The elephants in our courtrooms are stampeding but not one of our political leaders on the municipal, provincial or federal level will not even address the issue in the public forum.
Stephen Harper and the Conservatives promise to get tough on crime by either increasing current mandatory sentences or introducing mandatory sentences for other violent offences. Paul Martin and the Liberals want to ban all hand guns (don’t snicker) and propose legislation to keep individuals charged with gun offences locked up under a “reverse onus” situation in bail court. This would introduce a fundamental change to the nature of justice system wherein an accused is presumed innocent until found guilty in a court of law.
Contrary to what Paul Martin would insinuate in this proposal the decision for granting bail to an accused is made by a Justice of the Peace and a Criminal Court Justice. In practice it is more common for a JP to preside over bail courts. The criteria for bail centers on whether an accused will comply with any restrictions the bench may seek to impose, whether an accused is at risk of flight from the jurisdiction of the court, and whether the accused jeopardizes the safety of the community. It was presumed to be of paramount importance that the community be protected and at one time that concern superseded all other concerns but rarely does practice anymore. See the recent sad case of Sepehr "Danny" Fatulahzadeh-Rabti.
No doubt police forces all over the country are pleased by Conservative promises for increases in mandatory sentences and most of us are all snickering at the proposed hand gun ban while civil libertarians are gasping in horror over the reverse onus in bail requirements; neither of these proposals address what is really the weak link in our current justice system. We would not need to introduce mandatory sentences or even increases to mandatory sentences if our Justices were doing their job and applying the full letter of the law rather than only the alpha and maybe beta (when stretched) of our current laws.
I have yet to meet anyone without experience in the criminal court system that is not shocked when they learn that Justices of the Peace are patronage appointments, and furthermore, there are no set prior job experience required for appointment as a JP in Ontario. In the criminal court system is it usually a Justice of the Peace who presides over bail court and makes a determination if an individual poses a risk to the community. JP’s are also responsible for the issuing of warrants. Surely, someone with extensive knowledge or practice in the law would be far better equipped to determine if an individual is at risk for fleeing the jurisdiction of the court, posed a viable threat to the community at large, or even whether an individuals privacy rights should be waived in a criminal matter in the public interest, than say, a public school administrator.
This past week a man is charged with aggravated assault and attempted robbery of Liberal MP Pierre Pettigrew. According to this Globe and Mail account no gun was used and the accused has never committed a criminal offence before and yet he was denied bail until trial and ordered to undergo a psychiatric evaluation. While the Toronto Sun reports on the granting of bail to a suspect charged with using an illegal handgun to commit first degree murder was granted bail just one day after Yonge Street was turned into the OK Corral. Furthermore, no psychiatric evaluation was ordered by the court.
But the case of Marcel Laframboise is certainly not unique but any means of measurement. It is far more common than the general public realizes for an accused to be out on bail on one criminal matter only to be arrested for alleging committing another criminal offence, receiving bail, and then be re-arrested on a third offence and receiving bail in that matter as well. During my brief foray as a law clerk for defense counsel many of our clients were free at large within the community on multiple bails detailing several separate criminal matters. And the public wonders why the courts are so backlogged.
So why is the silence downright deafening? You can pass more and more laws from here to legislative eternity but if you cannot find a Justice who is willing to apply the full weight of the law; it is all for naught. Ask yourself this – why are there no calls for public scrutiny of what sentences our judges are metering out? Why are there no calls for a full review of judicial sentencing? Why will no one take on the Justices and ask for a full accounting of what exactly they have been up to on the bench?
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