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Introduction
On 23th February 2011, I attended a bail hearing of an accused police constable who shot and killed a 26 year old man. The hearing took place at Ontorio Court of Justice located at 7755 Hurontario Street Brampton, Ontario. The court room consisted of the Crown attorney, the lawyer of the accused, the accused, the Justice of the peace, the court reporter, a police officer and the general public. The court handles criminal cases ranging from assault, traffic issues among others. It was a proceeding that took place in the early hours of the day. The charges levelled against Constable David Cavanagh were that during a police raid on September 2010 when carrying out a police raid, the accused shot Eric Osawe while the brother of the deceased was arrested with regards to drug and firearm offenses. This took place in their apartment located along Dunbloor road near the Bloor Street Kipling Avenue. The paper thus seeks to bring to light the whole procedure of bail hearing, as well as the associated legal arguments.
My understanding is that bail hearing entails the release or detention of an individual who is charged with a criminal offense before being sentenced. Individuals are released by either peace officer or by the courts. The prosecutor and his or her team were bestowed with the responsibility of proving that the defendant was indeed dangerous to the safety of the general public, and thus should have not been granted a bail (Brown, 2008). The defence team (and accused lawyer) tried to convince the court through evidence that their client could not jump bail, and he was no longer a threat to the safety of the public (Berman & Berqman, 2011). In Canada, the accused is shouldered with the responsibility of proving why he or she should be granted bail.
Bail hearing and responsibilities of participants
Before the proceeding started, everyone was inside the court except for the judge and the accused. Later on, the accused was escorted by a police officer (bailiff). In a while, someone said ‘All arise’ and the judge came inside the court. In terms of the sitting arrangement, the judge sat in a podium above everybody else. All the rest including court reporter, the accused, the prosecutor, counsel team, police bailiff and the general public sat on a lower level meaning that we are all bound by law which is above all things (Israel et al., 2003). The Crown attorney’s main responsibility in that case included proving that the accused was dangerous to public safety, unstable and should have been denied bail. On the other hand, the counsel was responsible for trying to prove that the accused was not dangerous to the public safety (Trotter, 1999). The bailiff stood next to the accused and provided the judge with the relevant documents, as well as escorting the accused and maintaining order. The peace justice was responsible for leading the case calling upon the relevant persons to present their case and make final decision based on the presented arguments and, off course, guided by the law of the land. The reporter, using a stenograph, reported in writing all that was being said; this information is indeed very useful when determining the case later on (Yates, Ruth & Penny, 2000). The justice of peace called upon the Crown attorney to present their case after receiving relevant documents from the police bailiff. He responded by standing up and bowing saying that he was ready to present their case.
The Crown attorney tried his best in making sure that the accused was not granted bail. For instance, he stated that the accused was still a dangerous person, who, when released to the general public, will instil fear and intimidation not only to those related to the deceased, but also other witnesses and the general public. He further stated that there was a substantial likelihood that the accused would commit a further offence or interfere with the administration of justice due to his link with the police. Additionally, the Crown attorney told the court that the accused should not be granted bail since this would derail the confidence in the administration of justice considering the fact that the accused misused his firearm while in line of duty. At this point, the Crown attorney was done presenting his case. The second person called was the lawyer of the accused. He was taken through the oath process where he swore to say the truth and nothing but the truth. He started by clearly stating that the law allows each and every individual to be granted bail hearing based on provision of the Canadian Charter of Rights and Freedoms (Burrow, 1996). The lawyer also stated that his client had no history of failing to attend court or strictly adhering to orders from the court. Indeed, this was the first time David was accused of any wrong doing. Additionally, the lawyer explained to the court how his client responded when he was arrested and he said “David did not resist arrest and this gives him the opportunity to be regarded as an individual who is capable of strictly adhering to the court orders”. For this reason, it would be inhuman to deny him bail. On the same note, the lawyer stated that the accused had been denying the chance to visit his relatives outside his province of residence; this was not fair at all. Lastly, granting him bail would ensure that he was able to carryout with his duties as a police officer although under restriction. Similarly, the lawyer pointed out that despite the fact that David shot Eric, it was not intentional, hence the offense was not a first degree murder.
The lawyer ended his presentation with the desire that his client would be granted bail since it was his constitutional right. The lawyer seemed to be calmer and friendly and posed questions that would have a positive influence on granting bail (Jourard, 2010). It is worth mentioning that there were no sureties for the accused. For that matter, David was called upon to tell the court why he should be given bail. He stated his name and took an oath stating that “I swear to tell the truth, the whole truth and nothing but the truth so help me God”. He told the court that he was a person of high integrity and respected the law of the land. Additionally, he stated that the shooting happened accidentally while he was struggling to arrest the two brothers. He explained to the court how he complied with the law enforcers who arrested him. Lastly, he said that being held in detention would deny him his daily bread which was very important in sustaining his family since he was the only bread winner for the family. For the final decision to be made, the judge critically examined the nature of the charges (Bryett & Osborne, 2000), levelled against David, as well as the presentations of the Crown attorney, David’s lawyer and the accused (David). Before he granted bail, the judge offered his views and opinions on the issues in the case. He stated that since David was a first offender, co-operated well with law enforcers during his arrest, and that he was the sole bread winner for his family; he deemed it fit to offer the accused bail. Nonetheless, the judge held that it would be rational for the accused and his lawyer to work towards ensuring that the former abides by the law, as well as the release conditions. In his judgement, the judge said, “Upon scrutiny of the cases presented by both sides and considering the fact that the accused was a first offender and did not resist arrest, I grant him a cash bail of $2000 with no surety”. The judge said that the accused had shown that he was not a security threat to the public, while the Crown judge, failed to proof that the accused would pose danger to the public. Additionally, the accused was allowed to visit his family members and under limited exception, he was allowed to carry an unloaded firearm. The accused was ordered to appear in court on 29th of the same month. The judge did spell out the consequences of going against the bail release conditions. The court session then came to an end. We were told to rise up and the judge left the court room while the accused was escorted by the bailiff. The rest of us left later.
References
Berman, S. & Berqman, P. (2011).The criminal law handbook: know your rights, survive the system. New York: Wiley & Sons.
Brown, D. (2008). The bail hearing process in Toronto. Web.
Bryett, K. & Osborne, P. (2000). Criminal prosecution procedure and practice: international perspectives. Belfast: Stationery Office.
Burrow, G. (1996). Bail hearing: Canada practice guide. Toronto: Carswell Legal Publications.
Israel, J. et al., (2003). Criminal procedure and the constitution: leading Supreme Court cases and introductory text. St. Paul, MN: West Publishing.
Jourard, R. (2010). Bail and release from custody. Web.
Trotter, G. (1999). The law of bail in Canada. Toronto, Ontario: Thomson Canada.
Yates, R. Ruth, Y. & Penny, B. (2000). Introduction to law in Canada. Scarborough. Ontario: Pearson Education Canada.
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