Edmonton Sun

October 19, 2002

Public fear can now deny bail to accused

By MINDELLE JACOBS -- Edmonton Sun

Should public sentiment alone be a valid enough reason to deny bail to accused criminals? The Supreme Court of Canada thinks so - by a whisker.

People accused of crimes are usually kept in custody because they are considered flight risks, they are believed to be a threat to public safety or it is thought they will tamper with witnesses.

But the law also permits judges to deny bail based on "any other just cause" or to "maintain confidence in the administration of justice."

It is that clause that split the Supreme Court justices into two camps last week. The winning side in the 5-4 decision ruled that public fear is enough to keep an accused behind bars.

The dissenting side argued emotional public views have no place in a courtroom when there is no risk of flight or threat to community safety.

The ruling amounts to a sucker-punch to the notion of presumption of innocence, according to the Canadian Council of Criminal Defence Lawyers.

If you think remand centres are already overcrowded with people detained before trial, just wait, says council president Bill Trudell, a Toronto lawyer.

The Supreme Court envisions an accused will only be denied bail solely because of public fear in rare cases.

Trudell thinks otherwise. "It's going to happen all the time," he says. "This public interest factor is going to be a short-cut to keeping people in custody who shouldn't be there."

To be clear, Trudell is not saying that public concern should carry no weight at all in bail decisions.

But those fears are adequately addressed in the Criminal Code provisions that permit bail to be denied if the accused might not show up in court or where protection of the public is a factor, he says.

Allowing bail to be denied just to maintain public confidence in the justice system is too far-reaching, he argues.

At the risk of incurring the wrath of the knee-jerk law-and-order types, I agree with Trudell.

I am all for tough sentences that fit the crime. But I do not see how it advances the cause of justice to let public mood wield such influence in bail decisions, especially as no one knows all the facts before trial.

The dissenting Supreme Court judges put it better than I ever could:

"(The section) is ripe for misuse and allows irrational public fears to be elevated above an accused's charter rights," they wrote.

"It allows the subjective fears of the public and ill-informed emotional impulses extraneous to the bail system to form a sole basis for denying bail."

They added that it's hard for an accused to confer with his lawyer in custody, he may lose his job and his family may suffer economic hardship. All before he goes to trial.

As well, lawyers for the Crown were "hard-pressed" to come up with a convincing scenario which would justify pre-trial detention for reasons other than flight risk and public safety, the dissenting judges noted.

The case, by the way, involved a horrific Sault Ste. Marie, Ont., murder. In 1999, David Hall stabbed a woman 37 times and tried to cut off her head. He was subsequently convicted of second-degree murder.

At his bail hearing, the judge concluded Hall was unlikely to flee or pose a threat to the public.

But he denied bail because of community fear.

One wonders, then, why he didn't keep Hall in custody based on the public safety clause.

Writing for the majority, Chief Justice Beverley McLachlin said ignoring public sentiment risks "dangers such as public unrest and vigilantism."

While courts must not pander to public opinion, public confidence is essential to the proper functioning of the justice system, she added.

But as Trudell points out, the public doesn't focus on the presumption of innocence. It's out for blood.

"That visceral reaction of the community is the one that's going to carry the day," he says.

"I think (the ruling) is going to be abused," he predicts. "It's a disappointing judgment. We keep too many people locked up already."

Mindelle can be reached by e-mail at mindy.jacobs@edm.sunpub.com.
Letters to the editor should be sent to letters@edm.sunpub.com.

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