Punishing while Presuming Innocence : A Study on Bail Conditions and Administration of Justice Offences

Abstract

This paper examines the process and outcomes of bail hearings, focusing on cases where defendants’ hearings involved administration of justice and sentencing offences. The data analyzed for this project suggests that despite the presumption of innocence and non-punitive official objectives of judicial release, the practice by law enforcement and courts at this stage of the process tends towards punitiveness. These punitive responses are illustrated by three main findings that relate to the detention of individuals accused of administration of justice or sentencing offences, the number of conditions of release breached per combination of charges, and the breached conditions of release. These processes are understood through a durkheimian lens, using Fauconnet’s work which considers the social function of punitive processes as focused on annihilating the criminal act to establish social order. As will be seen, this function is achieved through the selection of a scapegoat that is rapidly punished, rather than appropriately assigning individual liability.

Pre-trial Detention and Bail: Criminalization of Legally Innocent Women in Canada

“…Moreover, those released on bail face stringent conditions as per section 515(2) of the CC (1985). When the accused breaches any of these conditions, they are brought to court again, judged for this new offence against the administration of justice (AOJO), and can be found guilty, receiving a custodial sentence (Manikis & De Santi, 2019), known as "the revolving door of pretrial detention" (Sprott & Myers, 2011).…”

The More Things Change, the More They Stay the Same: The Obdurate Nature of Pandemic Bail Practices

“…The pretrial release decision influences the accused's entire experience of the court system. The uncertainty of the pre-trial experience (Pelvin 2017;2018), the challenges of securing surety supervision (generally a family member or friend who agrees to supervise the accused in the community and promises the court a sum of money should the accused commit an offence or fail to comply with their bail) and restrictive conditions of release (Manikis and De Santi 2019;Deshman and Myers 2014;Myers and Ireland 2021;Sprott and Myers 2011) are differentially experienced and set many people up to fail. People marginalized by race, poverty, mental health, and substance use have a different experience of the system .…”