Are bail conditions overused in Nunavut?
Are bail conditions 'an unjust and unnecessary restriction on the liberty of the individual?'
Innocent until proven guilty: it's the idea that punishment should follow conviction and it's one of the fundamental principles of justice. It's a principle that often gets muddied when it comes to bail conditions.
Bail conditions — such as house arrest orders, curfews, no-go zones, prohibitions on drugs and alcohol and no-contact orders — are often placed on accused offenders who are released while awaiting trial.
James Morton, who works as a defence lawyer in Nunavut, says sometimes bail conditions are necessary.
"Bail conditions are intended to make sure that the individual doesn't cause any harm to the community coming up to the trial," he says. "It's not intended as a punishment; it's intended to protect the community."
But Morton also says he sees cases where conditions overreach, such as no-alcohol orders, which he says are commonly imposed on the accused, even when alcohol was not part of the underlying offence.
"An arbitrary bail condition, say banning the consumption of alcohol when alcohol is not involved, really is an unjust and unnecessary restriction on the liberty of the individual," Morton says.
In 2014, the Canadian Civil Liberties Association condemned the use of remand — the use of pre-trial detention for accused offenders — in a report titled Set Up to Fail, Bail and the Revolving Door of Pre-trial Detention.
The report also raised concerns about the overuse of bail conditions, pointing out that "failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise a crime."
The report made special note of conditions that restrict the use of drugs or alcohol for people who are addicted, saying that such conditions effectively criminalize a medical problem.
Barry McLaren, a senior Crown prosecutor in Nunavut, says that violent offences, often the result of alcohol, make up the vast majority of criminal cases in the territory.
He says the Crown's focus is on protecting victims, not dealing with the accused's medical conditions.
"A medical condition - a result of which people get beat up, hurt, injured, sexually assaulted, and property is damaged," he says. "[Bail conditions are] not an attempt necessarily to address the condition, it's an attempt to avoid those factors."
McLaren says the purpose of bail conditions is set out in the Criminal Code.
"It's very clear that the concerns are [the accused] coming to court, re-offending, the protection of the public against further offending and, ... the general perception of justice."
Not the Inuit way
Some Inuit in Nunavut's smaller communities say that no-contact orders, designed to keep an accused away from a victim or witness, are also a problem.
"In Inuit way, it's no fair at all," says Asena Kaernerk, a community justice outreach worker in Hall Beach, Nunavut. "We are falling apart as a relative. If we can't talk to each other, our problems will never go away."
Kaernerk says the problem lies with judges not personally knowing the people they are judging.
Nery Awa is currently incarcerated at Makigiarvik, Iqaluit's new minimum security correctional facility.
He's been convicted more than 50 times in the last 30 years. By his estimation, at least half of those convictions were for breach of conditions, both bail and probation. He says having a longer rap sheet means different treatment from the courts.
"When you go to court, the judge usually sees your criminal past and what not, and she takes it from there, and sentences you according to that past."