May 19, 2003

I found myself in bail court last week (not on my own behalf, let me hasten to add) and while I was waiting for a friend (again, a lawyer not a prisoner), I was forced to sit through a few bail hearings.

A word about getting bail for criminal offences in Canada. In our criminal justice system, when an accused applies for bail the onus is ordinarily on the Crown to show why the accused should not receive bail (the onus shifts in certain cases). Unless the Crown can leap over several hurdles, the general rule is that (except for the most egregious offenders or those with a proven predilection for flight) everyone gets bail, either with or without conditions.

The court looks at several things and "ensuring attendance at trial" is number one on the list.

I think I've already mentioned that most accuseds who find themselves before the court for the run of the mill offences are generally just stupid and/or Darwin award contenders.

This guy was no different.

This hapless would-be criminal had a distinct fondness for stealing other people's cars and this was his fifth such charge. According to his counsel, this gentleman had been cooling his heels in lockup overnight and from his own account, he found the experience unpalatable in the extreme. Apparently, his cellmate found him terribly alluring and the night had been a symphony of increasingly insistent romantic advances and progressively frantic refusals.

He found himself before the court - this time - following an attempt to steal a police car. Out of the lot behind the station. In front of 3 police officers. While I do so admire self-confidence in a man, idiocy is somewhat less worthy of approbation. His excuse for the escapade was drunkenness - following an evening of drinking Miller, he had lost his tenuous self-control.

I knew at once that he was doomed. Nobody up here gets drunk on American beer - a brew considered suitable only for babes in arms or the elderly.

"Do you have any sureties¹ to propose?" the judge wearily asked defence counsel.

"Yes, your Honour. The accused's mother."

"Well, let's hear from her then", his Honour replied.

A pleasant-looking middle-aged woman took the stand. It soon became clear, however, that the apple had not fallen far from the tree. In one remarkable sentence, she managed to use derivatives of the word "fuck" as a noun, a verb and an adjective before being admonished by the court as to her language. A quick glance at the defence table found counsel with his face in his hands in a cloud of despair.

Her heart was in the right place, God love her. You could tell that she was honestly perplexed at her son's incorrigible criminality and that whatever her responsibility was for it, she was willing to own up and pay the price

Perhaps her only fault lay in her lack of insight into her son's character. A more far-seeing parent would have taken a long, appraising look at her offspring when he was 4 and taken appropriate measures to protect him from his own stupidity. If only she had stopped to write "I'm a silly arsehole" in large red letters across his forehead before dusting the crumbs off him and sending him out into the world, years of heartache might have been avoided.

She settled in for a cozy chat with the judge. "Well, I always knew he was a bit different, you know special, ever since he was a little boy."

"Ma!" moaned her errant son. She waved an airy hand in his direction but spared him not a glance.

"Well, his brothers and sisters always knew who was boss in our house - that would be George, my late husband, may he rest in peace - but this one here, well, he never really seemed to catch on, if you know what I mean. He would do these stupid, fucking (oh shit I'm sorry your Honour), ah, pointless things to irritate his father - like putting sugar in the gas tank of our first brand new car or breaking the screen door on the camper - and he would do it over and over again despite the thumping he'd get from his father - which, of course, was for his own good. Spare the rod and spoil the child, that's what my mother always used to say when she was giving me a licking, and I turned out OK, not all traumatized or disrespectful like those ungrateful fuckers - oops, I mean kids on Montel…"

It was soon established that she had no property, did not reside with her son, had had little control over him after he reached the age of 7 and was herself on parole following a conviction for fraud. Not surprisingly, she was not deemed to be suitable.

"Well, sir", intoned the judge as he turned to address the accused, "I can see from your record that you have failed to appear on numerous occasions and that at least three times in the past, bench warrants have issued against you."

"Then I don't know why we're bothering with this whole fucking charade", replied the irate prisoner. "I should just pack my toothbrush and get used to spending the next 18 months with my back to the wall. I may as well get used to be cornholed until my parole date."

What optimism, I thought to myself. So life-affirming.

"Do you have anything else to say to the court, sir, before I render my decision?" asked the judge in patient terms.

"You bet I do. I mean, it's not like this asshole could get Mother Theresa released", he continued in aggrieved tones, gesturing at his lawyer. "But by Christ, I don't know why I should bother. You've obviously made your mind up and this whole goddamn circus is rigged anyway."

Apart from revealing a deplorable lack of faith in the abilities of his counsel, the depth of his cynicism about the justice system was of a degree usually not encountered outside the legal profession itself.

"I'm afraid with your record for failing to appear, sir, I'm going to have agree with the Crown and remand you into custody until your trial."

"But he said he's going to fuck me! I've never been fucked by a man!" the distraught prisoner wailed with such emotion that I could feel his sphincter fluttering.

"Nevertheless, sir", said the judge, "the die has been cast. You should have thought about the consequences of your actions before you took the squad car."

"Yeah? Well FUCK YOU! I hope you die!" shouted the erstwhile car thief, as he was led back to the cells.

While I admired the irrepressible insouciance of his reply (especially in the face of his cellmate's explicit amorous ambitions), my heart went out to his lawyer. As he wearily packed up his briefcase and prepared to leave the courtroom, all eyes were upon him.

"I hate this fucking job", he was heard to mutter as he left the room. "There's got to be an easier way to make a living."

I could not help but agree. I thought back to my first criminal trial as a prosecutor. Hideously (and quite obviously) out of my depth, the investigating officer took advantage of a brief recess to offer me a gun so I could kill myself. Although it happened years ago, the memory still makes me cringe.

Since then, whenever I'm arguing a case I remember the advice given to me by Professor Bruce Welling - I've never heard better.

"When all else fails", he told me. "Argue policy, then cry."

Till next time.

Morrigan

^1.A surety is someone who pledges her money or her property in return for a promise to ensure that the miscreant keeps the peace, observes the conditions of his release and shows up for trial.