A New York judge recently doubled disgraced Hollywood mogul Harvey Weinstein’s bail — to $2 million (U.S.) — after prosecutors accused him of disabling his location-tracking electronic ankle bracelet.
“The bottom line,” the lead prosecutor in the sex assault case said in court last month, “is this man could fly out on a private jet, which he does, and go to another country like that.”
Electronic monitoring has long been a fixture in the U.S. justice system, where tens of thousands of accused criminals wear GPS-monitoring bracelets — not just celebrities such as Weinstein. But GPS monitoring is also becoming more common in Canada, with growing acceptance by judges and justices of the peace that the devices can be another safeguard in a release plan.
Some electronic supervision programs in Canada are government-run and have been around since the 1980s. In Ontario, the government also uses them to monitor offenders serving non-custodial sentences, or offenders released on parole or temporary passes.
But in the past decade, private electronic monitoring services have increasingly been used not just with convicted offenders but also those in jail awaiting trial who are presumed to be innocent.
Recovery Science Corp., one of Canada’s largest private providers of electronic monitoring services, says it has supplied monitoring bracelets in more than 760 bail cases since 2010, the vast majority of these in Ontario. (In 2010, there were just five cases. Last year, the number of releases climbed to more than 200.)
The company is currently keeping tabs on 190 people on bail — 176 in Ontario. Those people are awaiting trial on charges ranging from assault to murder.
The cost of monitoring, $610 a month, is entirely paid for by the accused. (The company reduces the cost for people on Legal Aid to $332 a month.)
Critics point to that not-insignificant cost — nil for police, the Crown and the courts, but out of reach for many poorer accused — as one reason the bracelets haven’t been more widely used to keep people out of Ontario’s overcrowded jails.
“Big-time drug dealers who have tons of money lying around, they don’t care, they’ll have money to pay for it. A regular kid caught with a gun, coming from a single-parent family, no chance,” says Toronto defence lawyer Aly Hussein, who nevertheless supports electronic monitoring as an alternative to jail.
So does James Lockyer, another Toronto defence lawyer best known for his work fighting to overturn wrongful convictions.“ I think it’s a good thing, but it’s very unfortunate that there is that cost attached to it that prevents people who can’t afford it, from making use of the system.”
Lockyer turned to electronic supervision to argue for release pending appeal for Demitry Papasotiriou, a lawyer who was convicted of the first-degree murder of his husband in 2018 — no slam dunk for someone a jury found guilty of the most serious of crimes. The Crown opposed his release, arguing he must be detained in order to maintain public confidence in the administration of justice.
Papasotiriou’s willingness to wear and pay for the GPS ankle bracelet was one of the factors that persuaded Justice Gary Trotter, of the Ontario Court of Appeal, to grant him bail ahead of his appeal. Papasotiriou’s sureties also pledged $500,000, and he has stringent conditions including house arrest.
The public can be assured Papasotiriou is not simply being “turned loose” on society, with no precautions or safeguards, while his case works its way through the appeal process, Trotter wrote in his 2018 decision. The appeal has yet to be scheduled.
Peter Marshall, RSC’s co-founder, acknowledges his service carries a hefty price tag.
“We’re conscious of the fact there are people who can’t afford this and we want to try to do our part to make it available,” Marshall said. “The other important way of looking at it is, should people who can afford it stay in jail because somebody else can’t? Would that make sense?”
In addition, electronic monitoring saves “hundreds of thousands of remand custody days,” which, in turn, saves taxpayers the cost of housing inmates, transporting prisoners to court, inducing guilty pleas and the impact of incarceration on families.
In theory, people not yet found guilty of a crime should be released from custody in most circumstances — even if that flies in the face of political rhetoric that bail should be made harder for people accused of some crimes.
“The starting point for courts is presumption of innocence and charter right to reasonable bail,” Marshall points out in an email.
Himself a lawyer, Marshall didn’t initially start his company to track the location of accused criminals under house arrest or other court-ordered restrictions.
In 2009, while he was practising child protection law in Ontario’s cottage country, Marshall was representing a young alcoholic mother whose child had been removed from her care.
He wanted to help her reunite with her child as soon as possible, so he did some research, and discovered SCRAM, an alcohol-monitoring bracelet widely used in U.S. impaired driving cases. The SCRAM bracelet — the acronym stands for Secure Continuous Remote Alcohol Monitor — can detect traces of alcohol in a wearer’s sweat and alerts authorities if levels are too high.
“It provided all the information about whether someone was drinking or not in a much more timely way than other available tests,” such as blood, urine and the now-discredited hair strand test, Marshall explained.
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That led Marshall to co-found Recovery Science Corp. with Stephen Tan, a trained chiropractor who is often called upon to appear in court to explain how the system works. Together, they brought the SCRAM technology to Canada for use in bail and conditional sentences for alcohol related-criminal charges and in family law and child protection cases.
In 2012, they added GPS monitoring, acquiring from a U.S. company the waterproof, half-pound ankle bracelets that contain a GPS chip that tracks the location of the wearer to ensure compliance with terms imposed by the court.
Wearing one has been likened to strapping a half-full pop can, or an orange, to your ankle, with batteries that require once-daily charging. A person’s whereabouts is continuously recorded and, the company says, police are notified if there are any breaches of house arrest, curfew or other location-related restrictions.
But skeptics say electronic monitoring gives the public a false sense of security. For instance, if an accused wants to flee the country, he or she can easily remove the device. According to Marshall, 25 people have had their bail revoked or varied due to ankle bracelet tampering.
In 2017, Superior Court Justice Robert Clark was not persuaded that an ankle bracelet would ground an accused high-level drug and weapons trafficker, who was later convicted.
“I accept that electronic monitoring can, in some cases, be a very effective tool, but in my view, this is not such a case,” Clark said in his ruling dismissing an application to rescind his detention order.
The accused had plenty of reasons to skip town. He was facing a formidable Crown case, a potential double-digit sentence, and appeared to have access to considerable sums of cash, giving him the means to “abscond if he were to decide to do so,” Clark said in court.
An ankle bracelet also won’t reveal anything about who the wearer is associating with, or what they are doing. A drug dealer, for instance, can still ply his trade by telephone or visits. Nor does the bracelet have a drug or gunshot residue sniffing capability.
Marshall readily admits all of these things — but adds no one is suggesting electronic monitoring is the “silver bullet.”
“There’s really nobody out there asserting that it is foolproof, or a panacea or it can prevent people from doing things that they shouldn’t be doing,” he says.
Hussein Aly, the Toronto defence lawyer, understands that and remains a believer, saying monitoring strongly deters bail breaches because of the “certainty” of apprehension.
“If an accused believes he might get away with it, he might be tempted to take a chance that a breach won’t be detected. Similarly, a family member may find it difficult to report a breach and send a loved one to jail so they may forgive it.”
And often sureties are unable to provide around the clock supervision.
“Monitoring was accepted in one of my cases (last) year as an added guarantee that closed a small gap in supervision that existed where both my sureties were at work and the accused was home alone.”
Marshall said it’s a very individualized process when deciding who is a candidate.
“Someone engaging in child porn activities over the internet, the GPS bracelet worn under house arrest is not going to manage that behaviour.”
Weinstein’s trial began in Manhattan on Monday. His lawyers earlier argued problems with his ankle bracelet stemmed from technical issues, not tampering.