Under Canada’s Criminal Code, all accused must appear in court within 24 hours of being arrested, although their first appearance will not always be about their bail hearing.
This is the reason why the courts are open on weekends, to allow the hearing of an accused who would be arrested on a Friday or a Saturday.
, recalls Christine Mainville, spokesperson for the Association of Criminal Defense Lawyers of Ontario.
Christine Mainville sits on the board of directors of the Association of Criminal Defense Lawyers.
Photo: Hench Hutchison
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However, 72 hours may be granted, most often at the request of the Crown, in complex cases. The accused can also request such a privilege.
It is always on a case-by-case basis, but it can have consequences for the sentence to be imposed after a trial at the end of which an individual has been convicted as a reduced sentence.
The reality, however, is far from the theory. The problem is not new and court delays existed long before the pandemic, according to Ms. Mainville.
The South Toronto Detention Center is a provincial jail where some accused await their release hearings.
Photo: The Canadian Press / Nathan Denette
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The problem is all the more serious in that it can lead to charges being dropped for undue delay, when the accused does not obtain a bail hearing on his release in time. the community pending trial.
New Previous
The latest case concerns a case in Brampton that shocked an Ontario Superior Court magistrate last week in an alleged organized crime case.
Judge David Harris has dismissed around 60 charges of illegal betting against two individuals because the defendants had to wait 12 days in jail before getting their bail hearing.
In a scathing verdict he speaks of crying systemic delays
in the judicial administration and denounces the alarming frequency
with which the rights of the accused to be heard within a reasonable time are violated under the Charter.
The reception desk at the Brampton courthouse.
Photo: Government of Ontario
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In this case, justice will not have been served, since it will never be known whether the two individuals in question were guilty or innocent of the crimes of which they were accused.
The two accused are free and they cannot be prosecuted again. The Crown has not yet decided to appeal Justice Harris’ decision.
Abby Deshman of the Canadian Civil Liberties Association is not surprised. We have already had many judgments of the Supreme Court of Canada which have noted the severity of the problem and the violation of the rights of the accused and little or nothing has been done.
, regrets the director of legal programs within the association.
One of the snowy statues outside the Supreme Court of Canada in Ottawa.
Photo : CBC / Evan Mitsui
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His group recalls that it had written a report in 2014 on this subject. COVID-19 n'a fait qu'accentuer les retards","text":"Il est de plus en plus difficile d'obtenir une audience sur le cautionnement en Ontario et la COVID-19 n'a fait qu'accentuer les retards"}}" lang="fr">Getting a bail hearing in Ontario harder and harder and COVID-19 has only added to the delays
, she explains.
Under the charter, any accused person is presumed innocent until proven guilty and cannot remain in detention when there is no suspicion of a violent crime or when there is no risk of reoffending or committing a crime. volatilize in nature.
Ms. Deshman clarified that first appearances are held on time, but subsequent hearings are often delayed. Sometimes the accused and the defense are ready to proceed at the second appearance, but the Crown is not ready for seven days or more, so the rights of the individual are violated.
, she continues.
New procedure
In an email, the Ontario Ministry of the Attorney General retorts that the court administration is doing everything in its power to keep the public safe in the face of the COVID-19 pandemic.
He noted that the administration continues to manage day-to-day business in an open and transparent manner on digital platforms where virtual hearings can be held in Ontario.
The ministry adds that the Ontario Court of Justice has a protocol in place to promote the efficiency of bail appearances.
The Ontario Court of Justice is aware of the issue of court delays.
Photo : iStock / iStock / Cristian Baitg
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The Court effectively created in January 2020 a new procedure in order to unclog the system and to better plan certain hearings in advance.
The directive is used when bail hearings are complex and of sufficient length to ensure that the accused is still heard within a reasonable time.
It makes it possible to standardize the practice of extending the timeframes for such inquiries using a form and a telephone or in-person meeting with a designated justice of the peace.
It discusses the time that the investigation will take and a timetable to hear the case on a specific date, but this often causes delays and the date that is offered does not take place within a reasonable time.
, explains Ms. Mainville.
Regional inequalities
Under this protocol, the bail hearing can take two to four hours, because it sometimes requires several appearances, instead of a traditional hearing lasting around 20 minutes on average.
Defendants should not be responsible for how the judiciary prepares the schedule for hearings
, continues Ms. Deshman.
Ms Mainville rejects any malice on the part of the Court of Justice. I’m sure they tried to make it easier, but the result is that it created a lot of delays for several defendants who are waiting for their case to be heard in detention.
, she says.
The parties must come to an agreement with a justice of the peace to follow the new procedure on releases which take longer than usual.
Photo : iStock / BrianAJackson
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According to her, the problem depends a lot on the jurisdiction where the crime was committed. The resulting delay will vary depending on the region, the courthouse, given the volume of their cases, their resources … There are several factors that come into play.
, she adds.
Ms. Mainville adds that the protocol nevertheless opens the way to interpretation, because the definition of a cause complex
is not the same for everyone and that the bail hearing often depends on the goodwill of the Crown.
Constitutional appeal
Ms. Mainville would welcome the idea of a legal challenge to the courts as envisioned by the CCLA. This is obviously a good thing to make things happen and for the system to receive the resources it needs to ensure that the rights of accused persons in detention are respected.
, she says.
The Canadian Charter protects accused persons against any delay deemed unreasonable in court.
Photo : Radio-Canada / David Horemans
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The CCLA specifies that there is also a risk that the accused will catch COVID-19 while in custody pending his bail hearing, since these establishments are prone to the spread of the virus because of their promiscuity. In this sense, the delays also undermine the accused’s right to security enshrined in the charter.
A week’s delay that forces you to stay in such a place when you could be released depending on the seriousness of the charge you face can make all the difference between getting out of prison on a healthy bond. or sick.
Deshman says other jurisdictions across the country are doing much better than Ontario when they also have cases of infections in their territory, because they had already better integrated the use of new technologies into their judicial administration before the onset of the pandemic.
The Criminal Code was recently amended with regard to interim releases.
Photo: Radio-Canada
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The ACLC is asking for more human, financial and material resources to de-clutter the judiciary, despite the efforts made in this regard by the Attorney General in late spring 2020.
Code amendments
Ms. Mainville believes that efforts should be made to release an individual from the police station without appearing in court and thus avoid keeping him in detention indefinitely unnecessarily.
In this regard, she cites Bill C-75, which, when it was passed in June 2019, amended the Criminal Code by simplifying the procedures for interim release to reduce delays in the judicial system.
The law now grants the police the possibility of establishing their own conditions, when detention is not necessary and where there is no threat to security, no risk of reoffending, or no risk of leak.
According to Ms. Mainville, however, recent changes to the law still seem difficult to perceive in practice since the start of the pandemic.
The Association of Crown Attorneys of Ontario was unable to grant us an interview prior to this report’s publication.
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