Buried by Bail

Featured in Robson Crim

Mar 3, 2020

4 min read

Updated: 11 hours ago

Author: R Tuesday

A recent Manitoba Court decision sheds light on the bail system in northern Manitoba. It is not a pretty picture. At best you could view the situation at hand as the result of limited resources, issues regarding accessibility in isolated northern communities, and procedural disfunction. At its worst, it is the systematic reduction of human rights.

R v Balfour & Young was not only extremely disheartening but also necessary to read.[1] It is a case about bail hearings: being held in custody while awaiting a hearing to grant bail. The case brings light to the workings of the justice system in northern Manitoba. The Court in Thompson, MB, a northern community itself, services matters of justice for other northern communities.

I generally find myself quite cynical of the systems that exist within our society. I found this particular case shocking. It is a resounding portrayal of how limits to resources and a lack of empathy lead to the institutionalization of systems of abuse. Justice Martin asserts: “it is enough to simply and strongly find that the bail practices in play in northern Manitoba, related to the Thompson judicial area, should shock the conscience of any reasonable person.”[2] I would add that it should strike the hearts of lawyers and law students more than the average person.

Justice Martin opens the ruling of this case with this quote from a Supreme Court of Canada judgement:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.[3]

I believe this assertion to be fundamental in forming a perspective to analyze the workings of the criminal justice system. Both plaintiffs in this case were denied their Charter right to section 11(e). This denial left them at the mercy of a broken justice system and remanded in custody for weeks. It is unbelievable that the issues in this case came to fruition, especially when it was well known by judges and lawyers within the system.

The problem is that broken and harmful systems have become commonplace. When these systems become rooted and normalized it can be difficult to see past them. Such is the case with the justice system of Thompson:

This was so pervasive, so insidious that even the standard bearers of the judicial system, judges, Crown counsel and defence counsel, frequently succumbed to the deficiencies instead of resolutely insisting upon the constitutionally protected safeguards implicit in an individual’s s. 11(e) Charter rights [4] It has become too easy to get caught up with the work to be done, without taking a moment to examine the practice. There must be safeguards established that prevent the normalization of dysfunctional systems.

Northern residents of Manitoba are being failed by our system. This becomes even greater of an issue when you consider the residents of northern communities are often Indigenous. The colonial history of Canada is not only prevalent but rooted in our criminal justice system. It is one reason for the skewed demographics of people in custody. A much larger than representative portion of people in custody are Indigenous. Martin makes note of this: “Overrepresentation of Indigenous people in jail, including in-custody remands, is an infamous stain on Canada’s justice system.”[5] Our justice system must make amends to these issues.

More than ever it is necessary to evaluate the work we are doing and understand the implications of that work. We owe a duty to the community at large, especially to the Indigenous peoples of Canada, to break down the systems of oppression which still exist. Justice Martin again delivers clarity:

“Globally, systemic issues were not being adequately addressed or managed by those with the power to make the meaningful, profound changes that were necessary.”[6]

While Martin acknowledges (being well acquainted with the legal professionals in the Thompson system) that they were doing their best, it is not enough. We must speak out about the problems we are faced with.

The legal community holds a lot of power. Judges and lawyers alike have the ability to create and influence law. While they are governed by systems in place it is hugely problematic that judges did not have the ability to change the structure of the systems. Many judges referenced in the R v Balfour and Young understood that there was a of lack of resources and yet did not have the power to change that. They were not even permitted to sit longer than the 5:00 pm court cut off.[7] If we are willing to read a judgment as binding law how is it possible they do not have enough autonomy to determine procedure in their own court room.

The time Balfour and Young spent in custody was an infringement of their individual Charter rights. It was a denial of individual freedom, which we as a Canadian society value above almost all else. What is worse, these outcomes could have been avoided: “The breaches were predictable; arguably they were in part institutionalized by court policy, albeit an unintended consequence.” [8] Yet Balfour and Young received nothing but a judgment in their favour for the abuse they suffered under the system.

This case has been a reminder to me: that the law affords retributive action, but that this remedy is undesirable. This case has reminded me that we need to be actively engaging with the systems that dictate our lives. We need to critique our normal practice and determine the extent to which our policies affect people. We should be determined to remedy issues before they arise or before they deeply infringe upon our rights.