Globe and Mail

Public concern sufficient to deny bail, court rules

By KIRK MAKIN, JUSTICE REPORTER
Friday, October 11, 2002 – Print Edition, Page A7
The Globe and Mail

Accused people can be denied bail solely for the purpose of quelling public fears, the Supreme Court of Canada said yesterday in a ruling that reveals a bitter clash between ideological factions on the court.

Over objections from the dissenting members, a five-judge majority said that, even in cases where an accused person is unlikely to flee or commit another offence, public concern is reason enough to keep that person behind bars.

"When justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter," wrote Chief Justice Beverley McLachlin. "Where the public's confidence has reasonably been called into question, dangers such as public unrest and vigilantism may emerge."

However, the dissenting faction went so far as to accuse Chief Justice McLachlin of "abdicating" the court's authority. They insisted that judges must show enough spine to place liberty above the emotional clamour of ill-informed members of the public.

"It is the role of the courts to guard the Charter rights of the accused when they conflict with irrational and subjective public views, even when sincerely held," Mr. Justice Frank Iacobucci said.

He warned that the controversial bail provision "is ripe for misuse and allows irrational public fears to be elevated above an accused's Charter rights.

The case involved the stabbing death of Peggy Jo Barkley-Dube, a Sault Ste. Marie resident, on May 3, 1999. She died in her kitchen after being stabbed 37 times in an attack that included an apparent attempt to behead her.

A month later, police arrested David Scott Hall -- the second cousin of Ms. Barkley-Dube's husband. The main evidence against him involved a match between his shoes and bloody footprints found at the crime scene.

Mr. Hall's bail hearing played out in an atmosphere of public fear and horror. The presiding judge concluded that Mr. Hall was unlikely to flee or pose a threat to the public, yet he ought to be kept in jail to "maintain confidence in the administration of justice."

Mr. Hall has since been convicted of second-degree murder.

The court struck down a similar bail provision in 1992 because it was too broadly worded. Five years later, Parliament responded with the current version.

Chief Justice McLachlin praised the precision of the revamped version yesterday.

But Judge Iacobucci, Mr. Justice Jack Major, Madam Justice Louise Arbour and Mr. Justice Louis LeBel strenuously disagreed. They said the new bail provision is even worse than the old one, provides "a facade of precision" and ought to be struck down in its entirety.

Mr. Hall's lawyer, John Norris, took heart yesterday from two modest victories he won in the ruling. First, the court said the public-confidence provision ought to be used infrequently. Second, it said that a particular phrase that allows judges to deny bail "on any other just cause being shown" is too broad and must be amended.

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