Righting the wrongs of bail court: LAO duty counsel at the forefront of “uncomfortable” change

Outside a busy courtroom, phones ring off the hook, lawyers and their clients stride in and out of the swinging doors.

Legal Aid Ontario’s (LAO) Senem Ozkin, Manager of Criminal Duty Counsel at the Ontario Superior Court in Newmarket, beams proudly after a precedent-setting legal decision in which she and her team played a key role.

In February 2018, Ontario Superior Court Judge Joseph Di Luca ruled that a justice at an earlier bail hearing “erred” when she failed to consider releasing an accused without a surety.

A surety is a person who ensures that an accused meets their bail conditions.

According to Ozkin, courts and attorneys have become too reliant on a “traditional” process which depends on the testimony of sureties at bail hearings. The result being many an accused spending more time in custody, when they should be released.

Newmarket Protocol

The LAO lawyers’ process that led to Judge Di Luca’s ruling has become known as the “Newmarket Protocol”—a legal procedure that asks justices to hear submissions on what the appropriate release should be, before requiring a surety to testify. This means more people can be released on their own.

“This [ruling] will right the wrongs of how we’ve been doing bail court and reinforces the innocent-until-proven-guilty basis of the justice system. We’ve spent the better part of a year working on this,” Ozkin says.

In his decision, Justice Di Luca wrote that while “change is uncomfortable”, there is “a need for change in our bail culture”.

Ozkin says the ruling challenges the status quo.

“For far too long, bail conditions have been punitive... This is a huge win for our clients.”