Judges don't base decisions on popular opinion or government direction: bar association

  • May 04, 2023

By Louise Dickson for The Times Colonist

The B.C. branch of the Canadian Bar Association weighed in on the debate over bail reform Wednesday, emphasizing the importance of judicial and prosecutorial independence.

The association, which represents more than 7,600 lawyers and judges in the province, issued a statements saying it is “concerned about the current public discourse that unfairly blames judges and prosecutors for releasing offenders back into the community on bail.”

“Politicians from all parties have attempted to blame others for a difficult problem — addressing individuals with complex social problems who are accused, but not yet convicted, of crimes.”

The statement notes that judges make bail decisions by applying the Criminal Code of Canada and its interpretations from the Supreme Court of Canada. The law presumes innocence until guilt is proven and favours release on bail pending trial, not incarceration pending a hearing, it says.

Judges do not make decisions based on popular or personal opinion nor on the directions of government, it says.

“To maintain trust in the judicial system, the public must have confidence that decisions are made fairly. The independence of judges and lawyers is fundamental to that trust,” says the statement, which notes that concern for public safety is one of the factors considered.

In November, in response to reports of random, repeat violent offences, the Attorney General’s Ministry issued a directive requiring Crown prosecutors to seek the detention of an accused in cases where public safety was deemed to be at risk. The prosecution service implemented a revised bail policy on Nov. 22.

Last week, the B.C. Prosecution Service released preliminary data showing judges granted bail in more than half the cases involving violent crime where Crown prosecutors had recommended detention.

The Prosecution Service said it was too early to tell if the directive and the policy changes are having “a measurable impact” on the bail process or the outcomes of bail hearings.

“It would be unreasonable to assume that a policy change alone could produce any particular outcome at a bail hearing,” it said.

Bail provisions under the Criminal Code are the responsibility of the federal Department of Justice. In June 2019, Bill C-75 updated the bail provisions of Canada’s Criminal Code for the first time since 1972.

The bill directed police and judges to follow a “principle of restraint,” releasing accused people at the earliest opportunity and on the least onerous conditions.