Monday Blog Roundup: Pistorius’ Bail & The Difference Between Arrest and Guilt

In what I hope to become a weekly feature (or let’s say at least twice a month), I will be featuring blog posts written by other legal professionals.  My main focus will be on criminal law issues and Canadian bloggers, but I will definitely discuss blogs from the United States and abroad as well.

This week I would like to discuss posts written by my colleague Sean Robichaud and law student Simon Borys.  Sean, a social media maven, was called about eight years ago and, after a few years with a major criminal law firm, set off on his own to resounding success.  Simon is a former police officer who is in his third year of law school.  He became involved with the Criminal Lawyer’s Association when he was a 1L and quickly endeared himself to many members of the Ontario criminal bar.

Why Bail Matters:  the Example of Oscar PistoriusSean Robichaud, February 22, 2013

In this blog post, Sean uses the example of Oscar Pistorius to explain why bail is important.  Written prior to the decision releasing Pistorius, Sean concedes that the public will likely be outraged which what he predicts will be a decision to release.  He then relates personal experience from his practice to support his argument that Pistorius ought to be released and that bail is important to properly protect the presumption of inncocence:

As a criminal defence lawyer, I have sadly witnessed and been counsel for many serious cases where individuals are denied bail only to be found not guilty at trial.  Those years are not restored, there is no civl lawsuit.  Put simply, that time in jail was a miscarriage of justice that will never be remedied.

I could not agree more with this argument.  Simply, unless it can be demonstrated that someone is a danger to society, they should be released on bail.  Should a Judge or jury ultimately decide they are guilty of the offence then they can be sentenced appropriately:

It is a rare day indeed that the allegations read out at a bail hearing mirrors the evidence that is ultimately heard at trial.  That is precisely what trials are for: to hear all sides, to reflect, and to reach a well reasoned verdict.


“If he wasn’t guilty, the police wouldn’t have arrested him!”  Right?  Wrong! - Simon Borys, February 23, 2013

Here, Simon Borys examines the differences between the threshold for the police to arrest someone compared to what burden of proof equates to legal guilt.  Coming from a former police officer it was fascinating to see what factors the police will consider when deciding to arrest.  Clearly there is no fixed criteria, and the decision of when to arrest may vary from officer to officer.

Simon first explains the threshold to arrest:

Reasonable grounds to arrest means more than just a mere suspicion (or even a reasonable suspicion) to believe a person has committed an offence, but that’s still a fairly low threshold.  No court has ever put an exact number to it in terms of percentage of certainty, but we do know that it must be less than 51% sure.

Compare this threshold to what the Crown must prove to establish guilt:

We know this because the Supreme Court has said that proof beyond a reasonable doubt falls much closer to absolute certainty (100%) than it does to a balance of probabilities (51%) (see R v Starr, 2000, at paragraph 242).  This means it is “much” higher than 75.5% certainty (which is half way between 51 and 100).  I would suggest that probably puts it somewhere in the 90% range, though who can say where exactly.

Simon’s ultimate thesis is that it would be “ intellectually and factually wrong to assume that it’s always the case that just because the police arrested someone, they must be guilty”.


The two blog posts above can be considered together to highlight some very important points.  In the case of Pistorius, the police in South Africa may very well have a reasonable suspicion to believe he committed murder, which is what led to the arrest.  Once the evidence is properly tested, however, the story may be very different.  If that turns out to be the case, and bail was denied, then Pistorius could be sitting in custody for quite some time before the case is ultimately resolved.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at

No comments yet.

Leave a Reply