It's not worth losing...

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By Daniel Song

It's two o'clock in the morning, on a Wednesday, and the pitch of my cell phone stirs me from my deep slumber. I reach blindly for the phone and answer in a dull haze, straining to hear a distressed voice lodged in the city jail cells. He tells me he has just been arrested. He is charged with trafficking cocaine. He is charged with possession of proceeds of crime. He is charged with possession of a weapon. He is desperate and asks me to get him out. What do I do?

I get out of bed, put on a respectable shirt, and drive to the bail hearing office to argue for his release in front of a justice of the peace. You may think this man is already destined to drown in the River Styx, and that I should forget about him and get some sleep.

Fortunately, this is not our conception of justice. Justice does not conveniently decide to take a night off. Section 11(d) of the Charter of Rights and Freedoms states that "any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

In Canada, the presumption of innocence is paramount and a pillar of our free and democratic society. This is why there are only three specific grounds upon which the state is justified in keeping an individual in pre-trial custody. Contrary to the unfounded criticism of the justice system by the religious right, judges don't simply release accused persons on a whim.

There is a reason why the goddess of justice is blindfolded and holds a fragile scale. Justice is neither draconian nor dogmatic. It strikes a balance. It weighs the interests of state and individual to ensure a fair outcome, and if none of the following three grounds exist, then an accused must be released subject to appropriate conditions.

The primary ground is whether the accused presents as a flight risk. A judge will have no qualms about holding you in custody if you have a history of missing court dates, breaching court orders or skipping town instead of turning yourself in when you have outstanding arrest warrants.

If there is a reasonable concern that you won't show up for your trial, then a judge or justice of the peace is entitled to deny bail. The secondary ground is whether the accused is substantially likely to commit other criminal offences if released, and if there's a substantial likelihood that those offences would compromise the protection and safety of the public.

For example, possession of stolen property or possession of drugs does not, in and of itself, compromise public safety; in contrast, theft of property or trafficking drugs directly affects the community's well-being. The judge will often consider a related criminal record, if any, in assessing this secondary ground. The tertiary ground is the most nebulous of them all. If the judge or justice is concerned about maintaining public confidence in the administration of justice, he or she may deny bail even if the primary and secondary grounds are of little concern.

Relevant factors include the strength of the Crown's case, the seriousness of the alleged offences, the circumstances surrounding the alleged events, and the potential term of imprisonment if convicted. For example, if the Crown is alleging that you wrote a statement confessing to a robbery, which carries a potential term of imprisonment for life, then the court may have grounds to continue pre-trial detention. In other words, pre-trial detention must be justified on clearly defined grounds. Public emotion and irrationality cannot jeopardize a person's right to freedom.

The media often weaves a picture of a frail and dissolving system of justice that allows murderers and rapists to run rampant in our streets. This, unfortunately, is an inevitable effect of profitable news. The reality, however, is that judges do not release individuals without a careful analysis of the circumstances presented to them. Judges are not expected to be clairvoyant; but they are expected to be reasonable.

The Charter reminds our judges that the presumption of innocence is not a hollow promise. If we demand offenders comply with the law, then we too must respect the supreme law of the land. Remember that imprisonment is our harshest form of punishment. Holding a man in jail before he has had a fair trial is no different than if we were to fry him in a chair, choke him on a scaffold, or drown him in a chamber, before assessing any evidence.

So I get up at two in the morning to bail out a man charged with serious offences, not because it's my job, but because I have an obligation to maintain the legitimacy of our system of justice. As members of the public, we must all answer to that obligation, whether accused or not.

Daniel Song is a student-at-law with Tarrabain and Company in Edmonton, Alberta.

<편집자주> The information contained in this article is not legal advice and should not be relied upon as legal advice. If you have any legal concerns, please contact a lawyer or a member of the Law Society in your province. Any questions or comments about this article may be directed to the editor of C3 News & Views.

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