On reducing proportion of Indigenous inmates:
Both federal and provincial governments acknowledge they need to address disproportionate rates of Indigenous inmates. In Manitoba jails, Indigenous people make up 74 per cent of inmates even though Manitoba’s general population is only about 18 per cent Indigenous, according to the province’s recently released Criminal Justice Modernization Strategy.
“By taking into account a person’s vulnerabilities or aboriginal background appropriately at the bail application stage, the hope is that you’ll get more releases for people from an aboriginal background or a disadvantaged background and you might see a more careful honing of conditions to prevent breaching or further allegations for breach of bail if you take those factors into account appropriately,” says Scott Newman, spokesman for the Criminal Defence Lawyers Association of Manitoba.
NDP Justice Critic Nahanni Fontaine said she’s pleased to see judicial officials will have more discretion on whether to grant bail under the proposed legislation, including what conditions to impose and how to deal with sureties. “I always hope that these changes lead to real tangible reductions in respect of Indigenous people within the correctional facilities. So I feel positive about these and I hope that they will lead to some tangible change.”
On restorative justice:
If the reforms do lead to more people being released on bail or not held as long in custody, does Manitoba have enough community resources to meet the need? Justice Minister Heather Stefanson says the government is working on partnerships with restorative-justice organizations, which work with offenders and victims to divert cases from the court system and come to a resolution in the community.
“We’re looking at better allocating resources out there. Right now, we’ve done a full review as you know of many of the programs that we have invested in in the past. Some have worked, some haven’t. Especially through our responsible reintegration program, we’re looking at organizations out there who are helping with that strategy. There are already great organizations out there that are already doing this. We don’t need to re-invent the wheel. What we need to do is form partnerships and that’s what we’re looking to do as a government.”
On domestic violence:
In a national study of intimate-partner violence, Manitoba had the second-highest rate of reported domestic violence incidents among the provinces, according to Statistics Canada. The study looked at data from 1991 to 2011 and found that rates were highest in Saskatchewan and Manitoba. In Winnipeg alone in 2016, domestic-violence incidents dealt with by the Winnipeg Police Service increased by seven per cent.
Stefanson and Fontaine both praised the federal amendments that increase maximum penalties for domestic violence offenders and make it more difficult for repeat offenders to be released on bail. Fontaine said there needs to be recognition that domestic violence offenders may benefit from restorative justice, not just jail time.
From a defence lawyer’s perspective, the changes are “problematic,” Newman said.
“We’re in a Me Too age where there’s certainly strong condemnation of domestic violence, but we still have to make sure that we’re not resorting to mob justice, that we’re not convicting people who should otherwise be found innocent because we’re disgusted by the allegation. We have to really fight back against that impulse and make sure that we’re only sanctioning people who are guilty of a crime and deserve it,” he said.
On preliminary inquiry restrictions:
Manitoba “spearheaded” a plan to abolish preliminary inquiries, and Crown prosecutors in the province have already been directed to increase the use of direct indictments in the most serious cases, which skip over the preliminary process and send the case straight to trial.
“We will always take into consideration what is in the best interest of public safety in Manitoba,” Stefanson said. “And this is primarily why we have looked at the use of direct indictments of the most serious of cases out there to ensure that those people don’t go free as a result of a stay of charges, but that they’re allowed to go through the process in the appropriate way in a timely fashion.”
In a province that has a history of wrongful conviction cases, all but getting rid of preliminary inquiries is a bad sign, Newman said.
“We’re forgetting the lessons of the past and we’re sacrificing trial fairness for the sake of efficiency, and when you do that, you’re going to get wrong decisions.”
On peremptory challenges:
The federal bill would abolish Crown and defence lawyers’ use of peremptory challenges during jury selection. Under the current process – heavily criticized in the wake of Saskatchewan’s Gerald Stanley trial for Colten Boushie’s death – lawyers can “challenge” potential jurors to automatically exclude them from serving on the jury without having to give reasons for doing so. The Aboriginal Justice Inquiry pointed to problems with peremptory challenges and recommended they be abolished to make the jury selection process fairer.
“I think it’s directly related to Colten Boushie and the allegation of white-washing the jury. That’s clearly what they’re dealing with. It’s a terrible idea to make legislation on the basis of one case,” Newman said. In Manitoba, the change could have opposite the intended effect, he said.
“Seventy per cent or so of our clients are aboriginal and it’s not unheard of for defence lawyers to try and use peremptory challenges to increase jury diversity for our aboriginal clients. So the net effect may very well be that you’re going to have fewer aboriginals on the jury, you’re going to have whiter juries and there’s going to be less fairness for aboriginal accuseds.”
On reducing police officers’ court time:
Bill C-75 would make it possible for courts to accept “routine police evidence” in writing rather than calling the officers to the witness stand in every case.
In Winnipeg, police officers regularly accumulate overtime hours worth thousands of dollars while they wait to testify. Court overtime hours decreased by two per cent in the last quarter of 2017, compared with the previous year, but they still went over-budget for the fiscal year, according to a recent WPS budget report to the police board.
This was one of the changes suggested by Manitoba, Stefanson said.
“Prior to this, it would take up a lot of police officers’ resources where they’re off the streets because they’ve got to be in testifying in court. And so what it’s allowing for is for police evidence to be admitted into evidence in criminal proceedings via an affidavit or a solemn declaration. So in other words, in written form as opposed to having to appear in court. Now a judge can still require that they have to come to court, but it provides that opportunity and that flexibility to be able to do that so we can have our law enforcement out on the streets as well.”