Today, we’ll get into the third installment of how to facilitate your Indigenous clients’ rights to reasonable bail: Securing a consent release.
Securing a Consent Release
Before you make an application for release before a justice, it’s almost always a good idea to canvass the idea of negotiating for the Crown’s consent to the application. When you do so, keep the following in mind:
- If the police have made the decision to remand your client into custody without a Crown Attorney’s input, or you have a new Crown Attorney on the file who did not authorize the initial remand, canvass the position of the new Crown on release. Do this before proposing a bail plan, if possible. Sometimes the Crown will surprise you with an agreeable position on release.
- Remind the Crown of the Gladue factors that militate in favor of release. Especially where the accused is being held hundreds of kilometres from his or her home, incarceration can be particularly hard on remanded Indigenous prisoners.
- If the Crown is initially opposed to release and you have a realistic bail plan you wish to propose to a court, advise the Crown what it is. It may change their mind.
- Ask the Crown for the grounds upon which they’re opposed to release: primary, secondary, or tertiary.
- Ask if there are any conditions upon which the Crown would consent to release. If there are such conditions, ask the Crown if they are willing to propose those conditions to a judge, even if your client does not agree to them. In other words, find out if you can change the nature of the hearing from an “opposed bail” to one in which you argue about what conditions to impose.
Don’t Close the Book
Even if a Crown refuses to consent to release at one stage of the proceedings, they may be willing to reopen discussions on the topic at a later date. Cases change over time (usually for the worse for the Crown), new Crowns are assigned, or a new bail plan materializes. In other words, the stars may align for your client at some later time even if a Crown previously refused to consent to their release.
More Flies With Honey
The old saying goes, “You catch more flies with honey than you do with vinegar.” Nowhere is that truer than when dealing with Crown Attorneys. Securing a consent release on favorable terms is as much a test of your negotiating skills as it is a barometer of your client’s criminal record or the strength of the Crown’s case.
For this reason, know how to negotiate. Read some negotiation textbooks and learn about interest-based negotiation. Practice negotiation strategies and tactics (business literature is an excellent resource for this). If you’re really desperate, read my article on How to Negotiate Bail.
Don’t Let Fear Cloud Your Judgment
Many defense counsel, especially less experienced ones, will jump at any agreement the Crown offers. This can be a mistake. When the Crown proposes a release plan, consider it carefully and present it to your client. While the decision of whether to agree to the Crown’s release plan ultimately belongs to the accused, your advice to him regarding whether to accept it should depend on a few factors:
- Are the conditions proposed by the Crown as favorable or more favorable than what you’re likely to see imposed by a justice?
- Are the conditions proposed by the Crown feasible for this accused? In other words, is there a reasonable possibility this accused can abide by the conditions?
- Are all the conditions suggested based on credible and trustworthy evidence that would be available to the Crown at a bail hearing?
If the answer to any one of those questions is no, your advice to your client should likely be to reject the agreement and proceed to a contested hearing.
Pay particular attention to the living situations of your Indigenous clients and how they may affect their ability to abide by conditions. It may be simple to follow a no-contact condition in a big city but, for example, an Indigenous person from a small reserve might find that impossible.
Securing a consent release isn’t a one-off attempt. Keep trying as the case goes on, even if your client has been denied bail.