On June 1, 2017, the Supreme Court released its judgment in R. v. Antic, a case out of Ontario that focused on the heavy reliance provinces place on surety releases. Professor Don Stuart of the Faculty of Law At Queen’s University described the decision in Antic as “welcome in responding to concerns about growing pre-trial detention rates”.
Interestingly, on June 29, 2017, the law firms of Henein Hutchison LLP and Koskie Minsky LLP commenced class action against the Province of Ontario alleging that chronic delays in bail hearings have violated the rights of accused persons. The proposed representative plaintiff is Ms. Robin Cirillo.
Are the timing of the Antic decision and the commencement of the class action lawsuit against the Province of Ontario coincidence? I would argue no.
In discussing Antic, Vincenzo Rondinelli, who was appointed amicus curiae by the Court, commented that all parties involved in the case were in agreement that “the bail system is broken”. Though Antic and the lawsuit target different issues, they both speak to systemic defects inherent in the way bail court is conducted. The issues raised – pre-trial detention and delay – have created cracks in the system, separating an accused from their right to bail. Although this is cause for grave concern, recent developments point to a hopeful trend: that steps are being taken in efforts to bring fairness to the accused back to bail court.
The growing trend of pre-trial detention
Over the past 30 years, the pre-trial detention rate has tripled. In 2005, Canada’s provincial and territorial jails for the first time held more people who were legally innocent than they did sentenced offenders. In its 2014 report “Set up to Fail: Bail and the Revolving Door of Pre-trial Detention“, the Canadian Civil Liberties Association noted that on an average day in 2012/2013, there were 25,208 people behind bars of provincial and territorial jails; 54.5% of these people were in a pre-trial custody, legally innocent, awaiting trial or determination of bail.
The “Culture of Adjournment” & bail process: Adjourning, not addressing
A professor at the School of Criminology at Simon Fraser University, Dr. Nicole Myers has studied bails closely for most of her career. For her 2015 article “Who Said Anything about Justice? Bail Court and the Culture of Adjournment” (30 No. 1 Can. J.L. & Soc’y 127), Dr. Myers spent 142 days observing bail court. There, Dr. Myers observed a startling pattern: she found that the shared interest of all parties in the courtroom seemed to be “getting through the day as quickly and efficiently as possible”. In what she referred to as a “culture of adjournment”, the bail process appeared to be more focused on “expeditiously disposing of the daily docket” rather than doing all that is necessary to ensure the proper distribution of justice. She further noted that there were no measures in place to monitor the daily performance of the court.
Adjourning bail, adjourning justice?
Adjournments are a common part of the day-to-day in the criminal court system. But in bail court, an adjournment is not just your average delay; not only does an adjournment prolong the life of a criminal case, it often needlessly adds to the time an accused person spends incarcerated. An adjournment in bail court may offer short-term benefit to a courtroom, such as docket relief; but it must not be forgotten that in exchange people are being kept in jail longer. This fact should be met with concern, though it seems to be normalized in light of courtroom efficiency. As Dr. Myers observed:
There appears to be a conflict between the legal framework and an informal culture that rationalizes the court’s behavior. The court system may share bureaucratic priorities of production and efficiency; however, these do not seem to be translated into practice in the bail court. While court actors are certainly aware of issues of backlog and delay, there appears to be considerable ambivalence toward ensuring the bail decision is made expeditiously.
Making bail the focus of bail court: change is on the horizon
The realities of daily bail court are disturbing. The good news is that change is underway. The Ontario Court of Justice announced last month that judges would take over bail hearings at College Park in Toronto as well as the Ottawa courthouse. The pilot project, expected to last 18 to 24 months, “is exploring whether the introduction of judges’ criminal trial experience at the earliest stage of the criminal court process could reduce time to final disposition,” said court spokesperson Kate Andrew. And though this bail project has been introduced as a way to assist the pace at which criminal matters move, it could obviously be of benefit in ensuring that balance is kept in bail court between justice and efficiency.
With respect to issues concerning pre-trial detention, the Court’s decision in Antic encourages justices to explore the least onerous forms of release. Rather than relying on surety releases, Antic calls for justices to consider each release option from the most generous to the most restrictive. This recent pronouncement, coupled with the lawsuit against the Ontario government with respect to delays in bail court as well as the new pilot project, show that both the government and courts are alive to and prepared to start addressing the overwhelming need for change in our bail courts.