Is the denial of bail for the Coutts Four truly in the interest of justice, or is it merely political imprisonment?
Four Alberta men have been in custody after 20 months, over 600 days.. They have been denied bail. A trial date has apparently now been set for May 2024. Are they meant to rot behind bars?
The group, known as the Coutts Four, participated in the blockade at Coutts, Alberta, in solidarity with the Freedom Convoy protests in Ottawa. On February 13 and 14, 2022, Jerry Morin, a lineman; Chris Carbert, a landscaper; Chris Lysak, an electrician; and Anthony Olienick, a gravel truck operator, were detained on charges of causing mischief exceeding $5,000. Subsequently, charges of conspiracy to commit murder were levied against them.
Shortly after their arrests, Prime Minister Justin Trudeau invoked the Emergencies Act. During sessions at the Public Order Emergency Commission in Ottawa, numerous government representatives emphasized that the situation in Coutts highlighted the necessity for a national emergency declaration.
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Are the Coutts Four political prisoners?
The tradition of granting bail dates back to the Assize of Clarendon in 1166. King Henry II of England decreed that individuals accused of crimes should have the opportunity to present their defence in court. This measure aimed to prevent the misuse of power, where arbitrary accusations could result in citizens being unjustly imprisoned indefinitely.
Later, in 1215, the Magna Carta stipulated that no legal actions could be initiated based solely on the word of the accuser. A fair and quick trial was mandated, and credible witnesses were required to testify under oath.
The Canadian Charter of Rights and Freedoms, section 10(c), states that “everyone has the right on arrest or detention … to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” Section 9(c) states that a protected right of Canadian citizens is “freedom from arbitrary detention or imprisonment.”
The Coutts Four have maintained their innocence, declining plea deal offers. They want to clear their names in court.
On what grounds are the Coutts Four denied bail and kept in custody?
Bail in Canada is typically denied if the accused is deemed a flight risk: keeping them in jail ensures they appear in court. The Coutts Four have not been judged to be a flight risk.
Bail can also be denied when it’s deemed “necessary for the protection or safety of the public.” The Coutts Four are not held on these grounds.
Bail is being denied to the Coutts Fours on tertiary grounds, that is, to “maintain confidence in the administration of justice.” One of the criteria for such a bail denial is “the perceived strength of the prosecution’s case.” However, the prosecution has yet to fully disclose details, preventing the defence from fully understanding the charges against their clients.
When refusing bail based on tertiary grounds, the judge weighs the gravity of the alleged crime. While conspiracy to commit murder is undoubtedly grave, the individuals in question were unarmed at the time of their arrest. Judges denying bail on tertiary grounds can ask “whether a firearm was used.” Although the RCMP showcased a cache of weapons on Feb. 14, 2022, none were used by the Coutts Four.
The R v. James case from 2010 states that bail denial on tertiary grounds should be a rare occurrence. It emphasizes the importance of upholding the presumption of innocence and avoiding punitive pre-trial detention before a just trial. Keeping someone in custody prior to their trial can hinder their ability to adequately prepare a defence.
During the Public Order Emergency Commission, which examined the reasons and measures behind the emergency declaration from Feb. 14 to 23, 2022, one justification for invoking the 1988 Emergencies Act was to bolster “confidence in government institutions.” Jody Thomas, the National Security Advisor to the Prime Minister, contended that protesters challenging the validity of pandemic measures posed a national security risk, asserting that such protests were eroding trust in public institutions and hence were threatening. Yet, the Emergencies Act does not list eroding trust in public institutions as a criterion for announcing a national emergency.
The rationale of upholding confidence in government is used in the decision to deny bail to the Coutts Four. However, denying bail to preserve public faith in the government sets a precarious precedent.
Appeal to confidence in government is echoed in the Coutts Four being denied bail so the public won’t lose trust in the justice system. But denying bail to prevent the public from losing confidence in government is a slippery slope.
The mainstream media’s portrayal of the Coutts Four often infers their guilt, despite the legal principle of presumed innocence. The Canadian Anti-Hate Network has often been a primary source for news stories, though its impartiality is debatable. Once the media established the narrative about the Coutts Four, the story was buried.
The media needs to ensure accuracy, fairness, and continued coverage for a balanced, well-informed, and neutral public discussion about this case. Such objective reporting could potentially change public sentiment, alleviating concerns about eroding trust in the justice system, whose credibility is at stake when it appears to disregard foundational principles like the Magna Carta.
Twenty months on, it’s time for the Coutts Four to be granted bail.
Ray McGinnis is a Senior Fellow with the Frontier Centre for Public Policy.
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