Bail Court

The organizational system in court is based on cooperation, exchange, and adaptation, rather than adherence to formal rules and prescribed roles. Indeed, formal rules are only one of the many factors shaping and controlling decisions. Instead, the system is more likely to be governed by informal rules, established through the cultivation of standard operating procedures, than by officially prescribed rules of conduct. In the end, the court organization brings together groups with formally divergent goals who, on an informal basis, can agree to shared objectives and goals (Feely Reference Malcolm1973, 413).

In the criminal courtroom there are a number of independent organizations, each with its own mandate, motivations, and supervisory structure; the judiciary, the prosecution, private defence counsel, and duty counsel.^{Footnote 1} This collection of organizations is thrust together in the courtroom and is expected to work together in the pursuit of justice. Ulmer and Kramer (Reference Jeffery and Kramer1998) argue that as actors with varying interests, ideologies, or commitments confront problematic situations, they continuously engage in interaction strategies of negotiation, cooperation, manipulation, and coercion to force solutions that further their individual and collective interests (251).

Blumberg (Reference Abraham1967a) argues that an administrative, rational-bureaucratic model, rather than a due process model has been institutionalized in the courts. The ideological qualities of due process, the belief in its presence as the guiding principle governing the administration of justice, have concealed the court’s drift toward the “mediocrity of assembly-line justice” (290). Gertz (Reference Marc G1980) suggests it is precisely this shift that has introduced a lack of concern, or ambivalence, on the part of courtroom participants toward the absence of an adversarial process in a system that is premised on this very trait (46).

Despite the presence of some characteristics consistent with a bureaucratic organization, there is considerable evidence in the literature to suggest this is not an appropriate characterization of the courts (Eisenstein and Jacob Reference James and Jacob1977; Feeley Reference Malcolm1983; Jacob Reference Herbert, Boyum and Mather1983). Specifically, the term “bureaucracy” implies the existence of a rational organization, with clearly delineated hierarchical control, central administration, and a shared sense of purpose. The courtroom work unit is organized in a loosely, rather than strictly hierarchical fashion. Though judges are the formal superiors in court, in practice they share their power with the attorneys who work with them (Jacob Reference Herbert, Boyum and Mather1983).

There is no management structure or system of accountability in place to monitor the daily performance of the court. Since court actors come from different independent sponsoring agencies, nobody is responsible for, or oversees, the operation of the court; the court is like a ship without a captain. In this sense, no one is “steering the ship.” ensuring the court is effectively and efficiently processing and advancing cases through the court system. Without this hierarchical structure and system of accountability, the court has established its own informal culture and objectives. The lack of hierarchical oversight means the court system lacks the necessary organizational instruments with which to supervise and ensure the workgroup’s compliance with the formal goals of the criminal justice system.

In time, the workgroup develops a set of values that transforms into a local legal culture of shared expectations, attitudes, and practices (Dinovitzer and Leon Reference Ronit and Leon2001; Young Reference Richard2013). This culture appreciates the functionally interdependent nature of the workgroup’s relationships (Ulmer and Kramer Reference Jeffery and Kramer1998). Informal norms, rather than what is prescribed by formal rules, are the dominant force dictating the nature of interactions. The informal culture is what binds the independent specialists together in a cohesive workgroup.

This reality is unsurprising when the court is conceptualized as an organization, rather than a state-operated distributor of justice. Within an organizational context, the workgroup’s behavior is rationally connected to the attainment of their shared goals. Informal relationships and working agreements create a court culture of shared expectations about case processing, and the desire for speed tends to be linked to case processing times (Dinovitzer and Leon Reference Ronit and Leon2001; Leverick and Duff Reference Fiona and Duff2002; Mack and Anleu Reference Kathy and Anleu2007; Young Reference Richard2013). Mack and Anleu (Reference Kathy and Anleu2007) argue the courts are driven by a desire to “get through the list” and adjournments are the fastest way to dispose of cases for the day. Indeed, Resident Magistrates emphasized “getting through the list” as a key concern that could only be achieved by addressing matters rapidly (Young Reference Richard2012).

A Typical Day in Bail Court

Observational bail court data were collected for 142 full days from 11 different courts in Ontario,^{Footnote 2} yielding data on 4,080 appearances made by accused. Complementary quantitative and qualitative data were collected to capture the way cases were processed, how time was used, and the relationships among court actors. Data were collected for each accused, and included information on how each case was discussed and disposed. Extensive notes were taken on how issues were discussed in court to provide a more detailed understanding of the operation of the bail court.

On an average day 29.9 cases were heard in the regular weekday bail court.^{Footnote 3} Each accused appeared before the court for a mean of 6.5 minutes (median of 3 minutes).^{Footnote 4} To illustrate the emphasis placed on speed by the court some examples from a variety of days/locations are described below. These are not exceptional; rather, these depict the daily reality in bail court.^{Footnote 5}

1. 1- A consent release was proposed to the court and the surety^{Footnote 6} was to be named. The surety stood up and was proceeding toward the bench when the JP said the following:

   • JP- “Bring your ID up here. Get it out, you can walk and get it out of your wallet at the same time! You are able to do two things at once, aren’t you?”

2. 2- After a number of adjournments and consent releases in rapid succession, the clerk (who prepares all the paperwork) said to the JP:

   • Clerk- “Slow down please, we are getting mixed up. We are tired and we have not had a break.”

3. 3- Defence counsel was speaking to the client, trying to get instructions on how he would like to proceed when the JP interrupted their discussion saying:

   • JP- “You are holding up the parade, make up your mind.”

   • JP- “We have to move on, we cannot take 10 minutes per person.”

4. 4- In the middle of a bail hearing,^{Footnote 7} where the Crown was examining the surety the JP interrupted asking:

   • JP- “How much longer is this going to take? Honestly!”

5. 5- During defence questioning of the accused during a show cause hearing^{Footnote 8} the JP cuts off the accused, saying:

   • JP- “Get to the point. Why did your surety pull your bail? I don’t have all day.”

   • A-“It was too difficult because my surety is friends with my wife and kids. . . .”

   • JP (interrupting) - “OK ALREADY! After all this time in the country you have no one that can be your surety?”

   • A- “I don’t want to ask people because it puts them between me and my wife and kids.”

   • JP- “You are risking staying in jail.”

These quotes demonstrate how the justice, faced with a long list of cases, tries to rush the in-court process. Indeed, the court resembled an assembly line in that disruptions to rapid processing were greeted with distain and a reminder that the court must move on.

Use of Court Time

As seen in table 1, on an average day, court was open for operation^{Footnote 9} for 5 hours and 49 minutes. The time between these start and end points, however, was actively used to varying degrees. Dead time was defined as operational court time that was not being actively used; it was calculated as the total amount of time expended on recesses and time when court was in session but was not being used. Dead time comprised on average 2 hours and 33 minutes a day. Dead time was deducted from the operational hours resulting in a mean of 3 hours and 15 minutes of actual used court time on an average day. During this “active” time period of 3 hours and 15 minutes, the court heard on average 29.9 cases.

Table 1 Court Operating Time (Hours: Minutes)

Note: Since we are looking at averages across days, the average dead time and average time remaining do not exactly equal the average operating time.

The amount of time available to address the daily docket was to some extent controlled by court staff as they determined when the court closed for the day. At the direction of the Crown or justice, court closed before 5:00 p.m. (91% of observed days) and in many cases before 4:00 p.m. (on 66% of observed days).

Hold Downs

The court was often reluctant to grant a “hold down,” a request to return to the matter later in the day, and preferred to adjourn the case if it was not immediately ready to proceed. At some point in the day the court has to make a decision about how to dispose of cases. However, it was not unusual for an accused or duty counsel to request a matter be held down (most commonly for the arrival of private counsel or a surety) and for the justice of the peace to deny this request (with or without the Crown’s objection to the request). In denying a hold down request the court was conveying the message that the process of returning to an accused’s matter later in the day was too time intensive. In most instances in which hold down requests were refused, the court adjourned before 5:00 p.m., and in many instances before 4:00 p.m., which means that it was extremely likely there would have been time to hear the case at the end of the day.

At 10:08 a.m.

On another day at 9:45 a.m.

Interestingly, hold downs were also routinely requested by the Crown or the justice of the peace when defence counsel indicated the defence was ready to proceed with a show cause hearing early in the day. The Crown or the justice of the peace would then request the matter be held down until the court finished addressing everyone on the docket. It was not unusual for justices to indicate they wanted to address all of the adjournment requests and consent releases before they would entertain a show cause hearing.

At 10:10 a.m.

On another day at 1:10 p.m.

It may make sense to address consent releases first so the paperwork can be processed and the accused released. This logic, however, does not extend to matters that are being adjourned. By addressing adjournments early in the day and leaving show cause hearings until later in the day, there was the possibility that the court may “run out of time” to hold the hearings. This means priority was given to cases with quick outcomes (adjournments) rather than to those that required a more lengthy process (hearings) but in the end would result in a bail decision being made. Accused whose cases were adjourned were going to return to a custodial facility whether they were adjourned early or late in the day. It is unclear how court actors were able to predict whether or not there would be time to hear a case early in the day.

This practice was made more problematic when private defence counsel preemptively adjourned cases when advised, on account of the accused’s place on the priority list (based on time since arrest), that the accused was unlikely to have his or her bail hearing that day. This means more recent arrests, unless they were a consent release, were more likely to be adjourned for a bail hearing. Unfortunately, it was not unusual for the priority list to change or for the bail court to get offers of assistance after the case had been adjourned and counsel had departed.

Many private counsel did not have time (nor did the accused have the resources) to sit in bail court all day to see if their matter would be reached. Private counsel were often representing a number of clients at various stages in the criminal process, in a number of courtrooms and often in different courthouses. While they may have been able to appear in bail court to represent their client, they could not wait all day on the possibility of being heard. Indeed, it was not unusual to see private counsel attend only to discover their client had already been adjourned because counsel had not been present. In other cases, private counsel would have duty counsel speak to bail as they simply could not wait for their client to be brought into court from the holding cells..

The Culture of Adjournment

Looking at the manner in which cases were disposed (see table 2) reveals a clear pattern—53.2% of all cases observed were adjourned to another day. Across all the courts, close to half of the bail cases were adjourned to another day, each and every day of observation. This is remarkable given that the law governing bail suggests the bail decision is to be made relatively quickly after an arrest. Specifically, accused detained by the police are required to be brought before a justice within 24 hours of arrest without delay or as soon as possible if a justice is not available (Criminal Code s.503(1)). Further, according to s. 516(1), the justice may, on application by the Crown, adjourn the bail proceedings for a maximum of three clear days. This may be done without the consent of the accused for the purposes of further investigation or to gather the necessary information for a s. 524(3) application to revoke the accused’s outstanding bail(s). Trotter (2010, 199) notes, “with time being such a monumental concern when it comes to bail, it is essential that a hearing is conducted as soon as possible.” While the law does not state bail is supposed to be decided in one appearance, repeated adjournments and multiple appearances clearly were not envisioned by the legislation.

Table 2 Daily Case Outcomes

To further demonstrate the pervasiveness of adjournment requests, table 3 looks at the relationship between the appearance number observed and the proportion of cases adjourned to another day. For example, in Court 1 41.8% of cases seen on their first appearance, 48.4% of cases seen on their second appearance, and 51.7% of cases seen on their third appearance were remanded to another day. It is interesting to note the case outcome did not appear to vary considerably with the appearance number observed. Indeed, the likelihood of an accused being remanded on the first appearance was not dramatically different from the likelihood of being adjourned on the fifth or subsequent appearance.^{Footnote 12}

Table 3 Cases Remanded by the Bail Appearance Number Observed^{Footnote 13}

Though some fluctuations can be seen, looking across courts, there does not appear to be any specific pattern emerging, with the exception that the probability of a case being remanded to another day remains relatively constant regardless of the appearance observed. The lack of logical pattern suggests that each appearance in bail court was considered in relative isolation; there appeared to be no case history or consideration of what had happened on prior appearances. For the most part, regardless of how many times an accused appeared, the probability of being remanded to another date was the same, resulting in a multitude of unproductive, practically indistinguishable, appearances.

Lack of Continuity

In most observed courts the staff rotated on a regular, if not daily, basis. This means that when the accused returned to bail court, they were likely to be before a different justice and Crown and be assisted by a different duty counsel who was not familiar with their case or aware of what had happened at the previous appearance. Most accused in bail court were represented by duty counsel for all bail appearances or until private counsel could attend to arrange a consent release or run a bail hearing. As a consequence of this lack of continuity, no one was held accountable for adjournment requests or for having the business of each appearance build on that of the previous appearance. Failure to ensure adjournments were being used for a legitimate productive purpose increased the number of bail appearances.

The focus was on getting through the list. With that as the primary goal, an adjournment was the fastest way to dispose of a case for that day. Due to the lack of staffing continuity, adjourning difficult, time-consuming cases made the case someone else’s responsibility to deal with on another day. Indeed, in serious cases or when duty counsel was unable to negotiate a consent release with the Crown, the court staff would often encourage the accused to adjourn their case and work on strengthening their release plan (by securing private counsel or finding a surety). The pressures of a heavy caseload, where duty counsel must interview, contact sureties, and represent the accused in court often led to focusing on the few cases that were ready to proceed with a strong release plan and to clearing the docket by adjourning the rest.

Interestingly, the heavy caseload confronting those in bail court was the product of the value of getting through the day as quickly as possible as well as of the pressures put on the defence to have a surety (present in court) in order to secure release. Indeed, bail courts face long dockets not because a large number of new accused are brought to bail court by the police day after day, but because many accused people are adjourned to another day.

Adjournment Requests

Most requests for an adjournment were from the accused or their defence counsel. On average across the courts 80.5% of adjournment requests came from defence counsel, 9.5% from the Crown, and 9.9% from the justice of the peace. While defence counsel’s wishes were beyond the court’s control, the sheer volume of cases remanded at the request of the defence indicates the presence of a systemic issue. Since the defence was not required to provide a reason for an adjournment and thus was not held accountable for fulfilling the purpose of the adjournment at subsequent appearances, the defence could typically request adjournments without risk of reprisal. Indeed, in 13.5% of cases in which an adjournment was being sought, private counsel did not appear in court, opting to relay a message to the court through duty counsel.

The court was offered a variety of reasons for adjournment requests. Table 4 indicates the first explanation given for the adjournment request.^{Footnote 14} The two most common reasons were for the purposes of having private counsel (16.7%) or a surety (16.3%) attend at court. The overall average for these reasons provided across the courts is being pulled down by Court 3 and Court 4.^{Footnote 15}

Table 4 Reason Provided for Adjournment Request

In almost a quarter of the cases, no reason was offered for the adjournment. A number of these adjournments were likely for purposes related to counsel and sureties, but the more important point is that a reason did not have to be offered to the court. This makes adjournments even easier; counsel does not need to have a reason for the request. Indeed, there was little incentive to provide a reason, as the court did not inquire as to why a matter was not ready to proceed, it simply granted the request.

This is consistent with Leverick and Duff’s (Reference Fiona and Duff2002) findings that in courts where adjournment requests were not challenged a culture developed in which adjournments were the most accepted and expected outcome. However, when the judiciary took a proactive role in challenging adjournment requests and only granted adjournments in exceptional circumstances, a court culture developed in which it was presumed that the case would move forward toward resolution. Indeed, Leverick and Duff (Reference Fiona and Duff2002) contend that a culture of adjournment can become self-perpetuating when no one challenges adjournment requests.

Out of Time

The proportion of cases adjourned because the matter could not be reached is noteworthy. In these cases the accused was ready to proceed with his or her bail hearing, counsel and surety were present, and the court decided there simply was not enough time to hear the case. Remember, on most days in most courts, the court closed for the day before 5:00 p.m. and in 66% of days before 4:00 p.m. This seems at odds with the purpose of bail court—to decide the pretrial liberty of an accused. Adjourning matters that were ready to proceed because the court was out of time seems to ignore the challenges the remanded accused have in ensuring both their counsel and surety are in court at the same time.

Most accused were required by the Crown or the justice to have a surety in order to secure release, and this surety must be present in court for the proceedings. Sureties were routinely called to give evidence in contested hearings and were sometimes called forward to give evidence when the Crown was consenting to the accused’s release. Indeed, accused were often advised, by both counsel and the justice, that it was not in their best interests to proceed with a hearing in the absence of their surety, as it was unlikely they would be released. Crowns would rarely consent to the release of an accused and justices would rarely release an accused after a bail hearing without an appropriate surety. As was seen above, cases were routinely adjourned for the purposes of counsel and surety’s attendance. Indeed, it was often difficult and could take a number of appearances before the accused could have their counsel and surety present in court at the same time. This raises the question why the court would adjourn a matter that was ready to proceed with a bail hearing.

At 4:12 p.m.

In another case at 3:10 p.m.

The arbitrariness of having the bail court close when there were accused ready for their bail hearing was further aggravated by comments such as the following:

At 10:14 a.m.

At 3:26 p.m.

At 4:45 p.m.

At 3:14 p.m.

At 12:26 p.m.

An adjournment means the accused must spend another night in jail (or in the case of a Friday afternoon adjournment, three additional nights in jail) and for sureties this means another day off from work to attend court.

Release on Bail

Despite bail court’s mandate to decide whether an accused will be released or detained until his or her case is resolved, the court made remarkably few of these decisions. Over 127 days of weekday court observation there were 515 consent releases, 46 releases on the same bail as the accused had already been released on, and 12 whose bail had been set at a previous appearance. There were also 233 show cause hearings and two judgments delivered for a show cause hearing from a previous date. This translates into an average of only 4.5 consent releases and 1.6 bail hearings a day. Of the 235 show cause hearings/judgments, 124 or 52.8% resulted in a release order. What is clear from this is the dominance of consent releases. This is not entirely surprising when one considers either the general presumption of release or the court’s imperative to get through the day as quickly and with as little conflict as possible. Consent releases can be completed considerably faster (average 8 minutes, range: 30 seconds to 30 minutes) than full bail hearings (average 51 minutes, range: 9 minutes to 4 hours).^{Footnote 18}

In addition to being time consuming, bail hearings introduce an element of uncertainty that court actors want to avoid. Most releases are negotiated; they are not the product of a formal adversarial process. If a release could not be negotiated, it was likely to be adjourned. It was not uncommon for cases to be repeatedly adjourned for the purpose of finding a surety deemed appropriate by the Crown. A consent release could then be assured without risk of detention, rather than having the matter proceed with a show cause hearing, the outcome of which involves a fair amount of uncertainty.

When a consent release was presented to the court the conditions of release had already been agreed to and all actors, including the accused, knew what to expect. As soon as a bail hearing commences, predictability is forfeited as witnesses are called to give evidence.

WASH Court

The Weekend and Statutory Holiday (WASH)^{Footnote 19} courts present an extreme example of how the court operates in a manner consistent with completing the daily docket as expeditiously as possible. Indeed, it seems all the challenges of the weekday bail court are amplified on the weekend.

For example, at 11:02 a.m.

WASH court was observed in two metropolitan areas, one for 11 days and the other for 4 days, yielding data on 304 case appearances. As depicted in table 5, there were some clear differences between the courts in terms of operating time. Court 5 opened for an average of 46 minutes, while Court 6 was open for three hours and 54 minutes. When one considers the difference in caseload, this difference in operating time makes sense. If we look at the average active time used in these two courts, Court 5 spent approximately 3.4 minutes per accused while Court 6 spent 3.9 minutes; therefore, despite the dramatic difference in operating time, these two courts were operating in a similar fashion.

Table 5 WASH Operating Time

While the weekday bail courts adjourned approximately 53% of their caseload on any given day, WASH courts adjourned 70% (see table 6). As a court charged with making release decisions, this court was only making a bail decision in 25% of cases. This court, even more than the regular bail court, seemed to specialize in granting adjournments rather than in making bail decisions. The speed with which the court moved through the WASH court docket, coupled with the large majority of cases being adjourned to another day, suggests court actors were even more anxious to move cases off the docket than they were during the regular work week.

Table 6 WASH Daily Case Outcomes

Unlike in the regular bail court, the Crown in Court 6 asked for a considerable proportion of the adjournments (see table 7). Court administration^{Footnote 22} was the dominant reason provided for the adjournment request (see table 8), suggesting the Crown had some difficulties getting the necessary paperwork in order on the weekend. In these instances the Crown was often seeking to revoke the accused’s prior bail(s) through a s. 524(3) application. This means the accused was also facing other charges, and the Crown wanted to bring together all of the paperwork. It was possible that the Crown would seek to cancel the accused’s previous bail(s) and have the accused detained on all charges. Even in cases where the Crown consented to the accused’s release, there could be a s. 524(3) application to ensure the new conditions of release were consistent with other conditions that had been imposed on previous bail(s). The challenge in this particular city was that the accused were brought to one central location for WASH court. This meant the paperwork for their previous charges was often at another courthouse, and apparently on the weekend this paperwork could not be forwarded to the WASH court. Electronic records of such matters did not exist or were not available.

In Court 5, which was only operational for 46 minutes on average, close to 45% of adjournments were requested by counsel through a message to the court. In this court it seems private counsel simply did not bother attending court on the weekend in person. This “easy” way of securing an adjournment was also reflected in the 41% of cases that were adjourned without a reason provided to the court. Adjournments were the fastest way to address a matter, and a request via a message with no reason provided further expedited this process.

Table 7 WASH: Who Requests an Adjournment?

Perhaps the most obvious indication of the dominant goal of “getting through the list” as early in the day as possible,was that five accused in Court 6 were adjourned because the court “ran out of time” to hold their bail hearing. It is unclear how a court that was open for an average of less than four hours can run out of time to hear an accused who would like to have his or her bail hearing. Indeed, in this particular WASH court, on the two separate occasions where accused were remanded because the court was “out of time,” the court adjourned for the day at 2:20 p.m. (after actively addressing cases for two hours and 47 minutes and remanding three accused for lack of time) and 2:47 p.m. (after actively addressing cases for three hours and three minutes and remanding two accused for lack of time). Since show cause hearings tend to be time intensive and in the interests of expediting the end of the day, the court had informally established an arbitrary presumptive closing time.

Table 8 WASH: Reason Provided for Adjournment Request

Over 15 days of WASH court observation, there were 72 consent releases and three releases on the same bail. There were a total of seven show cause hearings; on half of the days observed the court did not run a single bail hearing. Of these seven, three accused were released, and the remaining four were adjourned to another day without a bail decision. This court seems have developed practices that allow staff to successfully avoid hearing contested bail hearings on the weekend.