Law Times

Law Times • sepTember 11, 2017 Page 5 www.lawtimesnews.com Court looks to cut down on delays Criminal lawyers say bail project is long overdue BY ALEX ROBINSON Law Times C riminal defence law- yers say a pilot project to have judges preside over bail hearings is a short-term fix for a long-term problem. The Ontario Court of Justice launched a pilot project in early September to see whether hav- ing judges conduct bail hearings could reduce delays in the crim- inal justice system. Typically, justices of the peace, who are not required to have law degrees, hear bail proceedings. Criminal defence lawyers have long criticized the fact that many JPs are not lawyers, as they say complex legal concepts can come up in these proceed- ings that can affect an accused person's liberty. They say this results in more unreasonable detentions. Criminal defence lawyer Fai- sal Mirza says that accused per- sons' rights to reasonable bail are routinely violated in bail courts across the GTA. "This must stop," he says. "Re- form is long overdue." He says that, moving for- ward, judges should conduct bail hearings as part of their duties, as judges can get to the heart of a matter faster than a JP that does not have experience in criminal law. "Continuing to have justices of the peace that do not have the requisite expertise conduct bail hearings contributes to unnec- essary inefficiency, delay and er- rors," he says. Mirza says judges can better identify when the prosecution exceeds its authority by de- manding unjustified detention or onerous bail conditions and that prosecutors will be forced to become more pragmatic in their approach if judges preside over bail hearings. Ottawa criminal defence law- yer Marcus Bornfreund says the pilot project is long overdue and should become a permanent fix- ture of all criminal courts in the province. He says the initiative is a "po- lite way" to move JPs out of bail hearings. "I think there is a lot of im- portant administrative work that can be done by them with- out judging things that bring people's liberty to bare," Born- freund says. "If someone is going to spend even a second in jail, then a justice of the peace had no business making that decision." It is unclear at this point whether the courts will com- mit permanently to the pro- ject, which is being conducted at the Ottawa courthouse and the College Park courthouse in downtown Toronto. The pilot could last anywhere from 18 to 24 months, says Kate Andrew, a spokeswoman for the Ontario Court of Justice. Andrew says the pilot project is one of a number of options the court has been exploring to cut down on delays since the Su- preme Court of Canada issued its decision in R. v. Jordan. "This bail project will explore the impact of judges' criminal trial experience at the earliest stage of the criminal court pro- cess," she said in an email. "This project is an oppor- tunity to assess the impact of judges' extensive trial and case management experience at bail hearings in two busy bail court locations." There are no judges specifi- cally dedicated to the bail project and all judges at the two court- houses will participate. The pro- vincial government appointed three new judges to the Ontario Court of Justice in December in anticipation of the project. Andrew says JPs will con- tinue to conduct bail hearings in the two locations as well as other courthouses for the duration of the project. Criminal defence lawyer Sean Robichaud says the fun- damental problem with having JPs conduct bail hearings is that many of them are not lawyers and, therefore, do not have the insights that come with the ex- perience of litigating criminal cases. He says that, in many juris- dictions, the bail system has devolved far from the Crimin- al Code and the direction that hearings be expeditious and guided by the presumption of innocence and the right to rea- sonable bail. He adds that all too often courts are mired with unneces- sarily prolonged hearings that are more akin to an incomplete and imbalanced trial. "Not only does this prolixity affect the rights of the accused, it has a profound effect upon the court system in general by stress- ing valuable resources required elsewhere," says Robichaud. "This project seems to im- plicitly recognize that, at least in some jurisdictions, justices of the peace have simply dropped the ball on how bails are han- dled." He says that he has witnessed justices of the peace grant "un- warranted deference" to Crown attorneys to allow them to call unnecessary evidence, witness- es and seeking conditions of re- lease judges would consider too restrictive. "Judges would quickly put an end to this waste," he says. He adds that judges are far less inclined to allow a Crown attorney to set the tone and pace of a hearing. Andrew says the bail project will be assessed after the first year of the project by the judi- ciary, chief justice's office and local planning groups in the two locations. LT NEWS Marcus Bornfreund says the pilot project to have judges preside over bail hearings is long overdue. Visit our new website to find the latest in Ontario legal news, opinion, videos and expert commentary. Find the legal content you're looking for faster with enhanced navigation. A FRESH NEW LOOK www.lawtimesnews.com Join our 55,000 monthly visitors and read respected content on any device. Untitled-1 1 2017-09-07 9:00 AM

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