Judges and Crown prosecutors face difficult decisions with very limited information when they try to sort out who will commit serious harm if released on bail, says Victoria criminal defence lawyer Michael Mulligan.
He made the comment in the wake of the death of an 87-year-old Saanich man with no criminal history who died in the Vancouver Island Regional Correctional Centre on Wednesday night.
Rodger Traill spent six days in jail while the Crown, judge and defence worked on a plan to release him on bail. He had been charged with assaulting and threatening to kill his wife and careless handling of a firearm.
At Traill’s bail hearing on Monday, Crown prosecutor Patrick Weir told the court that Elizabeth Traill called police because her husband was upset and began smacking her in the face.
A few days earlier, Traill had told her he would shoot her if she were ever to call police, Weir said. Elizabeth Traill managed to get out of the apartment. When police went inside, they saw five long guns, three rifles, two shotguns and boxes of ammunition that Traill had put on display. Traill said he had just taken them out of a safe to clean them.
Police confiscated the firearms, ammunition and a hunting knife, Weir said.
They were taking the case very seriously because this was a man of “questionable mental stability with access to firearms and ammunition.”
The elderly man told police he had Addison’s disease and fibromyalgia and hadn’t taken his medication for a few days. Police went back to the apartment and got his medication for him.
Traill also told police he was thinking about suicide, but the way he said it didn’t make them think he was a danger to himself.
Weir was willing to release Traill on bail if he had a surety — someone who would supervise him while on bail. But defence lawyer Jordan Watt, who was the in-custody duty counsel, could not find anyone willing to take on the role.
Judge Carmen Rogers was concerned Traill would return home to his vulnerable wife of 62 years, whom he had threatened with a firearm.
“I don’t see how I can be assured of her safety without some better plan than he’s going to stay at a hotel somewhere,” she said.
Rogers was also concerned that family members weren’t stepping up to take him in, which heightened her concern for their mother’s safety.
Mulligan said the judge’s concern for the safety of the victim was reasonable.
“The Peter Lee case is on everyone’s mind. It remains on everyone’s mind,” he said.
In September 2007, Lee killed himself and his family while out on bail on domestic-violence charges.
“The bail system works in the vast majority of cases. The challenges for Crown and judges is how do you pick out the one in 10,000 person who will do something dangerous if released,” said Mulligan.
Another challenge is what would happen to an 87-year-old man with no record, if he pleaded guilty to the charges.
“Is he likely to end up in jail? Probably not,” said Mulligan.
Mulligan suggested there might be a variety of reasons family members or friends might not be able to act as a surety. A person might not be able to act as a supervisor. They might work or live out of town or perhaps not qualify financially, he said.
In the recent R. v. Antic case, the Supreme Court of Canada found judges have to consider lesser forms of release and that it is not appropriate to jump to surety bail with a cash deposit, Mulligan said.
“Bail is a very difficult thing,” said Mulligan. “The judge has very limited information, as does everyone, in these early stages. But they need to address only what the legitimate considerations are — is the person going to turn up and are they are going to commit further offences if released.
“The conditions have to address those considerations.”
The B.C. Coroners Service is investigating Traill’s death.
Saanich police said because the matter is still before the courts they could not answer how many times they have been called to the Traills’ home.
