One of the most daunting experiences an accused person faces is the prospect of pre-trial detention when they are first arrested. Being charged with a criminal offence always leaves an individual vulnerable to pre-trial custody and at the mercy of police officers who have the discretion to release or detain them pending a bail hearing. Legally, the issue with pre-trial detention is that the individual at that stage is charged but not found guilty of an offence. That’s one of the reasons that our judicial structure is so rigorous about bail hearings which can sometimes be as lengthy as a trial. Nancy Irving of the NDP government recently announced that she will be conducting a review of our current bail structure to assess whether it should be changed. Irving’s resume includes a position with Prosecution Services, as advisor for the RCMP, and as advisor for the Attorney General. According to Kathleen Ganley, the Justice Minister, the review will consider: who should conduct bail hearings and when, what police should provide in a ‘bail package’, how to ensure the accuracy of the information provided in those bail packages, how to use the ‘priority prolific offender program’ and the ‘habitual offender management program’ to confirm accuracy of information provided in bail hearings.
The review is, in large part, instigated as a response to Shawn Rehn who shot two RCMP officers, killing one. The reason Rehn’s case raised eyebrows is because he was released on bail despite a lengthy record after appearing in front of a justice of the peace. A crown prosecutor was not present during that bail hearing.
If Ms. Irving’s professional history and the basis for the review of bail structures are any indication, then the review will result in a more stringent bail process. That might mean requiring the attendance of a crown prosecutor, or less discretion given to a presiding justice of the peace.
Rehn’s situation resulted in a tragedy, and looking at Rehn’s criminal history lends to the conclusion that he should not have been released. But judicial release isn’t (and shouldn’t) be based solely on criminal history. In tragic circumstances, it’s easy to focus exclusively on prevention but if the forthcoming review focuses too narrowly on preventing similar situations, we risk losing sight of one of the most fundamental considerations to judicial release, namely the presumption of innocence.