Law Times

Law Times • sepTember 18, 2017 Page 3 www.lawtimesnews.com Cultural shift needed New bail policy coming for Crowns BY ALEX ROBINSON Law Times W hile new bail policies are on the horizon for Ontario's Crown attorneys, criminal defence law- yers say the bail process needs an entire cultural shift. At an opening of the courts ceremony in downtown Toron- to in early September, Attorney General Yasir Naqvi told judges and prominent members of the bar that his ministry will soon unveil a new set of bail policies and procedures for Crown at- torneys. "In the coming weeks, the Ministry of the Attorney Gen- eral will be releasing our new Crown policy on bail, which will set out with clarity On- tario's renewed approach to bail in the post-Antic world," he said at the ceremony. In December, the govern- ment enlisted the help of for- mer chief justice Brian Lennox, former deputy attorney gen- eral Murray Segal and deputy Crown attorney Lori Montague to develop the new bail guide- lines. They were expected to con- sider a number of issues, includ- ing the use of sureties and bail conditions, as well as a special- ized response to domestic abuse cases. Criminal defence lawyers say they hope the new guidelines will focus on a culture shift at all stages of release they say is need- ed in order to address the true problems of the bail system. "In terms of any new guide- lines concerning bail, I think the real issue is what will it take for the police, the Crown and the courts to adhere to the lad- der approach in our bail release laws," says criminal defence lawyer Dan Stein. "An undertaking without sureties — given to either a po- lice officer or a justice — is sup- posed to be the default position when granting release. Any other form of release, as well as strict conditions, are meant to be exceptions to the rule." He adds that, instead, there are countless bail hearings that should not be held at all and that the default ends up being releas- es granted with strict conditions and sureties. Criminal defence lawyer Sean Robichaud says the most significant issue affecting the province's bail courts is the "gross misalignment" of the law and practice. He says that despite the fact that hearings are supposed to be done in an expeditious manner, with a presumption of release in most instances, bail courts are often bogged down by prosecutors seeking severe conditions. "In my view, this is driven by Crown policies that are inf lex- ible and create overly cautious approaches by prosecutors who are often felt constrained in their discretion," he says. "This, in turn, has a sig- nificant ripple effect in delay through the criminal justice system." Robichaud says he is hope- ful that any new bail policies for Crowns will recognize that a "significant recalibration in per- spective" is required. He adds that whatever the changes are, "they must be pro- found in order to salvage the misapplication of law and mas- sive delay issues they are caus- ing." Naqvi told Law Times the ministry is looking at how it can have fewer people in re- mand, especially when it comes to low risk and vulnerable indi- viduals. "It's a departure from how the Crown policies [are] laid out today," he says. Criminal defence lawyer Jessyca Greenwood says the government's current bail poli- cies have not helped reduce the overrepresented numbers of mentally ill and indigenous people in remand facilities. "It is my hope that with changes to the bail system, per- sons who are vulnerable and un- well can get the help they need by being connected to commu- nity resources and stable hous- ing rather than deteriorating in jail," she says. She adds that she hopes the policies with respect to straight- forward and non-violent breaches of bail will be revisited with a less punitive approach. In June, the Supreme Court of Canada released its decision in R. v. Antic, which clarified the correct approach to bail. While the ministry was al- ready reviewing its bail policies at the time Antic came out, Naqvi said the Supreme Court of Canada sent an unequivocal message to the government and courts, similar to the way it did in last year's decision in R. v. Jordan. "It might not set out pre- scribed timelines like Jordan, but in many ways it is a similar- ly critical wakeup call," he said. "And just like Jordan, tackling this challenge will require all of us working together to make some tough decisions." While the Antic decision and bail were the focus of Naqvi's re- marks at the ceremony, Jordan was still top of mind as courts and governments continue to tackle delays. The Jordan decision capped court delays at 18 months in provincial court and 30 months in superior courts, with some exceptions. This forced govern- ments and courts into action to try to head off criminal charges being stayed. Ontario Superior Court Chief Justice Heather Smith said that a year ago the courts had just begun to address the ef- fect of Jordan but that this year they are feeling it in "full effect." Despite a number of court initiatives to improve the timely disposition of criminal matters, Smith said that the "challenges created by Jordan remain very real." She said the province's ap- pointment of more judges to the Ontario Court of Justice and hiring of new Crowns will mean new indictments will come to the Superior Court more quick- ly. "The great efforts of our ded- icated judges have held the line in criminal cases until now," she said. "But nothing short of a very immediate increase to the ju- dicial complement of the Su- perior Court will allow this court to maintain control of its very heavy and highly complex criminal caseload." She noted that in the federal budget for 2017, the government announced funding to appoint 28 new Superior Court judges for all of Canada and she is hop- ing that Ontario will get a pro- portionate number of those new judges. While a lot of attention has been put on how the criminal courts have been affected by Jordan, Court of Appeal Chief Justice George Strathy said it is important to ensure that civil and family matters have not been eclipsed by the needs of the criminal justice system. Lawyers who work in the civil courts have complained that delays in civil matters have been getting worse as resources have been shifted to criminal matters. "I think we need to take also a hard look at the effectiveness of [the] civil justice system in the ways it provides timely and efficient access to justice," Stra- thy said at the ceremony. "The diversion of judicial resources — a necessary diversion due to Jordan — has unfortunately created even more strain on the civil docket. We must renew our efforts to improve access to civil justice." Strathy said the province also cannot afford to wait to move forward with expanding the Unified Family Court in Ontario, which has been a long- awaited reform. Naqvi says changes to the bail system were also part of a wider look at tackling delays in the entire criminal justice sys- tem. He says bail hearings are tak- ing longer and more people are being denied bail. "From an administration of justice perspective, all the ad- vice that I have received is you have to look at the beginning of the process and one of the significant places we find a big challenge is the churn that takes place in and around bail," he says. LT NEWS Yasir Naqvi says the government will announce new bail policies for Crown attorneys in the coming weeks. 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM JUDICIAL VACANCY ONTARIO COURT OF JUSTICE ST. THOMAS The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in St. Thomas. This appointment involves presiding over family and criminal law matters (approximately 50% family and 50% criminal) and also involves travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, October 6, 2017. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-4 1 2017-09-13 1:57 PM

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