The right to silence is protected under the Charter. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence.

Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

As far as pre-trial silence is concerned, a person who is subject to the coercive power of the state has a right to refuse to answer questions; this happens on the person’s arrest, charge or detention. This right to silence has been recognised as a principle of fundamental justice, protected by s 7 of the Charter: see R v Hebert [1990] 2 SCR 151. It is also accepted that the exercise of the right to silence can not be used against the accused at trial: see R v Chambers [1990] 2 SCR 1293.

Although an accused has the right to remain silent and may not be compelled to testify against himself, where an accused freely chooses to take the witness stand and testify, there is no further right to silence and no general restriction on what kinds of questions they may be required to answer.

This may be contrasted with the US right to refuse to answer incriminating questions under the 5th Amendment even while on the witness stand. However section 13 of the Charter of Rights and Freedoms guarantees that a witness may not have any incriminating evidence they gave as testimony used against them in separate proceedings. In effect, a person can be compelled to give involuntary self-incriminating evidence but only where that evidence is to be used against a third party.

In most cases, except for certain sex offences or where the victims are children, spouses can not be compelled to testify against each other.  This right does not include lying to persons in authority but the right to refuse to answer any and all questions.

The Presumption of Innocence

The presumption of innocence — being innocent until proven guilty — is a legal right that the accused has in Canada. It states that no person shall be considered guilty until finally convicted by a court. The burden of proof, beyond a reasonable doubt, is thus on the prosecution, which has to collect and present enough proving evidence to convince the judge and jury, who are restrained and ordered by law to consider only actual evidence and testimony that is legally admissable, and in most cases lawfully obtained, that the accused is guilty beyond a reasonable doubt. In case of remaining doubts, the accused is to be found not guilty ; this idea expressed by the Latin legal maxim “In dubio pro reo“.

This duty on the prosecution was famously referred to as the ‘golden thread’ in the criminal law by Lord Sankey LC in Woolmington v DPP [1935] AC 462:

Throughout the web of the English criminal law one golden thread is always to be seen - that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…

In principle, the defense does not have to ‘prove’ anything. The defense may present evidence tending to show that there is a reasonable doubt as to the guilt of the accused.

In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

In criminal law, Blackstone’s formulation (also known as Blackstone’s ratio or the Blackstone ratio) is the principle: “better that ten guilty persons escape than that one innocent suffer“, expressed by the English jurist William Blackstone in his Commentaries on the Laws of England, published in the 1760s.

Getting the bail hearing right is crucial.  You don’t want your friend or loved one to remain in jail for months on end until his trial.  Often people are not released because there was a lack of preparation for the bail hearing.  There are strict requirements which must be met before the Court will allow an accused person to be released.

The Crown hopes to deny bail to most individuals to pressure them to plead guilty.

The Court can generally only detain a person on the following grounds:

However, there are exceptions for certain offences.  Aswani K. Datt can assist you in determining what approach to take to have a successful bail hearing to have your loved one released.

The Bail Hearing is the most important step in your defense as it has serious practical implications.

Becoming a Surety

There may be a time in which you are asked to become a surety for a friend or family member in order for that person to attain bail. There are a number of things to remember before deciding to undertake this role.

The duties of a surety are serious. A surety vouches for the character of the accused by guaranteeing the accused will attend court as required and abide by the conditions of the release order.

This is done by requiring the surety to put up a sum of money or other valuable real or personal property in support of that person. The effect of granting bail is not that the accused is set free, but is to release the accused from the custody of the law and entrust him/her to the custody of the surety.

There can be serious consequences to becoming a surety. If the accused does not abide by the release conditions of bail, both the accused and the surety can suffer financial consequences.

If the accused fails to attend court or breaches any of the release conditions, the Crown can ask that the accused be noted for estreat under the Criminal Code. The effect of this is that you can be liable for the amount of the bail you had previously posted.

Since the consequences and duties are serious, a surety may decide at any time to cease being a surety. This can be done by taking the accused to the proper authorities or by going before a Justice of the Peace and filing an Application by Surety for Relief to be removed of their responsibility. Both will render the accused back into custody and relieve the surety of any further legal obligations.

In the end, you should understand the serious duties and responsibilities of being a surety. Never undertake such a role unless you reasonable believe that you can ensure that the accused will comply with all of the release conditions. If you believe that the accused will not abide by all of your directions and requests, it would be unreasonable for you to become a surety for that person.

Offences in this category include allegations of physical violence, sexual assault, threats, criminal harassment, and other such allegations against a family member. Domestic assault charges are typically laid against men.

Assault is any intentional application of force or gesture to another person. This can range from a spit or shove to a full blown fight. The slightest amount contact can result in assault.

The police will require that the complainant give them a video statement under oath immediately following the event. They do this to also preserve the evidence of the complainant on a video to use late at trial should the complainant change his/her story.

The complainant is under no obligation to give such a statement and may wish to obtain legal advice before giving a statement through duty counsel or another lawyer. A complainant should not be afraid to ask to call a lawyer before giving any statement to the police.

Often a spouse will call the police or 911 with the aim to scare the other spouse into changing their behavior. Little do they know is that the police will charge the other spouse and the bail conditions will require that spouse to find another place to live and eliminate any direct or indirect contact with the spouse and the children.

This has serious consequences for the family as a whole. Charges cannot be withdrawn by a spouse nor will filing documents (such as an affidavit) with the police help. Once charges are laid, only the Prosecutor has the power to withdrawn charges. As a matter of their policy, the Prosecutor will rarely withdrawn this charge.

There are also those times where the criminal justice system is abused by those who call the police to remove the spouse from the home in order to obtain an advantange in a family court proceeding. Unfortunately, this is done more often than not.

Care must be taken when defending charges of assault.  There can be serious implications in terms of your right to your children under the Family Law Act or the Divorce Act.

Aswani K. Datt practices both criminal and family law and can provide you a coherent strategy to ensure that your interets in both cases are being met.

Discussion

There are competing and overlapping systems in place with respect to the post sentencing of offenders. On the one hand, the National Parole Board is the “human side”, examining rehabilitation and reformation.

On the other hand, Parliament has created a cold, calculating and utilitarian system of statutory release for most offenders. They are automatically released on conditions after serving two third of their sentence.

Canada is not alone in having this type of contradictory approach. Between June 29 and July 5, 2007, Government of the United Kingdom had to release 1,700 inmates because of over crowding in the jail system.[1] Of these individuals, 344 were convicted of violent attacks, 24 robberies and 149 burglaries.[2]

What is clear is that governments are trying to sell a system that makes the public feel secure but at the same time refusing to spend the monies necessary to back up their words. A parallel and often contradictory system is in place to save the government money.

The public deserves better. What is needed is a single system based on a coherent philosophy, what ever that system is.

It is the position of the author that the system that should remain is that of parole, as it is functioning under the National Parole Board. There is no place in Canada for a system of automatic statutory release.

The criminal justice system is built upon deliberation. Judges must give reasons for their decisions. Appeal courts do the same. Sentencing is considered so important that Part XXIII of the Criminal Code[3] mandates that a sentencing court take into account certain sentencing principles, failure to do so would be an error of law.

Another example of deliberation is parole ineligibility. A sentencing judge has limited authority to adjust the period of ineligibility for an offence for life imprisonment pursuant to s. 743.6 of the Criminal Code. However, the Supreme Court of Canada has indicated that delayed parole is an option out of the ordinary and that the sentencing judge must engage in a double weighting exercise.[4] Written reasons are to be given at the end of the process and said reasons must state with sufficient clarity the reasons for the delayed parole order.[5]

The bottom line is that again, these are examples of decisions based on reasoned deliberations: risk factors and needs areas, institutional behavior, and concrete results from an offender’s attendance at programs and through treatment, circumstances surrounding previous breaches of release and release plans and community management strategies to be used during supervision.[6]

Since November 1, 1992, the Corrections and Conditional Release Act started to require the National Parole Board to maintain a registry of its decisions along with the reasons for those decisions. Anyone may request, in writing, a copy of these decisions.

In the last five years along, the National Parole Board has made over 21,000 written decisions on parole applications.[7]

There is also the human factor at play here. When a sentencing judge is deliberating upon a sentence one cannot but suspect that a factor in sentencing is the statutory release of an offender. Does a sentencing judge give an offender a higher sentence than he would normally because of statutory release?

Is this so unbelievable? Without statutory release, would it lead to lower sentences for most offenders? Statutory release may be acting as an inflationary factor in terms of sentence. While most judges are clever enough to watch their language, there have been judges who has given reasons in the sentencing an offender to a longer sentence because of his eligibility for automatic statutory release and of course reversed on appeal.[8]

In their five year review of statutory release, Corrections Canada make an important admission that in the position of the author, underlies the key rational for statutory release:

Statutory Release and Offender Population Management

Prison crowding and management of the offender population are key issues for CSC. Relatively high rates of incarceration in Canada, combined with pressures for fiscal restraint create complex challenges. In this context, SR, that is, the release of all offenders at the two-thirds point in their sentence (except those who are detained) becomes an important measure for reducing the number of offenders in federal institutions while ensuring controlled reintegration of offenders.[9]

According to the Sub-committee on Corrections and Conditional Release Act of the Standing Committee on Justice and Human Rights in May 2000, the committee recommended a change to automatic statutory release. In their report, the committee recommended that:

RECOMMENDATION 11

The Sub-committee recommends that the Corrections and Conditional Release Act be amended to require Correctional Service Canada to review all cases eligible for statutory release in order to determine whether they should be referred to the National Parole Board for a detention review.

RECOMMENDATION 12

The Sub-committee recommends also that the Corrections and Conditional Release Act be amended to require the National Parole Board to review all cases eligible for statutory release in order to determine whether special conditions need to be attached to the inmate’s release and, if so, to identify these conditions.[10]

The Committee also recommended that the statutory release provisions must be reviewed in depth during the next review of the Corrections and Conditional Release Act.[11]

Clearly, members of Parliament are moving away from an automatic statutory release mechanism. There is a move towards finding deliberative principles that need to be considered prior to a release before an offender’s sentence has been completed. As we have seen earlier, this approach is consistent within the criminal justice system.

The courts have even started to protect the right of an offender who is denied statutory release without due process. In Illes v. Kent Institution, the British Columbia Supreme Court had ruled that revoking an offender’s statutory release without a hearing was unconstitutional. Further, the court indicated that:

[M]y view, the revocation of the petitioner’s statutory release without his being given the opportunity to be heard specifically on whether the circumstances warranted the deprivation of his liberty for at least a year clearly offended his s. 7 Charter rights. It is no answer to say that he had a hearing when he was sentenced by the Provincial Court.

…

No clear explanation is attempted of why some offenders would, in the absence of s. 135(9.1), serve only a minimal part of a long sentence, or why the remedy for that and the need to denounce re-offending during statutory release lies only in depriving all offenders of a hearing. While I accept that the objective of the section is one of public protection, I do not see how the means of achieving it that have been employed can be said to be proportionate. I question whether, in revoking the petitioner’s statutory release without a hearing, any one part of the three-part test of proportionality can be said to be met but, it appears to me clear that, at very least, it cannot be said that his right not to be deprived of his liberty has been affected as little as possible.

I can see no sound reason why, in order to protect the public, all offenders who have been sentenced to some term of imprisonment for offences committed during statutory release must be deprived of a hearing to determine whether they should be imprisoned for what can be at least a year regardless of their circumstances. And I certainly do not see why only those who are sentenced to a term of imprisonment, as opposed to those having some other form of sentence imposed, should not be heard in the same way that all other offenders who breach the conditions of statutory release are heard before their release is revoked. [12]

Deliberation, due process and reasons are turning statutory release into a more reasoned process.

If that is the case, why should automatic statutory release still exist? Its existence can only be rationally defended by crude economics and nothing else. The public deserves more.

In England, the courts have reminded correctional authorities and the public that the courts will always have something to say about statutory release:

When considering this question we think it is important to bear in mind that the statutory provisions governing the early release of prisoners are concerned with the administration of criminal justice in general; it is the order of the court which provides authority for the detention and imprisonment of the person named in it, not the statutory provisions as such, although they are engaged once such an order has been made and dictate the manner in which the order is carried into effect.[13]

Conclusions

The post-sentencing regime in Canada is convoluted. There is parole on one hand which engages in a deliberative scheme judging applicants on their merits within a certain framework.

On the other hand, there is automatic statutory release. Parliament created a scheme were by most offenders are automatically released after serving two thirds of their sentence.

As we have seen there is an institutional battle at play. Those that are entrusted in regulating the prison population trumpet the success of statutory release. Those that are opposed, argue, through their numbers, the failure of statutory release.

As a crass form of prison population, statutory release serves its purpose. However, this approach is inconsistent with how we view the criminal justice system works as a whole. Furthermore, the statistics indicated that those being statutorily released are committing serious crimes and are not benefiting from proper supervision.

The time has come for statutory release to be eliminated as a post sentencing option. Offenders ought to serve the sentencing handed to them by the sentencing judge. If an offender is to be released prior to the completion of his sentence, let it at least be through a deliberative process that is held accountable to the public.

On August 10, 2008 the Flower City Rotary Club held its second annual Tandoori Jerk Festival and first annual walk a thon. Proceeds go toward our dictionary give away program for students in the community. Both events were a success and should the uniqueness of the Brampton community by bring together the Indian and West Indian members through good food and music.

Toronto artist seeks explanation for police raid
Last Updated: Monday, July 14, 2008 | 8:24 AM ET
CBC News

A musician is asking for an explanation after the Toronto police guns
and gangs task force raided his home.

Kevin Clarke, who is known as Kamikaze, lives and works at his home
near Oakwood Avenue and Vaughan Road.

Five weeks ago police broke down the door to the house.

“The door got kicked off, ‘Boom! Metro police! Everybody get down!
Boom, boom!’ And then I heard two bombs, and then after everything, I
realized one was a flash bomb and one was a smoke bomb,” said Clarke.

“SWAT you know, all black bulletproof vests, boots, masks, helmets some
big-ass guns or whatever. They ran in,” he said.

But more than a month after the raid Clarke still doesn’t know what the
the officers were looking for.

“It was a massive operation, over 50 police involved, ambulances,
buses, police buses, all kinds of stuff were out there. The street was
quarantined. The whole area was blocked off and it was a really big
operation for nothing,” he told CBC News.

Lawyer Bob Ebrahimzadeh says police were wrong to target Clarke.

“He’s a legitimate businessman with a group of friends who are in the
rap industry. Perhaps that makes the police uncomfortable. We’re not
certain but we’re trying to find the answers before we proceed further,”
the lawyer said.

“He’s been a community leader and has looked to build up the community
and the youth of his community with a positive image of what can be
accomplished. So he’s rather puzzled as to why the police are treating
him in this fashion,” said Ebrahimzadeh.

Toronto police will only say they had reasonable grounds to conduct the
search and that a judge who granted the warrant agreed.

The information used to obtain it is sealed.

The raid echoes another one carried out a few weeks earlier in
Scarborough.

Heavily armed officers searched the home of Brian Henry, a prominent
black youth worker, but only found a small amount of marijuana.

http://www.cbc.ca/canada/toronto/story/2008/07/14/police-raid.html

The Brampton Flower City Rotary Club held its 2nd Annual Presidential Award night at the Prestigious Holiday Inn Select on Queen Street on June 28, 2008. The night was hosted by Rotarian and lawyer Aswani K. Datt. The night featured the recognition of community contribution to Brampton on a group and individual level.

On a group level, the Brampton Flower City Rotary Club has over the past year donated 200 free dictionaries to students, raised money for the Cancer Society, held successful blood drives and held its first annual golf tournament.

On an individual level, Dr. Ruby Dhalla MP for Brampton Springdale was honored with an award for her continuous contribution to the Brampton community.

The Presidential Gala witnessed the change over from outgoing President Krish Ramjatten to the new President Harry Bisnauth.

(Left to Right: Dhaman Kissoon, Dr. Ruby Dhalla, Harry Bisnauth, Aswani K. Datt)

Toronto Police Fail to Reveal Warrant or Disclose Reasons for Raid

on Home of Respected Malvern Youth Leader Brian Henry

Toronto, Ontario, June 3, 2008 – Brian Henry is a well-respected member of the Toronto community who works with some of the most “at-risk” young persons in the GTA.

The 2006 movie Empz for Life directed by legendary Canadian film maker Allan King, documented the tireless work of Brian Henry in helping troubled youth overcome daily challenges in their lives. Empz for Life documents Brian Henry as a young volunteer social worker who – on a daily basis – completes the impossible: Henry makes it his job not only to try and reach kids, but to get them to think about the future they’ve already more or less given up on.

Well-reformed from his own troubled past, Henry understands the challenges “high risk” youth face in the GTA. Indeed community youth respect Henry because he has been where they are today. Henry’s own scars of street life and tattoos of years past are only reminders of a life that Henry left 8 years ago to help youth today not follow the same path Henry followed as a youth.

On Saturday May 17, 2008, more than a dozen heavily armed police officers from 41 Division raided the Henry family home while he and his family were asleep on a “tip” from an “unknown informant” that illegal guns were in the home. The police never showed Henry or his wife a copy of the search warrant despite repeated requests. Armed with automatic weapons, shields, riot gear and a canine unit, police broke through the front door of the Henry family home just after midnight. Henry’s wife who had given birth to the couple’s fifth child only three weeks prior was forcefully pinned face down on the floor and handcuffed by police in front of her toddler children who looked on in horror. Clothes were strewn about the family bedrooms and holes were made in walls of the home as officers outside the house  did chin-ups on a tree in front of the yard during the raid. Police dogs from the canine unit urinated in the home where Henry and his wife raise their five young children.

The results of the raid were that no guns were found.

Henry, who also works with the Toronto Catholic District School Board (TCDSB) in an alternative school program for youth who face acute challenges in the school system, is well-known for helping young people get out of a life of crime and making positive changes in their lives. Yet because the actions of officers from 41 Division, Henry has been suspended by the TCDSB despite all of his successes in helping youth from some of the most troubled communities in the GTA.

The behaviour of the police officers at 41 Division amounts to a gross violation of the rights of Brian Henry and his family and ought to concern all residents of Toronto.  The actions of Toronto Police fell far below the standard of care expected of them and those involved must be held accountable for their actions. The oppressive actions of the police will not deter Brian Henry from continuing to do his duty in making Toronto communities better and safer for all members of our society. Faced daily with kids who drift back into the streets, official institutions that suspect his motives, and the police who prowl the neighbourhood streets constantly harassing youth, Henry is doing exactly what he’s attempting to convince “at-risk youth”: Fighting against all odds to succeed.

*****************************************************************************

If you would like more information on this issue, or to schedule an interview with Brian Henry, please contact his legal counsel Aswani K. Datt at 905-755-0104.

Patrick J. Santos, 21yrs, was found bound and murdered by his father in the backyard of their home near Bellany Rd N and Ellesmere Rd, Toronto, Ontario Canada on Sunday September 17th 2006 7:30 a.m.

Patrick had been in the Entertainment District in downtown Toronto the night before with his vehicle, a 1994 Lexus 4D, cream colour, Ontario license plate # AXDM080. Patrick had frequented the nightclub known as “Steam” on Adelaide Street West, near University Ave and the “Afterlife” Night Club on the night before his body was found.

Investigators know that at 4:45 a.m., Patrick was alive and in the area of his residence.

Investigators are making a plea to the public for any information that anyone may have relating to the vehicle noted, or persons associated to this vehicle on the night of the murder.

Anyone with information on who killed Patrick J. Santos is asked to contact the Toronto Police Homicide Squad Detective Dean Burks at 416-808-7400.

If you wish to remain anonymous you can call Crime Stoppers at 416-222-8477 (TIPS) or online at www.222TIPS.com. The anonymity of a Crime Stoppers tip is guaranteed by the Supreme Court of Canada. You never are compelled to be a witness if you call or e-mail Crime Stoppers. GIVE US YOUR TIP, NOT YOUR NAME.

Prior the current statutory release framework, offenders were given “remission credits” pursuant to the Prisons and Reformatories Act.[1] The relevant section stated that:

6. (1) Every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with fifteen days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned.

Computing remission credits

(2) The first credit of earned remission pursuant to subsection (1) shall be made not later than the end of the month next following the month the prisoner is received into a prison and thereafter a credit of earned remission shall be made at intervals of not more than three months.[2]

In spite of being sentencing by the sentencing judge and in spite of the existence of the National Parole Board of Canada, Parliament has created automatic statutory release provisions for most offences pursuant to the Corrections and Conditional Release Act.

For most offenders who are sentenced after November 1, 1992, that person is to be released with supervision after the completion of two thirds of the imposed sentence.[3]

Corrections Canada describes statutory release as follows:

Statutory Release requires federally sentenced offenders to serve the final third of their sentence in the community, under supervision and under conditions of release similar to those imposed on offenders released on full parole. Offenders serving life or indeterminate sentences are not eligible.

Offenders on statutory release are inmates who either did not apply for release on parole, or who were denied release on full parole. Statutory release can be denied, if a detention hearing determines that the offender will likely commit an offence causing harm or death, a sexual offence involving a child or a serious drug offence.[4]

A very cold and calculating description of releasing offenders. It is not as cuddly and comforting as the values of the National Parole Board.

In 2006, 2042 offenders were statutory released, a number that represents 9.4% of the federal prison population.[5] Surprisingly, this number has been consistent since 1996. [6]

In terms of successful completion, the statistics seem to support that the majority of statutory released offenders are compliant

[7]

It is unclear is the public would be eager to claim success at a 60% rate of completion. Further, when one looks closely at the numbers, the public ought not to derive much confidence. [8]

When 30% of offenders breach their release conditions, how can the public be confident in such a system? When an average of 3% of released offenders commit violent offences, how can the public have confidence in a system that automatically releases individuals before their sentence is completed?

Furthermore, the numbers are in contradiction to statistics held by the National Parole Board. They have indicated that between 1994/95 and 2002/03, offenders on statutory release accounted for 63% of all violent offences committed by offenders on conditional release, while offenders on day parole accounted for 18% and offenders on full parole accounted for 19%.[9]

The National Parole Board has gone even further to conclude, that those on statutory release are “far more likely to be convicted for violent offences while on statutory release than on day or full parole”.[10] Clearly, this is one board trying to distance themselves as far away as possible from this form of release.

There is a dichotomy between the National Parole Board (who seem to dislike statutory release) and Corrections Canada (who are required to regulate the prison population).

The philosophies of these two approaches are also reflected with how offenders are supervised after release. Between 1994/95 and 2002/03, while on parole, the average supervision for full parole was 25.6 months.

However, those released on statutory release are left to the wind to fend for themselves at a rate of 6.7 months of supervision.[11] Offenders released on statutory release were far more likely to have had their releases revoked because of a breach of condition than federal offenders on day parole or full parole during each of the last five years.[12]

Clearly, those being statutorily released are not receiving adequate support and supervision in comparison with those on parole.

[1] Prisons and Reformatories Act, R.S.C. 1985, c. P-20.
[2] Ibid.
[3] supra note 8 at s. 127(3).
[4] http://www.csc-scc.gc.ca/text/faits/fac03-04_e.shtml
[5] Corrections and Conditional Release Statistical Overview, 2006 at pg 38.
[6] Corrections and Conditional Release Statistical Overview, 2006 at pg 81.
[7] Corrections and Conditional Release Statistical Overview, 2006 at pg 105.
[8] Corrections and Conditional Release Statistical Overview, 2006 at pg 106.
[9] Performance Monitoring Report (National Parole Board, 2004) at pg 6.
[10] Ibid at pg 13.
[11] Supra note 22 at pg 12.
[12] Supra note 22, at pg 15.

The post sentencing regime in Canada is in dire need of reform. The last significant attempt at reform came through the Report of the Canadian Sentencing Commission of 1987.[1] This is simple neglect. While successive governments have trumpeted tougher laws and penalties on crime, post sentencing has been ignored. After an examination in this area, the conclusion to be drawn is that the system is convoluted. The system on the one hand sells itself in terms of rehabilitation and the protection of the public, but on the other hand is heavily influenced by economics and utilitarianism.

Juxtaposed, the post sentencing regimes of parole and statutory release are contradictory in their rationale, contradictory in their execution and ultimately, contradictory in their alleged service to the public good and the administration of justice. When one examines how these two post sentencing regimes operate in relation to one another, what are exposed are contradictory approaches and consequences.

A choice has to be made as to how we are to deal with offenders in the post sentence stage of the criminal justice system. Are we going to have a national parole board to make deliberative decisions on release or a system where offenders are released automatically after a fixed portion of their sentence is completed? To have both is not how post sentencing ought to function and does not facilitate the administration of justice nor serve the public good. It is the position of the author than when looks at the system as a whole, the public and the criminal justice system is best served with the elimination of automatic statutory release.

Parole In Canada

Parole has existed in some form or another since 1868 when prisoners were granted early release through earning credits for good behavior in prison by virtue of the Penitentiary Act.[2]

On August 11, 1899, An Act to Provide for the Conditional Liberation of Convicts- the Ticket of Leave Act[3] was enacted by the Canadian Parliament. The said act stated that:

It shall be lawful for the Governor General by an order in writing under the hand and seal of the Secretary of State to grant to any convict under sentence of imprisonment in a penitentiary a license to be at large in Canada, or in such part thereof as in such license shall be mentioned, during such portion of his term of imprisonment, and upon such conditions in all respects as to the Governor General may seem fit; and the Governor General may from time to time revoke or alter such license by a like order in writing.[4]

The Ticket of Leave Act was based almost word for word on the British legislation. There was no reference in the text to the purpose of conditional release, though ticket of leave was generally understood to be a form of pardon.

The formalization of parole procedures occurred with the Fauteax Commission in 1956.[5] One of the main recommendations by the Fauteax Commission was to create a system which offered release to all inmates in pursuit of reformation and rehabilitation.[6] As we shall see, this rationale is still the main focus of parole today.

Subsequently, the Parole Act[7] was passed in 1959, and the National Parole Board was created. It had the power and authority to make decisions about inmates’ entitlement to release on a case-by-case basis, giving each individual inmate his or her due.

The National Parole Board exists within the Ministry of Public Safety Canada which also includes the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Canada Border Services Agency and the Correctional Service of Canada.

The National Parole Board is an administrative tribunal that has exclusive authority under the Corrections and Conditional Release Act[8] to grant, deny, cancel, terminate or revoke day parole and full parole. The National Parole Board may also order certain offenders to be held in prison until the end of their sentence. This is called detention during the period of statutory release.

Currently, the National Parole Board has the authority for all federal and provincial prisoners, except for the provinces of Ontario, British Columbia and Quebec (provinces that have their own provincial parole board).

Engrained in the corporate philosophy behind parole is the philosophy of rehabilitation of an offender, a human belief that those who offend can become productive members of society.

In 1970, the Government of Canada printed a pamphlet for the purposes of educating the public on parole. In this pamphlet, the purpose of parole was stated as such:

The dual purpose of parole is the reformation and rehabilitation of the inmate, and the protection of society.

Offenders who have made good use of their time in custody and who have shown a desire to lead a law abiding life in the future are given the opportunity of living in their community, under supervision.

This supervision and counseling assists them in becoming useful, law-abiding citizens while at the same time ensuring they do not misbehave or return to crime.[9]

The above aforementioned rationale is still reflected in the current National Parole Board who has formulated a number of core values. The values amount empty rhetoric but are clearly aimed at justifying their existence based on the above aforementioned rationale:

1. We contribute to the attainment of a just, peaceful and safe society.

2. We respect the inherent potential and dignity of all individuals and the equal rights of all members of society.

3. We believe that the contribution of qualified and motivated individuals is essential to promoting the achievement of the Parole Board’s Mission.

4. We are committed to openness, integrity and accountability in the execution of our mandate.[10]

Quite frankly, core values like this is nice to hear but the words lack any real meaning. The National Parole Board exists to make decisions on parole applications. The parole system is based on an application by the offender. Of course not all offenders will apply for a pardon.

The National Parole Board has indicated that it conducts about 22,000–24,000 reviews yearly; of these applications,1,200 to 1,500 are provincial cases and
20,000 to 22,000 are federal cases.[11] In 2006, 4,100 day parole applications were granted while full parole applications granted were 3,300.[12]

The National Parole Board goes out of their way to try and convince the public that parole and statutory release are not the same. They go so far as to call it a “myth”. In their own words:

Myth

Statutory release is the same as parole.

Reality

Statutory release is not the same as parole.

Both statutory release and parole are forms of conditional release that require offenders to conform to conditions of release and CSC supervision. Statutory release, however, is a legal provision that automatically entitles most offenders, who have not been granted parole, to serve the final one-third of their sentence in the community. Offenders serving life and indeterminate sentences are not entitled to statutory release.

Parole, on the other hand, is subject to a discretionary decision by NPB, after a rigorous process of risk and needs assessment with the protection of society as the prime consideration.

In both cases, however, NPB has the power to set special conditions and failure to abide by these conditions could mean the offender is returned to prison.[13]

However, they fail to mention that it is the National Parole Board’s responsibility to administer statutory releases and to determine in those cases where it ought to be denied or where certain release conditions ought to be made.

“Automatic” in relation to statutory release, “rigorous process of risk and needs” and “prime consideration” for parole, this type of language is interesting.

It is although the National Parole Board is distancing them from statutory release by telling the public it is not their “fault” for releasing offenders after two thirds of their sentence. They have no discretion on this issue. However, when it comes to parole, they have the public’s interest in the forefront.

[1] Report of The Canadian Sentencing Commission (Ottawa: Queen’s Printer, 1987).

[2] Penitentiary Act (31 Vict.), c. 75.

[3] An Act to Provide for the Conditional Liberation of Convicts, S.C. 1899, c.49; R.S.C. 1906, c.50; R.S.C. 1927, c.197; R.S.C. 1952, c.264.

[4] Ibid.

[5] Report of a Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice (Fateaux Report) (Ottawa: Queen’s Printer, 1956).

[6] Sentencing Commission, supra at note 1 at pg 238.

[7] R.S.C. 1985, Chap. P-2.

[8] S.C. 1992, c. 20.

[9] Parole In Canada (Ottawa: Queen’s Printer, 1970).

[10] http://www.npb-cnlc.gc.ca/about/corev_e.htm

[11] http://www.npb-cnlc.gc.ca/infocntr/factsh/parole_stats_e.htm

[12] http://www.npb-cnlc.gc.ca/infocntr/factsh/parole_stats_e.htm

[13] http://www.npb-cnlc.gc.ca/infocntr/myths_reality_e.htm#myththree (underlined emphasis added).

Denying bail to an innocent man would result in unjust delay, as stated by a fictional English barrister:

“Holding an innocent man in jail for an indefinite period of time while the wheels of justice grind slowly to a halt in a traffic jam of cases” - H. Rompoule.

The adversarial system of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party’s positions and involves a neutral judge or jury, trying to determine the truth of the case. This is the system that exists in Canada with respect to criminal law. This is in contrast to the inquisitorial system which has a judge whose task is to investigate the case, this is to say, the judge does not play the role of the impartial bystander. There is no right to a jury in the inquisitorial system.

The criminal justice system in Canada makes the adversaries responsible for digging out the facts on which a decision will be based. The adversarial system works on the theory that the two opponents in a case, or their lawyers, will work harder than anyone else to produce evidence favorable to his/her side and no one else has as strong a motive. At the very core of the adversarial system is the belief that the individual is responsible for preserving individual rights.

The adversarial process through cross-examination and oral advocacy tests the prosecutor’s case presenting the best chances to reduce the chance of a wrongful conviction. Indeed, the adversarial system prides itself on the belief that it is better to let one hundred guilty persons free than to convict one innocent individual.

Those of us in the defense bar hold the current Golden Thread as the foundation of the adversarial system. The Golden Thread of our criminal justice system entails the principles of the presumption of innocence, proof beyond a reasonable doubt and the right to remain silent. Such a system is only able to be properly defended if we understand its history.

Early criminal trials in England and more particularly at the Old Bailey were conducted in a manner that would seem alien to any modern day observer. Prosecutions were private in nature in England in the 1800s. Criminal cases were conducted without defense counsel. The accused was not afforded the presumption of innocence nor did there exist any privilege against self-incrimination. The defendant was required to answer the case against him/her. Capitol murder cases took all but a few hours to complete. This is in contrast to the present situation, where a murder case can take months to complete.

This system in England was far from perfect and there was public outrage against the dangers of this system. There were serious problems of perjury, the reward system and blood money which undermined the public’s confidence in the system and which rendered the average accused unable to defend him or herself in any meaningful manner. The response by the public was understandable. As Langbeim notes, there was a growing opposition to the overuse of capital punishment in the latter half of the 18^th Century, especially for property offenses. The main function of the criminal trial during this time period was to narrow down the number of individuals who would be sentenced to death.

The advent of defense counsel was a direct result of the Treason Trial Acts of 1696. For the first time, defense counsel were permitted on the behalf on the accused for serious offenses. Further developments allowed defense counsel to actually address the jury. By the 1730s judges began allowing defense counsel in ordinary felony cases to cross-examine witnesses, a development which Langbeim calls ‘the fateful step [which] sent our procedure down the path toward what would become the adversary civil trial’.

There are serious modern critics to the adversarial system. Langbeim argues that the adversarial system displaced the old altercation trial by silencing the accused and putting the crown to prove its case. He further argues that the emergence of defense counsel in an adversarial process was an attempt of “evening up” the cards but this has hampered the truth finding process and provided advantages for an accused who has the wealth to exploit the adversarial process.

The opponents of the adversarial system are not limited to academics. Governments have tried to reduce or eliminate the preliminary hearing for years. The adversarial system is almost dead in the civil context where the cost of litigating a matter to trial is prohibited for most non-institutional clients. Most civil cases are heavily case managed where the pre-trial judge acts like an inquisitorial judge to use moral persuasion to settle the case before trial.

The same approach is occurring at judicial pre-trials in criminal courts where judges feel empowered to pressure defense counsel to resolve cases (read “plead guilty”). Recently, the Superior Court of Justice in Ontario has instituted a mandatory pre-trial form. Such a form is not new. However, the content of the form effectively reverses the burden of proof. It requires the disclosure of defenses and effectively, disclosing what defense counsel see as the weaknesses of the Prosecutor’s case. Those of us who have stood our ground and refused to disclose this information have been bullied and ridiculed by the judiciary.

Fortunately, most defense counsel are not so easily intimidated as there is a person’s liberty on the line and not simply money in civil case. Such fiery opposition is alive and well and honors those who fought before us. The greatest Old Bailey defense counsel Willam Garrow would be proud if he were able to witness defense counsel in action today.

There are reasons why the Golden Thread of our justice system works. One must not forget that there is an imbalance of power and resources with respect to the state viz. the defendant. The limitless resources of the state can overwhelm the defendant and seriously jeopardize the individual’s right to a fair trial. The courts have tried to restore some balance through mandatory disclosure (R. v. Stinchcombe) and ethical requirements that the prosecutors behave in manner consistent with a mini-Minister of Justice (Boucher v. The Queen).

Langbeim argue that the “truth” has been a victim to the adversarial system. He argues that the adversarial system encourages both sides in presenting a distorted and misleading version of the facts to the fact finder. The finder of fact is left to choose between two polarized versions of events while not knowing the real facts which are known to opposing counsel.

This cannot be argued to be the case in Canada. As in a typical way, Canada has developed a balanced approached to the truth finding process. We can see that in certain Charter breaches, real demonstrative evidence, in spite of being conscriptive, can still be admissible at trial (R. v. Stillman). Trial judges are always asked to weigh the probative value of any relevant evidence with any prejudicial effects. This is a fair approach to balancing the need to search for the truth and to protect the rights of the accused.

There are limits as well, for example in relation to the cross examination of the sexual history of a complainant. So at least in the Canadian context, there is no either/or scenario with respect to finding the truth and the Golden Thread. The open ended and “fearful” cross examinations of William Garrow of the Old Bailey would not stand in any modern day criminal trial.

However, the issue of funding for counsel is a serious problem. The advent of legal aid systems in Canada demonstrates a commitment on the publics’ part to balancing the sides. While such a funding system has its problems and is inconsistent across Canada, Langbeim’s argument that wealth is an effect on the system is again, not as dire in Canada as it is in the United States where he is based and more familiar with.

In the United States, there exists in most jurisdictions a public defender system. Most public defenders in this system are underfunded, overworked and simply lack the experience to conduct a defense of a serious case. Further, the court appoints a public defender to an accused. In Canada, we have a certificate system where an accused can go to any lawyer who accepts a legal aid certificate. Additionally, there are minimum requirements for defense counsel who wish to be accept legal aid certificate. Underfunding to the legal aid system is a serious issue that threatens to undermine this system. This is even more pronounced in the wake of massive funding for mega-trials, special police units (i.e. guns and gangs) and specialized prosecutors. Without a corresponding funding commitment to legal aid, the fine balance will again tip in favor of the state and jeopardize the accused right to a fair trial.

Langbeim also argues that the advent of defense counsel is itself a shortcoming. Clearly, in the late 19^th Century capital cases at the Old Bailey took a few hours and the defense counsel was not even allowed to address the jury directly. Counsel’s role was limited to cross-examination and legal arguments. However, it is the defense counsel that tests the case of the prosecutor. Further, when over 90% of case are resolved in terms of a guilty plea, at least in Canada, Langbeim’s argument does not hold water at least in Canada especially when there was no plea bargaining in the 1800s in England.

The strength of the adversarial system flows from the Golden Thread of our justice system which puts the state to the task of proving its case. The Golden Thread works best within the adversarial system. As a scientist tests a theory through rigorous examination, so does a defense lawyer who tests the case of the prosecutor through rigorous cross-examination. The Charter and mega trials have significantly increased the time is takes to prosecute many serious offenses. However, if we take the principles in the Golden Thread seriously, society may have to live with the costs of longer trials as a natural consequence of the adversarial system in action.

The conviction of the innocent involves much more than simply the “wrong person goes to jail”. There are powerful institutional forces as play when an innocent person is convicted. Thankfully, the public’s reaction to this injustice is one of indignation, providing hope to us who still believe that is it better for one hundred guilty people go free than to convict one innocent person.

Current examples provide proof of these institutional forces. With respect to the prosecution, we can see from the Inquiry concerning Guy Paul Morin, there was an attitude of “get him at all costs” in the form of prosecutorial misconduct was a major factor at play.

There were even attempts to manufacture evidence, in particular, with respect to bogus jail house informants. Those of us in the defense bar still cringe to this day as those prosecutors who were responsible for this tragedy haven been appointed to the bench as an institutional reward for their “hard work” (not mentioning any names). Clearly, in spite of this being a wrongful conviction, institutional rewards are being handled out those who have secured convictions to the government of the day.

However, let it be made quite clear that jail house informants do not generate wrongful convictions merely because they lie. Lying does not distinguish them from the average witness. Rather, its how and why they lie, and how the prosecution depends on lying jail house informants, that makes snitching a troubling distortion of the truth-seeking process. Jail house informants lie primarily in exchange for lenience for their own crimes, although sometimes they lie for money or even publicity. In order to obtain the benefit of these lies, jail house informants must persuade the prosecutor that their lies are true. Police and prosecutors traditionally have not and cannot check these lies because the jail house informant’s information may be all the prosecution has to prove their case.

Institutional changes have been made to reduce such injustices from happening in the future. In Ontario, the use of jail house informers must be vetted in advance by a committee of senior Crown Attorneys and such a request is rarely approved to be admitted into trial. This is an institutional acknowledgment that the prejudicial effect of the use of a jail house informant outweighs any limited probative value.

There are ethical requirements that a prosecutor behave in manner consistent with a mini-Minister of Justice (Boucher v. The Queen). These ethical standards are the first to be discarded where prosecutorial misconduct has taken place in the context of a wrongful conviction. The Supreme Court of Canada stated it brilliantly:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is represented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than [sic] which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

This type of self-regulation based on the “best traditions of the bar” or in other words, leaving it to counsel to act in a dignified manner in all ethical standards fail in those circumstances were a person is wrongfully convicted.

The police investigation is often at the heart of a wrongful conviction case. The police are given the authority and power to identify the crime, determine who the prime suspect is and to build the case for the prosecutor. In provinces such as Ontario, it is the police who also lay the charges prior to delegating the case to the prosecutor. When one looks at the police in this context, on a certain level one can understand that their role is to investigate crimes.

However, the increase in power of the police by Parliament perpetuates their tunnel vision. One need only look to Maher Arar to see how the RCMP helped render an innocent man who was then subjected to torture on flimsy evidence as a result of unchecked power. There is also the example of how the police in Ontario can now seize assets in civil court before due process has been met. Perhaps adopting a system like in B.C. where prosecutors vet the charges before they are laid can provide an additional level of protection against wrongful convictions.

These concrete examples illustrate that intentionally or not, the police are a major factor in wrongful convictions. It is the police who, depending on the case, provide the prosecutor with false confessions, biased lineups or bogus informant information. This form of police culture passes the buck by giving false or even misleading evidence to the prosecutor and then saying they are “just doing their job”. As another salient example, the police focused on Morin because of all things, Morin was considered “weird” by the police because he played the clarinet and kept bees. Not exactly the most rational and objective basis for determining who ought to be considered a prime suspect in a murder case.

It may be that the courts have had enough of this form of police culture in the context of wrongful convictions. The Supreme Court of Canada has recently upheld an Ontario Court of Appeal decision creating a tort of police negligence in terms of their role as the investigators of crime (Hill v. Hamilton-Wentworth Regional Police Services Board). The court stated the following:

Where the police investigate a suspect reasonably, but lawyers, judges or prosecutors act unreasonably in the course of determining his legal guilt or innocence, then the police officer will have met the standard of care and cannot be held liable either for failing to perform the job of a lawyer, judge or prosecutor, or for the unreasonable conduct of other actors in the crimina