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Court dysfunction has existed 'forever' for northern Indigenous people

Hey there, time traveller!
This article was published 22/11/2019 (262 days ago), so information in it may no longer be current.

A groundbreaking legal decision bearing his name has earned national attention for exposing "so pervasive, so insidious" problems with bail court in northern Manitoba. But at home in Split Lake, nothing has changed for Dwayne Young. He can't rewind back to a time before his rights were violated.

"The time they've taken away from me, I'll never get back. There's nothing they can give me to get that time back," he says.

Dwayne Young of Split Lake spent more than 20 days in jail awaiting his bail hearing, only to be eventually acquitted of his criminal charges. A Manitoba superior court judge has ruled Young’s right to a bail hearing within a reasonable time was violated, but Young says the decision can’t give back the time he spent locked up.     
 (Supplied)

Dwayne Young of Split Lake spent more than 20 days in jail awaiting his bail hearing, only to be eventually acquitted of his criminal charges. A Manitoba superior court judge has ruled Young’s right to a bail hearing within a reasonable time was violated, but Young says the decision can’t give back the time he spent locked up. (Supplied)

For 23 days after his arrest in January 2018, the 28-year-old man waited for a chance to get out on bail. He was denied. He was finally released from custody ten months ago after being found not guilty of aggravated assault.

Last week, a Manitoba superior court judge ruled in favour of Young and Lesley Ann Balfour, a now-27-year-old single mother from Norway House, who spent 51 days in jail waiting for her bail hearing in a separate case.

Court of Queen's Bench Justice Chris Martin released a scathing ruling Nov. 15 that declared Balfour and Young's charter right to a timely bail hearing was violated and that the way they were treated was unconstitutional. The two defence lawyers who took the charter challenge to court were awarded legal costs for their work.

But both Young and Balfour had already had their criminal charges stayed or dropped — there was no other remedy the judge could give them.

They've become the faces of a broken bail court, examples of legally innocent people harmed by what Martin described as a system of "assembly line justice" that has been the norm in Thompson due to a chronic lack of resources.

"The time they've taken away from me, I'll never get back. There's nothing they can give me to get that time back." –Dwayne Young

Martin's decision pointed out systemic rights abuses and called on Manitoba's government to launch an independent review, though the province has made no such promise.

"This is a disturbing chronicle of a dysfunctional bail system," the judge wrote.

"That may be news to a lot of people today," Young said from his home in Split Lake, where he was caring for his three-year-old son when reached by the Free Press.

No sense of urgency

Despite assertions the justice department and provincial court are doing everything they can to improve access in northern Manitoba, criminal lawyers haven't seen "swift action" to correct a system in which people's constitutional rights are being violated.

Despite assertions the justice department and provincial court are doing everything they can to improve access in northern Manitoba, criminal lawyers haven't seen "swift action" to correct a system in which people's constitutional rights are being violated.

"The sense of urgency isn't there. There does not seem to be swift action being taken to correct what Justice Martin identified as a pretty awful, systemic problem," said Gerri Wiebe, president of the Criminal Defence Lawyers Association of Manitoba.

Under the Criminal Code, bail hearings can't be delayed longer than three days without consent from the accused, who is legally entitled to be brought before a judge or judicial official within 24 hours after arrest.

Canadian courts have repeatedly emphasized a lack of resources is no excuse for not upholding constitutional rights. Charges can be thrown out of court as a result.

"In cases where the charges are still pending, they're going to start staying proceedings," Wiebe said. "They're going to start losing the ability to prosecute people because of their inability to ensure the constitutionality of the system."

Both Justice Minister Cliff Cullen and provincial court Chief Judge Margaret Wiebe have said they've long-known about the problems facing the northern court and are working on solutions.

Starting in January, bail court in Thompson will run five days a week, instead of 2.5 days. Promised $11-million renovations to the court office, the northernmost court in the province, are expected to help, but the designs are still being finalized, Cullen said this week.

He said the province is also looking at "technology enhancements" to help ease bail delays, and plans on "bringing the justice system into the 21st century" by transitioning all courts away from the current paper-based system.

But court in Thompson still closes at 5 p.m., as per a policy aimed at reducing overtime among clerks and sheriffs.

An administrative docket is still in use that allows criminal cases to be adjourned for up to four weeks at a time — often while people accused of crimes wait in custody for a lawyer to be assigned to their case. And in July, the provincial court stopped allowing cases to be transferred to different court locations, even though accused people are routinely moved to various jails around the province.

The defence lawyers association plans to challenge the no-transfer policy, Wiebe said. "It seems to fly in the face of an effort to try to alleviate the backlog in Thompson."

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

"But no, that's not news to everyone I know; to me; to every Aboriginal person that dealt with the system. We've known this for decades, man. It's been like this forever."

Young, who has a criminal record, was accused of starting a New Year's Day fight in which another man was stabbed in the chest with scissors, but Young insisted he'd only tried to stop the fight.

Over and over again, when he tried to apply for bail, the provincial court in Thompson ran out of time to hear his case. Eight days after his arrest, his hearing began, but it was delayed while his lawyer got more information on his employment at the court's request.

He didn't get a full bail hearing till Jan. 23, and he was denied bail. At his trial a year later, Martin sided with his account of what happened and acquitted him.

Lost job, missed funerals

While he waited for a bail hearing, Young lost his job working on power lines for a Manitoba Hydro contract. It was a job he'd hoped would turn into a career, and he was the sole breadwinner for his family. Now, he's trapping and looking for steady work.

He was shuffled to correctional centres in the Pas and Brandon, hundreds of kilometres away from home, too far for his family to visit. While he was in custody, he missed the funerals of his uncle and his cousin.

Though he maintained his innocence, he begged his lawyer, Rohit Gupta, to let him plead guilty just so he would get out of jail sooner. Instead, Gupta kept fighting for him — something Young still gets emotional about.

Tearing up over the phone, Young recalled how desperate he felt, promising his family he'd be out soon when his case kept getting delayed.

"The worst feeling is not knowing. Not knowing what was going to happen next. It's not knowing that kills you," Young said.

"They need to look at this justice system. They need to fix it," he added. "I don't think they ever will. They will just keep on with it. It's not their lives that are being hurt. Taking and putting people away for nothing. They're not hurting themselves. They don't care.

"But look at us, we have families too. We have jobs. Not everyone is guilty of what they're accused for. It's not right."

"The worst feeling is not knowing. Not knowing what was going to happen next. It's not knowing that kills you." –Dwayne Young

Manitoba hasn't made a commitment to undergo any kind of independent review of its justice system, but the province's justice minister said that's under consideration as he continues to review Justice Martin's ruling.

"This has been a longstanding issue and it's a complex situation," Cliff Cullen said. "It isn't going to be resolved overnight. There's no silver bullet to resolve this situation.

"I will say that we recognize the challenges there and we are taking proactive steps to address the situation there. We're certainly reviewing the ruling, it's certainly under consideration if we bring in a fresh set of eyes to review it, but having said that, we're certainly continuing to do everything we can to make sure that people have access to timely justice in the North."

The Crown will not appeal the legal ruling, Manitoba Justice confirmed this week.

katie.may@freepress.mb.ca Twitter: @thatkatiemay

Katie May

Katie May
Justice reporter

Katie May reports on courts, crime and justice for the Free Press.

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History

Updated on Friday, November 22, 2019 at 7:45 PM CST: Adds factbox

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