I will admit that I am not well-versed in the Tamara Lich or “Freedom Convoy” matter(s). I wrote this article after seeing the public reactions to Tamara Lich being arrested for breach of bail. I can’t entirely agree with their approach, as their message was lost through the side-show antics. Essentially, they just pissed people off and allied themselves with religious extremists and white supremacists. Whether knowingly or not, the white supremacist and spiritual fanatic allies did little for their credibility.

Disclaimer: This article gets a little academic but bears with me; I’m going to explain why bail is so important and why you might find me freaking out in bail court when my client is arbitrarily detained.

 Now and again, the news is punctuated by some grandstanding politician criticizing a court’s decision to grant bail. You saw this with Premier Doug Ford when he announced a “Gun Bail SWAT Team”, which was going to specialize in making sure individuals charged with firearms offences are not granted bail.

The opposite happens when a person granted bail is re-arrested, and cries of “police state” and “communist dictatorship” are thrown around with great abandon.

A world of ignorance and misunderstanding is at the core of statements such as Premier Ford’s or Brian Lilley’s tweet regarding Tamara Lich’s most recent arrest. I do not blame Brian Lilley. The only thing I take issue with is his masquerading as a journalist when the contents of his articles and the Toronto Sun writ large should line a bird cage.

I do, however, blame Premier Ford. He should know that the right to reasonable bail is enshrined in section 11(e) of the Canadian Charter of Rights and Freedoms. Further, release from custody is the presumption, not the exception, and bail cannot be automatically denied for a specific offence. The Supreme Court of Canada (SCC) has been prominent on this issue: bail is always available, no matter the allegations.

What is Bail?

The formal name for a bail hearing is a Show Cause Hearing derived from the habeas corpus principle, meaning “bring forth the body”. The focus is rooted in the Magna Carta, 1215 and was signed by King John of England as a way of making peace with a group of rebel Barons.

The main idea behind habeas corpus and, by extension, a bail hearing is: that if the state is going to put a human in a cage, they must provide an adequate reason. Hence, “show cause”. The wording may seem old-fashioned, but the principle of habeas corpus is a fundamental part of our democracy.

What Happens at a Bail Hearing?

*** A more fulsome description is provided here***

If you are arrested, and the police decide to hold you for bail, you will be held overnight and brought to a bail court in the morning.

A ruggedly handsome, possibly pear-shaped lawyer will argue for your release in front of a Justice of the Peace (JP). Your lawyer may propose a surety which is someone who comes to court and commits to monitoring you should the court decide you are releasable.

The surety will likely make a monetary pledge with no deposit. In Canada, we have made a great effort to avoid the American cash-for-bail system. One notable exception is if the accused lives more than 200 km from the courthouse where they are charged. In that case, the court will require a monetary sum to be deposited to ensure the accused’s attendance in court.

The accused will then be released on a Recognizance which will contain several conditions. In the case of Tamara Lich, she was required to refrain from communicating with certain people and, I believe, stay off social media entirely.

The Crown or police can re-arrest an accused if they believe the accused breached one of the conditions of their release. The accused then goes back into custody to await trial or resolution.

Contested Hearing vs Consent Release?

The Crown will consent to release for a less-serious charge depending on the offence. If the order is serious, such as murder, get out your chequebook and start calling every Aunt who doesn’t know about that deep-seated degenerate streak because it will be one helluva fight to get released.

If the Crown seeks detention, they will argue one or more of the three factors listed in section 515(10) of the Criminal Code of Canada.

First, the primary grounds analyze whether the accused’s continued detention is necessary to compel their attendance in court. Is the accused a flight risk?

Next, the secondary grounds analyze whether detention is necessary to protect a witness or prevent further offences? If an accused has a dense and persistent criminal record, the Crown will rely on the secondary grounds for detention.

Lastly, the tertiary grounds analyze whether detention is necessary to ensure public confidence in the administration of justice? Basically, would bail shake public confidence in the criminal justice system? This is where your high-profile cases come in. For example, the courts could not release serial killer Russell Williams because there would have been a massive public outcry.

I hope this clears the ground a bit. Tamara Lich was re-arrested because the Crown and police believe she breached the conditions of her previous bail or recognizance. She has the right to a reasonable bail; everyone does. Even people as unpopular and unlikeable as Tamara Lich. That is the law in Canada.

As a senior lawyer once said, “Rob, the Charter applies to the best of us and the worst of us equally. So, check your delicate sensibilities at the door.”

Never stop fighting!

RK