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| John Hill |
The chase into oncoming traffic resulted in the tragic deaths of an infant and the child’s grandparents. One commentator wrote: “The LCBO robbery suspect police pursued the wrong way down Highway 401 before a crash that killed him and three other people was out on bail following a string of robberies at other LCBO stores and a Home Depot in the western GTA. Another result of catch-and-release?”
We are seeing a more extraordinary politicization of criminal law, with the phrase “catch-and-release” coined to represent and mock judicial officials by suggesting their indifference in granting bail to people who should be kept in custody pending trial. The federal leader of the opposition has suggested using the Charter’s notwithstanding clause to toughen criminal laws and send the message that we cannot trust the courts to keep Canadians safe.
The narrative pursued for political advantage rests on the public’s lack of understanding of how our court processes work. Decisions to grant or refuse bail are rarely, if ever, taken lightly by the judicial officer making the call. Nonetheless, once a decision has been taken, the judge or justice of the peace is restrained from commenting on public criticism of the outcome. That restriction prevents judicial officers from becoming embroiled in political discourse. It has always been considered an ethical obligation of the legal profession to speak up for those barred from directly answering criticisms of their judicial decisions.
The newspaper story outlining the past misconduct of the young men involved in the liquor and hardware store robberies can only result in fuelling the notion that our system is broken and that judicial officers are blind to the concept that public safety is at stake.
Nowhere in recounting the criminal records of the people involved in the fatal crash is there commentary on what material was presented to the court when bail was granted to the individuals on a previous arrest. Did the Crown ask that bail be refused or challenge the ability of a surety to watch over the accused? Was there a likelihood of conviction after trial? Hindsight is 20/20; had it been known that the accused would continue in illegal activity that would result in the death of innocent parties, bail certainly would have been refused.
However, it is wrong and a blow to the institution we call our judicial process to blame the justice who granted bail in this situation. Why not instead take a much more critical analysis of the thought processes that led police to give chase at high speed down a central and busy traffic artery into oncoming traffic? Was it not more reasonably foreseeable that public safety would be affected in the police chase than the possibility of danger considered by the bail court?
Another Facebook commentator gave an opposing opinion to the one quoted above: “That’s one person out of how many tens of thousands out on bail. Boy, there’s a sound basis for a public policy decision. And I wonder how you’ll feel about the police officers who caused those deaths being on full pay while off work for the years it will take for their criminal and disciplinary processes to reach a conclusion.”
There is polarization taking place with the “get tough on crime” elements of society raising their voices in opposition to those who want to ensure civil liberties at all costs. Unfortunately, our courts and judicial officers are caught in the middle and cannot speak out to balance the narrative. Some elements would take the interpretation of criminal and correctional laws away from consideration by the courts and impose a notwithstanding section in legislation.
Professor Peter Hogg once referred to the dialogue between Parliament and the courts as a conversation. Unfortunately, we are now entering a period where the conversation is about to become a shouting match. While these political cards are being dealt out, I hope that many members of the bar will take a more even-handed approach and defend our judicial systems lest our cherished institutions fall into disrepute.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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