Justice Craig is "Out" on Bail
David
I will come back to the subject in a later column to explain my view that there is a soft-handed approach to bail because judges today are making too much of the presumption of innocence.
What I will argue is that the presumption of innocence is simply a procedural guarantee that clicks in at trial no matter how obvious guilt may be, to ensure that the case is proved beyond a reasonable doubt; and that acquittal is never a pronouncement of innocence.
It seems to me the presumption of innocence should be confined to what it is: a practical way of ensuring that at the beginning of a trial through until a verdict is reached that there must be a scrupulous production of evidence in demonstration of proof that supports a finding of guilt beyond a reasonable doubt. The presumption of innocence is a presupposition, required as a precondition to the trial proceeding, to remind one and all that the trial must be fair and the judge or jury remain impartial no matter how inflammatory be the allegations.
I will further explain that in bail hearings the procedural protection applies only if the person charged intends to plead not guilty. Where there is a declared intention to plead not guilty and the crown is seeking detention then the burden on the Crown in showing just cause for denial of bail is only “probability” and not “beyond a reasonable doubt.”
An acquittal is not a declaration of innocence; and that reminds me of the Scottish way of doing things – their finding on acquittal is “not proven.”
Craig
THE REVOLVING DOOR OF BAIL
Wednesday, April 23, 2008
THERE is a connection between North Carolina moonshiners in the 1950s and ‘60s – and a revered American senator, the late Sam Ervin – and the senseless murder of three young children in Merritt B.C., on April 6, 2008.
The connection is bail reform and its unintended consequence: revolving-door criminals and the thoughtless release of dangerous sociopaths and psychopaths.
Lurking among the endless stream of offenders released on bail to await trial are psychopaths who, upon gaining their liberty, go straight to their women and commit murder; and sometimes, most evilly, they murder their own children. Solemn words of a bail judge and the admonition in bail papers to abide by the law and have no contact with victims mean nothing to them.
Sam Ervin was a down-home southerner who became interested in bail reform because of his many legal contacts with moonshiners. His biographer, Paul R Clancy, quoted Ervin: “Their only vice was makin’ moonshine likker and they felt they were doin’ no harm, that they had a prescriptive right to do that. They were honourable, paid their debts and told the truth.”
Most moonshiners were penniless and lanquished in jail awaiting trial. The upshot: Sam Ervin’s 1966 Bail Reform Act that permitted defendants of good character to be released on their own recognizance pending trial.
In 1869, our newly minted federal government enacted a bail process for indictable offences that effectively left the denial of bail in the discretion of a judge. This judicial exercise would certainly have been tilted heavily in favour of the prosecution since it focussed on the need to ensure attendance in court and also the circumstances of the offence, severity of the penalty, strength of the case and character of the accused. Few offenders would have had the means to employ defence counsel and there was no legal aid.
I am left with a historical impression that too many cases went by way of denial of bail; that in cases in which bail was granted it became tantamount to detention awaiting trial because most offenders would be unable to meet the surety requirement or post the alternative of cash bail.
For 100 years our criminal justice system had a lock’em-up culture. It ended in 1970 when our copy-cat reformers fashioned a Canadian Bail Reform Act. In 1972 the Criminal Code was rejigged with “judicial interim release.” Overnight the criminal justice system morphed from lock’em-up toughness to anything-but-jail and a bail procedure that emphasizes release without regard for public safety especially in wife-beating cases.
And so since the 1970s, about one quarter of all persons arrested do not even go before a judge to be processed for judicial interim release; they get a quick pass to their first appearance in court when an arresting officer or the officer in charge issues them a ticket called an appearance notice or promise to appear.
Over the past 35 years judicial interim release has turned into a real honest-to-God revolving door for cunning and wily criminals, many of them so brazen that they matter-of-factly tell arresting officers that they’ll be back on the street in a day or two – and they are.
Today, whether released by a police officer or a bail judge, defendants soon figure out that their best defence is to go on the lam. They know that most judges won’t have the fortitude to try them ex parte or in absentia, and that their victims will lose faith in the justice system.
The remainder of persons arrested do end up in court for a bail hearing, however most of them walk out released on a written undertaking or a recognizance with conditions. It is a process that attempts to create the least interference with each defendant’s liberty awaiting trial.
The basic philosophy of judicial interim release is based on pure logic and not on human experience: that prior to conviction all offenders who do not constitute a danger to the public and their victims and who will show up for trial ought not to be in custody. That philosophy is based on the mistaken notion that most offenders are ordinary law abiding citizens who have committed a one-off offence. Even worse is the judicial logic that a record of criminal convictions is an accurate measure of criminal behaviour. Common sense tells us that recorded convictions are but the tip of an iceberg of felony.
The only time there is an actual mini-trial over detention is when a prosecutor decides to “show cause” and provides a basis for detention of the accused. Even then the rights of accused are protected because detention is only justified a) to ensure attendance in court and b) if there is a substantial likelihood of the commission of further offences. A third ground for detention deals with the public interest in the administration of justice where the offence has horrific implications, however the Supreme Court of Canada has cautioned that this ground for detention be used sparingly.
Ervin had the best of intentions in advocating bail reform and securing it in 1966. The same may be said of our reform of bail in 1972. Yet there is a black side: that public safety in Canada is being eroded by an ever revolving door in every bail court in our land. Too many criminals seem to be able to manipulate the bail system and get before a sympathetic judge or have the luck to draw a non-combative prosecutor and out the door they go free to commit more crimes.
The horrific murder of three children on April 6 in Merritt B. C. is a case in point. Three days before, their father, Allan Dwayne Schoenborn, was arrested for uttering threats against a child in a school yard. A bail hearing was conducted by video conference between police and Schoenborn in Merritt, and a judicial justice of the peace in Burnaby. Though the police officer made a forceful argument that included the accused record, the justice of the peace gave Schoenborn a break and released him. After reading all published accounts of the proceedings I believe that a hard-nosed judge would have denied him bail.
Three days after he was released Schoenborn’s three little children were murdered. He is the only suspect.
Schoenborn’s release on bail was not an exception – it is the way our system of judicial interim release works: a tinderbox for more crime.
Contact Judicial Gadfly at wallace-gilby-craig@shaw.ca or by posting your comment directly on the Writer’s Corner of www.realjustice.ca.
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