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| John Hill |
It also commented on the hardships experienced by Toronto South Detention Centre inmates. I want to comment on this case, but the reasons in the application for a judicial interim release decision include a warning that an order for non-publication and non-broadcast has been made. The judge has also included a notation that counsel can circulate the judgment to other counsel for use in court.
Still, although publication and quotation of general principles expressed in the case are permitted, any facts about the applicant, the applicant’s circumstances or the evidence are prohibited. The warning would seem to include the applicant’s name. Therefore, I cannot provide as much as a citation for the decision.
This case holds immense significance as it confronts several critical issues that often surface when marginalized and vulnerable individuals appear before a criminal court and are unable to secure a surety. The decision, a beacon of hope, granted the applicant significant freedom on bail. It is a decision that would likely face vehement public criticism if I were to disclose the applicant’s background and circumstances. Since I am prohibited from doing so, one can infer that the applicant and the facts substantiate the assumption that the applicant is marginalized and vulnerable.
The legal analysis in the decision strikes solidly at the complaint that our judiciary has become “soft on crime,” and bail hearings nowadays are “catch and release” exercises that frustrate local police departments in their quest to stamp out crime. It begins with Charter ss. 11(d) and (e), guaranteeing Canadians the right to reasonable bail and to be presumed innocent until proven guilty. The decision quotes R. v. Morales, [1992] 3 S.C.R.711, where our Supreme Court held that “pretrial detention is extraordinary in our system of criminal justice.” It was further pointed out that in R. v. Antic, 2017 SCC 27, the Supreme Court recognized the systemic, ongoing issues in the bail system and expressed concern about the growing remand population. R. v. Tunney, 2018 ONSC 961, sounded a “clarion call” for the justice system to return to bail practices that recognize the primacy of the presumption of innocence and the importance of the statutory “bail ladder” implied in the Charter guarantee of reasonable bail. These decisions were expressed before there were additional pressures due to the COVID-19 pandemic.
Denial of bail creates pressure to plead guilty to secure release rather than face detention in the inhumane conditions at the Toronto South Detention Centre. By 2019, the Supreme Court of Canada in R. v. Myers, 2019 SCC 18 commented on the negative aspects of pre-trial detention, including the reduced ability to conduct defence and the mental and physical toll extracted on the accused and their families. Parliament acceded to these criticisms in 2019 by enacting ss. 493.1 and 403.2 of the Criminal Code, reinforcing the expectation that an accused person should be released immediately under the least onerous conditions. The sections urged special attention to Indigenous peoples and those in vulnerable or disadvantaged populations. Justice Andras Schreck addressed such a problem in his decision in R. v. E.B., 2020 ONSC 4383, where he interpreted the Code provisions as a means “to remedy the problem of overuse of pretrial custody as well as the over-representation of certain populations in the criminal justice system and the remand population in particular.”
Deplorable conditions existing within detention centres, most notably at the Toronto South Detention Centre, have met with criticism by the Canadian Civil Liberties Association and in Ontario Superior Court Justice Anne Molloy’s decision in R. v. Shaikh and Tanoli 2024 ONSC 774, where she criticized conditions within the Toronto South facility as abysmal.
Despite judicial criticism, conditions have worsened. Justice Jones released the accused with conditions to rectify the situation (at least for this one accused).
The judgment was forceful and sound. It should be brought to a bail court’s attention whenever defence counsel represents a vulnerable accused from a marginalized community. It is evidence that courts are willing to ignore public pressure to “lock ’em up” to get tough on crime. In these cases, the Charter still means something.
If only those who write columns in publications such as this could get the courts to recognize that s. 2(b) of the Charter (granting freedom of expression and the press) also secures Canadians’ liberty. In that case, we might be better able to rally support for these enlightened judgments rather than having to comply with a severe warning and risk summary prosecution.
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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