Manitoba’s dysfunctional bail court could learn from Sask.

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This article was published 26/12/2019 (1729 days ago), so information in it may no longer be current.

AS the legislature was winding down for the year, the justice minister faced repeated questions about whether his government would act on a judge’s call for an independent review of northern bail courts.

“I will continue to ask this question every single day until the minister actually starts doing something on behalf of northern Manitobans,” NDP justice critic Nahanni Fontaine said on Nov. 26, during the second of three consecutive question periods in which she raised the issue.

Justice Minister Cliff Cullen’s oft-repeated answers sidestepped any commitment to conduct an independent review. He criticized the NDP, saying it had done nothing during its 17 years in government.

“Here we go again,” Cullen shot back on Dec. 2 in reply to a question from Fontaine about legal aid. “A new-found appreciation for timely access to justice on behalf of the NDP.”

Systemic bail delays, which are routine in Manitoba, haven’t plagued Saskatchewan, even though it has the highest overall crime rate of any province, the second-highest violent crime rate, and the busy court dockets that accompany them.

Saskatchewan doesn’t have the kinds of problems that prompted a Manitoba Court of Queen’s Bench judge to call for an independent review of the bail system in northern Manitoba, particularly in Thompson.

“We don’t have delays like they have,” said Rosanne Newman, legal director of Legal Aid Saskatchewan’s office in Meadow Lake, 300 kilometres north of Saskatoon.

“I’ve been here since 2002, and I have not heard of a case where a person was denied having his bail (hearing) when he wanted it.”

Considered a hub of northwest Saskatchewan, the Meadow Lake court serves the highest number of northern communities: 13 circuit court points. Like Manitoba’s northern court in Thompson, which has 15 circuit courts, Meadow Lake has three judges. It does have a much smaller population and is much closer to a larger city and a provincial jail.

When he was a judge in Meadow Lake, Earl Kalenith helped establish a video system that made northern courts more efficient and cut down on repeated cancellations because of bad weather. The video links, which have operated for about a decade, can be set up by RCMP in smaller communities that don’t have a permanent courthouse. They allow the accused to appear in front of a judge without the need to travel.

“It started because of the challenges with getting to the circuit-point communities, and in particular the most northern communities,” said provincial court Judge Kalenith, who is now based in Prince Albert.

“It would be a regular occurrence that for one reason or another, there’s scheduled court, but there’s an inability to get there. That was one thing, and also just the exhaustion it created to go into some of the communities as frequently as we did, when you could do a bunch of the same work without having to do the travel.”

Video has been especially helpful in holding bail hearings in remote communities, Kalenith said.

“There’s a huge advantage to having the bail hearing for the accused at their home community. If they’re going to be released, they’re there. Whereas if they’re somewhere else when the bail hearing is held and they get released, there’s a huge problem with their ability to get back to their home community,” Kalenith said.

In Manitoba, the accused can appear in court by video when in custody at a correctional centre. There is no video link at police detachments or circuit courts. People who are arrested north of Thompson must be driven or flown to court there before they can have their first court appearance in front of a judge. When they get there, bail hearings are routinely delayed because of overloaded court dockets.

Saskatchewan’s 102 video-conferencing court locations include the northern communities of La Loche, Ile-à-la-Crosse, Buffalo Narrows and Pelican Narrows, and RCMP detachments in La Loche and Pelican Narrows have video, so people who’ve been arrested can appear in court from there.

“The video-conferencing initiative has reduced the requirement for prisoners to be transported to provincial court for their first appearance and… has reduced the amount of paperwork that needs to be processed at correctional centres,” a spokeswoman for Saskatchewan’s ministry of justice wrote in an emailed statement.

“We are considering options to expand the use of technology into more locations and for more users within the court system to reduce the amount of offender transport between court, improve access for defence to their clients and improve timelier resolution of charges.”

Holding court in person would be ideal, Kalenith said, and it still happens sometimes, even with the video system. But it’s a trade-off to improve access to justice, he said.

“If some use of video increases access, I think that’s a positive development. (It’s) far from a perfect solution. Ideally what you would have is enough resources for people to be there for everything that’s needed so that things can be done in a timely way. That’s a challenge, and it’s especially a challenge getting resources to the north,” Kalenith said.

“I think that’s a problem everywhere in Canada.”

The Manitoba government has promised to upgrade the technology in the Thompson court system. No plan to provide video in remote circuit courts has been announced.

In mid-November, Manitoba Court of Queen’s Bench Justice Chris Martin called for an independent review of the northern court system after he issued a ruling on two cases involving northern Manitobans. He said their rights to timely bail hearings had been violated because they waited too long before they could ask a judge to release them. One had waited 51 days in jail, and the other had waited 23 days behind bars.

Months before that ruling, the provincial court had agreed to schedule bail court five days a week in its Thompson court, beginning in 2020.

It also implemented a restrictive policy prohibiting cases from being transferred to different court locations unless approved by a judge, kept in place pre-existing policies that mandated the daily closure of Thompson court by 5 p.m. and ordered cases to be adjourned for up to a month at a time on an accused’s first appearance.

Legal professionals in other provinces are puzzled by those policies.

Blaine Beaven, a lawyer who has practised in northern Saskatchewan and in Manitoba, said it’s “very common” for court to run into the evening in northern Saskatchewan until the docket is done.

“It’s rare that a judge would say, ‘It’s five o’clock, and we’re not sitting past five o’clock,’” Beaven said. “Most of the time, the court says, ‘Well, we’re here, and we’re getting things done.’ The impression I got from the judges in that area and judges generally across the province is that people are entitled to bail, and they’re entitled to have their matters heard in as timely a fashion as possible. So they try to make it happen.”

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The Canadian Civil Liberties Association has vowed to take legal action against what it calls “unconstitutional by design” bail courts across the country.

In Alberta, a proposed class-action lawsuit has been filed on behalf of Ryan Reilly, who was detained for 36 hours before he had his bail hearing via video conference. Under the Criminal Code, people must be put before a judicial official within 24 hours of being arrested.

In northern Manitoba, that legal requirement is typically considered fulfilled via a perfunctory phone call with a justice of the peace, during which the accused is generally advised to wait until they appear before a judge in person to apply for bail.

Earlier this year, a proposed class-action lawsuit in Ontario failed to be certified by the courts on behalf of a Toronto woman, Robin Cirillo, who spent two nights in jail before she got a bail hearing. Scott Hutchison, one of Cirillo’s lawyers, said an appeal is scheduled for March.

“It certainly isn’t limited to rural locations in Ontario, and indeed some of the most difficult jurisdictions are urban centres,” Hutchison said.

“Ontario has repeatedly studied the issue, and every study has said that the system is really starved for resources and is badly organized. The result is consistent long wait times, or individuals who agree to bail on terms that are especially onerous, because if they asked to actually have a bail hearing to try to fight those terms, they would end up spending an inordinate period of time in custody.”

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The bail delays that have prompted proposed class actions in other provinces come nowhere near the wait endured by a woman from Norway House. Lesley Ann Balfour spent 51 days in jail waiting for her bail hearing after she was charged with aggravated assault and assault with a weapon in November 2017. She had no criminal record at the time, and her charges were later stayed by the Crown. Two years later, in November 2019, Justice Martin ruled her charter right to a timely bail hearing had been violated.

“I felt lost, lonely, worried and so far away,” Balfour wrote in a message to the Free Press. Now a 27-year-old single mother of five, Balfour was reluctant to be interviewed about her experiences in the justice system. She agreed to talk to a reporter via a social-media messaging system six weeks after giving birth to a daughter.

She struggled while she was away from her children and involved in the court system, she said.

“Nobody explained anything to me. It was my first time going to jail,” Balfour wrote.

By the time she was released on bail on Dec. 21, 2017, a housing shortage in Norway House meant the band had given her trailer to someone else. Afraid to breach her court conditions, Balfour stayed in the house for five days before the other residents left. She was later charged with a breach when RCMP found alcohol that someone else had left in her home. She waited until May 2018 for a second bail hearing. All of the charges against her were later stayed.

She said she is doing well, but the experience has affected her life, especially as a single mother.

“I would cry to my parents, but they told me not to worry about the kids,” she wrote.

“All (I) think about is that I couldn’t do the Christmas shopping that whole time I was locked up.”

katie.may@freepress.mb.ca

Twitter: @thatkatiemay