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Should Bail Be Stricter?


JustHereNotStaying
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JustHereNotStaying
  • Law Student

After the recent murder of the newly recruited officer in Ontario, there are fresh calls to make the bail system stricter (violent offences particularly. At least one of the killers were out on bail for a bunch of offences. Thoughts? 

Edited by JustHereNotStaying
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CleanHands
  • Lawyer

A cop being killed by someone out on bail, in itself, has no more significance than a cop being killed by someone with red hair.

To have any sort of intelligent or informed discussion about this one would need the details of what outstanding informations they had release on, what their criminal record looked like, why they were on release and on what conditions, etc.

This is certainly the kind of thing that leads to people calling for reform, but generally not in an informed way at all.

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realpseudonym
  • Lawyer

I imagine that this is what OP is referring to: https://lfpress.com/news/local-news/first-degree-murder-charges-laid-in-police-officers-shooting-death; https://globalnews.ca/news/9375256/opp-charges-fatal-shooting-officer-hagersville/

I find bail reform is a really challenging legal topic to discuss. Partly because bail is tricky. You're trying to determine the likeliness of compliance with conditions or law pending trial. Already, that's hard. You're looking at a single individual and their circumstances, and attempting to predict what they'll do. No one is clairvoyant. So instead, you're looking at a mix of past behaviour and unproven allegations. It's a highly factual, individualized balancing process. At a policy level, it's hard to say what changes you can make to such an inherently individualized process, which will better protect the public without resulting in overly lengthy pre-trial detentions of people who are presumed innocent.

It's also challenging to talk about it with people who haven't been in bail court, which is usually a zoo. Everyone is working with limited information. There's often little disclosure, because it's so early in the process. The participants often aren't as well prepped due to a variety of time-constraints, etc. There's all sorts of logistical issues -- the wrong detainee gets brought to the courtroom, someone has the wrong information sheet, we're looking for arresting officers, and can't find sureties. I'm pretty junior, but I've had a chance to do a bunch of proceedings, inside and outside the criminal justice system. I find bail one of the more difficult, messy proceedings to run, including trials and appeals. And I think that even if you had a silver bullet policy reform to get the bail balancing exercise exactly right on every offence in the Criminal Code and CDSA, it's still going to be hard for things to go right in practice, and things will get missed or lost because of inherent challenges within the bail process.

I also find it hard to talk about bail as a whole, based upon a single case in the media. Partly because I agree with @CleanHands -- we don't have enough information to have an intelligent discussion. In the stories I linked, there's nothing about the reasons for why Mr. McKenzie was released in June 2021, and little about the facts aside from parts of his record and his charges. Even if I were to concede, as some people tend to argue, that the list of convictions and outstanding charges suffice to prove that he's a risk to reoffend or a danger to the public, I'm not willing to draw conclusions on larger bail reform based upon individual cases. That's partly a general principle. Hard cases make bad law and all that. Also, because looking at news stories on crime in general gives a narrow and inaccurate view on bail in Canada. Horrifying stories, where someone is released and reoffends are newsworthy. The thousands upon thousands of people who are released without any real incident are not covered, because they're not interesting and not news. Yet, they are relevant to whether the bail system is functioning, what changes are required, and how those should be implemented. But it's hard to make people care about those, in the face of an awful, recent, tragic crime.

Edited by realpseudonym
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Phaedrus
  • Lawyer

Before practising criminal law, I really had no idea the volume of criminal work accomplished by courts and counsel on a day-to-day basis, even in rural and remote communities. It's an astounding process that hundreds of thousands move through, with little to no information about the people involved beyond a rap sheet and bald-faced allegations (I'm generalizing, of course). Hindsight is 20/20 and it's always easier to identify "obvious risks" after you confirmation-bias your way back analytically from a horrendous incident. This isn't Minority Report and crime prediction is largely junk science. The 'public' wants broad, sweeping Charter-infringing state conduct against the morally blemished until, of course, that same authority is wielded against them

What gets missed in nearly every media article on bail reform is the impact impossible-to-predict cases have on the actors involved in the person's release and the vomit-inducing shock of contemplating they "could have done something else". My Crown counterparts face it from every angle; internally, senior/regional Crown, and the community. The judge who released the person bears that weight on their conscience, too. Then, hundreds more presumably innocent people are held in remand to 'preserve confidence in the administration of justice'.

I'm not sure what bail reform looks like, but holding everyone in remand pending trial isn't the answer. 

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Diplock
  • Lawyer

Look, I'm going to make this very simple. And unlike Cleanhands, I'm not going to inhabit an absolutist position where I pretend there's no relationship at all between being criminally accused and the propensity to commit crime. There is a relationship, obviously. Which means that in some objectively true sense, there would be less crime in the community if we simply assumed that anyone who is accused of a violent crime can't be trusted in society at all and they are kept incarcerated until their matter is adjudicated. Not to say it's a good idea, only that it would prevent some crime. Just like amputating a limb at the first sign of cancer would, objectively, prevent at least some more serious consequences down the road. But that's the issue isn't it? Cost vs. benefit.

So, I promised I'd make this simple. If you want to have this debate, it can only be framed in these terms. You want me to concede keeping criminally accused persons who are not yet convicted of any crime in jail for long periods of time would prevent some crimes from happening in the community? Sure it would. It would also result in the medium-term incarceration of many people (and by medium-term I mean at least 4-6 months at a pop) who will never be convicted of any crime to justify that incarceration. Many of those people are poor, racialized, marginalized in other ways. Many of whom will have their lives completely fall apart (to whatever extent they were ever together) while they are incarcerated. I mean, what would happen to your life if you were suddenly thrown in jail with no warning for six months? Who would pay your rent, feed your cat, etc.? Would you be coming out to any job you might still have, any relationship that's still there for you?

Here's the simple question. For each serious crime you may prevent by locking up everyone who worries you preemptively, how many peoples' lives are you willing to completely demolish in the process? People who will not be convicted of any crime at the end of the punishment you propose they should suffer simply because some police officer somewhere at the start of everything believes they may have done something?

If you can't approach the question in these terms, you are being intellectually dishonest and quite frankly, while a member of the public is entitled to be that stupid it's unworthy of anyone with an ounce of legal training. It isn't enough to look at what you're trying to achieve (we're trying to prevent serious crimes!) you also have to look at the cost of what you propose. You will, with absolute certainty, lock up innocent people for lengthy periods of time and destroy their lives in the process in order to achieve your end. So, how much different collateral damage are you going to tolerate in order to prevent the collateral damage you currently dislike?

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7 hours ago, Diplock said:

Here's the simple question. For each serious crime you may prevent by locking up everyone who worries you preemptively, how many peoples' lives are you willing to completely demolish in the process? People who will not be convicted of any crime at the end of the punishment you propose they should suffer simply because some police officer somewhere at the start of everything believes they may have done something?

This is made even more tricky by the fact that we know that cops lie all the time. Putting someone in jail on the word of a cop without any sort of rigorous trial is pretty problematic, even though obviously it has to be done sometimes.

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realpseudonym
  • Lawyer
54 minutes ago, Jaggers said:

This is made even more tricky by the fact that we know that cops lie all the time. Putting someone in jail on the word of a cop without any sort of rigorous trial is pretty problematic, even though obviously it has to be done sometimes.

They do. But they don’t even have to lie for there to be a problem. They’re also just routinely wrong, regardless of their honesty.  But yeah, that is the problem with preventative detention pending trial. How willing are you to be locked up for 6, 12, 18 months just because someone who works at TPS or the OPP says you might have done a thing?

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Mountebank
  • Lawyer
4 minutes ago, realpseudonym said:

They do. But they don’t even have to lie for there to be a problem. They’re also just routinely wrong, regardless of their honesty.  But yeah, that is the problem with preventative detention pending trial. How willing are you to be locked up for 6, 12, 18 months just because someone who works at TPS or the OPP says you might have done a thing?

Are there any modern, western jurisdictions in which criminal trials happen in a matter of weeks rather than many months or even years? Is this even possible?

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Phaedrus
  • Lawyer

It happens. I've had street-involved clients held in remand with no release plan, on non-serious charges get early trial dates. Courts will triage upcoming court dates and earmark trials likely to resolve to save the date for persons in custody. The reasoning being that, even if guilty, the impact of pre-trial detention would be grossly disproportionate to even a high-end penalty upon conviction. The barrier is often counsel's availability, time to prepare, subpoena witnesses, etc. 

I've also observed charges get withdrawn after a period of time for the same reason. 

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realpseudonym
  • Lawyer
1 hour ago, Mountebank said:

Are there any modern, western jurisdictions in which criminal trials happen in a matter of weeks rather than many months or even years? Is this even possible?

I'm not sure. Without checking, I'm pretty sure Jordan and other 11(b) litigation has looked at other common law jurisdictions, and that the reasonableness of the presumptive 18 and 30 month ceilings is partly informed by what happens elsewhere. I would guess that other places like the UK and the US also continue to struggle with delay, but I'm not sure.  

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BlockedQuebecois
  • Lawyer

In the United States, the Speedy Trial Act of 1974 requires an information be laid or indictment filed within 30 days of arrest and then provides that the trial must commence not less than 30 days and not more than 70 days after the date of the information or indictment.

England has struggled post-pandemic, but in 2019 the median time to trial was 9 weeks for individuals in custody and 18 weeks for individuals out on bail. 

The delays in Canada’s criminal and civil courts are shameful and it’s deeply disappointing that the government has no interest in better resourcing them. 

 

Edited by BlockedQuebecois
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Pantalaimon
  • Lawyer
2 hours ago, BlockedQuebecois said:

In the United States, the Speedy Trial Act of 1974 requires an information be laid or indictment filed within 30 days of arrest and then provides that the trial must commence not less than 30 days and not more than 70 days after the date of the information or indictment.

England has struggled post-pandemic, but in 2019 the median time to trial was 9 weeks for individuals in custody and 18 weeks for individuals out on bail. 

The delays in Canada’s criminal and civil courts are shameful and it’s deeply disappointing that the government has no interest in better resourcing them. 

 

Damn, I suspected this was the case but that's crazy.

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CleanHands
  • Lawyer
20 hours ago, Diplock said:

-Snip-

My point was precisely that the people calling for bail reform over individual high profile anecdotes aren't thinking about these issues in the aggregate, broader sense at all.

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CleanHands
  • Lawyer
13 hours ago, Jaggers said:

This is made even more tricky by the fact that we know that cops lie all the time. Putting someone in jail on the word of a cop without any sort of rigorous trial is pretty problematic, even though obviously it has to be done sometimes.

I hate cops but it's worth mentioning that the Crown is still obligated to follow the charge approval/decision to prosecute guidelines at the bail stage, and most files will have statements from civilian witness, video footage, etc, available in disclosure at that time. So most (but not all) files are more than just a matter of "the word of a cop."

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On 12/29/2022 at 10:53 PM, Diplock said:

But that's the issue isn't it? Cost vs. benefit.

So, I promised I'd make this simple. If you want to have this debate, it can only be framed in these terms. You want me to concede keeping criminally accused persons who are not yet convicted of any crime in jail for long periods of time would prevent some crimes from happening in the community? Sure it would. It would also result in the medium-term incarceration of many people (and by medium-term I mean at least 4-6 months at a pop) who will never be convicted of any crime to justify that incarceration. Many of those people are poor, racialized, marginalized in other ways. Many of whom will have their lives completely fall apart (to whatever extent they were ever together) while they are incarcerated. I mean, what would happen to your life if you were suddenly thrown in jail with no warning for six months? Who would pay your rent, feed your cat, etc.? Would you be coming out to any job you might still have, any relationship that's still there for you?

Here's the simple question. For each serious crime you may prevent by locking up everyone who worries you preemptively, how many peoples' lives are you willing to completely demolish in the process? People who will not be convicted of any crime at the end of the punishment you propose they should suffer simply because some police officer somewhere at the start of everything believes they may have done something?

 


In BC at least the focus hasn't been on everyone accused of a serious or violent crime, it has been on repeat offenders, which I think is slightly different than the point you are arguing here.

Since I am a bean counter - aside from the human cost you have outlined which is real, widespread pre-trial incarceration would be incredibly expensive, both in terms of actually jailing the people and then in the social services required after the fact (EI if you manage to qualify for it, other assistance, minor children, dependent spouses  etc..).  I suspect, howerve, that the financial calculus is different when you take a look at repeat violent offenders that offend multiple times a year.

These costs will primarily borne by provinces rather than the federal government that is ultimately responsible for the criminal code. 

I expect most provincial requests (from BC, and I guess Ontario now) for bail reform will focus on repeat violent offenders rather than a more "holistic" approach. On the federal level Polieiver will probably take the same approach.

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CleanHands
  • Lawyer
On 12/31/2022 at 9:31 AM, Kurrika said:

Since I am a bean counter - aside from the human cost you have outlined which is real, widespread pre-trial incarceration would be incredibly expensive, both in terms of actually jailing the people and then in the social services required after the fact (EI if you manage to qualify for it, other assistance, minor children, dependent spouses  etc..).  I suspect, howerve, that the financial calculus is different when you take a look at repeat violent offenders that offend multiple times a year.

These costs will primarily borne by provinces rather than the federal government that is ultimately responsible for the criminal code. 

Given the caliber of the absolute subhuman Neanderthal thugs that currently fill the ranks of provincial corrections, I struggle to even imagine how unbelievably terrible the standards would have to be to achieve proper staffing levels if pre-trial detention rates were dramatically increased.

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