A limited pilot project in two Ontario courts has begun. Judges will now sit in bail court in the Ontario Court of Justice in Ottawa and in College Park in Toronto. The usual practice in Ontario is to have a Justice of the Peace hear bail hearings. Unlike a judge with a minimum of ten years experience as a lawyer, a Justice of the Peace need not have any legal training. In fact, the majority, including those recently appointed, do not.
Delay in Bail Courts
The reason for this pilot project stem primarily from concerns about delay. Delay in bail courts is very real. It is not unusual to have to return to court on multiple days to have a contested bail hearing. The effort to deal with this delay is admirable and it is quite possible that having judges with significant legal experience in charge of these courts will assist with that, but I am more interested in how this may effect the culture of those bail courts.
The bail stage is arguably the most significant stage for the majority of accused persons because it often determines the ultimate fate of the proceedings. A person who is denied bail is far more likely to plead guilty at an early stage. An accused person, even one who eventually pleads guilty, is infinitely better off if he or she is out of custody. That person can hire a lawyer, review disclosure to determine weaknesses in the Crown’s case, obtain letters of support, complete counselling, etc.
The Supreme Court of Canada has recently released a number of decisions on bail hearings, most notably R. v. Antic. In Antic, Justice Wagner went to great lengths to explain the history and proper interpretation of the bail provisions in the Criminal Code of Canada before concluding that there appears to be a “widespread inconsistency in the law of bail” , specifically calling out Ontario’s over-reliance on sureties. In essence, the decision in Antic is a reaffirmation of the ladder principle, which essentially means that release is presumed to occur at the earliest opportunity and on the least onerous grounds.
Any person who spends time in Ontario’s bail courts can see that a culture of fear, paternalism and extreme aversion to any risk has taken over our bail courts. In an extensive study of the issue the Canadian Civil Liberties Association found that there is a “systematic violation of the Charter right to reasonable bail,” again, citing Ontario as a particularly common offender. House arrest surety bails are being imposed on people with no prior criminal record for relatively common offences. Accused persons are routine expected to prove why they should be released, even when the law says that the onus is on the Crown. Conditions are imposed because the Crown or the Justice of the Peace believes that it would be beneficial for the accused person, even if totally unrelated to the alleged offence.
Antic is not new law. This has been the law since the Bail Reform Act came into force in 1972. This law is not being consistently applied by Justices of the Peace in Ontario. It hasn’t been for a long time. Culture is hard to change. Maybe putting judges in charge will start to move it in the right direction. Maybe all it requires is some fresh blood. Regardless, I am hopeful that this pilot project is a sign of better things to come.