It is time that our justice system takes a serious look at the court process, especially as it is administered in British Columbia. In doing so, it needs to examine the connection bail and sentencing criminal deterrence. Additionally and specifically, it needs to rethink the way our courts handle bail as it relates gangs and drug trafficking. We need to look at what we call “justice” here in BC.
The court process: entitlement to bail & other factors that impact crime
In BC an accused is entitled to bail unless any of three criteria exist. First, the Crown shows cause why the detention of that accused is necessary in order to ensure that the accused will attend court. Or secondly, the crown shows detention is needed in order to maintain confidence in the administration of justice. Or third, the crown shows detention is needed in order to protect the public.
Will the accused attend court?
Suffice it to say that past behavior is the best predictor of future behavior. Therefore, any decision as to whether or not the accused is likely to attend court can easily be made based on the track record of the accused. And if no track record exists, then the person, for the purposes of this component of the three part evaluation, should probably be allowed bail based on “benefit of the doubt”. Of course that assumes the individual qualifies under the other two criteria.
Will the release of the accused maintain the public confidence in the administration of justice?
When you have a day or two we can spend that time discussing this component of the three part evaluation. However, I think we can agree that granting bail to individuals accused of certain crimes would destroy confidence in the justice system. In my mind those crimes would be
Is remanding the accused to custody needed to protect the public?
In making this determination, I think it is a “no brainer” that the various crimes discussed in the “public confidence” aspect of bail consideration, above, can readily be assumed to be crimes which would also cause the accused to be denied bail under the public risk category. Obviously, in general, those crimes are crimes which put people at risk.
Remember, although the question of bail might arise because of a particular charge, the courts should decide bail with an eye toward the person’s entire circumstances. Therefore the courts must look at the history of the defendant. They should not look solely at the currently charged offense. Accordingly, in making the evaluation required by this final component, the courts must also consider all the risk factors. First, is the accused probable to commit the same offense again? Secondly, is the accused likely to commit a different offense that might be suggested by the criminal history of the accused?
Can the denial of bail be lawfully used as a deterrent and would it be an effective deterrent?
Since bail is a privilege, the answer to the first part of this question is an obvious, “Yes”. Would it be an effective deterrent? Allow me to answer that question with three rhetorical questions.
- First, is sending criminals to jail immediately more effective as a deterrent than allowing them to run free for six months or longer as they await trial?
- Second, is not “swift” justice the most effective form of justice?
- Third, is failure to discourage an action not tantamount to encouraging that action? Think about this for a minute. if you put a bag with a dozen cookies in it on the kitchen counter and don’t tell your kid that there will be consequences if he/she gets into the bag, how many cookies will be remaining as you reach in for your cookie twenty minutes later?
Bail versus drug dealing versus protecting the public
Are street drugs a danger to the public? The answer is obviously, “Yes”. In fact, the law has averred they are dangerous to the public. If they were not dangerous, the government would have had no reason to declare them “illegal”. Accordingly, it follows that anybody dealing in those illegal, street drugs is a danger to the public. Therefore, it also follows that anybody caught dealing those illegal substances could be, and probably should be, denied bail under the need to protect the public criterium. This is especially true if there is a likelihood that such an individual might repeat that offense while out on bail.
Court Process: British Columbia and its reputation for leniency
BC is widely regarded to be one the most lenient, if not the absolute most lenient, province in Canada when it comes to punishing criminal activity. With that kind of a reputation, the criminals come here for more than our mild weather.
When you add a liberal viewpoint toward bail to the sentencing standards that already exist here, it is no wonder that British Columbia reports the highest rate of drug offenses among the provinces.
Assessing the blame for British Columbia’s high rate of drug offenses, the police or the courts?
Again, this is a “no brainer”. There would not be a statistic designating BC’s high rate of drug offenses unless there existed arrests from which to compile that statistic. Ergo, it follows that the police are doing their jobs by arresting drug dealers. So it must be our courts that are failing us. They are not executing their assigned duties in a manner that inhibits the proliferation of drug dealers and illegal drug sales in BC.
Catch and Release
Before my twin brother, Doug Hannon, A.K.A. The Bass Professor, died in early 2013, he had been a strong advocate of a “catch and release” program. Of course, my brother was not a judge. He was a world famous bass fisherman and guide. When fishing, a “catch and release” program was appropriate to preserve the sport. With all due respect to our judges, the current and long practiced, “catch and release” program is not appropriate when adjudicating the fate of drug dealers. We do not want to preserve the sport of drug dealing. Leniency has been, and continues to be antithetical to justice. It encourages drug dealing and is demoralizing to our police.
We have a flawed court process. There is no justice when a drug dealer is incentivized to, and can easily, avoid incarceration for up to eighteen months. As the old legal maxim states, “Justice delayed is justice denied”. When a dealer understands that he can put off sentencing for an extended period of time, that dealer is encouraged to believe that he can commit his crime without any real consequences. This is shortsighted. But if dealers were not shortsighted, they would not be committing a crime for which they will almost assuredly get caught.
There are other benefits to delaying trial. After eighteen months, especially in our increasingly mobile society, the original officer involved in the arrest may have retired or moved away to another police department. That makes the successful prosecution of the arrestee less probable. Additionally, the file may have sat in Crown Counsel’s office for so long that crown is content to plea bargain the file away.
Assume that it is your job to dig holes for telephone posts. However, every time you dig a few some guy comes behind you and fills in your holes, thus forcing you to dig them again. Would you begin to wonder if there was any point in your job? How do you think the cops feel about catching drug dealers?
The cops often set up some costly and time consuming sting operation against several dealers. At other times they tediously surveil a dealer or two until they catch their prey in the act. Then they endanger their own well being to make the arrest(s) only to find out that their hard work and risks were for nought as the arrestees are out on the streets within a day or two slinging their dope again. The only difference between what the cops experience when arresting drug dealers and what you might experience watching your post holes getting filled in is that it costs you a heck of a lot more money to deploy police officers than to hire a hole digger.
Our court system has two basic tools with which to control the drug problem. It can do so through bail or through incarceration. Within those two tools are sub-tools. There is the amount of time to which a convicted dealer is sentenced. Also there is the amount of time which the criminal will actually serve. This is because “time served” while the criminal awaits and goes through the trial process can count for up to two days for each day in custody.
Credit for time served, AKA: Slide Rule Justice
Currently, an accused dealer who has been denied bail normally receives credit for a day and half to two days for each day of incarceration prior to a sentence actually having been passed. Thus, when bail is denied the effects of this on the decisions of the accused are profound.
Put yourself in the mind of the criminal awaiting trial. Suddenly, you realize that every delay that you create in the courts proceedings benefits you. You are rewarded with a one third to one half reduction in the time you must eventually serve when convicted.
Thus, if the criminal is sentenced to eighteen months and it took a year before that sentence was passed, he/she walks out of the courtroom a free person the moment the gavel comes down. That is absurd! A criminal should not be able to shorten jail time by delaying judgement.
Day for day credit
If instead, the criminal was offered no incentive to slow the court process, he/she would be more likely to not slow that court process.
The simple fact is that the criminal doesn’t carry a slide rule. The criminal doesn’t care about what the actual sentence was. He/she only cares about how much time was spent in jail. In the criminal’s mind, “time served” is just the idiocy of the court process and a factor to be taken advantage of.
Court delays cost you money
Additionally, with the delay of the court process the criminal has taken more dollars out of your pocket. The longer a case is in court, the more it costs as court time costs money. So the criminals escape a portion of their punishment and your tax dollars are wasted. That is double absurd!
As an aside, there exists a judge, Madam Justice Susan Griffin, who combines Slide Rule Justice with muddled logic. In a case in which I was a witness, she committed what in my mind was a miscarriage of justice. That is material for another posting though, so let’s return to how our courts handle drug dealers. In doing so, let’s discuss changes in current sentencing standards, in bail allowances and in the application of “time served” principles and see how a few minor changes would benefit BC and you.
How changes in BC’s court process of handling drug dealers would benefit society and you
The courts can discourage drug dealing and the gang activity that accompanies a fair percentage of that activity through a three pronged approach that actually creates a deterrent to drug traffickers.
Prong one, courts need to not allow bail for drug dealers by denying bail under the principle that drug dealing creates a danger to the public. It is a danger on two fronts. Drugs are considered dangerous by our laws. Additionally, the activities associated with drug dealing create a danger to the public.
Prong two, courts need to disallow extra credit for time served. This credit is antithetical to achieving a deterrent because it is misused by the dealers to delay justice, and thereby, continue their illegal activities. Prong three, courts need to start handing down “real” sentences to traffickers. Doing so would discourage criminals from even entering the drug trade or from joining gangs, the principle income of which are derived from drugs.
Is this too harsh?
I can also answer that question with another few rhetorical questions. Do you want to continue to watch the dealing and use of illegal street drugs grow in use in BC? Should you continue to be subjected to violence, break and enters, robberies and other crimes that accompany drug dealing? Do you want your town and your neighborhood to continue to be the destination of choice for addicts, gangs and drug traffickers?
Why does bail exist in the court process?
The purpose of bail is to allow the accused to be free to live life normally until a conviction might be secured. It exists because in our great country a person is presumed innocent until proven guilty. This makes a nice argument for those who are charged with a crime based on circumstantial evidence. However, in the real world, people are not arrested for drug trafficking unless there exists substantial evidence of the crime. Therefore, there is an accompanying substantial chance that the person is guilty and will be found to be such.
- Drug trafficking arrests are generally made only under one or more of the following criteria.
- The police have purchased from the individual.
- The individual was observed by the police selling drugs.
- The police found the individual in possession of dope that is individually packaged in a manner that indicates that dope is for sale.
- The police found the individual in possession of a quantity of drugs the possession of which quantity is prescribed by law as PPT (Possession for the Purpose of Trafficking).
- The individual was found with drugs as well as with the “tools of the trade” of dealers, items such weight scales and/or money counting machines.
Likelihood of guilt
Under those circumstances, there is a substantial likelihood that the accused is guilty and will be found guilty. Accordingly, a denial of bail is not unlawfully denying that individual the freedoms guaranteed under Canada’s Charter of Rights.
Also, think about this while you contemplate bail
When an individual is released on bail that release is conditional. The person must report to a Bail Supervisor”. Additionally, that person will have certain restrictions such as “being of good behavior and maintaining the peace”. (This is legal speak for “won’t be out there committing crimes”).
So, we have this person who is accused of dealing. And in all probability, this individual has never held a steady job. He has no trade licenses or certificates. Additionally, he has tattoos or piercings that are, at best, distasteful to a potential employer. Therefore, how is this person supposed to feed himself/herself while out on bail? We all know that he/she will be back to slinging to survive, and therefore, in violation of bail conditions. This is not rocket science.
The court process fails to ask, “How else can he sustain himself?”
Let’s say that I’m wrong. Instead, let’s say that this person, instead of immediately starting dealing again, goes to his/her family. Then the family tells the judge that they will support and watch out for their child while he/she awaits trial. Is this the same family whose example and support wasn’t able to keep their son/daughter from turning to dealing in the first place? Don’t you feel comforted now? Did these parents suddenly become good parents? We all know that it is back to slinging.
The prospects for the accused not dealing as he/she strings out the trial process as long as legally possible become even less if the defense to trafficking was that the person was just supporting a personal habit.
Defense lawyers tell judges what they want to hear
Defense attorneys understand the court process. They tell the judge their client is an addict to excuse the client’s crime, blaming it on drugs. But I will never understand why judges don’t think through the logical implications of having a drug habit to support. Where in the court process is there a realization of what is required to support a drug habit? With a drug habit, how can the accused “be of good behavior?” Further to this, if the judge really feels sorry for the accused because of his/her drug habit, would not the compassionate thing to do be to deny bail. That would give the accused a much better opportunity to get clean by being in jail where drugs are more difficult to obtain.
What is the purpose of incarceration?
The following sections from the Criminal Code are the codification in Canada of the principles which have governed
sentences in the common law:
- Denunciation – making sure the punishment reflects society’s abhorrence for the crime committed
- Deterrence (both specific for the accused and general for the population at large) – to reduce criminal conduct
- Rehabilitation – to change the behaviour of an offender and reconstitute them as productive citizens
- Protection of the public – through incarceration and/or the imposition of conditions to control the accused’s behaviour in the community and to prevent the repetition of the criminal activity.
I’ve been in the trenches for fifteen years
For some fifteen years, I lived in the environment of the drug community and interacted with drug addicts and dealers alike. Thus I can assure you that our court process is considered a joke by all. BC’s sentencing standards, especially when added to its lenient attitude toward bail fulfill none of the purposes spoken of above regarding the reasons for incarceration as those reasons relate to stopping and/or punishing illegal drug activity. I have already explained what is wrong with our bail system. Now read the quote in the next paragraph. Then you will understand what is wrong with our sentencing standards, and therefore, why our court process ensures that drug problems in B.C. will keep growing.
The reality of what happens in BC versus other provinces to those who are arrested due to drug offenses
“As was previously explained, British Columbia has, in the past, consistently reported the highest rate of drug crime. Statistics in 1997 show, however, that with respect to charging drug offenders, the province of British Columbia is more lenient than other provinces.”
Are you starting to understand yet that something is seriously wrong with the way we treat drug offenders in British Columbia?
Precedent – Another pitiful failure of BC’s sentencing standards
“Precedent” is an intrinsic part of the court process. Succinctly defined, it is the act of comparing a possible sentence to other sentences issued in similar circumstance to determine if that sentence is fair and serves the purposes of justice.
We need sentencing standards that are EFFECTIVE
At face value, the principal of “Precedent” seems like a noble doctrine, but wait a minute. We are dealing with a sentencing standard that has seen BC become the most drug infested province in Canada. Now we are continuing to use the very sentencing standard that brought us to this point as a yard stick to determine whether or not current sentencing standards are fair. Does that not seem wrong to you? How about insane?
Is it just me or does it seem to you as though our courts just molly cuddle drug dealers, and thereby, exacerbate our problems?
In a future post I will discuss with you the danger levels of various drugs and how differing sentencing standards can be effectively used to target each of those drugs. As well, I will show how sentencing standards can be used to effectively target the various types of drug dealers, depending on their motivation.
What can you do?
It is not going to stop. In fact, it is going to continue to get worse until you raise your collective voice. You need to do so with letters to newspapers, with blogs, and with letters to television stations and radio stations. You should contact your MLA, and telephone all of the above, including live talk shows.
The price you will pay for waiting could be the shooting next door to you. Or it might be the break and enter when you are not home. It could also be the dealer living down the street while his customers leave dirty rigs to poke you or your child.
Your battle cry should be: “PUT EM IN JAIL, FORGET GRANTING BAIL”.