Alternative to catch and release | John L. Hill

By John L. Hill

Law360 Canada (October 2, 2023, 11:33 AM EDT) --
John L. Hill
John L. Hill
Everyone has experienced a sense of frustration from time to time. Public concern about what has been termed a “catch and release” justice system caused all province and territorial leaders to blame the feds and urge “immediate action” to “strengthen Canada’s bail system.” The provincial and territorial leaders signed a joint letter to this effect in mid-January, 2023.

If it were only that easy! The bail provisions of the Criminal Code have been discussed in numerous Supreme Court decisions: R. v. St. Cloud 2015 SCC 27, R. v. Antic 2017 SCC 27 and R. v. Myers 2019 SCC 18. These cases stressed that procedural protections needed to be given to those arrested and accused of criminal activity. In Antic, Justice Richard Wagner, prior to his becoming chief justice, had this to say: “[t]he right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.”

The question of what we should do with troublemakers in society is a much more complex question that requires a solution better than to send them off to jail. In California, Gov. Gavin Newsom has recently sought a more holistic response by creating what has become known as Care Courts. California understood that the public was becoming embittered by the homeless, many suffering from addictions and mental illness, and getting into trouble with the law. His solution was to provide the support needed to address underlying problems. Although criticized for forcing people to comply with treatment strategies, there is recognition that allowing everyone to do as they please will not address the reasons for their homelessness and addictions.

Maybe it’s time to realize that public protection should involve more than playing a blame game. Cobourg, Ont., residents have been critical of the police in recent weeks demanding greater action on problems such as homeless encampments, pop-up safe injection sites and fentanyl overdosing. Last week, Cobourg Chief of Police Paul VandeGraaf was frustrated when Cobourg police arrested a 35-year-old man and charged him with robbery with violence, uttering death threats and assaulting a police officer. He was released the following day with conditions that he not be in the town and that he obey a 9 p.m. curfew. Later that day, the man was rearrested and charged with damaging property at a construction site at the north end of town. The chief’s response was to blame the courts.

Chief VandeGraaf relieved his frustration by issuing a press release that read in part, “The decision of this court failed to support our community by allowing this person back into the community with no regard for the impact on the community, the victims, or the police. Not one day passed before this person reoffended in our community. This is aggravating the level of frustration in our community with a system that does not meet our collective expectations.”

The press release was reported locally. It spurred the “get tough on crime” crowd to vent on the court’s “catch and release” procedures without having to investigate what, if anything, went wrong and how the situation could be corrected in the future.

If police failed to provide an adequate brief to the Crown’s office requesting custody for this individual, let Chief VandeGraaf deal with a problem in his force. If the Crown attorney was incompetent, let the chief express his outrage to Ontario’s attorney general. If the justice of the peace was incompetent, Chief VandeGraaf should complain to the judicial oversight committee. The worst thing a chief so angered by the decision could do is issue a press release driving the administration of justice into disrepute. It would not be improper for the chief to question the reasoning for the court ruling but an attack on the court or a judicial officer is simply wrong. The legitimacy of our judicial system is its lifeblood. Our democratic institutions cannot long survive if they are constantly being discredited by our leaders.

Let’s start being critical of the reasoning of those who play the blame game. We should remember the objectives of a bail system as Chief Justice Wagner has described them. If the system is indeed broken, let’s consider wholesale revisions such as those now being undertaken in California. Locking offenders up for long periods in a system with huge court backlogs will ultimately make the offender worse and add to our collective frustrations with the criminal justice system.

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. 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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