Canadian judges increasingly using electronic monitoring as bail tool
Canadian judges and justices of the peace are increasingly accepting alcohol and GPS monitoring as a risk-management tool while applying the legal test to decide whether an individual will be released on bail, says Steve Tan, partner at Recovery Science Corp.
“The monitoring makes an impact on the bail hearing where the judge assesses that the risk of absconding or committing an offence while on bail is reduced from a substantial likelihood to a level below the threshold of risk that would have required continued detention,” he tells AdvocateDaily.com.
About 20 per cent of bails that use electronic monitoring are a result of consent releases, and 80 per cent are contested by the Crown, Tan explains.
“There have now been about 70 cases where the Ontario Superior Court of Justice has granted bail in a contested bail review, where our monitoring was a term of the bail,” he says. “Our cases are comprised of 60 per cent Provincial Court and 40 per cent Superior Court.”
The number of bails granted where the electronic monitoring systems were ordered as part of the release has steadily grown from five cases in 2010 to 280 as of October this year.
Tan says the numbers reflect a growing acceptance of the program in Canadian courts by lawyers and judges.
He says the process of starting to monitor an individual typically begins with defence counsel contacting Recovery Science to include alcohol or GPS monitoring as part of the proposed plan of release at their client's bail hearing.
“We first provide our information materials, which have been compiled in response to 300 cross-examinations we have faced at bail hearings/reviews,” he says.
Recovery Science services have been proposed in about 500 bail hearings in Ontario, Quebec, Saskatchewan, Alberta, Manitoba and British Columbia, Tan says.
“If the Crown or the court would like to hear from us, or if defence counsel wants us testify to have a greater impact, then we testify and there is a fee for it,” he says. “We have also given remote testimony by telephone or video for Ottawa, Chicoutimi, Trois Rivieres, Regina, and Edmonton.”
Tan says the defence bar has expressed some concern that a net-widening effect may occur once courts begin using electronic monitoring more often as part of bail releases, meaning that there may be some overuse of the technology out of a sense of caution as opposed to simply applying the existing legal tests.
"So far, we haven't seen that happening," he says. "Our impression is that it is still only used in cases where the accused would not otherwise have been released."