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Red Zones: A Case Study of Transformations by the Honorable Patrick Healy

Publié le mercredi, 4 mai

Juge de la Cour d’appel du Québec

Marie-Eve Sylvestre, Nicholas Blomley & Céline Bellot, Red Zones : Criminal Law and the Territorial Governance of Marginalized People (2020), (ISBN 9781316635414).

The policy of the law is to privilege liberty unless detention is demonstrably necessary. The practice of the law is not always true to this policy. When this occurs the value of restraint in the administration of criminal justice is diminished.

The principle of restraint runs through the criminal law, including the substantive law,[1] but it is conspicuous in issues relating to interim release and sentencing. It is evident in the guarantee of reasonable bail[2] and it is evident in the “ladder principle” that is the axis of Part XVI of the Criminal Code and that requires release of the accused as soon as practicable and on the least onerous grounds needed.[3] It is apparent in the principles of sentencing, including not only the cardinal principle of proportionality[4] but in the specific injunction to avoid sentences of imprisonment where other options are appropriate.[5]

In the fifty years since the enactment of the Bail Reform Act[6] and the twenty-five years since the sentencing reform of Part XXIII of the Code[7] the policy of the law is less rigorously applied in practice. Some of this is attributable to legislative amendments, as is the case with the changes to section 515(10)(c), the proliferation of mandatory minimum sentences, restrictions on the availability of conditional sentences, and more generally increases in maximum sentences for a variety of offences. Despite a noticeable decrease in the incidence of many offences, it is undisputed that many legislative amendments have been introduced against an uncertain enhancement of punitiveness with regard to both interim release and sentences. In February 2021 the Government introduced Bill C-22 in an effort to mitigate some elements of this trend but it is a modest effort that is far from a fundamental reform to restore the vitality of the effects of Bill C-41 in 1995.

But there is another dimension to this drift in the law, especially with regard to interim release. It often appears that the ladder principle has been overlooked or even inverted in many instances, notably in the provincial courts, and that the requirement to show cause has been somewhat distorted where the burden lies with the prosecution, even though the accused remains protected by the presumption of innocence. In this respect the decisions of the Supreme Court in and Zora and Antic are welcome attempts to correct a wayward drift. It will be important to measure whether there is any appreciable change in the practice of the law and, in particular, any significant reduction in the rates of pre-sentence custody. It will also be important to see if there is any appreciable reduction in offences relating to breach of conditions.[8]

Professors Marie-Eve Sylvestre, Nicholas Blomley and Céline Bellot have produced in Red Zones: Criminal Law the Territorial Governance of Marginalized People a wonderful study of one aspect of this general trend, which is the use of geographic restrictions in an attempt to control the incidence of criminality upon interim release or sentence. With exceptional detail they present various anecdotes from four Canadian cities that they then analyze as test cases, with the benefit of exhaustive empirical data, that eventually appear as allegories about the administration of criminal justice and its foundations. The thesis they advance, and demonstrate, is that geographical conditions affect marginalized people in our communities that are often applied without a clear demonstration of cause and crude assumptions about the effectiveness of such conditions that resembles a form of exile. These constraints are seldom constructive and often destructive of sound criminal policy. With respect to interim release, the use of geographical conditions is difficult to reconcile with the foundations of Part XX of the Code.

Antic and Zora illustrate a radical deterioration in Canadian practice concerning interim release. It is not clear whether they will have a significant effect to restore current practice to its original foundations. It is clear that the deterioration has been sufficiently marked that the considerations leading to the Bail Reform Act are in many respects again as pressing as they were fifty years ago.[9] As shown in Antic, one indication of this has been not only the proliferation of stringent conditions, including the types examined in Red Zones, but the gradual revival of forms of cash or surety as a condition of release. It can only be hoped that the pedagogical effect of Antic and Zora will be swift and deep.

The gradual erosion of the basic principles relating to interim release and sentencing will be difficult to put right. This process has occurred over decades in both instances. Lawyers who began to practise when the Bail Reform Act came into force are now retiring. Many of them became and participated in the transformation of the Act’s principles. Younger lawyers who succeeded them have inherited and continued in this gradual transformation. They too have become judges and thus contributed to this process. It must be hoped that Antic and Zora will provide significant correction but this will be a process of correction that must begin in law schools and continue in programmes of professional education for lawyers and judges. It must also be hoped that these and other cases will lead to active revision of prosecutors’ manuals.

Red Zones is a detailed examination of the problem of geographical restrictions in matters of interim release and sentencing, and their effects on marginalized portions of Canadian communities, but it is also a case study of transformations in practice that have fundamentally altered the basic principles in these areas of the law. It deserves the widest audience for everyone involved in the administration of criminal justice.

[1] See Michael Plaxton, Sovereignty, Restraint, & Guidance (Toronto: Irwin Law, 2019); Melvyn Green, “Exercising Restraint in a Punitive Age” (2013) 34:1 For the Defence 6.

[2] Canadian Charter of Rights and Freedoms, s 11(e), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. See R. v. Pearson, [1992] 3 SCR 665; R v Morales, [1992] 3 SCR 711.

[3] See R v Zora, 2020 SCC 14; R v Antic, 2017 SCC 27. See also Criminal Code, RSC 1985, c C-46, s 493.1.

[4] Criminal Code, s 718.1.

[5] Criminal Code, s 718(2)(e).

[6] SC 1970-71-72, c 37 (as amended).

[7] SC 1995, c 22 (as amended).

[8] See Marie Manikis & Jess De Santi, “Punishing wile Presuming Innocence: A Study of Bail Conditions and Administration of Justice Offences” (2019) 60 C de D 873.

[9] See Martin L. Friedland, “Reflections on Criminal Justice Reform in Canada” (2017) 64 Crim LQ 274; Martin L. Friedland, “The Bail Reform Act Revisited” (2012) 16 Can Crim LR 315.

L’honorable Patrick Healy, Juge de la Cour d’appel du Québec

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