Archive for September, 2008

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.