Attorney-General Ian Scott and Premier David Peterson use an identical standard form letter in replying to citizens who write to them demanding that the Morgentaler abortuary be closed. The letter is carefully crafted to support the claim “We are doing everything we can do to enforce the law.” In fact, the provincial government is steadfastly refusing to take the one course of action which would be most effective in closing the abortuary. That course of action is to seek bail conditions.
What are bail conditions?
When a person is arrested for an offence, the police or attorney general’s department may be concerned about the possibility that the individual will repeat his offence prior to his trial. In such cases, the crown attorney applies to a Provincial Court judge for bail conditions to be imposed on the accused. These conditions are restrictions placed on the accused until the verdict is rendered. The court can impose any restrictions which it deems “reasonable.”
“Our hands are tied,” is the claim of the Attorney General, “my department has already applied for bail conditions and been refused.” That statement is the most misleading line in the Attorney General’s reply. It is true that one previous application for bail was made and that the application was refused. (It is interesting to note that the application was made under the previous Conservative government.) What the Attorney General does not add is that a new application can be made and that there is every indication that such an application would now be successful.
bail conditions would now be granted
The previous application for bail was heard by Judge David Scott in July 1983 after the first set of charges were laid. The abortuary at that time was closed. Because the abortuary was not operating, and because this was a first offence, the judge stated that he was satisfied that the accused were not likely to repeat the offence. Judge Scott went on to say, “If there was a substantive likelihood they would recommit this offence, I would detain them by a simple straightforward detention order.” Judge Scott would, under today’s conditions, be willing not merely to set bail conditions but would be willing to jail the abortionists if they refused to accept the bail conditions.
This decision was appealed to the Divisional Court. Judge Trotter heard the appeal and the question to be decided by him was whether or not Judge Scott had made errors in law. Trotter concluded that Scott’s decision was correct in law. In his decision rendered July 28th, 1983, Judge Trotter agreed with Scott that “there is no evidence they [the abortionists] have gone back [to reopen the abortuary].” He then quoted from a recent case, which stated, “If an accused persists in anti-social behaviour and repeats his offences, the court may deal with it in the normal course.” Once again, Mr. Justice Trotter gave them the benefit of the doubt and placed no bail restrictions on them.
The situation today is, of course, dramatically different from that which existed in July 1983. Not merely is there a substantial likelihood that the accused will repeat their offence, they are in fact repeating it on a daily basis and have done so for more than a year. Thus there is every reason to believe that a new application would be successful.
Bail conditions can be obtained now
In the ordinary course of events, what would take place – and should take place in this instance – is that the police would lay new charges. When a person accused of rape is acquitted at trial, the police and the Attorney General do not provide him with protection while he continues to rape during the period that all his appeals are exhausted. Indeed the provincial government has shown its willingness to repeatedly lay charges against repeat offenders. Dozens of shopkeepers in Ontario are charged every week with contravention of the Retail Business Holidays Act for carrying on business on Sundays. These charges are laid even though the matter is before the Supreme Court of Canada and even though some of the shopkeepers attained an acquittal at trial.
In the case of the abortionists, because their offence is a Criminal Code matter, the crown attorney would be able to ask for bail conditions when those new charges are laid.
The provincial government does not in fact need new charges in order to obtain bail conditions. When an accused is released prior to trial by a justice, his terms of release can be reviewed at any time. The crown need only show that there has been a change of circumstances to have the court consider a change in bail. There are now before the courts two sets of charges – the charge laid in July 1983 and the charges laid in December 1984. The crown is entitled to ask for a review of the bail restrictions on either set of charges.
Paul Dodds is legal counsel for Campaign Life.
