How the delegation of bail hearings to Justices of the Peace has failed, and a judicial recalibration is required.

Recently, the the CBC reported  that”Judges will be taking over bail hearings at two Ontario courthouses Tuesday as the provincial court tries to reduce delays in the wake of the Jordan decision.”

Yet despite the pressure that has come in the wake of Jordan (and now Cody which reaffirms the strict application of these timelines), the controversial issue of Justices the Peace presiding bail courts in Ontario has persisted for decades, as has the call for reform in the bail process. 

With the combination of the Supreme Court of Canada’s Jordan and R. v. Antic rulings, there is new pressure upon bail courts to both speed up the process, and a sophisticated application of the principles that guide our bail hearings as enshrined under section 11(d) and (e) of the Charter of Rights and Freedoms.

This pilot project seems to be a sensible and effective answer to a larger issues of pervasive problems and practices that are now sapping away precious legal resources

bail hearings justices of the peace ontario

The controversy surrounding Justices of the Peaces’ responsibilities and appointments process

Much of this controversy arises from the fact that even though Justices of the Peace are responsible for presiding over very complicated and critical rulings in the criminal justice system. Yet, an overwhelming majority of these Justices do not even possess a law degree.

As recently as 2016, the Ontario government has yet to appreciate the need for formal legal education and experience as a prerequisite for appointments. Last year, an article from Toronto Star reported that of 14 appointments, only 5 possessed a law degree. Of those who possess a law degree, even fewer have had extensive experience in the criminal courts dealing with litigation, bail, sentencing, and evidentiary rules that they are then tasked with ruling upon.

Critics have suggested changes in this appointment system for many years.  Even calling for  legislation requiring higher prerequisite standards. One suggested approach, and adopted by other provinces like Alberta, is to require presiding (as compared to non-presiding) Justices to possess law degrees.  A perfectly sensible, if not obvious, approach that appears to fall upon deaf ears in the Province of Ontario.

Despite repeated and overwhelming support for these changes over the years, the issue remains.  

As Kirk Makin wrote for the Globe and Mail (in writing about a Justice of the Peace issuing warrants for accused’s who lawyers were late) opined:

… the incident is another arrow in the quiver of critics who say the day has passed when justices of the peace — judicial officers with increasingly weighty responsibilities — can be light on qualifications.

Beyond the criticisms of competence, there are also claims that the process is influenced by political favouritism to whatever the party in power is at the time.  Some critics have gone so far as to call the bail system a “joke” when you consider all these factors.

While language like this is misplaced and unhelpful in my view, the mere fact that some of the population in Ontario feels that way (perhaps a large amount) should be of concern to the Court as a whole. Beliefs in inadequate standards in the appointment process of judicial candidates only adds fuel to this fire which in turn has an effect on society’s confidence in the Court system as a whole.

This criticism of improper political patronage in Justices of the Peace stretches back as far as 1968 in McRuer Commission which described the situation in Ontario as a “mockery of judicial office [that is] bound to depreciate respect for law and order in the community” (p.518) and cited in the Supreme Court of Canada  in the decision of Ell v. Alberta [2003] 1 SCR 857 which in turn set higher standards of law degrees for the Province in Alberta to alleviate such concerns.  That did not happen in Ontario of course.

Add in the controversy that JPs can make well over$150,000.00 a year in Ontario, and the fire of discontent grows stronger.

The practical problems that have arisen by delegating complicated legal decisions to Justices of the Peace who are not adequately educated or experienced to do so.

Returning to the issue of bail, and perhaps the impetus for the pilot project implemented recently.
There are few people who do not see the importance of getting things right in the justice system.  As a Supreme Court of Canada Justice once  wrote:

At the heart of a free and democratic society is the liberty of its subjects.  Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

And yet despite this incomparable importance of a person’s liberty, the vast majority of Justices of the Peace deciding this very issue in Ontario were not lawyers at the time of appointment, and therefore may not have the insights that come with years of experience litigating criminal cases.

To advance this further, understanding the bail is not only about the immediate hearing.  It is not only about knowing verbatim what section 515 of the Criminal Code days.  For that matter, it is not as simple as only understanding the most recent case law on bail.

To truly appreciate the bail process and properly apply it to the person standing in the prisoners dock, there must be a broad understanding of how it works in the overall system. To make proper assessments of s.515 of the Criminal Code, a Justice must draw upon complex laws of evidence, recent rulings outside the law of bail and how it may affect the case in the end, accurate sentencing ranges, and a deep understanding of the dynamic and unpredictable nature of criminal litigation.

Unlike a judge (who by virtue of their appointment presumably possesses all of these qualities), it is hard to understand how someone without a law degree and who has not practice in criminal law for many years would.

Further practical issues and examples of the failure of bail courts as governed by Justices of the Peace

In is my experience that most jurisdictions in Ontario, the bail system has devolved far and wide from higher Courts’ directions and the legislation that governs it.
The bail process must be expeditious and premised upon the presumption of innocence. It must be focused on setting the least onerous conditions appropriate, without sureties whenever possible, and without need for the hearing of evidence other than a quick summary of the allegations.
Notwithstanding, Courts are all too often mired with unnecessarily prolonged hearings, calling of evidence, and extensive arguments on overly strict conditions of release. In the end, most bail hearings that are contested in Ontario are more akin to a criminal trial (albeit one that is imbalanced and incomplete).
As Superior Court Justice Hill wrote in R. v. J.V. in 2002:
Where a person, arrested and detained for a bail hearing, is taken before the court within twenty-four hours of arrest (Code s. 503(1)), and the prosecution and the accused are prepared for a show cause hearing, a hearing should forthwith be held whenever possible.   […]  An arrested person should not face the prospect of having to, in effect, make an appointment for his or her bail hearing.  Unjustified detention includes unreasonably prolonged custody awaiting a bail hearing […] The routine adjournment of bail hearings other than at the request of the prosecutor or the accused (Code s. 516(1)), as “not reached” cases, is an entirely unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system. – R. v. J.V. [2002] O.J. No. 1027 (Ont.Sup.Ct.) Hill J. at paragraphs 66-67

Not only does this prolixity affect the rights of accused, it has a profound effect upon the Court system in general by stressing valuable resources required elsewhere.

The project (and topic of this writing) seems to implicitly recognize that, at least in some jurisdictions, Justices of the Peace have simply dropped the ball on how bails are handled.

The reasons may seem complex, but it may be far simpler than better education and training – and in my view it clearly is.

Unfettered deference to the prosecution in bail hearings must come to and end if we are to preserve scare judicial resources.

As I see it, the issue is one more about judicial confidence and willingness to ensure that hearings are run as they should be run and not letting lawyers (defence or Crown) set an unacceptable pace of a hearing, especially when it is inconsistent with s.515 of the Criminal Code and binding authority. Unfortunately, like many lawyers, I have witnessed far too many Justices of the Peace grant unwarranted deference to the Crown by allowing the calling of unnecessary evidence, witnesses, and seeking conditions of release that many judges would see as overly restrictive. Judges would quickly put an end to this waste. As a result, we run into the very problems noted above in 2002 by Justice Hill where hearings are adjourned so that one party (typically the Crown) may call evidence in a manner that is necessary and not in accordance with s.515.

Cautiously optimistic about liberty.

There is little doubt, in my mind, that cases which come before this pilot project and the judges who preside over them, will be met with pressure upon all parties to conduct a bail hearing as it should be conducted: quickly, completely, and consciously – all the while recognizing that bail is premises upon the presumption of innocence and our constitutional rights to ensure it is not denied unreasonably.

I look forward to seeing the benefits that come from this initiative and hopefully an appreciation that there is nothing more important than a person’s liberty, and therefore the quality of judgment and assessment in making decisions whether or not to take it away.