Bail or jail?

Edmontonians were troubled last summer by the strange abduction of a young, pregnant mother, Liana White. Her tearful husband, Michael, pleaded on television for her safe return and begged her to "hang on". Days later, he led the search party that discovered her body. Shortly thereafter, Edmonton police charged him with her murder. He was released on bail--a decision that shocked the community and caused city residents to circulate a petition asking the courts to revoke his bail. The Court of Appeal of Alberta agreed to hear an appeal of the bail decision. Its judgment was released on February 22, 2006.

The Court of Appeal ruled that Michael White must return to prison to await his trial for murder. In rendering its decision, the Court discussed three areas of interest not only to Albertans but to all Canadians interested in the criminal justice system.

The first area of interest concerned the traditional grounds for bail. It is well settled law that in a bail hearing the court focuses on two main factors:

* whether detention in prison is necessary to ensure future attendance of the accused in court, and

* whether detention is necessary for the protection of the public. However, there is a third ground outlined in s. 515 (10)(c) of the Criminal Code, and this factor asks whether detention of the accused is necessary to maintain confidence in the administration of justice. It was this ground which concerned the Alberta Court of Appeal.

The Court noted that in measuring public confidence in the administration of justice, it is not the "excitable or irrational" citizen who should be considered but rather a "reasonable, informed" citizen. The Court noted, "That citizen would understand that if there is not a substantial likelihood that an accused person will fail to show up for his trial (the primary ground), or commit another offence while on bail (the secondary ground), then the presumption of innocence and the accused's Charter right not to be denied reasonable bail without just cause would militate in favour of granting bail pending trial."

The Court stated that it would be an unusual case where bail was denied on the ground that public confidence in the administration of justice was at issue. When considering this ground, judges may be guided by four factors:

* the gravity of the alleged offence,

* the circumstances surrounding the commission of the offence,

* the strength of the Crown's case, and

* the potential for a lengthy term of imprisonment.

The Court of Appeal concluded "... we think that this too is one of those rare cases where it is necessary to deny bail in order to maintain public confidence in the justice system."

The second area of interest that the Court addressed concerned trial dates. Having decided that Mr White must remain in custody while awaiting trial, the Court of Appeal addressed the problem of lengthy waiting times for trial dates. The Court wrote, "In this country, the notion that people may be denied bail pending trial for 18 months or more, because trial time is not available, is unacceptable. In many cases that will effectively result in the accused serving his sentence before the trial. That is neither just nor fair." The Court of Appeal set out timelines as follows: "People denied bail must be offered dates which allow their matters to come to trial on a reasonably expeditious basis--three to five months from the date of arrest to preliminary inquiry or trial in the Provincial Court, and the same interval between the preliminary inquiry and the trial in the Court of Queen's Bench. It must be the truly exceptional case which cannot be brought to trial within one year of the charge when the accused has been denied bail."

The third area of interest discussed in this case concerned publication bans. Section 517 of the Criminal Code allows for a publication ban on the evidence and the reasons for release or detention given at bail hearings. If an accused asks for a publication ban, it must be granted. Michael White asked for and received a publication ban. However, there is no such requirement at the Court of Appeal level--an odd loophole in the law. Therefore, the Court of Appeal could use its discretion in whether or not to continue the publication ban in this case. The Court commented, "This must be the result of a legislative omission. It is unreasonable to think that Parliament intended it to be this way--that publication bans were there for the asking in the courts below, but can be contested and have to be justified at the appeal level. With respect, it is unfair to compel an accused to appear at an appeal of a pre-trial bail application and in the process strip him or her of the pre-existing right to be protected from pre-trial disclosure of allegations."

The Court of Appeal noted, however, that it takes the law as it finds it, and in this case decided that there was no justification for continuing the publication ban. It ruled that prospective jurors would be able to follow a trial judge's instructions that pre-trial allegations are not evidence and that their deliberations and verdict must be based on evidence as presented at trial. The Court therefore lifted the publication ban.

The Court of Appeal of Alberta has issued a judgment in this case that is instructive about

* the lesser known ground for denying bail based on the need to maintain confidence in the administration of justice;

* the curious loophole in the law concerning publication bans of bail hearings at the Appeal level; and

* the need for attention to court resources to ensure timely trials. R. v. White, 2006, ABCA 65.