Attack on legitimacy | John L. Hill

John L. Hill

Most Canadians were in a state of disbelief when an armed group of rebels attacked the United States Capitol. The melee resulted in death, property damage and public fear and outrage. What was much more serious was that an armed group sought to attack the legitimacy of a national election believing the “big lie” that the election was rigged.

Our democratic institutions are only strong if they are deemed legitimate by the bulk of the population. Attacks on the legitimacy of an institution without proof of actual wrongdoing undermines our basic democratic norms.

Ontario Premier Doug Ford’s reaction to granting bail to accused cop killer Umar Zameer was totally inappropriate.

Ford is reported to have commented that the decision to grant bail was “beyond comprehension.” He went on to say, “It is completely unacceptable that the person charged for this heinous crime is now out on bail. Our justice system needs to get its act together and start putting victims and their families ahead of criminals.”

What the Ontario premier fails to understand is that granting bail is not a finding of innocence. There are three grounds a judicial officer must consider before granting bail. The first, or primary ground is that there is a belief the accused person will attend court when required to do so. The secondary ground is designed to protect the public by granting bail when it is unlikely that the accused will reoffend if released. The most contentious ground is the tertiary ground that release of the accused on bail is improper if detention is necessary to maintain confidence in the administration of justice. In short, the tertiary ground can be construed as saying that bail will be denied if release would undermine confidence in the judicial process, i.e., attack its legitimacy.

When the premier uses his bully pulpit of commenting on judicial processes without a full explanation, he risks inciting his followers to lose faith that our judicial institutions are acting properly. The vice-president of the Criminal Lawyers’ Association, Dan Brown, was right in his criticism of Premier Ford’s comment. Brown said, “It's offensive that the premier of Ontario thinks that the presumption of innocence doesn’t apply simply because the victim in this case is a police officer.” Brown continued, “We have a very experienced judge consider all the evidence in the case, including evidence that the premier knows nothing about, and she applied the appropriate legal tests and determined that the individual ought to be released pending his trial.”

It is reported that Zameer’s lawyer, Nader Hasan, intends to seek an order that the usual publication ban on evidence taken at the bail hearing be lifted so the public can better appreciate the judge’s decision to grant bail. He shouldn’t have to do that. Public disclosure of pretrial evidence could undermine the right to an impartial jury at a later date. There is no doubt that there is public interest whenever reports of serious crime are made. A criminal defence lawyer has an obligation to defend the client in a court of law and not have the additional burden of defending the client in the court of public opinion.

Our system of justice works best when we have faith that our judicial system will ultimately get it right, if not at the first instance, then on appeal.

The alternative is that the general public or a significant portion of it feels that the system lacks legitimacy and is biased in favour of protecting criminals and ignoring victims and their families. When faith is lost in the legitimacy of the system, the institutions we have created over the centuries cannot hold. We devolve to a police state.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

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