One of the fundamental principles of our justice system is that accused individuals are presumed innocent until they are proven guilty. This means that even after someone has been arrested and charged, we still must treat them as though they are innocent, which includes granting them bail in the regular course of action. This means they are allowed to remain in the community until they are convicted. However, according to statistics Canada, 60% of adults in custody in Manitoba are in remand, as opposed to being in custody after being sentenced.1 Additionally, Manitoba has had the highest adult incarceration rate of all provinces for 7 consecutive years.2 It is therefore highly important that the courts find ways to ensure that people are allowed to get bail, even when the presumption of innocence seems a mere formality as a conviction seems likely.
I recently attended a bail hearing in Winnipeg: in the bail hearing of R v Crossman (unreported), bail was ultimately granted to the accused. Was this a fair and just ruling?
In a normal bail application, the onus is on the crown to prove that someone should not be granted bail. When considering a bail application, there are three grounds that bail can be refused on: Primary grounds, which pertain to whether or not the accused is likely to return to court for their court dates; Secondary grounds, which pertain to whether or not the accused is likely to commit or be involved with more crime if they are released on bail; and tertiary grounds, which pertain to the seriousness of the crime, and the strength of the crown’s case. For certain charges, like murder, the onus is changed, and is placed on the accused to prove why they should be released (see S. 515 10 (a), (b), (c), (11) of the Criminal Code).
But in cases dealing with the harshest crimes, like murder, should we as a society still be granting bail? Even when our common-sense judgement might indicate that the accused in question is highly likely to re-offend in some way, and the prosecution has a strong case for conviction, does the presumption of innocence nonetheless trump these nascent concerns? What can an accused possibly say to convince the courts that they should be released, despite the evidence against them of having committed a very serious crime.
In the bail hearing of R v Crossman, the crown argued on secondary and tertiary grounds that the accused should not be released, and they did indeed present a compelling case. On secondary grounds, the crown argued that Ms. Crossman was very likely to re-offend were she released on bail. They argued that though her record contained only a single charge for simple possession and that the dearth of pending drug related charges was enough to cast significant doubts on her claim that she would stay out of trouble. They argued that her only source of real income was related to her “dial-a-dealer” operation, and that therefore it was unlikely she would abstain from drug related activities. Additionally, they showed she had a tendency to associate with individuals with criminal records, and that she may be pressured to re-offend.
On tertiary grounds, the crown argued (somewhat obviously), that charges of first degree murder were incredibly serious, and that society would be offended by the release of such an accused, particularly when the Crown “had such a strong case”. Though all of the evidence was essentially circumstantial, the crown made a compelling narrative, and alluded to vast amounts of incriminating wire tap evidence, should it be ruled admissible. Both the Crown and defence acknowledged that much of this case would ultimately turn on the admission of the wiretap evidence, and the subsequent interpretation of that evidence.
On its face these arguments seem quite strong: the allusions to Ms. Crossman’s drug involvement seem solid and supported by substantial evidence according to the crown. Additionally, on its face it appears that the Crown is likely to secure a conviction, should all their evidence be allowed. Murder is indeed the most serious of crimes, and the administration of justice may very well be brought into disrepute by Ms. Crossman’s release.
Despite all this, Ms. Crossman was indeed granted bail. Was this the right decision? Do we as a community, and as a society, think that our interests have been served here?
Given the presumption of innocence, the answer to this question should be “yes”. If we deny bail based on most pending charges, this could entirely undermine the presumption of innocence with those crimes. Furthermore, if we allowed mere accusations to serve as impediments to bail, what is to stop an accused from being charged with other crimes by an unscrupulous person in order to deny them bail?
During these bail proceedings,the onus was on Ms. Crossman to demonstrate why she should be released, as opposed to the Crown proving why she should not (known as reverse onus). Ms. Crossman’s council advocated for release indicating a bail assistance program, as well as having Ms. Crossman’s mother be in charge of her care, provide for her, and monitor her activities. They also consented to a wide range of bail conditions such as curfew checks, etc. Given the wide range of assurances given by Ms. Crossman, and the fact that she has no record of violating terms of parole or bail, it is perfectly reasonable she should be granted bail.
It is important that the courts properly consider both the presumption of innocence in these cases, as well as the systemic policy reasons for granting bail to as many people as possible. Particularly in instances of individuals without many prior convictions, and where extensive steps are taken to ensure bail compliance, it is not reasonable to keep someone in custody for a protracted period of time preceding their trial.
Though many people may find the release of someone accused of murder highly objectionable, the reality is that we as a society need to accept these kinds of circumstances in order to continue to manifest a presumption of innocence, as well as to alleviate the many burdens on the prison systems in Canada.
1 Statistics Canada, Adult Correctional Statistics in Canada 2015/2016, https://www.statcan.gc.ca/pub/85-002-x/2017001/article/14700-eng.htm