Oscar PistoriusWhy bail matters: the case of Oscar Pistorius

With all the recent coverage of the Pistorius allegations of murder, and the bail now wrapping up the fourth day of proceedings, the issue of bail has taken centre stage in every day conversations.   Chief Magistrate Desmond Nair will deliver judgment today on whether or not Pistorius will be released pending his trial; regardless of the result, there will be controversy either way.

Sadly, from a defence lawyer’s point of view, that controversy is heightened whenever a person is released.  It is all too common for people to presume guilt over innocence, despite the fundamental principle of justice that a person should not be judged and punished until after all the evidence is heard.  It is also all to common for people to forget tragic circumstances of wrongful convictions and people spending decades in jail for crimes they did not commit.  It is easy to forget and ignore, because on a very base level of human emotion: “wrongful convictions don’t affect me”.  That is, of course, until they do.

Bail matters for everyone; until someone close to you is charged, it’s hard to appreciate.

No one ever expects to be charged for a criminal offence, particularly if they did not commit one.  No one also expects, that if they were charged, they would have to serve years in jail awaiting a trial for something they protest their innocence.  As a criminal defence lawyer, I have sadly witnessed and been counsel for many serious cases where individuals are denied bail only to be found not guilty at trial.  Those years are not restored, there is no civl lawsuit.  Put simply, that time in jail was a miscarriage of justice that will never be remedied.  As Supreme Court of Canada Justice Iacobucci wrote, in dissent, in the case of R. v. Hall:

“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 loss of liberty.”

We as citizens must remember that reasonable bail is a right in a civilized society like ours.  Indeed, it is enshrined in our Charter of Rights and Freedoms no person shall be “denied reasonable bail without just cause” under 11(e) which is premised upon the right to be presumed innocent under section 11(d).     We must also appreciate that in our system of justice, punishment does not come before the proving of the crime.  Otherwise we wind up like Alice in Wonderland protesting the Queen against the prolamation: `No, no!’ said the Queen. `Sentence first–verdict afterwards.’

It is a rare day indeed that the allegations read out at a bail hearing mirrors the evidence that is ultimately heard at trial.  That is precisely what trials are for: to hear all sides, to reflect, and to reach a well reasoned verdict.  That verdict may very well be “guilty” and that person will in turn will serve their appropriate sentence, but to suggest a person serve it up front out of fear, speculation, and a complete disregard for the presumption of innocence in favour of pacifying those that feel it does not affect them is downright uncivilized.

I suspect Mr. Pistorius will be released today, and I suspect the reaction will be one of outrage.  However, all of that pales in comparison to destroying fundamental principles of justice, like the presumption of innocence.  Perhaps this is best illustrated by the following exchange from A Man For All Seasons:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!