National Post

Friday, October 11, 2002

Public fear overrides right to bail: court

Judges split 5-4: McLachlin says citizens' confidence in judicial system must be preserved

Janice Tibbetts
Southam News
National Post

OTTAWA - Public fear is a good enough reason to refuse bail to accused criminals, even if they are not considered a flight risk or safety threat, the Supreme Court of Canada declared yesterday in a sharply divided ruling.

In a 5-4 decision, the court upheld federal legislation that had dramatically limited the application of bail. The change was part of a sweeping law-and-order package ushered in just before the 1997 general election.

The judgment underscored a deep philosophical divide in the court regarding the rights of the accused, with Chief Justice Beverley McLachlin carrying the majority with her contention that judges can take public sentiment into account when considering bail.

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

Justice Frank Iacobucci, in a stinging dissent, countered that judges should not allow "irrational public fears" to trump the constitutional rights of the accused not to be denied bail without just cause.

It's a right, he said, that is the "golden thread" of the legal principle of being innocent until proven guilty.

"Courts must be bulwarks against the tides of public opinion that threaten to invade these cherished values.

"Although this may well cost courts popularity in some quarters, that can hardly justify a failure to uphold fundamental freedoms and liberty."

The decision is a defeat for David Hall, a supermarket meatcutter from Sault Ste. Marie convicted of murdering his cousin's wife in 1999.

Hall was a 29-year-old married father of two when he was charged with killing 27-year-old Peggy Jo Barkley-Dube, who bled to death in her kitchen from 37 wounds. Evidence showed Hall intended to cut off her head. No motive ever emerged.

Hall was convicted of second-degree murder in October, 2000, and imprisoned for life with no chance of parole for 15 years. More than a year after he was sentenced, Hall challenged the fact he was denied bail before his trial, even though the judge did not think it was likely Hall would skip town. Nor was it believed that Hall, described as a loving father with strong community ties and no previous record, posed a threat to public safety.

At issue before the Supreme Court was the constitutionality of federal legislation allowing judges to deny bail to "maintain confidence in the administration of justice."

Crown lawyers convinced the majority that releasing Hall, whose crime was a topic of conversation throughout Sault Ste. Marie, would have further eroded faith in a justice system already under attack for being too soft.

"The crime was heinous and unexplained," Justice McLachlin wrote. "The evidence tying the accused to the crime was very strong. People in the community were afraid."

Although she did not lay ground rules for measuring public fear, she stressed the murder "received much media attention and caused significant public concern.

"A police officer testified that there was a general sense of fear that there was a killer at large and the victim's father testified that his wife and three other daughters were very fearful."

The ruling could have a far-reaching impact on accused seeking bail.

"I think it's disappointing because judges should be leading rather than following the community in criminal law," said Donald Stuart, a criminal law expert at Queen's University in Kingston, Ont. "The end result is that we've got an overly broad bail law that has the potential to be misused."

Allowing public sentiment to be considered in bail decisions could exacerbate rampant racism in the criminal justice system, he added.

The court, at a hearing last May, heard that the exceptional powers given to judges to decide on bail has led to more accused being held in custody in Canada than almost anywhere in the democratic world. The Criminal Lawyers Association said 49% of people facing trial in Ontario were remanded in 2000-2001, up from 31% the previous year. In Europe, it averages 23%, the association said. The United States, Britain, Ireland, New Zealand and Australia do not have broad allowances like Canada's for holding people in custody, it said.

The Hall case reached the high court after it struck down a Criminal Code provision 10 years ago that denied bail when it was in the "public interest." At the time, Antonio Lamer, then chief justice, said the provision was too sweeping to be constitutional. The latest legislation was crafted after the Supreme Court struck down the former law. This time, the court, which has since replaced five judges, sided with Parliament.

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