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Manitoba Justice ‘reviewing’ judges’ criticism of northern bail system

Thursday, January 16, 2020 @ 12:13 PM | By Terry Davidson

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Manitoba’s Justice Ministry will “carefully consider” a call now being made by two judges that an independent review take place into deficiencies and delays plaguing the bail system in the province’s remote north.   

Comment from Justice Minister Cliff Cullen comes after a second judge in Manitoba’s northern court system used his recent decision in a criminal case to echo a previous recommendation for an outside look into what he called “worrisome shortcomings” that are hindering an “overburdened” system.   

Justice Minister Cliff Cullen

“We are reviewing the decision and we will carefully consider the recommendations, but it’s important to note we started taking action well prior to this decision,” Cullen told The Lawyer’s Daily. “While we recognize that there is still more work to do, we have been diligently taking steps to improve and modernize the administration of justice for northern Manitobans.”

In his Dec. 18 decision in R. v. Crate 2019 MBPC 80, Justice Malcolm McDonald, a provincial court judge in The Pas, pointed to problems with bail processes in the north through his decision that a Norway House woman with no criminal record had her rights violated when she unnecessarily spent two days in police custody before getting a bail hearing.

The morning of Feb. 3, 2018, Amy Crate was stopped in a vehicle and charged with impaired driving, possessing property obtained by crime and possession of marijuana for the purpose of trafficking. She was arrested and taken to a holding cell there in her community of Norway House. 

The next morning, Crate had a telephone hearing before a justice of the peace sitting around 300 kilometres away, in the Thompson city courthouse — the judicial hub of that northern area. But McDonald noted this phone meeting happened just past the 24-hour period within which an accused is to be given a bail hearing.

Police, after being given discretion by the federal Crown, opposed Crate’s release in light of the drug charge.

Crate was then remanded into custody until a Feb. 5 appearance before a provincial court judge in Thompson. Crate was then released on bail.

The drug charges were eventually stayed. But defence counsel argued before Justice McDonald that Crate’s impaired driving charges should also be stayed due to a Charter violation caused by her two-day detainment. It was also argued she be awarded costs.

But Justice McDonald, while agreeing there was a rights violation, found that “a judicial stay of proceedings is a remedy of last resort” and denied the request.

He then took aim at the delay in Crate’s release on bail. 

“Although I have not found that in the peculiar circumstances of Ms. Crate’s case a stay of proceedings or an award of costs are appropriate remedies, there should be no doubt the evidence in this case has raised serious concerns about the manner in which initial decisions are being made respecting the provision of bail in Norway House, Manitoba,” wrote Justice McDonald. “I would be surprised if similar shortcomings do not exist in other remote northern communities.”  

He went on to note that “[d]eficiencies in the initial bail processes in remote communities … inevitably lead to downstream consequences that further hinder the overburdened system … and in turn affect individual rights to reasonable bail.”

Justice McDonald also took issue with the federal Crown not being “actively involved” in Crate’s phone-in hearing while she was being held in Norway House, as “there is little doubt with more active and meaningful participation of counsel at this stage the accused would have been released at that hearing and not transported to Thompson.”

“The practice of the Federal Crown to not be actively involved in custody remand decisions from outlying communities into Thompson is a practice that should be reviewed,” found McDonald, noting this was just one more thing that led to delay in Crate’s release. 

Justice McDonald’s decision follows a Nov. 14 Queen’s Bench ruling from the Thompson court in which two Indigenous Manitobans in separate cases were freed of assault charges and awarded costs after spending weeks in jail before given bail hearings.

“In all the circumstances here, it should be plain that consideration should be given to an independent, comprehensive review of the system, processes, technology, training and facilities affecting in-custody accused on remand, from arrest onward, in northern Manitoba particularly as it is connected to the Thompson judicial area and remote communities,” wrote Justice Chris Martin in R. v. Balfour 2019 MBQB 167.

Justice Martin found that repeated remands, court adjournments, communication breakdowns and long distances between the courthouse and remand centres contributed to the delay in those bail hearings.

Rohit Gupta, a defence lawyer in both Crate and Balfour, said all of this speaks to an “overall theme.”

“The fact that another judge is calling for it just highlights the magnitude of the problem,” said Gupta. “These are just two cases that have come out of northern Manitoba about the justice system being broken. The reality is, it’s more than just these two individuals. It would be one thing for a judge to simply state that this client’s rights were violated and make a determination on this particular individual’s circumstances. However, Justice Martin and Judge McDonald clearly were presented evidence of an overall theme. Whether it be labelled as ‘serious concerns’ or an outright, flagrant violation to an individual’s rights, anyone can read between the lines.”  

Along with his comment, Cullen listed what his government has done — and in the process of doing — for the north, including an $11 million renovation of the Thompson courthouse, timelier transportation of accused people, the “ongoing” recruitment of Crowns and court clerks and the entering into an agreement with an airline “to provide safe and reliable air services to ... court parties and … prisoners” in the north. 

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