Great post from Crowstoes that I thought was worth bringing over:
With all due respect to Moxie and Crowstoes, there are a significant number of errors in this post.
New to the board, and reading comments so thought I would add my comments:
1. Tomorrow's court appearance will be strictly remand. If in London, as reported, it will occur either by videoconference in courtroom 12 at 9:00 am [the public will not likely get in as the courtroom is extremely small] or in person, then courtroom 9 or 10 is the most likely. Court theoretically at 9:30 a.m. is actually more like 10:00 a.m. The reason for London if so is many: no need to drain transportation police resources to Sarnia for straight remands from EMDC, enhanced security, videoconferencing abilities directly from EMDC to the courthouse.
Hindsight show's you were right about remand, but it wasn't a given. The crown can ask for "three clear days" to continue an investigation etc. but it isn't necessarily granted.
Also, with respect to "enhanced security", with respect to Sarnia there's a tunnel connecting the courthouse and the jail - that's way more secure than taking a vehicle onto a public road.
2. There will be no plea tomorrow, nor expect one for some time. There are a number of procedural steps which must take place before a plea can be entered, particularly in Superior Court matters. Superior Court is far more formal than most criminal matters handled by the Ontario General Division.
Procedural steps include: 1) the accuseds must apply for and qualify for legal aid [this is by way of an application including financials]. This can take anywhere from 1-2 weeks onwards depending on the busyness of the local legal aid office. Generally, sadly, these applications will be fast tracked. 2) the accuseds must find lawyers willing to take their case [this is not as easy as you'd think as s 231 offences are not done by everyone],
The word "must" invalidates what you've said. There is no requirement in law to apply for legal aid, and murder cases are sometimes done pro bono. If either the accused or someone they know has the means to pay for a lawyer this could be skipped entirely, or the accused could technically act unrepresented in the matter.
3) there must be a bail hearing set [unless accuseds wave them] which, in London's timelines would be at least 4-6 weeks post request.
According to the Charter of Rights and Freedoms the accused MUST be brought before a justice within 24 hours, and as I previously mentioned the crown can only ask for three clear days to show cause as to why they should not be released from custody.
The accused can consent to longer than three clear days to prepare their case for release, but that's the only way in law it can drag out longer.
4) most bail hearings are not set until at least basic disclosure is provided to counsel-estimate that timeline for the really basic stuff at 2-3 months [the videos, witness statements, expert reports, etc will all trickle in over 6-8 months following-remember the crown has to review all this, after police superiors have reviewed it, etc, etc....the meat of disclosure takes time.
I'm not sure if this may apply to parts of the US, but in Canada this kind of delay is specifically forbidden by law without the accused's consent. The whole reason behind the s.517 publication ban that TB & MM were probably given is because bail hearings happen so quickly after arrest. In order to balance the liberty of the accused who is presumed innocent, with the lack of available disclosure at the time of the hearning, to ultimately ensure they have a fair trial.
Let me be clear, disclosure trickling in over a long timeline is correct, I'm only taking issue with the assertion it will delay bail.
On top of all this, the charges are first degree, plus whatever will be added (IMHO there are more charges pending] and no lawyer doing their job will advise their client to plead without seeing the case. So don't assume right away that just because the accuseds are not pleading guilty immediately that they won't, or that they won't change their plea if a not guilty one, later....
That's basically correct. I'd add that Ontario crowns have very strict guidelines which can sometimes prevent them from entering into plea agreements depending on the disclosure situation.
3. People questioning if they will get bail, it is unlikely. First, the crown needs to be able to show the judge that there is reasonable public risk if they are released. This shouldn't be an issue, including evidence of flight risk (as in, they fled Sarnia to London).
Flight risk is one of the bail criteria, but it's far from certain in this case. Yes the two were arrested at London's Lamplighter Inn. What the media fails to mention is that the Lamplighter is a stone's throw from one of the largest teaching hospitals in Southern Ontario (Victoria Hospital). BT is alleged to be a health care professional and MM is alleged to be injured, an alternative purpose for a trip to London other than "flight" would be to tend to those injuries. This would be further bolstered if it was Victoria Hospital that called the police.
Add to that that both have strong ties to Southern Ontario as evidenced across facebook, etc. and in my opinion the crown can't make this "flight" on the balance of probabilitries.
Once the crown demonstrates their burden of proof, the defense has to show the accuseds have sufficient surety, and won't be a public danger or flight risk. Previous criminal records can be admitted at this point by the crown. This includes a YOA record in which there was violence or various other circumstances.
The second criteria for bail is if they'd re-offend while on bail. I'm not sure what you menay by a YoA record, but I've not seen anything to suggets either has a criminal history so again this is difficult for the crown to satisfy on the balance of probablitities.
I will say that in practice not having any criminal history will partly work against them in that while they have never "failed to appear", they also have never demonstrated that they have appeared. It's a little like applying for your first credit card.
A surety in this case would include significant cash deposits, (perhaps collateral) and a 24/7 surety ie babysitter that the court trusts to make sure the person obeys the bail release rules. The babysitter must pledge collateral and or cash of their own
Sureties aren't required but I agree that in a case like this, especially in Ontario, there better be a good one and it will likely mean house arrest. A parent pledging their house for their accused adult child, who offers to have that adult child live with them, has an alarm system that alerts the police immediately when someone exits the home without the alarm code, and GPS ankle bracelet and a JP would be hard pressed to say a solid bail plan wasn't in place.
and have no criminal record.
The law is clear that a surety having a criminal record does not necessarily disqualify them.
The public interest always outweighs, so I doubt that either will be released.
Absolutes are difficult, so it's the word "always" that's at issue here. The JP must balance the public interest with the accused's right to be presumed innocent. I will say that the crown has their best shot in Ontario which has a significantly higher remand rate than the rest of Canada, but it's far from a sure thing.
The wild card in terms of "public interest" is the "stregth of the crown's case", which if strong could trump the other factors and result in remand, but in law even a strong case is not in and of itself sufficent reason not to grant bail.
Moroever it's easier for those accused of murder to get bail than say those accused of attempted murder because, the allegedly intended victim is no longer at risk. Morbid, but accurate.
4. At the superior court level, expect that there will meetings, pre-trial conferences, disclosure meetings and resolution meetings as well as setting the bail hearing, the preliminary inquiry if there is one, and eventually the trial. There are a number of other motions which will occur such as change of venue, whether to try the accuseds together or separately, and I'm certain a number of evidentiary motions.
Hope this helps answer some questions, all of which are IMHO and I hope, respectfully explained
Similarly I hope I've helped clear up some of the misconceptions around next steps and done so respectfully.