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Lawyers predict more overcrowding after St-Cloud

|Written By Yamri Taddese

Ontario’s problem of overcrowded prisons is about to get a lot worse, criminal lawyers are warning in the wake of the Supreme Court of Canada’s decision in R. v. St-Cloud.

The decision opens the door for the Crown to seek detention based on the tertiary ground ‘in a large swath of cases’ where it previously couldn’t, says Nader Hasan. Photo: Robin Kuniski

“The Supreme Court just made it much more difficult for accused persons to get bail in Canada,” says Nader Hasan, a partner at Ruby Shiller Chan Hasan.

“One thing I was surprised by in this case was the Supreme Court’s unwillingness to address the major elephant in the room, which is our pretrial detention facilities are already vastly overcrowded [and] disadvantaged minorities are grossly overrepresented in these pretrial detention facilities.

“That problem is only going to get exacerbated now if more people are denied bail.”

In St-Cloud, the top court restored an order for pretrial detention in the case of a man who was one of several people charged with beating up a Montreal bus driver. The court said the man’s pretrial custody was justifiable under the rarely applied tertiary ground for refusing bail.

The third ground, that the public would lose confidence in the administration of justice if the court granted bail, was understood as a “vague” provision that should apply in cases dealing with the most heinous of crimes, according to Hasan.

Courts often focus on the first ground for denying bail, which is the possibility that the defendant wouldn’t attend the trial, and the second ground that considers the person’s likelihood of reoffending and posing a threat to the public, says Hasan.

The top court’s latest decision means a person could end up in custody even if these first two grounds aren’t met, says Toronto lawyer Peter Rosenthal.

“Based on this vague notion of a member of the public losing confidence in the administration of justice, a person who would [otherwise] be released is held in custody,” says Rosenthal.

Rosenthal suggests decisions denying bail should in fact be more easily reviewable by higher courts given that it’s justices of the peace who make such calls based on hurried applications.

Prior to St-Cloud, the bar for a detention under the tertiary ground was quite high, according to Hasan. Judges across the country would typically apply the tertiary ground “only in exceptional circumstances,” he says.

“Even in murder cases, the tertiary ground wouldn’t necessarily be available.

Generally, for the Crown to rely on the tertiary ground, it had to be murder plus, so it had to be homicide plus some other aggravating factor that would lead the court to deny bail on that basis.”

That understanding was a way to limit a provision that had the potential to be overly broad, according to Hasan, who says the top court’s recent decision essentially allows for such an expansive interpretation.

“With all due respect for the reviewing judge, I believe he erred in stating that s. 515(10) (c) Cr.C. must be interpreted narrowly and applied only in rare cases,” wrote Supreme Court Justice Richard Wagner, who wrote on behalf of a unanimous bench in the May 15 decision.

Wagner also found the lower court judge who had overturned an original decision to deny bail didn’t appreciate the seriousness of the crime. “I believe that a reasonable member of the public who, although not a legal expert, is nonetheless properly informed about the philosophy underlying the legislative provisions, Charter values and the actual circumstances of the case would not understand why the respondent should not remain in custody pending his trial,” wrote Wagner.

“Such members of the public are not people who would allow themselves to be guided by their emotions and to be swayed by the mob or by incomplete or distorted information. In the face of such a brutal attack that was committed by several people in the middle of the night against a bus driver, a person who was serving the community, and that had serious consequences for the victim’s health and integrity and was captured on a videotape that left no doubt as to the respondent’s active participation in the assault, I believe that the confidence in our justice system of a reasonable member of our society would be undermined if the interim detention of the respondent were not ordered.”

Hasan says the decision opens the door for the Crown to seek detention based on the tertiary ground “in a large swath of cases” where it previously couldn’t.

The decision follows concerns from researchers at the John Howard Society who found Ontario has “a bail problem.” In 2013, the researchers released a report after looking at 337 case files of clients participating in the bail verification and supervision program. They found that despite “dramatically declining crime rates,” getting a bail is harder now than it was a decade ago.

A Canadian Civil Liberties Association report also highlighted how onerous bail requirements were contributing to overcrowding in pretrial detention centres. “The Supreme Court’s decision in St-Cloud does not address many of these practical realities that observers on the ground have been calling attention to,” says Laura Berger, an interim director of the public safety program at the CCLA, which was an intervener in the case.

“The Supreme Court’s decision does not reflect that on the ground, individuals are being denied bail inappropriately or are being released on bail in inappropriate ways,” she adds.

Despite the concerns, the Supreme Court pointed out that unlawful detention also results in a loss of public confidence in the administration of justice. In the ruling, the court outlined the principles to consider under the tertiary ground — which requires looking at the gravity of the crime, the strength of the prosecution’s case, the circumstances around the commission of the crime, and the potential length of imprisonment — but rejected the idea that automatic detention follows even if all of them apply.

“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,” wrote Wagner.

  • dennis baker
    widespread misapplication of the second ground that considers the person’s likelihood of reoffending is so blatantly utilized to keep cells full of small time drug user's
    pretending each one is SCARFACE really is Human Trafficking! Made money, so more bodies = even more money!
  • Joe Gardin
    This decision does only one thing: it corrects a widespread misapplication of the tertiary ground. Mr. Hasan says, "Generally, for the Crown to rely on the tertiary ground, it had to be murder plus". That has never been the law. The tertiary ground is in play in every single case that comes before a bail court. It is wrong to say it's only available in the most serious cases. The legislation, and now the SCC, simply don't say that. This decision corrects an error. That's all it does.
  • Henry Waldock
    The sky is not falling. This decision should not substantially change number of people in jail. The first precondition for detention under this ruling requiress that the evidence of guilt be very strong, and remaining conditions require that the offence justify a lengthy jail sentence. The net effect should be that people who will inevitably serve long jail terms will start doing so immediately, rather than after a lenthy delay. Because of the pre-conditions, this should not cause significantly more people to spend time in jail, nor for longer. The difference is that in appropriate cases, they will do so before trial rather than after.
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