GPS for bail: to ask or not to ask, that is the question
By Mia Clarke, AdvocateDaily.com Associate Editor
While GPS monitoring has become an accepted part of the bail system, it’s important to weigh everything before deciding whether and when to propose it, says Peter Marshall, in-house counsel and CEO of Recovery Science Corporation (RSC).
“Case law has established the ladder principle, which is that the conditions imposed as part of a bail should be the least onerous ones necessary to meet the legal tests,” Marshall tells AdvocateDaily.com. “At the same time, in difficult cases, the accused risks being detained if they don't present a plan of supervision that is strong enough.”
He says the courts consider several risk factors, including “that you will flee the jurisdiction or not show up for court, that you will commit further offences that endanger the public or interfere with the administration of justice — by intimidating a witness, for example — or that your release would undermine the public’s confidence in the administration of justice.”
Judges can impose a number of conditions to try to mitigate those risks, says Marshall. They can order house arrest or a curfew, and prohibit the use of alcohol, drugs, cellphones or the internet, he says.
RSC, founded by Marshall and Steve Tan, provides a variety of monitoring options that are used in criminal and family court applications, including GPS and alcohol monitoring.
“Some accused persons will propose wearing a GPS ankle bracelet when they believe their bail plan needs to be strengthened in order to persuade the court that they can be released,” says Marshall.
“Being required to wear a GPS ankle bracelet is very intrusive and expensive, so you wouldn’t want to propose it if you thought the court would release you without it,” he says. “Courts do sometimes release people who have agreed to GPS monitoring, without actually requiring it, but there is always a risk that if you propose it, the court will order it — even if you might have been released without it.”
Marshall says accused persons sometimes don’t propose GPS monitoring at an initial a bail hearing. Then, if they aren't granted bail, they will add it later when asking a higher court to review the decision to detain them.
“There is a risk in doing this because, unless the original court made a legal error, the detention decision can only be reviewed if there has been a material change, such as some charges being dropped or new sureties being available,” he says.
“Some courts have found that adding GPS monitoring to a plan is a material change, while others have found that it is not,” says Marshall.
“When finding that GPS monitoring is not a material change, some courts have cited the fact that the accused could have presented it at the initial bail hearing, but didn’t. Others have found that adding GPS monitoring at the review stage is a material change even though it could have been presented at the initial hearing. These different approaches mean that defence counsel need to be thoroughly familiar with the case law when advising their clients,” he says.
“The bottom line is that it’s important for defence counsel to give thorough advice and for accused persons and their families to carefully consider whether to include GPS monitoring in their original bail plan or hold it in reserve to be proposed at a review hearing if they are detained,” says Marshall.
“When its GPS monitoring is being considered, RSC provides comprehensive written material explaining the program, which can be submitted to the court on its own or in addition to an RSC witness testifying. RSC is also able to provide defence counsel with helpful references to the case law on material change and other legal issues that may apply in specific cases.”