Criminal Law

Special bail hearings keeping individuals jailed unnecessarily

By Peter Small, AdvocateDaily Contributor

Ontario defendants are being held in custody for unreasonable periods because prosecutors subject many to “special bail” hearings, says Toronto criminal lawyer Roots Gadhia.

“These special bails have really kind of circulated out of control,” says Gadhia, principal of Roots of Law Professional Corporation.

Under a policy instituted three years ago, Ontario Crowns require defendants accused of gun, human trafficking and other serious crimes to go through special bail hearings in designated courtrooms with assigned prosecutors, Gadhia says.

Crowns claim these cases require hearings lasting a half-day or full-day, instead of the usual hour, so police witnesses and other evidence can be called, she says.

Because court time is at a premium, defendants often wait for weeks or months for a suitable courtroom and staff, Gadhia says. This compares to the average wait time of 4.1 days in Ontario’s provincial courts, as reported by Justice Canada.

“So an individual who’s entitled to have that hearing, contested or otherwise, is now being denied the opportunity to have it within a reasonable time,” Gadhia tells AdvocateDaily.com.

Setting up special bails takes legwork, which almost entirely falls on defence lawyers, she says. They have to co-ordinate with the Crown and then submit a written application to the trial co-ordinator to book a special courtroom, interpreter, justice of the peace, etc., she says.

“If none of those dates work, then we have to now go to a justice of the peace in the intake office, who sits down with us and tries to go over what the issues are with this bail, why it’s going to take that long and offer us more dates. Then we go take those dates to the trial co-ordinator,” Gadhia says.

“We can run around the building trying to set a special bail, and it can take us anywhere from an hour to an entire day,” she says.

Special bails that are booked for a day sometimes take only an hour, Gadhia says. “And then the court sits with nothing to do for the rest of the day.”

The proliferation of these hearings has contributed to a money-wasting slowdown of the bail system, which worked well 20 years ago, she says.

The emphasis on special bail is part of a rightward move by Crowns, stoked by politicians adopting a tough-on-crime agenda, Gadhia says.

“It’s a constant battle,” she says.

“If you step into bail court on any given day in any single courthouse in this province, you will hear lawyers saying, ‘My client’s been sitting in custody for two weeks now. We’re trying to set a bail hearing. The Crown is insisting this is a special bail. I only have one surety. It’s not going to take more than an hour,’” Gadhia says.

Now that Ontario Premier Doug Ford has installed “SWAT teams” of guns and gangs prosecutors in Toronto’s provincial courthouses, the number of special bail hearings in the city is bound to increase, she says.

They are being held even for youths with no criminal records, Gadhia says.

A teenager could be subjected to a special bail hearing for being a passenger in a car in which a firearm was found, she says. “And he sits in custody for the next two weeks waiting for special bail. And he has no criminal record, and he’s never been in trouble in his life.”

The only way to curb the proliferation of special bails is by defence lawyers arguing in court that their clients’ rights have been abused and judges beginning to agree, Gadhia says.

Gadhia recently defended a teenager on a firearms charge after a police officer stated falsely that her roommate’s gun was plainly visible in their apartment, she says. The charges were dropped, but not before she was held for a special bail hearing, Gadhia says.

“This 18-year-old girl who had never been in trouble in her life spent a week in custody at the Vanier detention centre,” she says. “She should have been released from the moment she walked into court.”

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