Suspects released, legal expert asks why Law prof doubts police claim Criminal Code forced release By: Dean Pritchard Posted: 7:00 PM CDT Thursday, Oct. 20, 2022 Last Modified: 8:26 AM CDT Friday, Oct. 21, 2022 Updates

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It was a violent assault that left a downtown shopkeeper in hospital with a likely life-altering brain injury.

Although investigators with the Winnipeg Police Service major crimes unit arrested two people Tuesday following the Saturday-evening attack, the 51-year-old man and 39-year-old woman were released a short time later on an undertaking.

And while police are defending the decision, one legal expert says the pair didn’t have to be released.

A Winnipeg police news release announcing the arrests said releasing the two accused on an undertaking was mandated by the Criminal Code.

An undertaking is a document created by either police or the court requiring an accused person upon their release to abide by certain specified conditions, including promising to appear in court.

A 65-year-old man was assaulted and rendered unconscious after he confronted a group of alleged shoplifters at the Donald Street convenience store he operated with his wife. He was taken to hospital in stable condition — but with injuries police spokesman Const. Jay Murray described as “likely life-altering.”

The man’s 60-year-old wife sustained minor injuries.

Court records show the two accused have only limited criminal records. The woman, however, is facing drug charges from December 2020 and was the subject of an arrest warrant after she failed to appear in court Oct. 4.

Police had no record of an arrest warrant being issued for the woman, Murray told the Free Press in an email Thursday.

Asked what factors supported releasing the two on an undertaking, Murray pointed to sections of the Criminal Code requiring police to “give primary consideration to the release of an accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate” and to “give particular attention to the circumstances” of Indigenous suspects who are overrepresented in the justice system and face disadvantages obtaining release.

Police are not to release suspects if there are reasonable grounds to believe they will reoffend or not appear in court, the Criminal Code says.

“Police in Canada have a level of discretion when it comes to releasing or detaining a person — but regulations essentially limit that ability. As a result, there are many situations where we would like to detain an accused person but are legally bound to release them,” Murray said.

Murray also pointed to the recent Bill C-75 as a reason people accused of crimes are released. That resulted in a number of amendments to the Criminal Code which means bail is often the rule — and keeping an accused offender behind bars is the exception.

However, a University of Manitoba law professor described the circumstances of the convenience-store assault as concerning and questioned the assertion police were mandated to release the accused pair.

“The Criminal Code certainly doesn’t mandate that certain people get released in circumstances like this,” said Brandon Trask.

“At the end of the day that is a judgment call.”

While the Charter of Rights and Freedoms ensures the right to reasonable bail, that doesn’t mean everybody should be released, Trask said.

The same factors a court considers when determining if an accused is a candidate for bail are relevant when police consider whether to release someone on an undertaking, he said. Will they show up for court? Are they a danger to reoffend? Will their release bring the justice system into disrepute?

“It’s not clear to me if police consulted with the Crown about the potential for release. In a case like this, where there was a serious injury, you would hope the police and the Crown would be turning their minds to protecting the public,” Trask said.

The man and woman are expected to appear in court in December on charges of robbery and aggravated assault.

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.

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