Today brings a media report of potentially the first actual use of the Charter in a court case. Predictably, it’s a pre-trial criminal matter. Justice Bongionorno supposedly granted bail to an assault defendant as a ’remedy’ for the Crown’s (alleged) failure to respect the defendant’s Charter guarantee that he ‘be tried without unreasonable delay’.
I’m not sure that bail falls within the narrow Charter provision on remedies. I’m also not sure whether granting bail is an administrative function, which is what it has to be for a court to be bound by the conduct mandate. But it is clear that the Charter’s interpretation mandate would apply to the provision of the Bail Act 1977 (Vic) that governs what a court must consider in determining whether or not some is an unacceptable flight risk:
4 (3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant
Clearly, this can – and therefore must – be read as requiring the court to regard an ongoing Charter breach as a relevant matter to consider in favour of granting bail. That being said, I’m also pretty sure that delay or potential delay has always been a relevant consideration.
Not that the media ever reports legal subtleties accurately.
[EDIT: The judgment is now online. It contains no discussion of these subtleties either.]