Police seek stricter terms; criminal defense counsel likes status quo
LITTLE CURRENT—Premiers and police associations have joined the outcry for bail reform in the wake of the recent shooting death in the line of duty of Ontario Provincial Police (OPP) Constable Greg Pierzchala. The accused in that case was released on bail and was under a lifetime weapons prohibition. On the other side of the debate are those who say the current system works. Ultimately, the rights of accused people must be balanced with the right to public safety.
On January 13, Canada’s premiers issued a call-to-action urging the federal government to take immediate action to strengthen Canada’s bail system. This is a second unified call-to-action from the provinces and territories, petitioning the federal government following the October 2022 meeting of provincial and territorial ministers of justice and public safety.
“There have been a growing number of calls for changes to prevent accused persons, who are out on bail, from committing further criminal acts,” they wrote in the January 13 letter. “The justice system fundamentally needs to keep anyone who poses a threat to public safety off the streets. And this starts with meaningful changes to the Criminal Code (CC), an area solely within the federal government’s jurisdiction.”
The call for bail reform is supported by the Ontario Association of Chiefs of Police (OACP) and four of Canada’s largest police associations, representing more than 60,000 members. A joint statement from the Canadian Police Association, the Police Association of Ontario, Ontario Provincial Police Association and the Toronto Police Association was issued January 14, just 10 days after the funeral of Constable Pierzchala.
“We are saying today what we are sure most Canadians are feeling: Enough is enough. We cannot allow the deaths of five of our members to go unchallenged,” the joint letter stated. “Together over the next days, weeks, and months we will review the judicial and public safety frameworks, commit to further research to fully understand the best remedies, identify what isn’t working, and call for change to ensure that this does not continue. Everything will be on the table – from bail to sentencing, to enhancing Crime Stoppers, to a growing and chronic shortage of police officers.”
The OACP referred to their own earlier statement (December 29, 2022), which “emphasized that police leaders in Ontario have and will continue to advocate for legislative reforms in the delivery of justice for all Canadians, including the bail process involving violent repeat offenders and violent firearms crimes.”
“The courts must be careful, ever, not to be swayed or influenced by the media or get carried away with the allegations against the accused, because everyone is considered innocent until proven otherwise,” Little Current lawyer Susan von Achten told The Expositor.
“The law is clear that each case must be considered carefully on its own individual factors, namely the background of the accused; any criminal record or outstanding charges; the strength of the sureties and their ability to supervise the accused; the apparent strength of the case against the accused; the strength of the release plan proposed and the maintenance of confidence in the administration of justice,” she said.
Bail is available to any person charged with an offence in Canada, even murder. The question the courts must ask themselves when deciding whether or not to grant bail is, is the charged person releasable? There are three parts the court must consider in this. First, whether or not the person, if released, would attend court as required. Second, if the person is released, is there a substantial likelihood that they would commit further offences. Finally, the court must consider if the maintenance of confidence in the administration of justice be undermined if the accused was released.
“Each of these criteria has spawned a huge amount of legal debate, argument, analysis and case law to define how to address each of these criteria and come to a determination as to whether the accused can or cannot be released,” said Ms. von Achten. “Cases have a strange way of being turned on their head as they proceed through the courts. New information can be found which change the nature of the case against the accused; identification evidence; alibis; witnesses with a motive to lie; police misconduct and such like.”
Canada’s premiers want to see a ‘reverse onus’ on bail for the offence of possession of a loaded prohibited or restricted firearm in section 95 of the CC. “A person accused of a s. 95 offence should have to demonstrate why their detention is not justified when they were alleged to have committed an offence where there was imminent risk to the public, as is already the case with several offences involving firearms,” they wrote.
They would also like to see a review of other firearms-related offences to determine whether they should also attract a reverse onus on bail.
Ms. von Achten said the general approach of the courts today is that accused persons who are involved in the use of weapons and illegal drug trafficking can expect that those factors will carry significant weight in the determination as to whether or not the accused person will be released on bail or not.
“Judges, in determining whether a person should be released on bail or not, must consider all of the circumstances of the case; what a ‘reasonable person’ properly informed about the philosophy of legislative provisions and the values of the Canadian Charter of Rights and Freedoms. Section 11(e) states that a person is not ‘to be denied reasonable bail without just cause.’ Section 11(d) states that a person is ‘to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal,’” she said.
The bail system in Canada is the same or similar to other commonwealth countries, Ms. von Achten pointed out. If someone fails to attend court while on bail they can still be released on bail. There may have been an error on the date or the person could be experiencing ill health. There could be a lawyer error, a court error or other valid reason for the failure to attend, thus there would be no reason to detain in those cases. However, if there is no excuse, a more stringent bail than the one breached could be imposed, she pointed out.
Does she think the outcry from the premiers and police and others will have an effect on bail decisions? In a word, no. “The law of bail has been approved by the Supreme Court of Canada. The Charter s.11 (e) has been tested and found constitutional, and reforms brought in by Parliament would be challenged in the courts.”
