Risk and the Role of the Judge: Lessons from Bail
“Risk and the Role of the Judge: Lessons from Bail” in Benjamin L. Berger, Emma Cunliffe, and James Stribopoulos, eds., To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (Toronto: Thomson Reuters, 2017), 305-326
22 Pages Posted: 16 Nov 2018
Date Written: 2017
Judges work in the shadow of risk. A central source of the moral and political burden of the office is to sit in judgment at the troubled confluence of the risk of the unknown, the demands of principle, and the necessity of decision. These burdens of risk are particularly clear in the role of a judge as she acts in the criminal justice system. Working in that particular ecosystem of risk, the burden on the judge has both political and moral dimensions. It is political because decisions distribute rights and liberties. It carries moral weight because the consequence of error is real harm to the lives of individuals and communities.
In this chapter, and in the wake of the Supreme Court’s decision in R v Antic, we examine the relationship between bail, risk, and the role of the judge. We begin by examining the ambitions and principles that informed the Bail Reform Act and the failure to realize those goals and give effect to those principles over the last 50 years with particular focus on the phenomenon, and the pernicious effects, of the overuse of sureties on our justice system. We then look to criminological and sociological literature to explain why sureties have come to play such a central role in the bail system, returning us to the themes of risk and risk management with which this chapter begins. Ultimately, we suggest that no meaningful reform of our bail practices can occur without addressing what some scholars have called a “culture of risk aversion” in the courts. This, we think, gestures to interesting lessons about the role of the judge in criminal justice reform, lessons that we touch upon in the concluding section of this chapter.
Keywords: bail, sureties, risk, judicial role, Canada
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