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View from trenches: Ramifications of restrictive bail conditions during COVID-19

Wednesday, March 03, 2021 @ 1:57 PM | By Michael Oykhman


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Michael Oykhman
As lawyers, we are constantly bombarded by multiple sources of information, whether it be through jurisprudence, legal commentators, researchers, experts or professors. Everyone has a narrative and a perspective through which the story is told. As a practitioner, I wanted to share an experience I had, direct from the trenches of criminal defence bail work during COVID-19.

Facts

I recently had a client who was charged with several offences, including sexual interference and sexual assault on a minor. The complainant was a teenage girl he was introduced to in person. The situation was not particularly unique and was not unlike cases criminal lawyers see on a daily basis. As usual, the file was referred to the bail office with a litany of recommended “standard wording” conditions as terms of release, including:

  • no Internet
  • no electronic devices,
  • no contact with any children, and
  • no attendance at any places where children might be.

My client had no criminal record and was compliant with authorities in every respect. The prosecutor who conducted the bail hearing skipped over most of the recommended restrictions and authorized release on fairly manageable conditions.

Less than a month later, my client was again arrested because the original investigation (for which he was previously charged and released) revealed that there was a second complainant. Again, the prosecutor was not opposed to release but was insistent that release be on “standard wording” conditions. There was a long list of conditions proposed, the most severe of which included:

1. Not to possess or use any device, electronic or otherwise, that is designed for or capable of making or capturing visual recordings, including a photograph, film or video recording including but not limited to cameras, camcorders, video recorders or camera equipped cellular telephones;

2. Not to have at his residence or be in possession of any personal computer, whether desktop or notebook, or any other device capable of accessing the Internet (including an iPhone, Blackberry or cellphone);

3. Not to have Internet access at his residence;

4. Not to attend any cyber cafes or establishments where the primary business is the provision of Internet access; and

5. Not to attend any schools, parks, playgrounds or other locations where children under the age of 18 are most likely to be present.

Despite strenuous objections by defence counsel (me), the judge released my client on the “standard wording” conditions that the prosecutor sought and even added a clause not to be within a one-block radius of any place listed in condition #5.

Paralyzing restrictions

It’s easy to understand why, when it comes to child sexual assault allegations, courts may seek to protect the public in the maximum way possible, slapping every condition imaginable on someone charged with such a crime.

Fortunately, the Supreme Court of Canada weighed in on the issue of appropriate release conditions recently in R. v. Zora 2020 SCC 14. The Supreme Court cautioned lower courts to be mindful of the conditions they impose, instructing that they be minimally intrusive and targeted specifically to the harm sought to be addressed:

“Restraint is required by law, is at the core of the ladder principle, and is reinforced by the requirement that any bail condition must be necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the specific statutory risk factors under s. 515(10) of risk of failing to attend a court date, risk to public protection and safety, or risk of loss of confidence in the administration of justice (Trotter, at p. 1-59; Antic, at para. 67(j); see also s. 493.1 of the Code as of December 18, 2019)” (at para. 100)

When viewed through this lens, it’s not hard to see that “standard wording” conditions, particularly in their “standard” form, are grossly overbroad and are effectively paralyzing.

No Internet access

The condition not to access the Internet, nor possess ANY device capable of accessing the Internet is not only crippling to daily life, but often near impossible to comply with.

Just thinking about the number of daily (or even hourly) connections we have to the Internet, and the idea of losing this liberty makes me cringe. No Internet means no online grocery shopping, no Amazon, no banking, no Uber, no Door Dash, no Zoom meetings, no e-mail, etc. With print telephone directories going the way of the dinosaurs, there is not even an ability to find a phone number or address for pretty much any business or service someone might need.

This restriction takes on particular significance as we struggle to access information and maintain social contacts during COVID-19. Where the only meaningful ability to see family and friends is through video, no Internet also means near total isolation.

No devices capable of accessing Internet

Not to be in possession of a device capable of accessing the Internet compounds the issue. It’s not as simple as just turning the Internet signal off. This condition requires that a person not only do away with their desktops, laptops, iPads, etc., but they must also take down their smart TVs, their Alexa and their gaming devices. What if the subject of these restrictions lives with other people? The detrimental effects would extend to the whole family. The absurdity does not end there, however. In today’s day and age, a person subject to such a condition would have to rip out their doorbell, their security system and in some cases, their entire home automation system. Even a vehicle might have to be turfed if it has Internet capability. Certainly, that Tesla would have to go.

No contact with anyone under 18

Finally, there is the “standard wording” condition regarding access to children. This condition is so overbroad, it begs the question as to where a person bound by such a condition can actually go. “Not to be anywhere a child might be” includes basically anywhere except a bar or a casino. It means no malls, no buses, no grocery stores — no stores at all (unless it’s a liquor store).

Compound that on top of the restriction on Internet use, and you have complete isolation, in many ways worse than actual jail.

No attendance anywhere children may be present

The “standard wording” condition against going to a park sounds innocent enough. What adult really needs to go to a playground anyway — don’t answer that. But if you think about it, this clause includes city parks, provincial parks and national parks. What possible connection is there between the offending behaviour and this condition? Unless the offence happened in a park, there isn’t one.

The one-block radius add-on makes things a lot worse. Even if the client is lucky enough not to live a block away from one of these locations (my client was not so lucky), it’s near impossible to go anywhere without driving past one. If that’s not a set up for breach, I don’t know what is. But wait, “no one would charge someone for driving by, or walking by, a park,” you say? You may think that, but I can assure you that you would be wrong. Discretion to lay a charge, and discretion to prosecute, like beauty, is in the eye of the beholder.

No contact with any children

Even the condition not to have contact with any person under the age of 16 (which I didn’t expressly list) is a huge overbreadth. If a person sexually assaults a woman, we don’t say “you can’t have any contact or communication with ANY women.” If a person abuses an animal, there is no “standard wording” condition not to have any contact with “any animal.” Why is there a condition not to have contact with ANY child?

Devastating consequences

I’m sure most of you down in the trenches of criminal law have run into these “standard wording” conditions yourselves and realized the same absurdity in them. By describing these conditions as “standard wording” as Crowns and courts refer to them, it gives them presumptive standing. Rather than the Crown having to justify them, and to justify the very broad wording of each, these conditions seem to be treated as the default starting point. This effectively creates a reverse onus on defence to seek limitations or exceptions to this “standard wording.”  

That was certainly the position I felt I was in, as the judge in my case continually referred to the “standard wording” conditions. When I attempted to show the absurdity of these conditions, and that even attempts at exceptions were insufficient to cure it, I was met with a retort that the “standard wording” could just be imposed with no exceptions if I kept pushing.

Ultimately, my client was released on these “standard wording” conditions with minor, albeit ineffective, exceptions. My client lived alone, and with the COVID-19 restrictions on seeing people in person, and with no meaningful Internet access due to the release conditions, I felt he got a raw deal.

I could feel the weight of not only the charges, but of the debilitating conditions weighing on my client. I told him we would appeal. I told him we would cite Zora, supra, and I would certainly bring all these concerns (listed above) to a higher court’s attention.

Unfortunately, I never had the chance to fulfil these promises. My client killed himself not long after he was released on these “standard” conditions. I do not know for certain why he took his life, but I imagine the extreme restrictions he was placed on had something to do with it.

Sometimes, the grant of release from custody pending trial is no liberty at all. In the COVID-19 era, where people’s anxiety, depression and overall stress levels are already at all-time highs, harsh conditions (whether justified or not) can have significant and unintended ramifications. Furthermore, when coupled with the stigma of merely being accused of a sexual offence, these types of restrictions can easily push someone over the edge.

So, what’s my parting advice? When considering imposing “standard wording” conditions, beyond the many cautions listed in Zora, supra, all actors in the justice system should also consider the compounding impact of being charged (particularly when it’s a sexual offence) and the psychological effects of such restrictive conditions. As someone once said, the cure should not be worse than the disease.

Michael Oykhman is the managing partner at a Savage Oykhman Law, full-service criminal defence law firm, with central offices across Western Canada and Ontario. Since his call to the bar in 2007, he has conducted a broad criminal practice, from mischief to murder. When not in court for his clients, Oykhman advises students at the University of Calgary pro bono law clinic and routinely participates in various education initiatives at the University of Calgary.

Photo credit / chameleonseye ISTOCKPHOTO.COM

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