Tuesday, February 10, 2009

Bail, Public Confidence and Gun Violence

Courts often recognize that the time has come to get ahead of a building problem and the Ontario Court of Appeal did just that recently by forcing a new debate about secret bail hearings. As our law presently stands the press are banned from reporting any of the information presented at such hearings and are essentially kept to reporting that 'the court denied (or allowed) the Crown's request that the accused be held without bail.'

Canada's bail system essentially is designed to ensure that, except in the case of murder, people are released on bail and the least onerous bail conditions if they can be. This reflects the fact that (1) people are presumed innocent until proven guilty and (2) conditions in pre-trial remand facilities are notoriously bad and it is unlikely that we would actually want to spend the money to build new facilities to house significantly increased numbers of pre-trial detainees. Essentially the rule is that unless the Crown can prove that detention is needed to prevent flight or to protect the public the person is to be released on reasonable terms designed to prevent this (eg turn over your passport and post you mom's house).

The recent spate of bloody and extravagant murders in Vancouver -- which look to be pretty obviously gang related -- has started to liven up the debate about whether or not this is really the right approach to this issue. A professor of criminology at the University of the Fraser Valley was quoted in the CBC yesterday commenting on this issue:

The number of gangs in B.C. has doubled in the past two years, said Darryl Plecas, a University of the Fraser Valley professor.

He said there are more than 100 gangs operating in the province at any given time.
"It's really quite disturbing when we have so many people who are well-known, established gangster types on the street and those people are facing gun charges and released on bail," Plecas said.
"I think, that kind of activity, we really have to give some second thinking to it."

While Professor Plecas' comments seem to oversimplify matters (it is a soundbite after all) they raise a truly legitimate issue in the eyes of the lay people in the public: how can it be that there are so many people running around on bail committing crimes? Of course it is all speculation whether this was true in this case or not, but nevertheless the trend with gang violence in BC suggests that this is a real issue.

Interestingly, the Ontario Court of Appeal struck down parts of these secrecy laws last month. They gave the government a year to fix the problems, but at the heart of their judgment was the observation that the harm of publicity (interfering with the rights to a fair trial) could not be shown in any real way to outweigh the harm that is being done from shielding bail decisions from public scrutiny and debate. Maybe the decisions are good; maybe the decisions are bad. Maybe the problem lies with judges or maybe it lies with the law. The practical problem is that while these decisions are made in secret none of us can really judge this and have a say on what to do. The most ringing statement of the principle applicable in this situation came from Justice Rosenberg (who would have struck down more of the law than was struck down):
[78] In R. v. Hall (2002), 167 C.C.C. (3d) 449 (S.C.C.), McLachlin C.J. wrote at para. 27, “Public confidence is essential to the proper functioning of the bail system and the justice system as a whole”. Again, at para. 31, she wrote: “Without public confidence, the bail system and the justice system generally stand compromised.” Section 517, however, prevents the dissemination of the information necessary to promote public confidence in the bail system. This is the case both at the time the initial decision is made, and later where subsequent events may raise questions as to the wisdom of that decision, as when the accused who is on bail commits further offences. The fact that an accused was on bail when he or she committed a further serious offence often receives wide coverage in the media. However, the public is left to speculate as to why the accused was initially released, because of the s. 517order.

The ruling in the end only struck the rule down for trials that would not be jury trials (this case is inevitably off to the Supreme Court of Canada) but even the judges who disagreed with Justice Rosenberg agreed with this principle.

The time has come for a real debate around how the bail system works (personally I think it comes pretty close to the right balance on the whole) and that debate is not going to be an informed one if it happens with the real process under a shroud of secrecy.

This case also illustrates the importance of the formal press to the advancement of freedom of expression. While the press is a bit self-righteous at times about the sanctity of its rights, the reality is that it is only the press who can truly afford and manage efforts to bring forward challenges like this. While there are people who think that the press can be replaced by the efforts of the amateurs in the cloud of the internet, the reality is different. Cases like this are built on sustained journalistic effort and interest which cannot be sustained by amateurs. The legal challenge depends upon having the resouces and the expert legal teams that only come through the support of the structured press. Left to the blogosphere cases like this would not happen and we would be left in the dark. Thus as we see the economy devastate the press we should avoid the urge to feel schadenfreude -- we will be worse of without them.

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