Minor charges, major burden

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This article was published 03/12/2018 (2491 days ago), so information in it may no longer be current.

Almost half of the cases in Manitoba’s provincial court stem from alleged violations of court orders, and advocates say the volume of breach charges burdens the justice system, in which offenders are too often set up to fail.

The provincial court’s annual report, for April 2016 to March 2017, shows 45 per cent of all cases were for breach charges: violating probation, failing to appear in court or not following court orders.

“You can’t keep people in custody forever, so what you’ve created is a huge administrative system and, to my mind, a lot of unnecessary custody” – University of Winnipeg criminologist Michael Weinrath

They’re considered to be some of the most minor criminal charges, but they have consistently bulked up court dockets and individuals’ criminal records. Now, as the provincial government pledges to focus on restorative justice and reduce administration of justice charges, it’s introducing a text-message notification program to remind Winnipeggers of their court dates so they aren’t charged with failing to appear. The pilot project started Nov. 19 and requires individuals to opt in to receive texts.

A spokesperson for Manitoba Justice Minister Cliff Cullen said in a statement the project is one of the “proactive steps” the court is taking to deal with the high rate of administration of justice cases. The Tories say they “inherited” that from the former NDP government.

Meanwhile, criminologists, researchers and justice advocates say there is no evidence that imposing court conditions on people makes them less likely to commit crime. There’s plenty of evidence, the Canadian Civil Liberties Association says, that those conditions lead to more criminal charges.

“When we have 45 per cent of our court charges dealing with breaches, which would otherwise not be a criminal offence, that means that we have judges, prosecutors, defence attorneys and space in our correctional institutions being used to process these types of charges,” said Abby Deshman, director of the criminal justice program for the Canadian Civil Liberties Association.

 

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In 2014, the association published a report examining administration of justice charges among Canadians who were out on bail. It criticizes Manitoba’s zero-tolerance policies that allow people to be prosecuted for breaches even when the initial criminal charge they faced doesn’t go ahead in court. Deshman said she hasn’t been made aware of meaningful policy changes since then.

“There’s a conversation that needs to be had about whether this is really an appropriate prioritization of limited public funds,” Deshman said.

The proportion of breach cases in Manitoba courts is still well above the national average, according to the most recent five-year data from Statistics Canada (2011-2016). During that time, breach cases accounted for 33 per cent of all adult criminal cases in Manitoba compared with 22 per cent across Canada.

“It is still a problem and one that continues to grow. We’re not necessarily seeing a reduction in those numbers. We’re seeing an increase in those numbers,” said Joanna White, community justice development co-ordinator for the Southern Chiefs Organization. As an alternative, she said SCO has planned to develop community wellness and healing centres.

“So instead of sending folks to jail, they would be required to complete intensive programming within these centres that would be part of the restorative justice process.”

Advocates have repeatedly called out the overuse of “unrealistic” court-ordered conditions. They say they create a revolving cycle of court-created crime that disproportionately affects the most vulnerable people who don’t have easy access to things such as addictions treatment or transportation to their probation office. They’ve asked judicial officials to pay more attention to the restrictions they impose on people who end up in court, sometimes without being convicted of an initial crime, and the ripple effects those breaches can have on families.

Yet, probation officers and police who enforce court orders are following the law when they report violations: whether it’s because someone drank alcohol, stayed out past curfew or communicated with someone they weren’t supposed to contact.

“There’s a lot of institutional or systemic reasons why people in the system like to see a lot of conditions on probation orders or recognizances and reasons for prosecutors and police to want to see those charges being laid,” said University of Winnipeg criminologist Michael Weinrath. They’re under pressure to uphold public safety and they don’t want to be blamed if an offender commits a crime while on bail or probation.

“You can’t keep people in custody forever, so what you’ve created is a huge administrative system and, to my mind, a lot of unnecessary custody,” Weinrath said. A former probation officer himself, Weinrath said the situation could be improved by laying breach charges only for domestic-violence offenders, those who violate protection orders or peace bonds and people who’ve been convicted or charged with the most serious crimes.

In other countries, Weinrath noted, violators are ticketed and not criminally charged for breaches.

The provincial court’s 2016-17 report — its first since the Supreme Court cracked down on court delays with its Jordan decision — shows the majority of the breach cases take less than four months to be completed. Two per cent — 579 — took longer than 18 months.

The court’s last annual report, for April 2017 to March 2018, hasn’t yet been released. More recent data show breach charges are still laid by the thousands each year, though they may be on the decline. The Winnipeg Police Service laid 4,536 administration of justice charges in 2017, accounting for about eight per cent of all charges laid. During the past five years, on average, breach charges accounted for about 10 per cent of all charges laid by Winnipeg police, according to the police service’s 2017 annual report.

 

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In 2017-18, breach charges accounted for about 32 per cent of total adult case files handled by Legal Aid Manitoba, which deals with cases for low-income individuals who are facing jail.

“The more offences in one area just means the budget is spread a lot thinner,” said Legal Aid chairman Tim Valgardson, who described breach cases as a “double-edged sword.”

“I think what’s really important is having a really good look at what conditions are being imposed on what individuals and which ones are being breached,” he said.

“There are certainly a lot of individuals going through the criminal justice system who lack respect for the system and have no intention or no wherewithal to comply with conditions put on by judges, and I think there are other individuals that aren’t repeat offenders, (who) use probation to better themselves so they don’t end up in the criminal justice system again.”

katie.may@freepress.mb.ca

Twitter: @thatkatiemay