The presumption of innocence.

One of the hottest criminal law topics in the news recently (as of April 2006, when I am writing this column) has to do with the granting of "bail"--more formally known as "judicial interim release"--to persons charged with, but not yet tried for or found guilty of committing, serious criminal offences. At least two high profile cases in Edmonton during 2005 and the early part of 2006 have brought the issue of bail to the attention of the public (and some politicians have been quick to jump on the bandwagon, hoping of course, to gain political mileage by doing so). In general, the public mood seems to be against granting release to persons who are alleged to have committed serious and violent crimes while they await their trials. In one case, the individual's release has now been revoked and he has been returned to custody. In the other case, the accused were granted release and apparently remain at large in the community.

The granting of bail to persons accused of crimes has its most fundamental roots in the presumption of innocence. This presumption underlies all aspects of our criminal legal system and is the most important part of our law and tradition which continues to be observed as fully as possible. In our system of law--and we hope, still in society at large--we value liberty and freedom to the extent that we do not easily permit or tolerate the state to detain an individual until and unless it has convincingly demonstrated that the person in question has committed a wrong of such severity that this form of punishment should be imposed. Thus, under our laws when someone is alleged to have committed a crime of any sort, he or she is presumed to be innocent of wrongdoing. That presumption continues from the beginning of the process--when the charge is first laid--until the end--when the trial concludes with a decision from a judge or jury. Only if the accused person admits their guilt, or the Crown proves to a judge or jury that the individual is actually guilty of the crime alleged, is the presumption of innocence displaced or overcome. If the Crown cannot prove guilt beyond a reasonable doubt--in other words, almost to the point of virtual certainty--the accused person is entitled to be found "not guilty" and to walk freely away from the courtroom.

Because of the presumption of innocence, our system seeks to avoid imposing punishment or restrictions upon the liberty of individuals before a finding of guilt is entered, except and unless very compelling reasons exist which might justify such a step. In general, there are only three reasons an accused person can be refused bail:

* he or she is not likely to attend court if granted release;

* he or she poses a significant danger to other members of society if released; and

* rarely, if detention is necessary to maintain public confidence in the administration of justice.

The first possible ground for refusing release to an accused person is perhaps the most practical. If, because of their lack of ties to the local community where the charge has been laid and the court proceedings will take place, or because of their past history of non-attendance, a court decides that an accused will not likely attend for future appearances if granted release, bail can be denied. Before making the decision to deny release, however, the judge must also consider whether granting release with conditions--including the deposit of cash to be held by the Clerk of the Court until the end of the proceedings--would be sufficient to ensure that the individual will return to court as required. Other conditions might include living at a specified address and reporting to police or local probation authorities, in order to ensure that the accused person remains in the community. If, after considering the possible terms which might be imposed upon an accused person if released, the court is satisfied that no conditions would be effective to ensure future appearances, bail may be denied.

The second possible ground for detaining an accused person relates to the likelihood and seriousness of their possible reoffending while they are on bail awaiting the end of the present proceedings. If, by their past conduct or the conduct which is alleged to have taken place leading to the present charge or charges, there is serious reason to believe the public may be put at significant risk by granting the accused release, a court may refuse bail and order the individual detained to await trial. This involves careful consideration of any record of past offences by the accused person, as well as a review of the allegations presently being made before the court. If the individual has no criminal history and has apparently lived a proper and law-abiding life in the community until being charged, he or she may still be granted interim release even if the charge against him or her is serious. Again, terms and conditions may--and usually will--be imposed in an effort to ensure that the individual attends court when required and to reduce as far as possible any chance that they will reoffend while on bail. Depending upon the circumstances of the case, in addition to some of the conditions described above, the court may require that the accused refrain from consuming intoxicants of any kind; not possess or use any form of weapon while on release; and not contact the person(s) who have made the present complaint(s) against him or her. (These are only examples of the additional conditions which can be imposed; others are possible as well.) If, however, after considering all relevant possibilities, a judge concludes that release of the individual poses risks to the public which remain unacceptably high, the accused may be ordered detained until the conclusion of the proceedings.

The third possible ground for denying bail is only rarely applied, as it requires the court to attempt to judge what impact release or detention may have upon the public's "confidence in the administration of justice." In other words, the judge must attempt to gauge how the public might react to release of the individual, in light of the seriousness of the charges; the apparent strength of the prosecution case; and the potential for a lengthy term of imprisonment if the accused is ultimately convicted of the offence. In some situations the allegations are simply so serious, and the Crown's case apparently so strong, that detention is considered necessary to ensure the public retains its confidence in the courts to protect the public from future wrongdoing by the individual. At the same time, judges are not to make their decisions based upon public demand or outcry, and must always ensure that their rulings are the result of careful, dispassionate, unemotional and impartial assessment of the facts and the law. They must always keep in mind that they do not know the complete Crown case. A bail hearing is not a trial, and the same extensive examination and review of evidence does not take place at this stage. They may know even less (if anything at all) about the possible defences to be advanced.

The recent Edmonton cases which have led to the public furor have both involved homicide allegations. In one situation a man has been charged with the murder of his wife. In the other situation, a number of young persons have been charged with manslaughter as a result of the death of a man on a city bus. In both cases, some politicians have apparently seen a chance to make their own headlines and have encouraged the public clamour--all the while undermining the community's faith in judges to perform their roles properly. Such conduct is at the very least irresponsible, and at worst, amounts to attacking one of the fundamental principles which ensures that our legal and court system does not become one of mob rule.

In the first case, the accused was charged with first-degree murder and three months later, after a careful and detailed bail hearing, was granted release upon very strict conditions. He had no criminal history or background and had apparently lived an exemplary life until his arrest. His release was greeted by community surprise, at first, and then by increasingly strident calls for his return to custody. Those few who sought to remind the public that the presumption of innocence should be respected were drowned out by the calls of those for whom that concept is purely theoretical. Ultimately, a public petition was started, supported by a Member of the Legislative Assembly who joined in the calls for the re-imprisonment of the accused. In February 2006, the Court of Appeal considered a Crown appeal of the original decision and, in light of new evidence which had not been provided to the judge who first granted release, overturned that order and revoked the release of the accused.

In the second case, four young persons were charged with manslaughter as a result of their alleged involvement in the death of a man on a bus in Edmonton. It is worth noting that "manslaughter" differs from "murder" mainly in that an accused who commits the former does not intend to kill, while such an intention is required for the Crown to prove murder. A few weeks after their arrest, the four accused were granted bail by a Youth Court Judge, who took careful consideration of the relevant factors and laws, and decided that with the appropriate controls and supervisory requirements the young people could be permitted to remain in the community while the proceedings continue. This decision, as well, has been met with some public outcry, although not to the level seen in the first case. However, at least one Edmonton Member of Parliament has criticized the judge for her decision, and has alleged that this case shows a "lack of accountability" by judges in general.

Such comments from persons who are supposed to be leaders in our community reflects, at best, a disappointing lack of understanding of the role and task of a judge--and at worst, represents a serious effort to undermine judges and courts in general. This is especially the case where, as in most bail situations, the public does not know and cannot know the full details of the matter. Most bail hearings are conducted under a publication ban in order to protect against the public prejudgment of the case. This is particularly important where a jury trial might ultimately be held, and where publicity might taint the potential jurors by leading them to form impressions about guilt or innocence before ever hearing any actual evidence in court. Judges who rule upon release applications take their roles seriously, and attempt to balance the competing and sometimes conflicting values and principles which are central to our system. One would hope that all politicians would understand and respect the difficult and delicate tasks of judges in this area, instead of attempting to score cheap political points by pandering to the public!

Charles B. Davison is a lawyer with the firm of Abbey Hunter Davison Spencer in Edmonton, Alberta.