a daily urine test.

While most orders no doubt are justified in the circumstances it is clear that sane of them by their very nature are bound to raise civil libertarian concerns. Control comparable to that obtained by an order for detention is not what the bail provisions are designed to provide. Specific limited restrictions of activity certainly are contemplated by the Code especially considering that if detention were ordered it would restrict those activities in any case. Harder to accept are conditions that force the accused to do something that the would not otherwise be required to do, even if confined, such as to remain in Alcoholics Anonymous, to seek anti-abuse treatment, or to submit to daily urine tests. Reviewing the factors that have been held to justify such conditions, it appears the courts have emphasized the need to consider a number of relevant factors and not to focus on one factor to the exclusion of another. Thus, it has been held that having no roots in the community is not alone sufficient ground for denying release without conditions and that detention should not be ordered merely because of the seriousness of the offence or because of previous convictions or the probability of a conviction. On the other hand, a criminal record or involvement with drugs, even if the accused was previously acquitted on drug charges, has been held to be sufficient to justify detention or the imposition of conditions upon the release of an accused. Cases can be cited which suggest that it would not be permissible to prohibit an accused from driving if the condition were unrelated to a particular offence or to impose conditions concerning the use of non-medical drugs where there was no evidence of drug abuse. Other cases suggest it would be improper to prohibit application for unemployment insurance benefits or impose a curfew upon an adult.

It should be noted that a considerable body of legal authority is available to counsel representing an accused at a bail proceeding and we recommend that whenever possible, questionable orders be challenged. However, it should also be noted that many accused will not have the means or inclination to prolong their exposure before the courts. There are also limitations on the power to appeal an order of judicial interim release; where an unreasonable order is made, the chances to overturn it before the courts are not good. The Bill of Rights seems to provide no effective protection in these circumstances. With regard to the use by the Crown of these powers to gain control over an accused where there is no real chance the accused could be convicted at trial, our research indicates that judicial intervention is unlikely since the courts are loathe to interfere with the prosecutorial discretion of the Crown.

The Association’s conclusions and recommendations are:

  1. The 1972 reforms to bail procedures are, in general, beneficial to accused persons. The power to impose conditions upon the release of a person has resulted in people being released who otherwise would have been imprisoned until trial. However, there is still a danger of abuse of these powers in some circumstances.
  2. Bail should never be set in an amount that exceeds that reasonably calculated to ensure that the accused appears at the trial.
  3. The amount set for bail or the terms of a condition imposed upon the release of an accused should never be such that the accused cannot comply. To do so, would be to improperly incarcerate an accused, and would violate the intent of Parliament in enacting the bail reform provisions.
  4. It is a clear abuse for the Crown to seek restrictions on an accused pending trial if the Crown does not intend to proceed to trial or expects that the accused will be acquitted at trial.
  5. It should not be permissible to impose a condition upon the release of an accused that could not be imposed if the accused remained incarcerated unless a) there are reasonable grounds to believe that the failure to impose such condition would result in danger to a member of members of the public and b) the condition imposed is reasonably believed to be necessary in order to avoid that danger.
  6. Although the Criminal Code allows restrictions to be placed on an accused in the “public interest”, that term should be interpreted in a manner that embraces a notion of both the individual and the collective rights concerned. Thus, it is never in the public interest to impose an undue restriction on the rights of an accused person.
  7. While the presumption of innocence does not entirely preclude the imposition of restrictions upon an accused before trial, account should be taken of that right in determining whether to impose such restrictions. In particular, the standards applied in considering the imposition of restrictions before trial should rot be equated with those applied in determining the legitimacy of conditions of parole imposed after conviction.
  8. The Attorney General is responsible for all conduct by agents of the Crown done in the process of enforcing the criminal law. He should be held responsible for correcting any abuses that occur. Where a pattern of abuse is apparent, he should be requested to establish guidelines for the exercise of prosecutorial discretion with regard to judicial interim release.

    While judicial discretion is designed to benefit the accused, the broad discretionary powers given to judges could be used to infringe the rights of an accused. If such a result occurred frequently, the best appropriate remedy would be to amend the legislation.