Bail or no bail: That is the question

On January 1, 2008, the fourteen-year-old daughter of two Toronto police officers was stabbed to death and left to die in a snow bank a few metres from her east end home. The victim Stefanie Rengel was stabbed fourteen times in the chest and stomach.

A fifteen-year-old girl along with her older accomplice (a 17-year-old boy approaching 18 years of age) were arrested and charged with first-degree murder. The police alleged that her accomplice phoned the victim and asked her to meet him and his friend down the street. It is alleged that the male accused was the person who stabbed the young victim to death.

When the issue of releasing the fifteen-year-old on bail at her hearing was raised by her lawyer, the judge said that he wasn’t going to deny bail to the 15-year-old because he considered her a flight risk or a threat to public safety, but instead, he was refusing to free her because he felt doing so ‘would bring the administration of justice into disrepute and that it would undermine public confidence in the justice system.’ In his decision, the judge said that based on the allegations before him, it appeared that the accused was an active participant in the heinous plot that appears to have been motivated by senseless jealousy on her part.

The accused teen will face the possibility of life in prison with eligibility for parole in ten years if convicted but meanwhile, she may have to wait as long as two years in pre-trial custody before she has her trial.

The judge felt that it was sufficient to observe that on the evidence before him, it was apparent that the prosecution has strong evidence that Stefanie Rengel was an innocent victim who had done nothing to provoke the attack that led to her death.

The judge said, "It is apparent that the motive for this murder was senseless jealously on the part of the accused. It engendered hatred so vile that she wanted the object of her jealousy, an innocent adolescent, dead. She used [the accused boy] as an instrument of her hatred, by manipulating him and persistently encouraging him to carry out a planned and deliberate murder of 14-year-old old Stephanie Rengel.”

It is the Crown's position that while the accused girl isn't alleged to have inflicted the fatal wounds, she is equally guilty of the planned and deliberate killing of the girl. Evidence gathered by police in the murder of Stefanie Rengel reveals that the accused was likely the jealous mastermind of the brutal murder.

After the bail hearing was completed, Bill Dampler of Toronto said in a letter to the editor, published on January 26th, “I'm absolutely appalled by the statements attributed to Justice David McCombs in denying bail to the 15-year-old girl accused as an accessory in the slaying of Stefanie Rengel (since) McCombs (the bail judge) was not presiding at a trial. At this stage in the process, his job, his only job, is to determine if the accused can be released without jeopardizing public safety and without the risk that she will fail to appear for her trial." unquote

Mr. Dampler is wrong. The Criminal Code of Canada states that there are three reasons why an accused can be denied bail. Any one of these three reasons is justification for denying bail. The first two, as Mr. Dampler pointed out, is the risk against public safety and the fear that the accused will not appear for trial. Those reasons didn’t apply in this case. But there is a third reason. An accused person can be denied bail to maintain society’s confidence in the administration of justice.

For example, a man is accused of raping and murdering a four-year-old girl and at his bail hearing, his lawyer raises a rhetorical question when he states that his client is innocent, that the chances of him doing it again even if he is guilty, is non existent and he lives with his wife and has a good job and therefore unlikely to flee the jurisdiction of the court, especially when he has no passport nor would be given one since he is charged with a crime and waiting for his trial, and since the Charter of Rights in Canada presumes that an accused person is innocent until proved otherwise at his trial, why shouldn’t he be released from custody while waiting for his trial?

The members of the Canadian Parliament considered these factors and concluded that the murder of a four-year-old child, (or similar crime) no matter what the reason, is so heinous a crime; that putting a suspect charged with that kind of crime back on the street prior to his trial is so terrible that it would be an affront to the public’s sense of decency and justice.

Admittedly, it is punishing the accused before trial, even when he or she might be innocent and it indicates a strong bias in favour of the prosecution if the jury knows ahead of time that the accused was in custody while waiting for the trial.

The Supreme Court of Canada dealt with a similar issue with respect to the denial of bail to accused persons accused of murder. The appeal it was dealing with involved a man charged with first degree and he was appealing the decision of a lower court to deny him bail. The victim, whom the police said the accused had murdered, had 37 wounds to her hands, forearms, shoulder, neck and face. Her assailant had also tried to cut off her head.

Compelling evidence linked him to the crime. Areas in the victim’s home contained traces of the appellant’s blood. Footprint impressions containing the victim’s blood and matching the type of running shoes worn by the appellant were found in her dining room and kitchen. The same footprint impressions had been left by the appellant in his parents’ home. A surveillance video from a convenience store showed the appellant on the night of the homicide wearing shoes matching those seized from his parents’ home. The appellant admitted to police that he had been in the convenience store that night but denied that he had been wearing the shoes.

The murder of the woman received much media attention and caused significant public concern. A police officer testified that there was a general sense of fear in the community that there was a killer at large, and the victim’s father testified that his wife and three other daughters were very fearful.

Based on compelling evidence linking the accused to the crime, he was charged with first degree murder. He applied for bail. The bail judge held that pre-trial detention was not necessary “to ensure attendance at court nor for the safety of the public but rather his bail was denied in order to maintain confidence in the administration of justice in view of the highly charged aftermath of the murder and the strong evidence implicating the man accused of the crime.

The Court ruled that the Criminal Code with respect to bail authorizes the denial of bail in order to maintain confidence in the administration of justice. Although the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available because public confidence is essential to the proper functioning of the bail system and the justice system as a whole.

The pertinent section of the Code states that a denial of bail may be justified ‘on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.’

At the heart of a free and democratic society is the liberty of its subjects and our justice system must minimize unwarranted denials of liberty. In the criminal law context, this freedom is embodied generally in the right to be presumed innocent until proven guilty and specifically in the right to bail. Under s. 11(e) of the Canadian Charter, ‘any person charged with an offence has the right not to be denied reasonable bail without just cause.’ The reference to ‘just cause” requires that bail is to be denied only in a narrow set of circumstances and where necessary to promote the proper functioning of the bail system. It cannot be denied for a purpose extraneous to the bail system.

The judge's decision in the case of the 15-year-old comes under the narrow set of circumstances which merits a denial of bail.

Fortunately in Canada, persons who remain in custody while waiting for their trials, do not do dead time. Not only is the time they do in custody while waiting for their trial deducted from the sentence, that time is often doubled. In effect, that would mean that if a person served two years in custody while waiting for trial and later was convicted and given ten years as a sentence, that person’s sentence would be reduced to six years. And there have been cases where innocent persons who have been acquitted at trial because the courts were satisfied such persons were truly innocent, were compensated most generously by the government.

In my view, the judge was quite justified in denying bail to the 15-year-old who is allegedly accused of planning the murder of a fourteen-year-old girl because of a jealous rage. Anyone who plans the murder of another human being, especially out of jealously alone, deserves no sympathy at all from the judge, the parents of the dead girl or anyone else for that matter. The fifteen-year-old is exactly where she should be---in close custody waiting for her trial.