At this point in this judgment, 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.Justice Martin at Paragraph 90 of R. v. Balfour and Young, 2019 MBQB 167
There are few factors more central to the proper operation of a fair justice system than a well-oiled bail process. Correctly run, bail ensures the liberty of innocent men, women, and children while protecting the safety of the public and the integrity of the trial process. It is inconceivable that a justice system, at least one that could fairly be called just, could operate without a well-funded and skilfully run system of bail.
But what happens when every single safeguard built into bail hearing procedure in Canada fails? What happens when people are arrested and detained without due process, for months at a time?
You may think that such a system could not exist in modern-day Canada. You’d be wrong.
761 kilometres north of Winnipeg lies the city of Thompson, Manitoba. Home to a large Vale nickel mine, the city operates as a hub for dozens of tiny towns and Indigenous communities that pepper the landscape of the northern part of the province.
As with many small cities, there isn’t much about the town that makes it remarkable. It’s cold, I suppose, and there’s an apartment building with a huge mural of a wolf. So, that’s neat.
Importantly, however, Thompson and the surrounding area are well-known for one thing: crime. More accurately, the prevalence of violent crime in the area has made it Canada’s most violent city in Maclean’s ranking of the country’s most dangerous places.
When combined with the fact that the Thompson Provincial Court serves no fewer than 15 outlying communities, often by flying in on a bush plane in the morning and flying back out in the late afternoon, it’s no surprise that the court, and the lawyers who serve it, are rather busy.
I worked in Thompson, mostly as a Crown Attorney but for a tiny bit as a defence lawyer, from June 2012 to December 2017. While the people who made up the justice system there were largely well-meaning, good-hearted, and hard-working, the system as a whole was deeply flawed.
Those flaws were highlighted in November of 2019 in the case of R. v. Balfour and Young 2019 MBQB 167. The case served, and continues to serve, as a stinging indictment of the justice system in this part of the country.
Lesley Balfour and Dwayne Young
I won’t go into great detail regarding the facts of the case. If you like, you can read the case yourself. It’s harrowing stuff. Suffice to say that Lesley Balfour, a 25-year-old Indigenous mother to four children with no criminal convictions was held for 51 days before being given the opportunity to apply for judicial interim release. Dwayne Young, a young Indigenous man, was held for 23 days before he got his bail hearing.
These ungodly delays occurred against a backdrop of massive systemic issues that ensured countless people were spending more time in custody than was otherwise necessary.
The case contains many quotable pearls of wisdom and I’ll go through just a few of them. First, though, I hope to make one thing clear. As a former participant in the justice system who practiced in this location, I must accept my share of the blame for making things the way they were. When I criticize others in the following paragraphs it should be understood that I bear an equal amount of personal responsibility for these issues. After all, I saw these sorts of things happening, participated in them, and did virtually nothing to prevent them.
The Custody Coordination Docket
By Provincial Judges Court policy, affecting only the Thompson Provincial Court, if bail is not applied for at an appearance, an accused person is to be adjourned to a “custody coordination docket”, most often well beyond the Criminal Code’s three-day remand limit, up to a maximum of four weeks. During that time, an accused can apply to be brought forward to the next available custody court date as long as two clear days’ notice is given to the Crown. The custody coordination court is not a court of record, it is an administrative docket.R. v. Balfour and Young, Paragraph 17
Note the use of the mandatory phrasing: “is to be adjourned…” as opposed to “may be adjourned.” The practice in Thompson, as described by this Policy Directive, was that when someone appeared in-custody on a Monday, Tuesday, or Thursday Provincial Court docket and their matter was not concluded, they were not entitled to an adjournment to an actual court sitting within three days. They were required to adjourn to an administrative docket four weeks hence.
As Justice Martin references, this is contrary to the Criminal Code, which permits remands in excess of three days only with the accused’s consent.
Zero Bail Reviews
In the approximately four years I spent as a Crown Attorney or articling student in Thompson I initiated and responded to exactly zero section 520 bail reviews. This wasn’t because the first instance adjudicators on the Provincial Court were preternaturally gifted at crafting just bails. Indeed, I have no reason to believe they were any better or any worse than anywhere else in the country.
On occasion, as with any judicial area, the rulings on bail in Thompson were reviewable on their face. Among other things, the Provincial Court in Thompson was fond of “banishment bails,” where an accused would be released but not allowed to attend their remote home community. They would be forced to find accommodation in Winnipeg, which is hundreds of kilometres away from northern Manitoba.
First-instance rulings weren’t just sometimes unfair to the accused. They sometimes put public safety at risk as well. I clearly recall arguing the bail hearing of an accused charged with a serious sexual assault. He had a continuous and recent criminal record that ran over four pages long and contained 14 assaultive convictions.
The bail judge demanded to know when the accused’s trial date would be (keep in mind, the accused hadn’t entered a plea at this point) and indicated that the length of time to the accused’s trial was the only factor he would consider.
When that potential trial date was determined to be about 12 months hence, the accused was released. I did not apply for a bail review under section 521 of the Criminal Code. Despite the fact that the bail judge improperly weighed the relevant factors by relying on time-to-trial as the sole criteria of release, and despite the fact that this accused clearly posed a substantial risk to public safety, I did not apply for a review.
The lack of any bail reviews in four years might seem incomprehensible to practitioners from most jurisdictions. But it becomes more understandable when you consider the fact that Thompson had no sitting superior court judges.
An Absent Court of Queen’s Bench
The Court of Queen’s Bench had no permenant justices in the Thompson jurisdiction. It still doesn’t. Instead, it would sit once per month for an assignment list and on an adhoc basis as needed for major trials. This meant that, if defence counsel was inclined to initiate a bail review, the procedure would go as follows:
- Schedule a first-instance bail hearing. As demonstrated in R. v. Balfour and Young, that might take as long as 51 days.
- After receiving an unfavorable ruling at first instance, you would file the application immediately.
- That application would be put on an assignment list, which could be as many as 31 days away.
- At the assignment list, the matter would be set down for hearing. Depending on the availability of time, that could have been any number of months in the future. But, to be charitable, we’ll assume that there would be room on the list on the next docket, which would be another 30 or 31 days in the future.
- Assuming there were no transport issues bringing your client to court (the nearest jail was 386.4 kilometres away by sheriff’s van), you would argue the application at the next sitting of the QB.
All told, taking all of the usual delays into account, your client could reasonably expect to wait approximately 112 days from the time of arrest until the bail review was heard. Even if there wasn’t an inordinate delay in the first instance bail hearing, the accused would still wait a minimum of 60 days before the bail review was heard.
Two s. 525 Detention Reviews
This absence of bail reviews extended to section 525 detention reviews. These reviews are supposed to happen every 30 days for summary offences and 90 days for indictable offences. In my time in Manitoba, they simply did not occur on a regular basis.
I recall handling a single request for a section 525 detention review as Crown counsel in about four years. During my brief time as defence counsel I remember asking for another one (and receiving significant pushback). That was it. Two in 5 years.
“it is clear that the critical purpose of the JJP hearing – to meaningfully deal with release – was undermined because Crown and defence counsel were not more active participants.”R. v. Balfour and Young, Paragraph 85
Exacerbating all of these issues was a lack of effective 24-hour bail hearings. While the Criminal Code of Canada guarantees a hearing before a justice within 24 hours of arrest (or as soon as a justice is available thereafter), in Thompson, these hearings were referred to as “remand hearings.”
In Thompson, the practice was to have the accused appear by phone with a JJP. The police would represent the Crown and the accused did not have access to defence counsel. The accused would generally be encouraged to adjourn their matter to a Thompson docket by a JJP who would advise them of their ability to access counsel in that court. (Keep in mind, the Thompson Provincial Court was often hundreds of kilometres away and it could take anywhere from one to four days to arrange an appearance there.)
If the accused insisted on having their bail hearing at the first appearance before a JJP, and couldn’t be dissuaded, a Crown Attorney would call in to act for the Crown at that point. Defence typically didn’t participate in these hearings.
The reason these hearings were called “remand hearings” was because 99% of them ended with the accused agreeing to a remand to Thompson Provincial Court. That’s unsurprising, given the direct and indirect pressures accused felt to adjourn their matters into court. I suggest that the proportion of accused electing to adjourn their matters into a bail court as dysfunctional as the one identified in R. v. Balfour and Young is, by itself, proof that the first appearance system of bail appearances had broken down.
Not only was the bail system cumbersome, in many instances it collapsed. Critically, accused were timed out from having a bail application and were consistently remanded, with or without consent, for no proper reason other than a lack of resources. It 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. Many factors haphazardly conspired against an accused receiving a meaningful and timely bail application. 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.R. v. Balfour and Young, Paragraph 81
This is as direct and forceful a criticism as a judge is likely to hand out in a published judgment. Justice Martin calls out “judges, Crown counsel and defence counsel” specifically, pointing out how all of them failed to resolutely insist upon “the constitutionally protected safeguards implicit in an individual’s s. 11(e) Charter rights.”
Although I had left Thompson by the time the events of this case rolled around, I’m sure I presided over similar or identical injustices in my time as Crown counsel and did nothing. For that I’ll always be morally responsible and deserve my share of the criticism directed at the bench and bar in this illuminating judgment.