Reasons to refuse bail                        

This article will give my readers some idea of what constitutes an application for bail and also a better understanding of an appeal process.

In Canada, there are three basic reasons why a judge or justice of the peace may choose to refuse to release on bail persons who are accused of crimes. The first reason is that that accused persons may not show up for trial. The second reason is that members of the public and witnesses may be harmed by such persons if released and the third reason is that to release some criminals on bail would reduce confidence in the administration of justice. These reasons are generally applied in other democratic nations

The first two reasons has never been an issue since it makes obvious sense however the third reason is questionable to some. It is this third reason that this article has been written for you.

Jeffrey St‑Cloud  shall for the purposes of this article simply be referred to as S. This man (along with two other men) was charged with one count of aggravated assault under section 268 of the Criminal Code for having assaulted a bus driver. The three individuals struck the driver in the head many times, leaving him with serious long‑term injuries to his brain.

Aggravated assault is a serious form of assault according to Canadian standards. This kind of assault can include, wounding, maiming, disfiguring and/or endangering the life of a victim including causing brain injuries to the victim’s head.                                         

In Canada, an accused person is first brought before a justice of the peace (JP) for a bail hearing. At the hearing involving S, the crown (assistant prosecutor) argued that S should not be released on bail primarily because of sections 515.10 (b) and (c) of the Canadian Criminal Code.  Sub-section (b) deals with the protection of witnesses and other people and sub-section (c) deals with maintaining confidence in the administration of justice.               

How does one go about defining the term maintaining confidence in the administration of justice?

If a person is accused of a heinous crime that is an affront to the public’s sense of decency, such as the rape or the murder of a child, releasing that person would definitely be an affront against society’s confidence in the administration of justice.  Such a crime by itself would be sufficient grounds to refuse bail to such a criminal because to do otherwise would anger most of the population who are aware of the crime having been committed and the accused person being released on bail.

The first release hearing of S took place on April 26, 2013 before Judge Lavergne. The prosecutor opposed S’s release. At the time of the hearing, the victim was still in the hospital and the medical prognosis was uncertain. However, it was known that he had, at the very least, a hairline fracture to a facial bone and a concussion.   

Judge Lavergne stated at the outset that the onus was on the prosecutor to show that the respondent’s (S) detention was necessary. After balancing the relevant factors, he found on the basis of s. 515(10)(b that the interim detention of the respondent (S) was necessary for the protection and safety of the public.

Judge Lavergne nevertheless continued his analysis of the evidence and considered the circumstances set out in s. 515(10)(c). The first three—(1) the apparent strength of the prosecution’s case.  I should point out that S was identified by the video of the assault. (2) the gravity of the offence and (3) the circumstances surrounding the commission of the offence—had already been discussed in the context of the ground set out in s. 515(10)(b). He also considered a fourth circumstance, namely the fact that the respondent (S) was liable, on conviction, for a potentially lengthy term of imprisonment (maximum sentence of 14 years). As well, the judge was of the opinion that aggravating factors were evident from the circumstances of the case that would justify a heavy sentence.

The risk of having to serve many years in prison would seem a justifiable reason to believe that such an accused person won’t show up for the trial however, he wasn’t denied bail for that reason as stated in  sections 515. (a)  

Judge Lavergne then explained that s. 515(10)(c) called for an analysis of whether, at the end of the day, after all the circumstances were considered  that  there was a reasonable collective expectation that interim release must be denied to maintain public confidence in the administration of justice.

But who then is the public? The public means persons who are reasonable, dispassionate and properly informed about the values expressed in legislation, including the presumption of innocence, which applies throughout the criminal process, but who are also informed about all the circumstances associated with the commission of the crime committed against the bus driver by S and his other two cohorts.

In light of the videotape and all the circumstances of the attack and the injuries suffered by the bus driver including the defendant’s (S) participation in the attack, along with the likelihood of a conviction and the chances of a significant term of imprisonment, Judge Lavergne was satisfied that such a reasonable person would conclude that interim release must be denied.  For this reason, he denied bail for S. The judge made this decision because he suspected that the members of the public would consider the release of S on bail to be an affront against the public’s concept of justice.  In my respectful opinion, that view seems reasonable.

The court must always consider all the circumstances of each case, paying particular attention to the four aforementioned listed circumstances. No single circumstance is determinative as the JP or judge must consider the combined effect of all the circumstances of each case to determine whether detention is justified. This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. Thus, the court must not order detention automatically even where the four listed circumstances support such a result. Some other circumstances that might be relevant are the personal circumstances of the accused such as age, criminal record, physical or mental condition, possible membership in a criminal organization, the status of the victim, the impact on society of a crime committed against that person, and the fact that the trial of the accused will be held at a much later

The balancing of all the circumstances under s. 515(10)(c)—see paragraph must always be guided by the perspective of the public;  that is of a reasonable person who is properly informed about the philosophy of the legislative provisions, the values of the Canadian Charter of Rights and Freedoms and the actual circumstances of each case.

Such a person in question is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s fundamental values. However, this person is not a legal expert, and, although he or she is aware of the importance of the presumption of innocence and the right to liberty in our society, expects that someone charged with a crime will be tried within a reasonable period of time, and knows that a criminal offence requires proof of culpable intent and that the purpose of certain defences is to show the absence of such intent, the person is not able to appreciate the subtleties of the various defences that are available to the accused.

Thus, a reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

An appellant judge must determine whether it is appropriate to exercise his or her power of reviewing a case that is being appealed. Exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.

Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying four criteria. Regarding the first criterion, due diligence, the reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable. Such new evidence is not limited to only evidence that was unavailable to the accused before the initial hearing. In each case, the reviewing judge will have to determine whether the reason why the accused did not tender such pre‑existing evidence earlier was legitimate and reasonable.

As to the second criterion, it will suffice that the evidence be relevant for the purposes of s. 515(10)—see paragraph 5 of this article for description.  This criterion will therefore rarely be decisive in the context of an application for review since the range of relevant evidence will generally be quite broad. The third criterion — that the evidence must be credible in the sense that it is reasonably capable of belief and must be interpreted in light of the relaxation of the rules of evidence at the bail stage and in particular of section 518(1)(e) of the Criminal Code, which provides that “the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.”

Finally, the fourth  criterion should be modified as follows: the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under section 515(10)(c). The new evidence must therefore be significant. If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under section 515(10)(c) as if he or she were the initial decision maker.

With respect to the perception of the public, a large part of the Canadian public often adopts a negative and even emotional attitude towards criminals or potential criminals. The public wants to see itself protected, see criminals in prison and see them punished severely. To get rid of a criminal is to get rid of crime. Many people in the general population unjustifiably perceive the judicial system and the administration of justice in general as being too indulgent and too soft, which is advantageous to the criminals. This perception, almost visceral in respect of crime, is surely not the perception which a judge must have in deciding the issue of interim release. If this were the case, persons charged with certain types of offences would never be released because the perception of the public is negative with respect to the type of crime committed, while others, on the contrary, would almost automatically be released where the public’s perception is neutral or more indulgent. 

It is for this reason that the perception of the public must be placed at another level which is that of a public that is reasonably informed about our system of criminal law and is also capable of judging and perceiving without emotion that the application of the presumption of innocence, even with respect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for the period between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that of the lowest common denominator. 

Although the “public interest” ground had been subsequently held to be unconstitutional, these passages remain helpful in underscoring the fact that the word “public” used in the context of section  515(10)(c) does not include Canadians who tend to react impulsively. However, it is true that the public in question consists of reasonable, well‑informed persons and not overly emotional members of the community. The reasonable person test “serves as a reminder to each individual judge that his discretion is grounded in community values, and in particular, long term community values. Many judges would prefer not to render a decision that would be unacceptable to the community when that community is wrought with passion or suffering from stress due to current events but they should not let these emotions sway them in their decisions.

A reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including accused persons who are protected by the Charter. Such members of the general public are undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and know that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that “justice delayed is justice denied, It is a hard pill for the general public to swallow when a person who has committed a heinous crime is set free because he or she was denied a speedy trial as guaranteed by the Charter.

A reasonable member of the public knows that a criminal offence requires proof of criminal intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. A well‑known example of this type of defence is the mental disorder defence. The person contemplated by section 515(10)(c)  therefore understands that such a defence, once established, will enable an accused to avoid criminal responsibility. However, it would be going too far to expect a reasonable person to be able  to master all the subtleties of complex defences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accused admits committing it.

It is of course not easy for judges to strike an appropriate balance between the unrealistic expectations they might have for the public on the one hand, and the need to refuse to yield to public reactions driven solely by emotion on the other hand. This situation may be particularly difficult in this era characterized by the multiplication and diversification of information sources, access to 24‑hour news reports and the advent of social media. That is why it is so difficult to get a jury who hasn’t formed an opinion on the guilt or innocence of a defendant on trial.

Members of the general public may in fact think they are very well informed, but that is unfortunately not always the case. Moreover, people can also make their reactions known much more quickly, more effectively and on a wider scale than in the past, in particular through the social media mentioned above, which are conducive to chain reactions. The courts must therefore be careful not to yield to purely emotional public reactions or reactions of the public that may be based on inadequate knowledge of the real circumstances of a case.

However, the courts must also be sensitive to the perceptions of people who are reasonable and well informed. This enables the courts to act both as watchdogs against mob justice and as guardians of public confidence in our justice system. It would therefore be dangerous, inappropriate and wrong for judges to base their decisions on media reports that are in no way representative of a well‑informed public.

Press clippings show how risky it is to rely on this mode of proof. They contain several different opinions that vary in the degree to which they are balanced, objective, moderate or superficial.  Many of them contain inaccurate facts or do not mention the essential facts. Most of them say nothing about the legal principles that must be applied in making release decisions. Certain opinions stir up anger and distort the debate. Not all writers in the media accurately report the facts and correctly state the applicable principles. On the whole, it must be acknowledged that they do not satisfy the ‘reasonable person test’ defined in decisions higher courts.

I wish to point out however that this does not mean the courts must automatically disregard evidence that comes from the news media. It must be recognized that the media are part of life in society and that they reflect the opinions of certain segments of the Canadian public. Unfortunately, sometimes articles published in newspapers tend to inflame the public thereby denying an accused a fair trial. There is not just only one way to undermine public confidence in the administration of justice. It may be undermined if a justice of the peace or a judge  declines to order the interim detention of an accused in circumstances that justify detention, but also if a justice orders detention where such a detention is not justified.

It is for this reason that a justice of the peace or a judge must not be unduly swayed in his or her decision by what he or she perceives is the attitude of the general public with respect to the detention or release of the offender on bail.

In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable to being harassed after the offender is released pending trial  and the possibility that he or she will flee from the court’s jurisdiction, pre-trial detention will usually be ordered.

Judge Legault had decided that the detention of the S was still justified under section 515(10)

The decision of the Supreme Court of Canada

“The fact that the assault was committed against a bus driver, a civil servant who works in the community to ensure the well-being of the public, makes the offence even more heinous. Also relevant are the nature and severity of the injuries sustained by the driver and in particular the long‑term effects and the impact on his career and his personal life.

The prosecution’s case appears to be strong, since the incident was videotaped and there is eyewitness testimony. Real evidence such as a videotape is more reliable than circumstantial or testimonial evidence. In addition, the respondent does not seem, prima facie, to have a valid defence to put forward, even if the driver’s “physical action” against the respondent and his co‑accused were to be taken into account. 

The Supreme Court of Canada allowed the Crown’s appeal. It said that It was not open to the Superior Court judge to interfere with the initial release decision, and he unduly restricted the scope of section 515(10)(c) of the Criminal Code and erred in basing his decision on the question whether that the offence was “unexplainable”. The detention of the respondent is justified on the basis of section 515(10)(c) . The detention order was accordingly restored.

What is really interesting about the court’s decision is that it is possible that when a person is charged with a very serious crime and he applies for bail, even though he is not a flight risk and there is no evidence that he will harm anyone else or intimidate witnesses, he can still be subjected to a pre-trial detention simply because to release him would be an affront to the general public’s confidence in the administration of justice.