Bail Hearings

Is the Bail System Too Lenient on Gun Crimes?

Written on Behalf of Affleck & Barrison LLP

The right not to be detained before trial is fundamental in the Canadian justice system and is a guaranteed right under section 11(e) of the Charter of Rights and Freedoms.  Furthermore, the principle that an accused should be released on the least onerous form of bail unless the court is shown otherwise is called the “ladder principle” and can be found in section 515(3) of the Criminal Code of Canada.

Critics, including Toronto Police Chief Mark Saunders, have placed some of the blame for the rise in gun violence in Toronto on the “too lenient” bail system. 

Last summer, Chief Saunders urged the courts to stop granting bail to repeat gun offenders.  He reported that approximately 326 people who were charged with firearm related offences were currently out on bail in Toronto.  Chief Saunders stated:

What we are hoping to do is establish a stronger relationship with our courts to let them know that the impacts of these types of offences are having within our communities. We are feeding the same machine that is disconnected and there has to be that alignment from all aspects.

Premier Doug Ford has also been recently reported as saying “[o]nce we catch these criminals, we have to lock them up and thrown the key away.”

Mayor John Tory has made similar comments regarding the bail system in Canada and made the following statement made last summer:

Repeat gun offenders simply shouldn’t be out on bail.  While each case is different, sentences simply must fit the extreme gravity of these gun crimes.  And right now, they often don’t.”

On the other hand, criminal defence lawyers maintain that it is almost impossible to get bail if you are a repeat offender. 

Michael Lacy, president of the Criminal Lawyers’ Association, stated:

People aren’t running around on bail if they are at serious risk of committing offences.  It’s just not the reality. It’s notoriously difficult to get bail when it’s a gun offence.

WHAT IS BAIL?

Bail, also known as “recognizance” or “judicial interim release”, is the temporary release of an accused individual while awaiting a criminal trial.

If a person accused of a crime is taken into custody and held in jail until they appear in court, a bail hearing must be held within twenty-four hours or “as soon as possible”, if a justice is not available. 

If the Crown prosecutor and an accused’s defence lawyer can agree to conditions for the accused to be released on bail, the accused will still need to appear in court and a justice will confirm that all parties haave agreed to the conditions and the next court date will be set.

If conditions cannot be agreed to between the two parties, a “show cause” bail hearing, which is not a trial, will take place where a Judge will decide whether or not the accused can return to the community while awaiting the criminal court case.  If bail is denied, the accused will be kept in custody until the trial.

The Crown prosecutor must “show cause” as to why the accused should not be released from custody.  The Crown will summarize the nature of the offence, the evidence against the accused and the factors that will assist the court in making a decision.  The court will take into account the need to ensure the safety of victims or witnesses, the seriousness of the charge and whether the crime involves violence.

In Canada, the preference is to release those charged with a crime at the earliest opportunity and without cash bail (under certain circumstances). 

At a bail hearing, the Judge will detain the accused if the Crown can establish any of the following three grounds (section 515(10) of the Criminal Code of Canada):

  1. It is necessary to detain the accused to ensure that he/she will appear in court;
  2. It is necessary to detain the accused to protect the safety of the public; or
  3. It is necessary to detain the accused in order to maintain the confidence in the administration of justice.

TIPS TO PROCEED WITH A BAIL HEARING

Affleck Barrison LLP would like to recommend the following tips when preparing to appear at a bail hearing:

  1. Retain experienced criminal defence legal counsel immediately.
  2. Ensure that anyone who is intending to act as a surety (an individual who agrees to take responsibility for the accused and may have to pledge some assets or money as assurance that the accused will comply with the bail conditions of release) is present on the date of the bail hearing.
  3. Dress appropriately and ensure that your surety is also dressed in appropriate attire to convey the message that all parties respect the criminal justice system.
  4. Be prepared to address any questions regarding the proposed plan of release.
  5. Be sure to have any documentation that will assist in proving what assets you have.
  6. Be prepared to return to court on another date.

We will provide updates in this blog should any changes be made to the current bail system in Canada.

In the meantime, if you or a loved one have been arrested and are facing a bail hearing, it is important to have experienced criminal defence counsel to represent and advocate on your behalf.  Time is of the essence and understanding what options are available is important.  The lawyers at Affleck & Barrison LLP have many years of experience representing clients at bail hearings and will work tirelessly to ensure their clients receive exceptional legal representation.  Contact our office online or at 905-404-1947 to speak with a knowledgeable criminal defence lawyer if you are facing a bail hearing.   

Lawyer Convicted of Murder Granted Bail Pending Appeal

Written on Behalf of Affleck & Barrison LLP

Demitry Papasotiriou-Lanteigne (“Papasotiriou”) and his lover, Michael Ivezic (“Ivezic”), were found guilty of first degree murder in the death of Allan Lanteigne (“Lanteigne”) last June following a lengthy trial. Both were sentenced to life imprisonment with no parole eligibility for 25 years.

It was alleged that the Papasotiriou and Ivezic were having an affair and conspired to kill Papasotiriou’s spouse in order to access the victim’s $2 million life insurance policy. We previously blogged about this case on June 7, 2018.

Papasotiriou is appealing his conviction and alleges that the jury’s verdict was unreasonable because it was based on circumstantial evidence. The Court of Appeal has recently granted Papasotiriou bail pending his appeal.

PAPASOTIRIOU’S BAIL HISTORY

Papasotiriou was born in Greece and came to Canada at the age of 11 after his parents split up. As a young man, he attended university and law school, and was called to the Ontario Bar. He is currently 38 years old.

Papasotiriou left Canada in 2010 to live in Greece. Ivezic followed Papasotiriou to Greece and lived with him for six months in 2010, prior to returning to Canada in January of 2011. Lanteigne was killed on March 3, 2011. Ivezic returned to Greece on May 14, 2011 to live with Papasotiriou.

Papasotirou returned to Canada on November 1, 2012 to participate in litigation regarding the proceeds of his deceased spouse’s insurance policy. He was arrested the next day.

Papasotirou applied for bail in August 2013, but was denied. He re-applied in November 2013 and provided an improved plan of release to the Court. He was again denied.

On September 11, 2014, Papasotirou was discharged following a preliminary inquiry. However, the Crown immediately launched a certiorari application (a formal request to a court challenging a legal decision alleging that the decision has been irregular or there has been an error of law) and a direct indictment was ordered on October 28, 2014, at which point Papasotirou was arrested.

Papasotirou again applied for bail, which was granted. He was released on a $400,000 recognizance with his mother, sister, and stepfather acting as sureties (person who promises to a judge to supervise an accused person while they are out on bail and pledges an amount of money). He remained out on bail for 3 ½ years with no compliance issues.

At the Court of Appeal, counsel for Papasotiriou proposed a plan for release pending his client’s appeal as follows:

  • $500,000 recognizance with his mother, stepfather, and stepfather’s mother as sureties;
  • strict house arrest with very narrow exceptions; and
  • GPS ankle bracelet to be monitored by Recovery Science Corporation (funded by Papasotiriou).

GROUNDS FOR GRANTING BAIL PENDING APPEAL

Pursuant to section 679(3) of the Criminal Code, a judge of the appeal court may order an appellant released pending appeal if he/she has established the following:

  • That the appeal is not frivolous;
  • That he/she will surrender into custody in accordance with the terms of any bail order; and
  • That the detention is not necessary “in the public interest”.

The “not frivolous” test is a very low bar, and in Papasotiriou’s case the Crown did not suggest to the Court that the appeal is frivolous.

The Crown did, however, argue that Papasotiriou has not discharged his onus to surrender into custody given his ties to Greece. The Court of Appeal, rejected the Crown’s argument on this ground, and held that Papasotirou’s compliance with his pre-trial bail order was “flawless” and the use of electronic monitoring will provide an “extra layer of assurance against absconding”.

The Court stated:

I accept that, standing alone, Mr. Papasotiriou’s connections to Greece may give pause for concern. However, any lingering concerns about flight are answered by his history of bail compliance and the strict release plan that is proposed. Accordingly, I am satisfied that the applicant will surrender into custody in accordance with his bail order.

The Court of Appeal outlined that there are two components which make up the third provision (public interest) to consider in granting bail pending an appeal. These include public safety and confidence in the administration of justice. The Supreme Court of Canada addressed the provision regarding the “public interest” in the case of R. v. Oland. The judicial discretion to grant bail pending appeal involves balancing enforceability (taking into account the gravity of the offence, the circumstances surrounding its commission, and the potential length of imprisonment) and reviewability interests (taking into account the strength of the grounds of the appeal).

The Crown conceded that Papasotiriou has proven that he will not commit offences if he is released on bail, thus discharging the onus of the public safety component. However, the Crown did take issue with maintaining public confidence in the administration of justice.

The Court of Appeal ruled in favour of Papasotiriou and held:

The “public interest” requires that I balance all of these factors – the circumstances of the applicant, the nature of the offence, the apparent strength of the appeal, and the time it will take to argue the appeal – to determine whether public confidence in the administration of justice would be undermined by Mr. Papasotiriou’s release on bail.

The Court of Appeal maintained that Papasotiriou was not being “turned loose”, but rather carefully monitored in accordance with a stringent release plan (i.e. house arrest, GPS electronic monitoring, and the pledge of $500,000 by his sureties), which is consistent with the proper functioning of the Canadian justice system. Therefore, the Court allowed Papasotiriou’s application and granted him bail pending his appeal.

We will continue to follow any developments in this case as it makes its way through the judicial system and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Ontario Crown Prosecutors Ordered to Get More Individuals Out on Bail

Written on Behalf of Affleck & Barrison LLP

Ontario’s current bail system is simply not working. It has been reported that almost 70% of the individuals held in Ontario’s jails are waiting for their case to come before the courts. Individuals kept in jail may ultimately end up serve more time awaiting trial than if they were convicted.

We’ve previously blogged about the government’s attempts to make the justice system faster and fairer. On October 30, 2017, Ontario’s Attorney General announced a new directive as part of the Crown Prosecution Manual to help make the bail system faster and fairer. This directive will be used to provide support and guidance to Crowns (i.e. prosecutors) and will be released in the coming weeks.

BAIL HEARINGS IN CANADA

Following an arrest, an individual is either released pending the first court date or kept in custody. The right to not be detained before trial is a fundamental right in Canada and is codified in section 11(e) of the Canadian Charter of Rights and Freedoms. This right is based on the presumption of innocence (i.e. everyone is presumed innocent until proven guilty).

Everyone charged with a crime is entitled to reasonable bail unless the Crown can show just cause to deny it. The principle of “reasonable bail” refers to the terms of bail (i.e. monetary conditions and other restrictions).

A bail hearing determines whether an individual accused of a crime will be released from custody for the time leading to their trial date. In order to grant bail, the Court must consider the following three factors:

  1. Whether there is any risk that the accused will flee the Court’s jurisdiction (i.e. leave the city, province, or country) or fail to return to Court when required;
  2. Whether there is substantial likelihood that the accused will reoffend or interfere with the administration of justice if released on bail; and/or,
  3. Whether releasing the individual will undermine public confidence in the justice system.

The following factors must be considered by the Crown when determining whether the individual should be detained:

  1. Age of the individual;
  2. Presence or absence of a criminal record, related offences and breach of court orders;
  3. Concern that the individual will interfere with the administration of justice (i.e. coercion of witnesses, destruction of evidence);
  4. Presence or absence of outstanding charges in any jurisdiction;
  5. Need for and the availability of supervision of the individual while on bail;
  6. Any ties to the community; and,
  7. Availability of community supports.

GUIDANCE FROM THE SUPREME COURT OF CANADA

The Supreme Court of Canada has set the stage for the new bail policies in its recent decisions in R. v. Jordan and R. v. Antic. The Court stated that reasonable bail is a right that should not be denied without a very good reason.

In the case of R. v. Antic, the Supreme Court of Canada reiterated the proper approach for conducting a bail hearing by using the “ladder principle”. The Court sent a strong message that too many individuals are being held unnecessarily in custody before trial and too many individuals are subject to restrictive conditions and forms of release. Under the ladder principle, the starting position at a bail hearing should be unconditional release and only if the circumstances of the individual in question require it should any conditions and financial requirements be added.

In the Supreme Court of Canada case of R. v. Jordan, the Court set strict time limits for the completion of criminal cases, where there are no exceptional circumstances. The Court specified a maximum of 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice.

NEW BAIL DIRECTIVE

The main focus of the new bail directive is to keep more individual offenders out of jail while awaiting trial. The new policy should result in allowing more people charged with offences to be released with “realistic” conditions when warranted and only using sureties when necessary (the exception, rather than the rule). A surety is an individual appointed by the courts who promises to ensure that the individual complies with the conditions of their bail, and who puts up money that they may lose if they fail in their surety duties.

The directive recommends that the “ladder principle” be applied during bail hearings. This principle is codified in section 515(3) of the Criminal Code of Canada and simply states that an individual should be released on the least onerous form of bail unless the Crown shows reason to the court to proceed otherwise. The Crown must consider each “rung” of the ladder individually before rejecting it and moving along to a more restrictive form of release.

The new policy recommends that only necessary and appropriate conditions be imposed. Only conditions specific to each case should be recommended and should not be automatic. Conditions of release should be connected to the circumstances of the individual, the facts of the case, and meeting public safety concerns.

The directive further instructs Crowns to consider the unique circumstances that indigenous, low-risk vulnerable individuals and those with mental health and addiction issues face in being granted bail. The government will be introducing more assistance in the community for individuals who may need supervision and support, but who cannot attain a surety. For instance, the government has suggested the use of “bail beds”, which allow low-risk offenders to reside in a supervised home in the community while awaiting trial.

We will continue to monitor how this new directive is affecting the bail process in Ontario and will blog about updates as they become available.

If you have been charged with an offence or have any questions regarding your legal rights, contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

 

 

 

 

 

 

Ontario Ombudsman Calls for New Laws and Strong Oversight of Inmate Segregation 

Written on Behalf of Affleck & Barrison LLP

As we addressed in a previous blog, the Ontario Ombudsman has been investigating the use of solitary confinement in correctional facilities across the province.

This week, the Ombudsman released a 72-page report calling on Ontario to reform its “flawed” system of placing and tracking inmates in solitary confinement. The investigation revealed a number of issues that place vulnerable people at risk.

The Report

The Ombudsman launched his investigation after the treatment of Adam Capay, a 24-year old who had been held in solitary confinement in the Thunder Bay Jail for more than 4 years, made headlines.  Capay had been detained, alone, in a plexiglass cell in a basement where lights were on for 24 hours a day, making it impossible for him to know whether it was night time or day time. While Capay was held in segregation for more than 1,500 days, data from the Ministry of Community Safety and Correctional Services incorrectly stated that he had been segregated for only 50 days.

The Ombudsman noted, about Capay’s treatment, that the young man had been “…out of sight and out of mind”. The report, entitled Out of Oversight, Out of Mind identified a number of serious issues with the solitary confinement system, including how the province defines inmate segregation and the overuse of segregation as a form of inmate punishment.

The report recommends that inmates be held in solitary for no more than 15 days, and only once all other options have been exhausted.

The Ombudsman told CBC News that:

“Solitary confinement is supposed to be an absolute last resort and that’s not what is happening”

The Ombudsman’s Office has received more than 800 complaints about solitary confinement over the last four years.

The Investigation

Over the course of the Ombudsman’s investigation, 10 000 documents were reviewed, 36 interviews were undertaken, and 4 facilities were visited. The investigation’s findings were shared with Howard Sapers, the former Correctional Investigator of Canada, who is responsible for leading a separate review of inmate segregation.

Unfortunately, neither the Ombudsman’s Office nor the province has been able to obtain accurate statistics on segregation. The Ombudsman says that this is due to the fact that Ontario has never clearly or universally defined segregation, and that the methods of tracking solitary confinement (i.e.- measuring how long an inmate spends alone) vary from facility to facility.

The report made 32 recommendations. Specific recommendations for the Ministry of Community Safety and Correctional Services state that the Ministry should:

  • Within the next six months, establish a new definition of “segregation” in relevant legislation, to be applied to all inmates in segregation-like conditions. The definition should be in accordance with international standards;
  • Consult with and train correctional staff on the new definition, and provide adequate tools and resources in order to track placements accurately;
  • Placements should include “continuous” segregation when inmates are transferred between units and institutions;
  • Ensure that the placement tracking system alerts front-line managers when required reviews for inmates should take place (i.e.- every 5 and 30 days, and after 60 days in one year);
  • Create an independent panel to review all segregation placements, and place responsibility on the Ministry to show that each placement is justified;
  • Ensure that segregation is only used as a last resort in every instance;
  • Publicize anonymized segregation data
  • Collect and analyze statistics on the use of segregation, including information about the race, gender, mental health status, and other data about inmates;
  • Report results to the public on an annual basis;
  • Report back to the Ombudsman every six months.

The Ministry has accepted most of the recommendations made in the Report and has stated that it will explore others as part of its ongoing efforts to reform the province’s corrections system.  The province has agreed to provide the Ombudsman’s Office with regular progress reports.

We will continue to follow developments in this matter and blog about updates as they become available.

At Affleck & Barrison our firm and its predecessors have been representing clients charged with criminal offences and protecting those clients’ rights since 1992.  Our lawyers are extremely knowledgeable and are experienced at defending a wide range of charges.  Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.