December 10, 2019

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Northern courts dysfunctional: judge

Manitoba justice system requires 'comprehensive review' after decision in charter rights case

The Thompson provincial building houses Thompson’s court which serves at least 13 remote communities.

KATIE MAY / WINNIPEG FREE PRESS FILES

The Thompson provincial building houses Thompson’s court which serves at least 13 remote communities.

A Manitoba judge is calling for an independent review of the province’s justice system, after a legal challenge exposed a "dysfunctional" bail system and "long-standing and glaring systemic issues" in northern courts.

Court of Queen’s Bench Justice Chris Martin ruled the charter rights of two northern Manitobans were violated because they were forced to wait weeks in jail before they could apply for bail.

The problems in the justice system, particularly northern courts, go far beyond the cases of a 25-year-old woman from Norway House and a 28-year-old man from Split Lake, Martin made clear in his strongly worded, 40-page decision.

The judge acknowledged he doesn’t have the authority to order the government to conduct an independent review, but he strongly suggested one.

Martin called for "fresh eyes" to look at a bail system that has become "assembly line justice." Accused people who should have been presumed innocent — the majority of them from Indigenous communities — were instead marginalized and not able to access timely bail hearings because of a general lack of resources at Manitoba’s northernmost court centre in Thompson, and the demanding travel schedules and shuffling of people in custody that is the norm in remote areas.

"It should be plain that consideration should be given to an independent, comprehensive review of the system, processes, technology, training and facilities affecting in-custody accused on remand, from arrest onward, in northern Manitoba, particularly as it is connected to the Thompson judicial area and remote communities," Martin wrote.

"Unless the system has radically reformed in the last months, it will remain a problem that will unjustly affect more people. Likely fresh eyes are prudent; definitely a fresh commitment is urgently required."

Martin’s decision emphasizes what many judges, lawyers and people who’ve been arrested in northern Manitoba have long known: people are being denied basic rights because of a lack of resources in Thompson’s court, which serves at least 13 remote communities.

"Not only was the bail system cumbersome, in many instances, it collapsed," Martin wrote. "Many factors haphazardly conspired against an accused receiving a meaningful and timely bail application. This was so pervasive, so insidious, that even the standard bearers of the judicial system, judges, Crown counsel and defence counsel, frequently succumbed to the deficiencies instead of resolutely insisting upon the constitutionally protected safeguards" in the charter right to have a timely bail hearing."

Lawyer Rohit Gupta represented Lesley Ann Balfour and Dwayne Gregory Young in their charter challenges, which he argued, along with Ontario lawyer Boris Bytensky, at a hearing May 31 in Thompson.

Balfour, a single mother of four, had no criminal record when she was arrested in Norway House on assault charges in fall 2017. She spent about 51 days in jail waiting to have a bail hearing. Ultimately, the Crown stayed all of the charges against her.

“Unless the system has radically reformed in the last months, it will remain a problem that will unjustly affect more people. Likely fresh eyes are prudent; definitely a fresh commitment is urgently required.” – Court of Queen’s Bench Justice Chris Martin

Young, from Split Lake, lost his job while he was waiting for his bail hearing on an aggravated assault charge. He waited 23 days in custody for his bail hearing and was eventually acquitted.

Under the Criminal Code, accused must be brought before a judge as soon as possible for their first court appearance and must have a bail hearing within three days unless they consent to wait longer.

Since neither Balfour nor Young had charges before the court when Martin considered their charter challenge, the Crown attorney representing Manitoba urged the judge to ignore evidence of systemic problems, saying it wasn’t relevant to their particular cases.

Martin disagreed, and he described Gupta’s work as "dogged" in bringing the issues to light.

Gupta’s argument was backed by first-of-its-kind affidavits from several Thompson-based defence lawyers and articling students, as well as a former Crown attorney who practiced in Thompson from 2014 to 2017.

"Any given bail court docket... would be well in excess of a reasonable capacity. I cannot think of one time in my three years where we were able to substantively address every case on a bail court docket," Jacqueline Halliburn stated in her affidavit.

After Gupta launched the court challenge and the Free Press published a three-part series detailing systemic problems with bail, transportation and lack of access to restorative justice in northern Manitoba, the provincial court promised to increase the frequency of bail court sittings in Thompson.

Bail court happens there only three times a week, compared to seven days a week in Winnipeg. (If Balfour had been arrested in Winnipeg, Martin noted in his decision, her matter would’ve been dealt with in days, not weeks).

Bail delays are still routine in the North, Gupta said. When he found out Martin’s decision had been issued Thursday, Gupta was handling a bail hearing for a client who spent six days in custody before getting a first chance to apply for bail.

"It’s no secret that the system is broken. Now we have a judgment that says it," Gupta said by phone from Thompson.

"I think it instills accountability on everyone, that we can’t just say the system is broken and move forward with our lives."

Martin’s decision is "powerful," Gupta said, because it points out every player in the justice system is affected by the failure to dedicate appropriate resources to northern courts.

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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