Wednesday, June 10, 2009

Blame It On Bail - And Those Who Dare To Grant It

By now, most citizens of Calgary will have heard of the arrest made and 3 counts of murder laid in the investigation into the triple homicide that occurred at a restaurant in Calgary on January 1, 2009.

Furthermore, most will have been advised by the local media, without any legitimate context, that the accused killer was "released on bail" mere days before the shootings after having been charged with a number of drug and weapons offences on Dec. 22, 2008.

Of course, none of us know the facts of those arrests, or how strongly or tenuously linked the accused person was. Nor do we know his past criminal history or lack thereof, his employment record, ties to the community, education...we know nothing.

The obvious suggestion that the media are forcing upon the public is that this tragic incident on January 1, 2009, in which an innocent bystander was killed, would never have happened if only the Justice of the Peace presiding over the accused's earlier bail hearing had detained him...which he obviously should have done...just look at the result.

It did not take long for the viewers of the above link to start making not only the connection but absurd and inappropriate accusations as well. Posters of commentary (many under anonymous user names) following the CBC story said things like:

"If you know a lawyer, or a judge, or a justice of the peace who is a lawyer, it is time to OSTRACIZE them! These people are the CAUSE of the problem..."

"Unfortunately the person who granted him bail the first time wasn't caught in the crossfire..."

"I believe judges who grant bails should be held liable to civil charges from victims' families. If judges were held accountable there would likely be a significant reduction in repeat crimes such as this: (1) fewer bails would be granted to violent offenders at high risk to reoffend, (2) "idiotic judges" liberal with granting bails - successfully sued by victims' families - would soon be out of business [profession] ... a win / win situation for all Cdns and for the justice system."

"Why do we continue to grant bail on ANY criminal charge?"

"Justice of the peace J.J. Ogle is every bit as culpable as this guy. Sadly most judges are pinheads whose sympathies lie with the criminals."

The pen truly is mightier than the sword, I suppose, especially when a target like a J.P. or Judge cannot ethically respond to the criticisms and the critics are cloaked in cyber anonymity in any event. I am sure CBC will completely disavow any responsibility for the things that people have posted, but they are the ones that inexplicably reported the name of the bail judge to personalize the attacks coming from the viewership (I challenge any reporter to explain why the story could not be properly told without a name).

So, even though J.J. Ogle heard a bail application and had likely a relatively extensive explanation of the Crown's evidence tying the accused to the initial arrest (or, the Crown actually consented to the accused's release), we are all supposed to immediately conclude that for some corrupt purpose he let loose a certain killer and knowingly placed all citizens lives at risk, and was fully able to see in his crystal ball what would transpire days later but did nothing to stop it. This all presupposes, of course, that the person accused of the triple-murder is actually guilty of those killings as well as the offences he was earlier accused of.

I strongly support freedom of expression, so I support a citizen's right to criticize me as a defence lawyer, or a judge, or "the system" as a whole, but that right to criticize comes with the responsibility to hear a response.

To me, every one of the above-noted comments shows complete and utter ignorance for the principles of fundamental justice upon which our criminal justice system is built. These members of the public would see us eliminate the independence of the judiciary, the presumption of innocence, and the right not to be denied bail without just cause all in one fell swoop. All of these things would surely mean that no citizen of Calgary would ever be wrongly harmed again right?

The complete foolishness that crime will cease if the "revolving door" of bail is stopped is unfortunately indicative of the level of intellectual ability of many voting taxpayers and as such, the political points to be made by speaking loudly and often against the bail system are many.

At least I must give credit to Alberta Justice Minister Alison Redford that she is not jumping on a bandwagon over these latest media shenanigans...bail reform has been a long-time agenda for her. Further, her comments relative to the media attempt to make the whole story a blame game to point fingers at J.P's and Judges and defence lawyers were not personal and remained on her message that she thinks the "bail tests" need to be changed...not the people applying them.

I respectfully disagree Minister Redford, but thank you for what I found to be a very appropriate refusal to make comments that would further incite ignorant citizens to say that J.J. Ogle was responsible for three murders or to lament at the fact that he was not himself "caught in the crossfire".

I am drawn to quote from a speech that was given by Theodore Roosevelt in Paris in 1910:

It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes short again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows achievement and who at the worst if he fails at least fails while daring greatly so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

No member of the criminal justice system has an easy job to do, and that includes prosecutors and police. No human being enjoys learning that a person has been killed, especially one who was apparently completely an innocent victim. More to the point, any person who learns they had something to do with a case which ultimately resulted in a death will question whether anything they did contributed to the outcome.

For judges, at times, the second-guessing of their decisons must become near-paralyzing.

So to all the critics, the arm-chair quarterbacks who seem to have it all figured out at all times, you are not "actually in the arena" so perhaps you could show a bit of respect to those of us who are. Blaming the bail system or the judicial officers who oversee it is no more proper than blaming the police for not being on scene before the crime was committed.

And to the judicial officers...don't be fooled by media hype...don't be pressured by spin, conjecture and 20/20 hindsight in a particularly tragic case. Trust the centuries of common law...apply the legal tests for judicial interim release...detain when necessary and release otherwise. Use your judgment and skill and experience with the presumption of innocence as your guide. You will never achieve perfection...but you will continue to bring honour and integrity to your offices..."strive valiantly" and "dare greatly" and justice will be done so far as justice can ever be done by any human system of law.

No matter what the critics might say.


Blogger gorden said...

It's really disturbing and sad on the part of the "Legal System".

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10:25 a.m.  

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