Clearing the fog? St. Cloud and the Reinterpretation of Bail Procedure

The death of Bridgett Takyi, a 27-year-old mother, represents the worst nightmare of any Justice of the Peace. In Ontario, justices make critical decisions, such as whether an accused should be released from jail pending trial. While out on bail for charges including assault and uttering death threats against Ms. Takyi, Emmanuel Owusu-Ansah, Ms. Takyi’s ex-boyfriend, stabbed her 25 times and set her remains on fire. Owusu-Ansah was convicted of second-degree murder in June 2015, but questions still remain concerning the decision to release him on bail in the first place.

The recent Supreme Court of Canada (“SCC”) ruling in R v St.Cloud, 2015 SCC 27 [St. Cloud] provides some clarity on how justices should determine bail eligibility. At present, there are three grounds upon which a justice may deny bail to an accused. The first ground, referred to as primary ground, is concerned with the fact that the accused may fail to attend court. The secondary ground focuses on public safety, including the likelihood the accused may reoffend. The concern of the final ground, the tertiary ground, is whether or not the release of the accused will compromise confidence in the administration of justice.

It is the tertiary ground that remains a point of contention. The SCC majority decision in the previous case of R v Hall, [2002] 3 SCR 309 [Hall] generated some uncertainty as to how and when the tertiary ground should be applied. One interpretation of the ruling is that it is only relevant in exceptional circumstances (e.g. sex assault, homicide). Another interpretation is that the tertiary ground should be given the same weight as the other two grounds.

Ultimately, in St.Cloud, the SCC agreed with the latter camp and concluded that this tertiary ground should not be unduly restricted through narrow interpretation, but rather recognized as an independent (and not residual) basis for denying bail. Although not thoroughly reviewed here, another important part of the St. Cloud ruling states that in reviewing a bail appeal, a judge cannot exercise unbridled discretion but only intervene in circumstances where new evidence is tendered, an error of law was made or where the decision of the previous judge was inappropriate.

Analysis

While St.Cloud does reinforce the importance of considering public perspective in bail proceedings, it is unlikely that this decision will lead to any kind of practical difference from how bail proceedings are presently conducted.

First, it is hard to imagine a serious case under bail review that does not already raise primary and secondary grounds. As a result, reference to tertiary considerations is superfluous if the first two grounds are present. The importance of bail hearings is magnified when a serious incident takes place. For this reason, the death of Ms. Takyi is even more unsettling. All indicators suggested that her killer should have never been released given his history of violence against her.

Second, less serious cases often do not engage primary and secondary grounds and so the accused in these matters are generally released. In bail proceedings, unless there are special circumstances, the onus is always on the Crown to argue why an accused should not be released. It is difficult for a Crown to pose a strong argument for why a case that does not engage primary or secondary grounds should still result in the denial of bail. This is also true in light of resource constraints.

Third, the tertiary ground already overlaps with the primary and secondary grounds. What could compromise the confidence of the administration of justice more than releasing a person likely to reoffend or abscond? It is no wonder that the tertiary ground has effectively been treated as a catchment area within bail procedure.

Determining bail prior to trial is a delicate balance of recognizing individual liberty and taking necessary precaution in appropriate cases. Not surprisingly, the outcome in St.Cloud has resulted in a stark contrast of opinion between the defence bar and Crown attorneys.

Recently, TheCourt.ca had the opportunity to speak with Daniel Lerner of Lerner Law Professional Corporation to gauge how practitioners tackle the ruling in St.Cloud. Mr. Lerner has the unique experience of being a former Assistant Crown Attorney combined with his current practice as both a defence lawyer and “moonlighting” as a per diem Crown in the GTA. Here is Mr. Lerner’s take on St.Cloud.

Did the SCC get it right with St.Cloud?

“They could have done it better. They are probably right that Hall was getting misinterpreted but in the process [the justices] indirectly broadened the test for the tertiary ground in a way Hall was critical of. As a result of St.Cloud, we have less guidance now in knowing ahead of time what standard there is to meet for bail. While it is good that we were given specific factors to consider under the tertiary ground (strength of case, gravity of offense, potential length of sentence and surrounding circumstances of the case), it was made clear in St.Cloud that these factors are not exclusive. In essence, we can incorporate any factors we can imagine under the umbrella of tertiary grounds.”

 Within your capacity as a defence lawyer, does St. Cloud create a formidable obstacle in obtaining bail for your client?

“Legally speaking, the ruling does broaden the test to detain a person. As defence counsel, I view it as reducing the ability to have an objective standard and places me in a position where I am not exactly sure what the standard for the tertiary ground is anymore. The Crown can come up with anything to argue why a person should or should not be detained on tertiary grounds. For me, this goes back to the constitutional question raised in Hall, are we losing sight of the original basis for the tertiary ground?”

Within your capacity as a Crown, does St.Cloud make succeeding in contested bail hearings more likely?

“As a Crown I can say that St.Cloud does provide more tools for me to use in contested bail. However, a good Crown in bail court acts reasonably. If I am seeking tertiary grounds in every case then it could lose its power. Since St.Cloud, I have not been asking for more detentions based on tertiary grounds. It is difficult to come up with a situation where primary or secondary grounds are not also engaged in a case.”

What are the practical implications, if any, of this ruling? Do we really expect much change to come of this ruling or are we just giving lip service to the importance of public sentiment?

“If you follow St.Cloud to the letter then the reality is that there should be no practical effects expect for those few justices that were misinterpreting Hall. There remains concern that we will see more Crowns seeking detention on tertiary grounds but that has not been my experience. I am not seeing an increase.

A true test case would be a contested hearing on solely tertiary grounds. The case of R v Dang, 2015 ONSC 4254 was close but we still have not seen it yet. Even the facts surrounding Hall and St.Cloud were not primarily based on tertiary grounds. It will be a rare situation where you have a person releasable on secondary grounds but yet the public’s confidence will be lost (tertiary grounds) if the person is released on bail.

The only way we can get a better idea of the practical implications will be to look at what the statistics show a year after the release of this ruling. If a person gets detained on primary and secondary grounds, the inclusion of tertiary grounds will not raise alarms. The problem arises when detention is argued based solely on this ground.

Ultimately, I do not see many practical effects. The public has not shown a huge interest in bail. In Canada, bail is below the radar even though it should not be. The majority of people in the provincial reformatories have not been found guilty of the crime for which they are detained. That is a shocking fact but if the public is not interested in bail, what does this say about the tertiary grounds and its importance?”

Final Thoughts?

“The second part of St.Cloud dealing with bail review is very important. What St.Cloud does reasonably well is clearly lays out some review grounds and so provides us with a good legal framework. Technically, bail review impacts both defense and Crown but more so defense because the majority of bail review requests come from them. St.Cloud definitely narrows things for the defense and forces them to really look for legal grounds.

There is no question that as a result of St.Cloud, more accused will lose in their bail review. This warrants an important reminder to defense counsel to always put your best foot forward in a bail hearing. The chances of a successful review after St.Cloud are lower. This may result in longer detainments for clients in order for defense counsel to gather enough evidence for a bail hearing. Waiting for a subsequent review to be heard can take months and this further lengthens detainment.

Finally, I think it is interesting to point out that St.Cloud only applies to adults. The tertiary grounds provision in the Youth Criminal Justice Act, SC 2002, c 1 is worded quite differently in that it is explicitly stated as residual and expressly requires exceptional circumstances! It is only if you don’t have primary or secondary grounds can you apply tertiary ground arguments in a youth case.”

 Conclusion

As with many SCC decisions, the true effects of these decisions become evident over time as new cases emerge. Mr. Lerner has pointed out that statistics on prosecutors and justices will provide us with the best insight into the practical importance of St. Cloud. Until then, it would appear that the concerns from the defence bar about the new status given to the tertiary ground are overhyped. Essentially, I, along with Mr. Lerner, predict business as usual in the bail courts across the country despite the revival of debate in this area of the law.

Daniel Lerner can be reached at daniel@lernerlaw.ca or by visiting his website at lernerlaw.ca.