Justice Lauzon calls out the bail system

Posted by on Mar 22, 2016 in Criminal Procedure, Legal Information, News

Justice of the Peace Julie Lauzon sits regularly in the main Ottawa bail court – where the liberty of people who are accused, but presumed innocent until proven guilty, is decided on a daily basis. In a recent National Post opinion piece, Justice Lauzon calls out the bail system, writing that Ottawa’s bail court, and others like it, “have devolved into dysfunctional and punitive bodies, devoid of the rule of law”. These are serious claims, but they could not be more welcome or timely.

As a society, we recognize prison as a punishment for crimes committed, yet half of the people detained in provincial jails are awaiting trial and have not yet been found guilty

The right not to be denied reasonable bail is an important application of the right to be presumed innocent until proven guilty (both rights are enshrined in section 11 of the Canadian Charter of Rights and Freedoms). As a society, we recognize prison as a punishment for crimes committed, yet half of the people detained in provincial jails are awaiting trial and have not yet been found guilty, according to a report prepared for the federal Justice department.

The Criminal Code’s provisions for bail were designed to ensure that people awaiting trial would only be detained if necessary – to ensure they will not flee, to protect public safety, and/or in rare circumstances to maintain confidence in the justice system. Justices presiding in bail court are tasked with deciding whether to detain or to release, and on what conditions. If an accused person is to be released on bail, the Crown prosecutor must show that more stringent conditions are required. (See How does BAIL work in Canada?.)

This is where “the law goes out the window, and cynicism and bullying kick in”, says Justice Lauzon. The Crown has the ability to consent to same-day release, or to insist on a contested bail hearing, which can be days or even weeks away. This creates a problematic power imbalance. As Justice Lauzon explains, people will agree to anything to avoid going to jail:

I have seen alcoholics and drug addicts accept a condition of abstinence. […] I have seen homeless people promise $1,000 to the court. If they breach that condition, they are basically agreeing to pay that money. […] I have also seen men cry because, in order to be freed, they agreed not to see their children, on account of allegations made by the mother, of which the children played no part.

Defence counsel often has no choice but to agree to the Crown’s terms, including excessive conditions. We are instructed by our clients, who are desperate to be freed, and in practice, the only way to do this is to agree to whatever the Crown is offering. In the Ottawa bail court, rather than being presented with arguments, the Justice is usually told by the Crown that so-and-so is to be released, with conditions already agreed upon and entered by the court Clerk into the computer system. Justice Lauzon suggests that justices ought to ask for justification of conditions that may be excessive, and exercise their discretion rather than “sign off on release documents that are unlawful”.

Justice Lauzon’s criticism could not have come at a better time. The bail system is broken and Her Worship’s contribution has potential to pick up the momentum of reform. Prime Minster Trudeau included bail reform as a priority in the new Justice Minister’s mandate letter. For more information regarding the present problems with the bail system, see the John Howard Society’s 2013 report: Reasonable Bail?.

For follow-up commentary, including responses from the Crown Attorney and Defence Counsel Association of Ottawa, see this piece in the Ottawa Citizen.


This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.

Featured image by Adrianna Calvo, falling under Creative Commons CC0 license.