What sayeth the man on the Clapham omnibus about ‘catch-and-release’ justice?
‘Reasonable’ people aren’t actually bothered by bail practices in most cases, but killers and gangsters spark ire
The word “reasonable” is used throughout our criminal justice system both casually and officially, guilt beyond a reasonable doubt the most obvious example.
Our system is of course based on English law. The so-called “man on the Clapham omnibus” is the hypothetical ordinary, reasonable citizen against whom certain conduct can and should be measured.
The modern equivalent is meant to suggest the non-partisan, regular citizen who has a job, and maybe commutes or drives to work in rush hour every day. The “reasonable citizen” is a regular Joe or Jane.
Everyone wants to blame someone when it comes to the public perception of “catch-and-release” justice in British Columbia, and across Canada.
But what are people really talking about when they use the term “catch-and-release” and is it reasonable? Usually, it's being used as red meat for right-wing politicians and conservative columnists who point to one-in-a-thousand cases to suggest the entire system is corrupt and making Canadians unsafe.
But what does “catch-and-release” mean? We are talking about bail, not criminal proceedings, sentencing, or parole hearings. When someone is investigated for allegedly committing a crime in B.C. and investigated, if police think the criminal code has been violated they pass the file on to the Public Prosecution Service to consider charges.
When charges are laid, the accused comes before the court. An essential element of our system is the presumption of innocence and the right to due process. The Charter, as confirmed by the Supreme Court of Canada, says that accused individuals have a right to a trial within a reasonable time – there's that word again – and bail courts must consider the least restrictive options release.
Taken literally, the “catch-and-release” trope suggests that people accused of crimes are caught by police and then they are released. Exactly. They are. That's our system. Where people get upset is when a violent or prolific offenders and gangsters are repeatedly released on bail after arrest.
Some members of the public blame the police, which is nonsense. Others are blaming Crown prosecutors for not pushing hard enough for detention of those charged with crimes. Even progressive politicians have taken up the cause. Two years ago when the topic was front and centre, Premier David Eby blamed federal Bill C-75 and its principle of restraint, which orders judges to release on bail at the earliest opportunity over detention.
But he also blamed judges.
“In British Columbia, preliminary data on bail hearings indicates that more than half of the attempts by prosecutors to seek detention are being rejected by the courts,” he said in a statement on April 23, 2023.
But this was using an anecdote for political reasons.
So on this subject, what sayeth the man on the Clapham omnibus or the average citizen driving over the Port Mann every morning?
In the vast majority of cases when bail release is given to an accused the general public doesn't hear about it, probably wouldn't care about it, and if they did, they don't understand our system and actual risk. Here are two examples of bail decisions, remembering that extreme examples don’t tell an accurate picture of most days in court.
In fact, these are the exceptions that prove the rule.
When Tyler Jack Newton was released on bail in fall 2022, a man with 51 convictions including manslaughter, it spurred then BC Liberal MLA Karin Kirpatrick to bring it up in question period.
“Every day there is another catch-and-release horror story. Tyler Newton is a violent prolific offender,” Kirpatrick said.
Her "every day" is another example of hyperbole used for political purposes. She pointed out that parole documents showed that Newton had “blatantly and repeatedly disregarded release conditions,” and is a high-risk offender with a history of breaching parole.
Closer to home around that time was long-time cocaine dealing gangster Clayton Eheler who seems to be so slippery he couldn't be held behind bars. Eheler was convicted of processing a mountain of cocaine in a Chilliwack apartment, and one time was caught with a fake passport with his face and his cousin’s name while out on bail.
It took facial recognition software used by Global Affairs Canada to ID Eheler as the man in the photo in the fake passport. Two months later, he was caught violating conditions. Then, back in custody, without a lawyer, and with Crown counsel vehemently opposed to his release on bail for obvious (and “reasonable”) reasons, Judge David Albert let him out again.
In a Postmedia op-ed, Vancouver criminal lawyer Matthew Nathanson outlined his take on bail. I couldn’t agree more that the current discourse about being “soft on crime” isn’t helpful nor an accurate assessment of how the law and the courts work. Nathanson pointed to section 11(e) of the Canadian Charter of Rights and Freedoms that grants the right to reasonable bail as an imperative. He also pointed to Bill C-75, which says that “release at the earliest opportunity is favoured over detention,” including and with less strict bail conditions, something affirmed by the Supreme Court of Canada.
More recently we have Bill C-48, which came into effect in January 2024, which expands the concept of reverse onus forcing repeat violent offenders and those charged with intimate partner violence to convince the court why they should be released while awaiting trial. The bill has supporters and detractors for various reasons. Many domestic violence advocates are in support, Charter defenders question it's reach.
Judges have to follow the law when it comes to bail, but maybe Crown counsel could do a better job of telling judges what risk there is if certain offenders are released into the community.
“We don’t lock up presumptively innocent people because it is politically popular,” Nathanson said.
That's true, but the public isn’t upset about people with no previous convictions being released on bail. They are upset about killers and gangsters being treated with kid gloves as if they were first-time offenders.
Reasonable? I don’t know, but I suspect the man on the the Clapham omnibus would find releasing offenders on bail with backgrounds and disdain for society such as Tyler Newton and Clayton Eheler unreasonable indeed.
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Paul J. Henderson
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