While GPS monitoring has become an accepted part of the bail system, it’s important to weigh everything before deciding whether and when to propose it.
Case law has established the ladder principle, which is that the conditions imposed as part of a bail should be the least onerous ones necessary to meet the legal tests. At the same time, in difficult cases, the accused risks being detained if they don’t present a plan of supervision that is strong enough.
Several risk factors
Courts consider several risk factors, including that you will flee the jurisdiction or not show up for court, that you will commit further offences that endanger the public or interfere with the administration of justice — by intimidating a witness, for example — or that your release would undermine the public’s confidence in the administration of justice.
Judges can impose a number of conditions to try to mitigate those risks. They can order house arrest or a curfew, and prohibit the use of alcohol, drugs, cellphones or the internet.
RSC provides a variety of monitoring options that are used in criminal and family court applications, including GPS and alcohol monitoring.
Strengthening bail plans
Some accused persons will propose wearing a GPS ankle bracelet when they believe their bail plan needs to be strengthened in order to persuade the court that they can be released.
Being required to wear a GPS ankle bracelet is very intrusive and expensive, so you wouldn’t want to propose it if you thought the court would release you without it. Courts do sometimes release people who have agreed to GPS monitoring without requiring it, but there is always a risk that if you propose it, the court will order it — even if you might have been released without it.
Some people decide not to propose GPS monitoring at an initial bail hearing. Then, if they aren’t granted bail, they will add it later when asking a higher court to review the decision to detain them. There is a risk in doing this because, unless the original court made a legal error, the detention decision can only be changed if there has been a material change, such as some charges being dropped or new sureties being available. Some courts have found that adding GPS monitoring to a plan is a material change, while others have found that it is not.
RSC and GPS monitoring
When finding that GPS monitoring is not a material change, some courts have cited the fact that the accused could have presented it at the initial bail hearing but didn’t. Others have found that adding GPS monitoring at the review stage is a material change even though it could have been presented at the initial hearing. These different approaches mean that defense counsel need to be thoroughly familiar with the case law when advising their clients.
The bottom line is that it’s important for defense counsel to give thorough advice and for accused persons and their families to carefully consider whether to include GPS monitoring in their original bail plan or hold it in reserve to be proposed at a review hearing if they are detained.
When its GPS monitoring is being considered, RSC provides comprehensive written material explaining the program, which can be submitted to the court on its own or in addition to an RSC witness testifying. RSC is also able to provide defense counsel with helpful references to the case law on material change and other legal issues that may apply in specific cases.
Electronic monitoring has become a common consideration during bail hearings, but there are still some misconceptions about its use.
Myth 1: Electronic monitoring is only available through government-run programs.
There is now abundant case law applicable across Canada establishing that accused persons can take the initiative to propose, as part of their bail plan, that they be subject to a privately operated electronic monitoring program like the GPS and alcohol monitoring programs developed by Recovery Science Corporation.
As an example, in a recent application for bail pending appeal of a first-degree murder conviction, Justice Gary T. Trotter of the Ontario Court of Appeal, wrote, “… many Ontario judges have relied upon Recovery Science Corporation to assume this important role. In this case, I too am prepared to do so, and consider it to be a significant element of the release plan.”
Myth 2: The effectiveness of electronic monitoring is limited because it cannot prevent violations.
While older cases focused on electronic monitoring’s inability to prevent violations or guarantee immediate police response, courts now recognize that imposing those extreme standards was not consistent with the principles of the law of bail. Courts now accept that monitoring has a deterrent effect and a risk-management value that can help a plan of supervision meet the applicable tests on the primary, secondary and/or tertiary grounds.
Myth 3: Private electronic monitoring programs are not available where you are.
Recovery Science’s programs are available across Canada and have helped over 750 accused persons obtain pre-trial release, either with the Crown’s consent or after a contested hearing.
Myth 4: Advising clients facing pre-trial detention about electronic monitoring options is straightforward and there is not much case law about it.
Private electronic monitoring programs for bail are now well-established and there is a significant body of case law considering when it does and doesn’t make the difference between pre-trial release and detention.
RSC can help lawyers:
- Assess whether monitoring may be of benefit to their client in obtaining pre-trial release, and/or enabling them to work or attend school.
- Explain the program to the client, and their sureties, to confirm they understand the requirements and the implications of being monitored.
Myth 5: Presenting a plan with private electronic monitoring will require a great deal of counsel’s time to research case law and explain the program to the court.
Recovery Science has been involved in well over 1,000 bail hearings and bail reviews. We provide counsel with court-ready written material, make ourselves available to answer questions from the Crown in advance of a hearing, and, if necessary, and we can testify in person or remotely.
We also have an extensive list of cases and can assist counsel in identifying the ones that are most pertinent to the issues in a specific matter.
Electronic monitoring is an important factor that courts consider when deciding whether to grant bail to a person who might otherwise be detained.
When someone knows that their compliance is monitored 24/7, it changes the calculus.
If the wearer knows that violations will be detected and reported to the police, a person — who might otherwise be considered a risk to violate conditions — is more likely to comply. Plus, all breaches are documented, and that evidence can then be used against the person in future hearings.
So, the shift for the court’s analysis is from trusting that a person will not commit a violation, to trusting that a person comprehends the deterrent.
RSC has demonstrated a credible, reliable program that can make the difference between pre-trial release and detention in many cases. The proof is in the 750 bails, granted across seven provinces, that have included monitoring by RSC.
Without a way of monitoring compliance, prosecutors and courts are often left with the difficult and subjective task of assessing the degree to which the accused can be trusted to comply with release conditions. RSC’s programs can help shift that subjectivity into something more objective.
First, it changes the standard from a subjective assessment that the accused is likely to honour his or her bail terms, to objective monitoring 24 hours a day, seven days a week. The shift is from attempting to subjectively quantify confidence that a person will not violate their conditions — even though the risk of detection is low — to assessing the impact on them knowing that detection is certain.
For example, knowing that being late for curfew — or going to a location specifically prohibited by the court — will be detected and reported becomes a powerful motivator to comply with release conditions.
Risk is generally intertwined with the likelihood of detection. Speeding is one analogy. Adherence to a posted speed limit can be correlated with how certain detection is. Drivers are less likely to speed in locations where they know police enforcement mechanisms are in place.
Monitoring has made the difference even in cases where the accused has a history of failures to comply with release conditions when not being monitored. Electronic monitoring increases the court’s confidence that even if an accused has breached conditions in the past — without monitoring — they will be less likely to breach while being monitored.
Where a person has taken risks because he calculates the chances of being caught as being low, the monitoring changes the analysis.
In addition to encouraging compliance with specific conditions, such as curfew or permitted exceptions to a house arrest, GPS monitoring is also a deterrent to a person committing offences where the record of their location would link them to the offence.