Evidential Frailties: Is it all elementary, dear Watson?


A case out of Newfoundland and Labrador this past week is an excellent reminder of the importance of why accused individuals must be considered innocent unless proven guilty. It also illustrates the very pressing need for reform of the bail system.

As outlined in this excellent article (http://www.thetelegram.com/News/Local/2016-03-11/article-4463855/%26lsquo%3BIt-was-a-horrible-situation%26rsquo%3B/1) in The Telegram, on March 2, Russell Laight, a 41-year-old man from the United Kingdom, was flying from London to Halifax in order to fulfill the wish of a friend, who—after having spent a great deal of time in Canada—had, on his deathbed, expressed a desire to have some of his ashes to be spread by his friends living in Halifax.

Unfortunately, due to the not uncommon presence of bad weather in the Halifax area, the plane on which he was travelling was forced to divert to St. John’s.

While at the St. John’s International Airport, Mr. Laight’s luggage was searched by officers of the Canada Border Services Agency (CBSA), who qualify as having the powers of peace officers, according to the Criminal Code.

The “baggie” containing the remains of Mr. Laight’s deceased friend was placed on top of the clothing inside the suitcase. Officers—quite understandably—became suspicious of the contents of the baggie and began to perform a chemical analysis, utilizing what is referred to as “NIK test,” which tests for the presence of controlled substances.

CBSA officers concluded that the bag contained ketamine, a substance that is prohibited in Canada.

Mr. Laight was arrested and charged with trying to import a Schedule 1 drug into the country.

When he made his first appearance in court (which, unless there are extenuating circumstances, is required to take place within 24 hours of being taken into custody) on March 3, the federal Crown (which has carriage of drug prosecutions) was opposed to Mr. Laight’s release. In the circumstances, this decision seems to have been quite reasonable, given the information that was available to the prosecutor, Trevor Bridger, at the time. In cases where the accused has no ties to the community, it is common for the Crown to oppose release, based on primary ground considerations (meaning that the person is considered a “flight risk,” with there being a strong possibility that the individual may not appear for trial at a later date if released from custody).

 

Thanks to the hard work of Legal Aid duty counsel, Catherine Boyde, Mr. Laight’s deceased friend’s death certificate was obtained, as were his medical records, listing all medications taken prior to his death.

The Crown agreed to have further testing of the contents of the baggie performed at a lab in Ottawa and placed a “rush” request on the procedure. Even at that, it took until March 7 for the Crown to confirm the results of the tests (“negative for narcotics, with a zero per cent chance of it being ketamine” — http://www.thetelegram.com/News/Local/2016-03-11/article-4463855/%26lsquo%3BIt-was-a-horrible-situation%26rsquo%3B/1).

By the time Mr. Laight was released from custody (after the Crown withdrew the charge against him), he had spent 5 days in lock-up.

Considering all of the steps involved, this was actually a rather fast turnaround time. Ms Boyde and Mr. Bridger, along with the people involved in performing the “rush” in-depth testing, deserve a great deal of credit for making the best of a very unfortunate situation.

This certainly could have turned out far worse; without the expedient additional testing, Mr. Laight would very like still be in custody, as it is quite doubtful—in light of primary ground concerns—that he would have been granted bail had he opted to have a bail hearing.

 

I see two significant takeaways here. Firstly, it is vital to bear in mind that simply because someone stands charged with a crime, we can make absolutely no assumptions about the legitimacy of that charge, nor can we draw any inferences about that individual’s character or actions.

It is common practice for employers to ask whether an individual has ever been charged with a crime. Is it really fair for Mr. Laight to have to answer in the affirmative for the rest of his life, explaining that he was in fact charged with smuggling drugs into a foreign country? The same question is often asked by border guards. Should Mr. Laight have to dread travelling abroad for the rest of his life, knowing that he will have to divulge this arrest record?

Secondly, it is high time to address the fact that “[o]n any given day in Canada, there are more adults in custody awaiting trial or sentencing in provincial/territorial facilities than there are adults serving a sentence” (http://www.thestar.com/opinion/commentary/2015/11/04/most-people-in-jail-today-are-innocent-michael-bryant.html; see also: http://www.londoncriminaldefence.com/the-end-of-innocence/). In Canada, there is a Charter right to reasonable bail. This is in addition to the fact that the only presumption applying to situations like Mr. Laight’s is one of innocence. In general, it’s typically sound policy to save punishment for those individuals who are actually guilty of committing crimes.


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.