Bail practices in Northern Manitoba should ‘shock the conscience’ of reasonable people, judge says

Delays in bail hearings that violated Charter rights of accused people from Split Lake and Norway House are result of systemic issues

A pair of Northern Manitobans charged with criminal offences had their Charter rights violated as a result of excessive delays in having their bail applications heard in Thompson, a Manitoba Court of Queen’s Bench judge said in a Nov. 14 ruling.

One of the applicants whose rights were violated was Lesley Balfour of Norway House, who was arrested on the first day of November 2017 for not complying with an undertaking she had signed upon her initial arrest for assault charges about five weeks earlier. The charges against Balfour were eventually stayed and she had no criminal record at the time of her arrest, but she spent more than 51 days in custody awaiting a bail hearing, and Justice Chris Martin found that she had not given her consent to being held in custody from Nov. 2 to Nov. 24 of that year, or for other delays in her bail application being heard from Dec. 7-Dec. 19, 2017.

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Dwayne Young of Split Lake was arrested in Thompson on Jan. 1, 2018 for a charge of aggravated assault stemming from an incident in his hometown of Split Lake. His bail application began in provincial court in Thompson Jan. 8, but the judge wanted more information about his address and employment situation, and the hearing wasn’t resolved until Jan. 23, when his bail was denied. Some of the delay between Jan. 8 and Jan. 23 was the result of judges being under “strict instructions” from the province's chief judge to end bail application hearings at 5 p.m. regardless of whether there were still cases on the docket, resulting in many accused having their applications “timing out” and then having to wait for the next day when bail applications were being heard, usually Mondays, Tuesdays and Thursdays.

The decision to hold Young in custody pending trial was later reviewed by the Court of Queen’s Bench and found to have been justified. Martin also presided over Young’s trial, which ended up with him being found not guilty.

“The bail practices at play in Northern Manitoba, related to the Thompson judicial area, should shock the conscience of any reasonable person,” Martin wrote, having noted earlier that if Balfour’s situation had arisen in Winnipeg, it would have been resolved within a couple of days, rather than taking seven weeks. 

“This is a disturbing chronicle of a dysfunctional bail system,” read the first sentence of Martin’s decision.

While Martin said in his ruling that he did not have the power to order changes to the way bail applications are handled in Thompson, which is the judicial centre for at least 16 outlying communities, he said that systemic issues contributed to the lengthy delays Balfour and Young experienced in having their bail applications heard. These conditions include the requirement that judges stop for the day at 5 p.m., the lack of a remand centre in Thompson to hold accused persons awaiting bail hearings or trials, and a general lack of sufficient resources to handle the caseload in Thompson, which likely has the highest volume of criminal cases in Manitoba outside of Winnipeg.

Affidavits from lawyers working in Thompson that were presented to the court as part of the Charter rights case said that “individuals have had their time in custody extended because of the lack of resources,” that “the phenomenon of matters not being reached in bail court is one that is long standing,” and that “These types of delays were the general rule, not the exception.” A former Crown attorney said in a deposition that she could not recall a single time when the court was able to substantially address every case on a bail court docket and that accused sometimes spent months on the custody co-ordination docket, an administrative court used in Thompson to deal with bail applications, while waiting to hear from Legal Aid lawyers, who handle the majority of criminal cases in Northern Manitoba. She also said she “witnessed thousands of accused be practically denied the right to reasonable bail due to [a] crippling lack of resources.”

Because both Balfour and Young’s cases had been resolved before the Charter violations were addressed, Martin could not ask for a stay of proceedings on the charges against the two, so he took the uncommon step of ordering the Crown to pay costs of their lawyers, including $5,000 each and reimbursement for all their out-of-pocket expenses. He said that if delays in hearing bail applications like this continue to occur, “at some point a stay of proceedings or significant damages, through a civil Charter lawsuit, will be the only effective remedies to motivate the powers that be to move appropriately on this issue.”

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