This is the second installment of my series on how to facilitate the right to reasonable bail for Indigenous accused. The last installment was on the steps to take immediately after the arrest. Today we’ll discuss a brief point about the accused’s initial appearance before a justice.
The nature of the appearance before a justice mandated by section 503(1) can vary dramatically depending on many factors, including:
- The province and region in which the arrest occurs
- Whether the place of arrest is urban or rural
- The presence or absence of a Crown attorney
- The presence or absence of defense counsel
- The legal training (or lack thereof) of the presiding judicial officer
The proceeding could happen in-person, by video, or by phone (audio only). It could be rushed or lackadaisical. It could be a robust examination of the custodial status of the accused or a perfunctory “remand hearing” designed, in practice, to shuffle the accused along to another docket.
It’s difficult to provide general advice given how profound the procedural differences are between provinces with respect to the first appearance. If you’re participating as defense counsel in such a hearing, however, remember to keep a few things in mind:
- If the police are acting as agents of the Crown in such a hearing, make note of your objection to this practice. The Alberta Court of Queen’s Bench has found that police officers may not act as the Crown in bail proceedings under Part XVI. See Hearing Office Bail Hearings (Re), 2017 ABQB 74.
- While it may be tempting to apply for an adjournment to better prepare for the hearing, many Indigenous accused are profoundly harmed by such adjournments. Especially when they come from remote or northern communities, adjournments may necessitate significant travel and expense for them and for their families. It’s not always wrong to ask for an adjournment but be aware of the cost of doing so.
- Make note, on the record, of any concerns you may have with respect to breaches of the time limit in section 503(1) or the Charter.
Remember the three-day time limit to adjournments imposed by section 516(1). Also remember that a court may not adjourn proceedings on its own motion. The section reads, “on application by the prosecutor or the accused, adjourn the accused…” If you wish to proceed to a show cause hearing and the justice proposes to adjourn proceedings on their own motion, note your objection.
Adjournments at the first appearance before a justice should not be automatic. If your client is in a remote location, and several days away from the nearest court, chances are higher that you’ll want to proceed to a bail hearing at the first appearance.