Ottawa Citizen
Wednesday, November 20, 2002

Bail delays deny rights of accused

Critics say new procedure leaves some languishing for weeks in Ottawa jail

Jake Rupert
The Ottawa Citizen

Ottawa courthouse officials are scrambling to deal with several accused people who have spent days -- and even weeks -- in jail without getting bail hearings.

The situation occurred after a new bail procedure was introduced recently with the idea of bringing some order to the Elgin Street facility's bail court, in disarray for months.

However, instead of making matters better, defence lawyers, a legal scholar, duty counsel and, in private, some Crown attorneys, are saying the procedure has resulted in the breaching of accused's rights.

"It concerns me greatly the cavalier way accused's rights are being treated in this jurisdiction," defence lawyer Delinda Haydon said yesterday. "It's obscene."

A special bail court is being held today to cope with some of the jailed people who want to get out, pending the outcome of the accusations against them.

Regional senior Ontario Court Justice Bruce MacPhee also said yesterday justices of the peace, who do most bail hearings, are being brought in from across Eastern Ontario to handle the situation. Also, two new recently appointed justices will start working at the end of the month.

Two things can happen when somebody is arrested and charged: they can be released from the police station with a promise to appear in court; or they can be held and brought to court. Once arriving at court, two more things can happen: the Crown can consent to their release on conditions; or, if the Crown wants them held in custody, a bail hearing is held.

Because people are presumed innocent until proven guilty, according to the spirit of the bail section of the Criminal Code and precedent case law, when the Crown wants to keep accused people in jail awaiting the outcome of the charges, they are supposed to be brought in front of a justice of the peace for a bail hearing within 24 hours of arrest.

These are called "show cause" hearings. This means the Crown must show cause why somebody should be held in jail, while the defence shows cause why they shouldn't be held.

The 24-hour period was picked because any longer would start to infringe on people's presumption of innocence and right to not be arbitrarily jailed, says University of Ottawa law professor David Paciocco.

Under the old system, releases and hearings were put in the Elgin Street courthouse's No. 6 court. With a growing number of charges being laid, the court was bogging down to the point where only a few, and sometimes no bail hearings were conducted daily.

To deal with the problem, the new system designed by senior Justice of the Peace Doug Powell and Ontario Court Justice Célynne Dorval, in consultation with defence and Crown lawyers, was put into effect at the end of September.

Now, when accused persons are brought to court and the Crown wants them detained, they are remanded to jail. The next appearance is made via video link and during that appearance, their lawyer can ask for a bail hearing. Ten of these are booked daily. The delay between asking for, and getting a bail hearing was running three to four days, but recently the wait has shot up.

Ms. Haydon has a client who was arrested on Nov. 9 for an allegation of breaching a conditional sentence. On Nov. 10, the man made an appearance in bail court where the Crown urged detention. As per the new policy, no bail hearing occurred and the man was sent to jail. Under the policy, the man's case was in court a couple days later with the accused appearing via video link from the jail.

At that appearance, Ms. Haydon asked for a bail hearing date and was given Nov. 18 -- the earliest possible. However, on that day, court finished for the day without Ms. Haydon's client being called.

When she asked when the next available bail hearing date was, she was told next Monday -- 16 days after her client was arrested. Ms. Haydon refused the date because she could get a trial on the alleged conditional sentence breach earlier.

"This situation is unacceptable," she said.

Ms. Haydon's client is not alone. Most defence lawyers have or have had clients in the same situation, and most say another full-time bail court is needed.

Ottawa's Crown attorney, Hilary McCormack, said she and others have been monitoring the situation closely for the last few months, and she too is concerned about bail hearing delays. However, she said the problem is not a lack of resources. She said defence lawyers who over-book themselves and then don't show up for bail hearings are causing the delays.

She said statistics show five or six of the 10 bail hearings scheduled each day are not taking place because the defence is either not there or is not ready.

"We can only make the court available to them," she said, "but, if nobody comes to court, what can we do? We would deal with people if their counsel would be there."

But duty counsel lawyer Susan Morris, who spends a lot of time in bail court helping accused without lawyers and doing bail hearings for busy defence lawyers, said this is not the case. She said since the scheduling of bail hearings has started, defence lawyers are not missing many dates.

"I can guarantee you the problem is not with defence counsel," she said. "We need two full-time bail courts."

The situation has left defence lawyers plotting several ways to force earlier bail hearings or have the charges against their clients stayed completely.

It has also created a lot of strain between court staff, justices of the peace, Crown attorneys and defence lawyers.

Lost in the mix are several people languishing in jail.

Mr. Paciocco, an expert in the Charter of Rights, shudders.

"You can't have an institutional system where people are denied fundamental justice," he said. "An absence of institutional resources can't justify a breach of someone's fundamental rights. The whole purpose behind those provisions of the (criminal) code are to ensure that this type of situation doesn't occur."

Veteran defence lawyer Bill Carroll put it more bluntly. He said the situation is the worst he's seen in 25 years of practice here, and there is plenty of blame to spread around.

"It's going to take a death or a suicide of someone in custody who shouldn't have been there before this gets fixed," he said.

"It's going to take more from the Crown's office, and the defence bar. We have to put aside our differences and start working on this now."

© Copyright 2002 The Ottawa Citizen