Supreme Court Decision Will Deny Bail To Protect Public Confidence

Update:

The Supreme Court decision in R. v. St-Cloud, 2015 SCC 27 has set down guidelines for future cases, telling judges that protecting public confidence by denying bail need not wait for exceptional or rare cases.
The Supreme Court decision in R. v. St-Cloud, 2015 SCC 27 has set down guidelines for future cases, telling judges that protecting public confidence by denying bail need not wait for exceptional or rare cases. Supreme Court photo by Sean Kilpatrick Canadian Press.

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A Supreme Court of Canada ruling has made it easier for judges to deny accused people bail, at a time when the country’s provincial prisons are bulging with inmates waiting for their trial.

More than half of the country’s 25,000 provincial inmates have not been convicted of a crime, but are simply waiting for a bail hearing or being held until their trial. The provincial corrections system costs $1.9-billion a year.

But the court, perceived by some as soft on crime for its rejection of Conservative crime laws, said Friday that judges have been overly reluctant to deny bail when necessary to maintain public confidence in the justice system. Ruling in the case of a 22-year-old Montreal man who, with two other men, was accused of beating a bus driver in 2013, the court said unanimously that keeping him in jail until his trial was vital to preserving public confidence. News media had broadcast a videotape of the vicious beating.

This decision by the highest court in the country, will mean that alot more crown attorney's across the country will make an application to the presiding judge to have bail denied to the accused.  This will result in many more people will have to sit in jail until their trial date.
This decision by the highest court in the country, will mean that alot more crown attorney’s/prosecutors across the country will make an application to the presiding judge to have bail denied to the accused. This will result in many more people having to sit in jail until their final trial date.

And the court set down guidelines for future cases, telling judges that protecting public confidence by denying bail need not wait for exceptional or rare cases.

“If they make it easier to detain people, more people will be detained,” Toronto lawyer John Norris, who represented the Criminal Lawyers’ Association, an intervenor in the case, said in an interview.

There are three grounds for denying bail to an accused person in Canada: protecting public safety; ensuring the individual shows up for trial; and maintaining public confidence. A Justice of the Peace had rejected Jeffrey St-Cloud’s request to be freed on bail, and a second judge, after Mr. St-Cloud’s preliminary inquiry, also rejected his request. Both judges cited the need to maintain public confidence. But then Mr. St-Cloud appealed to a higher court and was released on bail.

Police picked Mr. St.-Cloud up Friday morning, after the ruling, and took him back to jail. He had been free for the past 20 months. His trial starts next January. “A lot of people will lose the right to be free while waiting for trial. It’s a big, big change in the philosophy of criminal law in Canada,” André Lapointe, a lawyer representing Mr. St-Cloud, said in an interview.

Justice Richard Wagner, who wrote the ruling, stressed the importance of giving meaning to Parliament’s choice to protect public confidence. He came to Prime Minister Stephen Harper’s attention as a candidate for the Supreme Court, a source said, when he wrote a 2012 ruling while on the Quebec Court of Appeal denying bail (in order to preserve public confidence) to Jacques Delisle, a former Quebec judge who was hoping to appeal his conviction for murdering his wife.

In a long explanation of who the “public” is, Justice Wagner quoted former chief justice Antonio Lamer, who referred to the “reasonable person,” described as the “average person in the community, but only when that community’s current mood is reasonable.” He also quoted from a 1990 Quebec appeal court ruling that warned of a tendency of the public to become emotional about crime.

More than half of the country’s 25,000 provincial inmates have not been convicted of a crime, but are simply waiting for a bail hearing or being held until their trial. The provincial corrections system costs $1.9-billion a year. This decision by the Supreme Court will result in a greater number of men/women placed in prison, pending their trial.
More than half of the country’s 25,000 provincial inmates have not been convicted of a crime, but are simply waiting for a bail hearing or being held until their trial. The provincial corrections system costs $1.9-billion a year. This decision (R. v. St-Cloud, 2015 SCC 27) by the Supreme Court will result in a greater number of men/women placed in prison, pending their trial.

In the end, he said, judges must 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.”

He said some judges had misinterpreted a previous Supreme Court ruling denying bail to a man who had inexplicably murdered a woman and intended to behead her. Crimes do not need to be heinous or unexplainable to put public confidence at risk. In fact, he said, any crime can qualify, and judges should consider whether it was a crime against a vulnerable person, or committed by someone who belongs to a criminal organization.

In general, he said the law requires judges to consider the strength of the prosecution’s case and the seriousness and circumstances of the crime, including whether a firearm was involved.

William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, said the ruling reads almost like a “defence of presumptive detention.”

Here is the law that was reviewed by the Supreme Court in the decision (R. v. St-Cloud, 2015 SCC 27) described hereinabove:

Criminal Code, R.S.C. 1985, c. C‑46 

  1. . . .

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject‑matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

  1. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

. . .

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

  1. (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6) , (7) , (8)  or (12)  or makes or vacates any order under paragraph 523(2) (b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.

(2) An application under this section shall not, unless the prosecutor otherwise consents, be heard by a judge unless the accused has given to the prosecutor at least two clear days notice in writing of the application.

(3) If the judge so orders or the prosecutor or the accused or his counsel so requests, the accused shall be present at the hearing of an application under this section and, where the accused is in custody, the judge may order, in writing, the person having the custody of the accused to bring him before the court.

(4) A judge may, before or at any time during the hearing of an application under this section, on application by the prosecutor or the accused, adjourn the proceedings, but if the accused is in custody no adjournment shall be for more than three clear days except with the consent of the accused.

(5) Where an accused, other than an accused who is in custody, has been ordered by a judge to be present at the hearing of an application under this section and does not attend the hearing, the judge may issue a warrant for the arrest of the accused.

(6) A warrant issued under subsection (5) may be executed anywhere in Canada.

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

(8) Where an application under this section or section 521  has been heard, a further or other application under this section or section 521  shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application.

(9) The provisions of sections 517 , 518  and 519  apply with such modifications as the circumstances require in respect of an application under this section.

  1. (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(1), (2), (7) , (8)  or (12)  or makes or vacates any order under paragraph 523(2) (b), the prosecutor may, at any time before the trial of the charge, apply to a judge for a review of the order.

(2) An application under this section shall not be heard by a judge unless the prosecutor has given to the accused at least two clear days notice in writing of the application.

(3) If the judge so orders or the prosecutor or the accused or his counsel so requests, the accused shall be present at the hearing of an application under this section and, where the accused is in custody, the judge may order, in writing, the person having the custody of the accused to bring him before the court.

(4) A judge may, before or at any time during the hearing of an application under this section, on application of the prosecutor or the accused, adjourn the proceedings, but if the accused is in custody no adjournment shall be for more than three clear days except with the consent of the accused.

(5) Where an accused, other than an accused who is in custody, has been ordered by a judge to be present at the hearing of an application under this section and does not attend the hearing, the judge may issue a warrant for the arrest of the accused.

(6) Where, pursuant to paragraph (8)(e), the judge makes an order that the accused be detained in custody until he is dealt with according to law, he shall, if the accused is not in custody, issue a warrant for the committal of the accused.

(7) A warrant issued under subsection (5) or (6) may be executed anywhere in Canada.

(8) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the prosecutor or the accused,

and shall either

(d) dismiss the application, or

(e) if the prosecutor shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers to be warranted.

(9) Where an application under this section or section 520  has been heard, a further or other application under this section or section 520  shall not be made with respect to the same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application.

(10) The provisions of sections 517 , 518  and 519  apply with such modifications as the circumstances require in respect of an application under this section.

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