Systemic Failures in the Canadian and Manitoban Bail Systems
Updated: 16 hours ago
Author: M Zerbe
There are systemic issues in the Canadian bail system that need to be addressed. Although the courts maintain that “the release of accused persons is the cardinal rule and detention, the exception”[1], on an average day 62% of adults in provincial or territorial custody are in remand, not sentenced custody. Manitoba has the second highest proportion of adults in custody in remand at 69%.[2] This high proportion of detainees who are presumed innocent suggests a fundamental problem with the way accused pass through the justice system.
The rules regarding Canadian bail – or judicial interim release – are primarily outlined in sections 515 and 516 of the Criminal Code and section 11(e) of the Canadian Charter of Rights and Freedoms. Whenever a person is arrested and is not released by police, that person must be brought before a justice within 24 hours or as soon as possible. Under section 515 of the Code, in most cases, the Crown must show why the accused should be detained in custody or why conditions imposed, but in “reverse onus” situations the accused must demonstrate why their detention is not justified. An accused can be remanded into custody, but according to section 516(1) of the Code the hearing must continue within three days. Section 11(e) of the Charter further enshrines that “[a]ny person charged with an offence has the right not to be denied reasonable bail without just cause”.
R v Myers
In R v Myers, a March 2019 decision from the Supreme Court of Canada, the court considered section 525 of the Criminal Code, which provides for a 30- or 90-day detention review hearing, dependant on the offence. The critical issue was to determine the correct approach to these hearings, as practices varied across the country. In allowing the appeal, the court decided that it is not necessary to first establish whether there was an unreasonable delay before reviewing the detention.[3] The question to be considered in the hearing is whether the detention of the accused is still justified under section 515(10) of the Criminal Code.[4]
In the course of this decision, the court affirmed that “In the pre-trial context, release —at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.”[5] This follows from the right to liberty and presumption of innocence enshrined in sections 7 and 11 of the Charter. Pre-trial detention also presents concrete issues. It makes it more difficult for the accused to raise a defence, it impacts mental and physical well-being, it can lead to a loss of employment, and conditions in detention can often be dire.[6] In addition to the court’s decision on detention review, it criticized Canada’s bail system in general, stating “[d]elays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed.”[7]
R v Balfour and Young
The recent decision of the Manitoba Court of Queen’s Bench, R v Balfour and Young, looked at the circumstances of the bail system in the Northern Manitoba Thompson judicial area, specifically regarding two individuals involved with long pre-trial detention who alleged a breach of their section 11(e) Charter rights. For the sake of brevity, I will only consider here one of these individuals, Ms Balfour.
Ms Balfour was a single mother with no prior criminal record and was arrested on assault charges. She initially appeared before a Judicial Justice of the Peace on November 1, 2017, and her bail hearing was remanded to November 2. Ms Balfour appeared in court at 4:56 pm and was then remanded until November 24 due to a strict requirement to close court at 5:00 pm. Martin J found that she had not consented to this remand as there had been no effort to ensure that she understood what was to happen or to get her consent.8 Her counsel then delayed the hearing until December 7. On December 7, 11, 14, and 18 her matter was “timed out” again and further remanded. On December 19 Ms Balfour’s bail was granted and she was able to return home on December 21. Due to an alleged bail breach she was arrested again on May 7, 2018 and was released several days later. In total, she spent around 56 days in jail and ultimately had her charges dropped. Martin J found that several of these remands were in breach of the three day rule in section 516(1) of the Criminal Code, which lead to a finding of a breach of Ms Balfour’s section 11(e) Charter right to not be denied bail without a reasonable cause.9 Martin J found these remands to be unjustified because they were caused by a lack of resources, court policies, and other contributing systemic factors.[10]
In his decision, Martin J stated several times that this occurrence was not isolated, and while it may not be universal, it was certainly not unusual. These delays were due to “elementary systemic problems” the northern bail system, and even happened in some cases where the Crown agreed with the release of the accused.[11] Particularly critically, Martin J stated that “[i]t is assembly line justice; the human element was marginalized as an accused, the person whose freedom is at stake and who is presumed innocent, was sidelined.”[12] Several times in his decision Martin J relied on the decision in Myers to affirm that bail hearing must be a high priority and that any delays must be in accordance with the rights of the accused.
Recommendations
In Balfour, while stating that he doesn’t have the jurisdiction to order the government on how to fix problems, Martin J gave some recommendations. First, he suggested that participants in the justice system examine their own roles and address some of the internal problems, including the need for additional court resources. As a longer-term recommendation, he called for a comprehensive, independent review of all parts of the bail system in northern Manitoba.
While as of November 19, Justice Minister Cliff Cullen said that the government needs more time to consider Martin J’s recommendations, it is clear that the government needs to act in order to address the keys issues that give rise to these injustices.[13] Although funding appears to be a key need for immediate change, there will need to be a review of police, prosecutors, court rules, legal aid policies, as well as other underlying causes in order to create a system that upholds and supports the fundamental rights of accused.
Endnotes:
[1] R v St-Cloud, 2015 SCC 27 at para 70.
[2] Jamil Malakieh, “Adult and youth correctional statistics in Canada, 2017/2018” (9 May 2019), online: Statistics Canada <www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00010-eng.htm>
[3] R v Myers, 2019 SCC 18 at para 29 [Myers].
[4] Ibid at para 63.
[5] Ibid at para 1
[6] Ibid at paras 26-27.
[7] Ibid at para 38.
[8] R v Balfour and Young, 2019 MBQB 167 at para 83 [Balfour].
[9] Ibid at para 86.
[10] Ibid at para 83.
[11] Ibid at para 80.
[12] Ibid at para 81.
[13] Sean Fine, “Delayed justice: Judge slams ‘collapsed’ bail system that sees thousands waiting for hearings in Northern Manitoba”, The Globe and Mail (19 November 2019), online: www.theglobeandmail.com/canada/article-court-justice-says-the-northern-manitoba-bail-system-has-collapsed/
