The Coutts Four and Denial of Bail in Canada

Jerry Morin, Chris Carbert, Chris Lysak and Anthony Olienick
Published on October 15, 2023

Four Alberta men have been in custody after twenty months and over 600 days. They have been denied bail. Apparently there is a trial date set now for late May 2024. Are they meant to rot behind bars?

They attended the Coutts, Alberta, blockade in support of Freedom Convoy protests in Ottawa. On February 13 and 14, 2022 lineman Jerry Morin, landscaper Chris Carbert, electrician Chris Lysak and gravel truck operator Anthony Olienick were arrested on charges of mischief over $5,000. Charges of conspiracy to commit murder were soon added. They were dubbed the Coutts Four. Hours later Justin Trudeau invoked the Emergencies Act. At the Public Order Emergency Commission in Ottawa, many government officials testified that the arrests in Coutts underscored the need to declare a national emergency.

Are the Coutts Four political prisoners?

Denial of bail in Canada is rare. People charged with serious crimes routinely get bail. Even people charged with first-degree murder of a police officer.

Granting bail goes back a very long way to the 1166 ruling at the Assize of Clarendon. England’s King Henry II established that those charged of crimes had the right to appear in court to defend themselves. This was to prevent those in power making accusations on a whim, depriving citizens of liberty, and leaving them to rot in jail. In 1215 the Magna Carta maintained no officer could start proceedings against anyone on the mere say-so of those making accusations. There had to be a speedy trial and trustworthy witnesses who swore an oath.

In the Canadian Charter of Rights and Freedoms, section10(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.” Section9(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.

What are the grounds for denying bail in Canada? On what grounds are the Coutts Four kept in custody?

The primary grounds for typically denying bail in Canada is a flight risk, keeping a prisoner in jail to ensure they appear in court. The Coutts Four have not been judged to be a flight risk.

Secondary grounds for denying bail are when it’s deemed “necessary for the protection or safety of the public.” The Coutts Four are not held on these grounds.

It is on tertiary grounds that bail is being denied to “maintain confidence in the administration of justice.” Guidance for denying bail on these grounds include “the apparent strength of the prosecution’s case.” But the Crown has failed so far to provide full disclosure so lawyers can know the case against their clients.

On tertiary grounds judges consider the gravity of the offense. Conspiracy to commit murder is a serious charge. Yet, the men were unarmed upon arrest. Judges denying bail on tertiary grounds can ask “whether a firearm was used.” The RCMP displayed a cache of weapons on February 14, 20022. Yet, no firearm was used by the Coutts Four.

The 2010 case, R v. James, wrote denying bail based on tertiary grounds should “not arise frequently. Awareness of the presumption of innocence and the prohibition against punishment through pre-trial custody before a fair trial are required.” Pre-trial detention complicates the ability of those accused to prepare a defence.

At the POEC it was argued one basis for invoking the 1988 Emergencies Act was to restore “confidence in government institutions.” National Security Advisor to the Prime Minister, Jody Thomas, argued protesters questioning the legitimacy of pandemic measures constituted a threat to national security. She alleged protests were “undermining of the confidence in public institutions. Those things… constitute a threat.” However, undermining confidence in public institutions is not identified as one of the triggers for declaring a national emergency in the Emergencies Act.

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.

Mainstream media coverage of the Coutts Four infers their guilt even as the law requires presumption of innocence. The Canadian Anti-Hate Network has often been a primary source for news stories. But there are questions about CAHN’s objectivity. Negative public views of the accused are fueled by media stories. Once a media narrative was established about the Coutts Four the story was buried.

We’ll only have reasonable, informed and dispassionate public discussion about this case if media provide fairness and accuracy. And exposure. Such reporting might shift perceptions, allaying concern for public loss of confidence in the justice system. Confidence in our justice system suffers when it disregards 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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