Any time a child dies is a tragedy. There is simply no getting around that. A woman in Mississauga has been charged in connection with the death of a child at a daycare she ran. The Crown has decided to proceed by laying charges of second-degree murder. On Friday morning, the woman found out her bail provisions pending her trial.
A reading of the comments on the CBC article made it clear to me that the public is not pleased with the decision of Judge Durno in this matter. Their outrage is understandable, given the seriousness of the crime the accused is alleged to have committed. However, there exists a body of law in this country relating to the release of accused persons while they await trials.
As an experienced criminal lawyer in Vancouver, I know just how long it can take to get a trial date. In my experience, it takes at least a year from the date of the arraignment to get a trial date, though it is frequently longer. The arraignment is not typically the first court appearance, so the trial date is typically not set until well after the date of the alleged offence. Some of the complications that can cause these delays include a shortage of judges, a shortage of prosecutors, and difficulty scheduling police witnesses.
Imagine spending well over a year in jail, awaiting a trial for a crime you didn’t commit. It would be terrible. And with the problem of prison overcrowding looming ever-large in our minds, judicial interim release is a necessary option.
In Canada, the Criminal Code allows nearly all persons accused of crimes to be released on “judicial interim release”, better known as bail, unless the prosecution can demonstrate why they should remain in custody until their trial date. There are certain offences listed in s.515(6) that reverse the onus: the accused must there demonstrate that his remand is not justified. However, the right to be released on bail is preserved, regardless of the offender and the offence, where it is warranted by the circumstances.
There are three reasons why an accused would be denied release: (1) detention is necessary to ensure attendance in court; (2) there is a substantial likelihood the accused will commit another offence and detention is necessary for the purpose of public safety; and (3) detention is necessary to maintain confidence in the administration of justice.
These reasons were outlined and considered in the recent Supreme Court of Canada case,R. v. Hall. There, the court stated that the public confidence in the administration of justice is of fundamental importance. For judges to consider this factor they must look at four factors: (a) the strength of the Crown’s case; (b) the gravity of the nature of the offence; (c) the circumstances surrounding the commission of the offence; and (d) the potential of the accused to spend a lengthy time in jail. Note that the administration of justice considers both public confidence and the presumption of innocence. In R. v. Adiwal, a 2003 decision of the BC Supreme Court, it was determined that the tertiary ground will, in most cases, result in the pre-trial release of the accused. The wording of the Criminal Code provision relating to bail provisions supports this interpretation.
Which brings us back to the accused woman in this tragic case. While the gravity of the nature of the offence is great, it is highly unlikely that she was released without a condition preventing her from working with children in the interim. I doubt that the public confidence of the administration of justice is undermined in any way by the ongoing detention of this woman. She is entitled to the same protections afforded by our Criminal Code as any other accused person. And while there are instances in which it is justifiable in withholding bail provisions, I do not believe this to be one of them.