Law Times

PAGE 6 COMMENT Law Times Group Publisher ..... Karen Lorimer Associate Publisher .... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editors ..... Helen Burnett . . . . . . . . . . . . . . . . . . . . . .Robert Todd Copy Editor .......... Matt LaForge CaseLaw Editor ..... Jennifer Wright Art Director .........Alicia Adamson Production Co-ordinator .. Mary Hatch Electronic Production Specialist ............Derek Welford Advertising Sales .. Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta . . . . . . . . . . . . . . . . . . . . . . . .Rose Noonan Sales Co-ordinator ........Sandy Shutt ©Law Times Inc. 2008 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter t's lights out, curtains, pull-the-plug- time, over-but-the-crying for night court in Toronto. The decades-long institution that helped the working guy deal with parking tickets and minor traffic violations without missing a day on the job, is toast. I Fielding and Judge Harold T. Stone say? Granted, the pair who appeared on Night Court dealt with wacky petty crimes, and not the Provincial Offences Act charges of our night court. But, it's a good bet the 1980s TV-dinner stalwarts would raise an objection along with a chorus of Toronto drivers and critics who decry the quiet decision that ad- journs the court June 30. We say quiet because it was via an ex- What would Assistant DA Dan clusive Toronto Sun story that the public learned of the move. The story says as of July 1 those wishing to fight these non- MAY 26, 2008 / LAW TIMES Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign address- es. 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Paging John Larroquette . . . criminal charges like speeding or making an illegal turn, will have to go to Old City Hall during weekday sessions. "For many, the principle of fighting a bogus charge, or an improperly laid charge, will now have to take a back seat to not losing a day's pay," wrote the paper's Mark Bonokoski. The decision, according to Tara Dier, executive co-ordinator for the Office of the Chief Justice, in an e-mail to the Sun, is " . . . to make the best use of judicial and court resources." The courts — which sit Tuesdays and Thursdays from 7 p.m. to 9 p.m. with nine JPs, and often have as many as 200 cases a night — will be replaced with two new courts that will hear cases on Saturdays. But with a catch: They'll only deal with guilty pleas or "guilty with an explanation" pleas, according to the National Post. So, henceforth, the only way to go do battle is to head to court on Monday to Friday during the day. Other offences handled by the Old City Hall night court include being intoxicated in a public place, trespassing, illegal dumping, and city by- law violations. Now they'll see the light of day at Old City Hall, 1530 Markham Rd., or 2700 Eglinton Ave. W. Toronto City Councillor Rob Ford told the Post this is a "cash grab" by the city. "They know people aren't going to take a day off work to go fight their ticket . . . They'll pay the ticket, they'll throw in the towel." He's right. "They're going to lose money not go- ing to work plus it could cost them more money. So they're losing at both ends," said Ford. "It's just absolutely wrong. People should have the right to fight their tickets. It's taking people's democratic right and freedom away." Well, it's certainly taking their "ac- cess" away. Ironic, given all the talk lately about a need for "access to jus- tice" in Ontario's courts. Barry Randell, the director of court ser- vices for the city, told the Post, "Toronto, like many jurisdictions in Ontario, suffers greatly from a shortage of justices of the peace. This is a decision . . . to make our day courts more effective. "Outside Toronto there has never been night courts, so this is just bring- ing us in line with the rest of the prov- ince," he added. "It's a step back from access to justice," Chris Surowiak, president of the Paralegal Society of Ontario told the Sun. "It will mean more revenue for the city, but all at the expense of access to justice." Here's an idea: Issue portable belt- clip Visa machines to Toronto cops, and be done with this whole access to justice thing. — Gretchen Drummie makes an undertaking to ensure that the accused will appear for court and follow his bail condi- tions. He makes a pledge, gener- ally of money, to the court, but he does not and cannot deposit the security that he pledges. Sec- tion 515(2) of the Criminal Code only provides for the deposit of money, or other valuable security, by the accused. W hy can't a surety post a cash bail in his own name? The surety A surety by any other name . . . A Criminal provisions of the act provided for a deposit of cash or other valuable security by the ac- cused only where the accused was not ordinarily resident in the province, or did not re- side within 100 miles of the place where he was in custody, and this was with or without sureties. Interestingly, the original Mind By Rosalind Conway The illogic of this anomaly of bail is constantly evident in our bail courts. When your client has been arrested, you call his family to see if they will serve as sureties, and they answer, "How much is the bail?" The Bail Reform Act, S.C. 1972, c. 37, established a basic entitlement to bail: see R. v. Pear- son, [1992] 3 S.C.R. 665. Poverty does not preclude the granting of bail. Furthermore, s. 11(e) of the Charter of Rights constitutional- izes the right to reasonable bail: The accused has a right not to be denied reasonable bail without just cause. The code presently provides for two situations in which a cash deposit may be ordered. The first is "with the consent of the prosecutor . . . without sure- ties" (s. 515(2)(d)). The second is the metric version of the old one from the Bail Reform Act: "If the accused is not ordinarily resident in the province . . . or does not ordinarily reside within 200 kilo- metres of the place in which he is in custody . . . with or without sureties" (s. 515(2)(e)). Sureties commonly believe that the cash bail will be re- turned to them if the accused follows his conditions and ap- pears for court. Counsel should caution them that any money which is deposited is deposited in the client's name, and it can only be returned to the client. It becomes the client's cash, absent a bail assignment. The surety must still make a pledge of mon- ey (or something of value) to the court, thereby doubly indemni- fying the accused. If the surety only has that one sum, and it is all of the money available, then he cannot actually serve as a surety, because he is no longer in a position to pledge money to the court. No one can indemnify the surety. The accused cannot indemnify his surety, or he is guilty of the offence of ob- structing justice under s. 139(1) (a) of the code, and, likewise, the surety cannot accept a fee or indemnity for serving as a surety, as this would violate s. 139(1)(b). He would also be www.lawtimesnews.com obstructing justice. There is a kind of logic to keeping the surety on the hook for the money that would be es- treated if the accused breaches or absconds, but what if the surety has spent it? Certainly, the surety can relieve himself of his obligation by rendering the accused to the court, but, ironically, only the accused could apply to reduce the surety's obli- gation, because the surety is not a party to the proceedings. An- other surety could also be substi- tuted (s. 767.1). Safely placing the surety's se- curity with the court is logical. As it stands now, at estreatment proceedings the surety may be or- dered to come up with his securi- ty (or, if the judge is kind, a por- tion of it), while the surety could have simply deposited it with the court at the outset. If the sheriff certifies that the surety is unable to satisfy the debt, then, after a show cause hearing, a surety can actually be incarcerated if they fail to make good their pledge (see s. 773). Much as I enjoy the light en- tertainment of Dog the Bounty Hunter and his merry crew of relatives, I am more than com- fortable with not having bail bondsmen and bounty hunters in Canada. The bail bondsman has a purely financial relation- ship with the accused. He is not a true surety. A surety in Canada has a close relationship with the ac- cused, and usually will have the accused live with or near him. Our system works: such changes would be minor. Permitting the surety to deposit his security with the court would surely be the clearest demonstration of the surety's faith in the person whose conduct he is guarantee- ing. This would give legal rec- ognition to the reality that the money that was deposited was really the surety's, and would simplify estreatment proceed- ings, not to mention avoiding the ugly spectre of incarcerating indigent, errant sureties. LT Rosalind Conway practises criminal law in Ottawa. She can be reached at rosalind.conway@magma.ca.

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