Right to timely bail hearings in spotlight


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A Norway House woman who was detained for more than 25 hours without a chance for release has doubled down on a court declaration that her charter right to a timely bail hearing was violated.

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Hey there, time traveller!
This article was published 03/10/2022 (245 days ago), so information in it may no longer be current.

A Norway House woman who was detained for more than 25 hours without a chance for release has doubled down on a court declaration that her charter right to a timely bail hearing was violated.

But the judge declined to enter a judicial stay of proceedings that would have scrapped her impaired driving conviction in the case.

The recent decision follows calls for an independent review into bail practices in northern Manitoba and alleged systemic injustices that are disproportionately affecting Indigenous people in remote communities. In this case, the court rejected defence arguments about overarching bail concerns and decided not to make any legal findings that there is a systemic problem.

Amy Robin Jorden Crate appealed to the Court of King’s Bench for a review after a provincial court judge in The Pas stopped short of finding a charter breach stemming from her first court appearance, even though he acknowledged her right to reasonable bail was violated.

The recent Court of King’s Bench decision from Justice Candace Grammond, dated Sept. 23, states provincial court judge Malcolm McDonald erred because he didn’t consider Crate’s first appearance before a judicial justice of the peace a constitutional breach.

Crate was arrested on a Saturday morning in February 2018 and was detained at the Norway House RCMP detachment on four charges, including impaired driving and possession of cannabis for the purpose of trafficking. She had no criminal record and her blood-alcohol readings were on the lower end, court found. She wasn’t driving, but an RCMP officer saw her switch seats with her boyfriend in the vehicle prior to her arrest. (Upon conviction, she was fined but sentenced to no jail time on those charges).

She didn’t have a hearing until Sunday morning, more than 24 hours after her arrest, in violation of the Criminal Code. Her initial hearing was only about three minutes long and no lawyers participated. The RCMP “auto-remanded” Crate by objecting to her release based on a 2017 letter from a federal prosecutor that recommended detaining drug-trafficking suspects. The police officer didn’t consult a Crown attorney about Crate’s case, but she was released by consent of the Crown two days later in Thompson court, 300 kilometres away.

McDonald decided, and Grammond agreed, that there was not enough evidence of a systemic “auto-remand” problem within the RCMP. One officer relied too heavily on the 2017 letter from the prosecution’s office as blanket permission to detain, but other officers testified they understood they still had to contact the Crown in each case.

In each of their decisions, McDonald and Grammond rejected some defence arguments and pointed out problems with the way defence lawyers handled the case. Crate’s charter rights were violated, but judge McDonald was right not to make any declarations about systemic, ongoing bail problems, the court found.

“I agree with his conclusion that there was no systemic violation,” Grammond stated in her decision.

Ontario-based lawyer Boris Bytensky argued on Crate’s behalf before Justice Grammond.

The decision follows constitutional challenges first brought forward by defence lawyer Rohit Gupta about court delays that were causing Indigenous people in northern Manitoba, primarily, to be unfairly detained. Gupta’s arguments in a similar Norway House case, Young and Balfour, resulted in Justice Chris Martin calling for an independent review of Manitoba’s northern bail system in November 2019. Judge McDonald echoed those calls in his ruling on Crate’s case a month later.

“In my view the declarations in this case and in Balfour, standing together, should have been impactful, and should have given rise to significant changes to the system,” Grammond wrote in her decision, explaining why she decided not to throw out Crate’s conviction.

“This is simply not one of the clearest of cases, and a stay of proceedings should not be entered,” she wrote.

No independent review of systemic bail problems in northern Manitoba has been conducted, despite the court declarations.

Katie May

Katie May

Katie May is a general-assignment reporter for the Free Press.

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