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A Norway House man who admitted to forcing his way into a house and assaulting a 12-year-old girl has been spared from jail and was instead fined $2.
A judge said the case highlights "very troubling and concerning shortfalls" in how justice continues to be administered in Manitoba’s north.
"I am satisfied that one of the biggest contributors to the problems in this case is related to workload and resources," said provincial court Judge Mary Kate Harvie in a written decision released Tuesday.
Howard Andrew Budd, 48, was arrested on Sept. 5, 2018, on suspicion of break and enter and sexual assault. He later pleaded guilty to forcible entry and assault, admitting he, in an "intoxicated state," entered the girl’s Norway House home through an unlocked door, looking for her mother.
According to an agreed statement of facts provided to court, Budd entered the girl’s bedroom before 8 a.m. with the intention of waking her up, "but due to his intoxicated state, his hand actually land(ed) on the breast of the child." The girl jumped out of bed and ran to her brother, at which point Budd left the house, telling the children to "say hi," to their mother.
Prosecutors had urged Harvie to sentence Budd to four months jail, but defence lawyer Rohit Gupta argued repeated delays and violations of Budd’s Charter rights, which resulted in him spending a week in custody before he was released on bail, justified a suspended sentence.
No memory of conversation with lawyer
Following Budd’s arrest an hour or so after the incident, he talked to Gupta on the phone, but was so intoxicated he had no memory of the conversation. After spending much of the day sleeping in a holding cell, Budd repeatedly requested an opportunity to call his lawyer to discuss bail.
It was here, in Harvie’s words "that matters became complicated." A police officer contacted Gupta and told him he would not be allowed to speak to Budd as his right to counsel had been satisfied by the earlier phone call.
His request to talk to his lawyer denied, Budd provided a police statement and an hour later appeared by telephone before a judicial justice of the peace, who told him he could apply for bail on his own or wait until the next morning, when a lawyer could help him apply for bail in Thompson.
“It is abundantly clear that the overwhelming workload in Thompson and the surrounding areas was a major contributor to the problems in this case.” –Judge Mary Kate Harvie
"A transcript of the proceedings clearly indicates that the accused was having difficulty understanding the proceedings and the opposition to his release," Harvie said.
Denying Budd a second opportunity to talk to his lawyer represented "a significant breach" of his Charter right to counsel, Harvie said.
"I note that there was a 13-hour delay between the arrest of the accused and his (appearance before a justice of the peace), and that this delay was coupled with problems related to… intoxication of the accused," Harvie said.
"In this instance, it is hardly surprising that the accused required a second call to counsel to fully understand his rights and options."
Denied right to timely bail: judge
Budd was not told he had the option of having a lawyer appear on his behalf that night to apply for bail, and agreed to apply for bail in Thompson the following day, a Thursday.
"This (was) clearly a misstatement of the options which were available to the accused that evening and obviously left the impression that he had to agree to the adjournment in order to access counsel," Harvie said.
For reasons that remain unclear, Budd was not transported to Thompson for his scheduled bail hearing. At the time, bail courts in Thompson did not sit on Fridays, so Budd’s bail application was adjourned to the following Monday, Sept. 10.
Justice delayed is the reality for many northern Manitobans caught in an overburdened legal systemClick to Expand
Posted: 7:00 PM Apr. 18, 2019
In northern Manitoba, the justice system struggles to uphold rights most Canadians would take for granted. Overwhelming poverty, addiction and intergenerational trauma feed into some of the highest violent-crime rates in the country. Court sessions are often snowed under — figuratively and literally — by the task of delivering justice across vast geography with grossly inadequate resources. And systemic racism thrives.
Harvie said she was satisfied Budd did not legally consent to the two bail hearing adjournments and was denied his Charter right to reasonable and timely bail.
The Sept. 10 bail hearing went ahead as scheduled, with a judge agreeing to release Budd on conditions that he live in Winnipeg and his mother sign as a surety.
"Again, for reasons that are concerning," Budd was not released from custody until the following day, Harvie said.
Budd was not told that his mother could sign the surety documents at a Winnipeg court that evening and he spent another night in custody at The Pas Correctional Centre. He was released late the next day and placed on a bus to Winnipeg.
Arresting officers cited workload issues for the 13-hour delay in getting Budd before a justice of the peace. Court was told multiple messages from the defence to the Crown went unanswered prior to Budd’s first scheduled bail appearance.
"Concerns about the challenges surrounding the resourcing of the justice system in rural areas, and particularly in northern Manitoba, are not new," Harvie said. "It is abundantly clear that the overwhelming workload in Thompson and the surrounding areas was a major contributor to the problems in this case."
Harvie said the appropriate remedy for the Charter breaches was a reduction in Budd’s sentence. Harvie fined Budd one dollar for the forcible entry and another dollar for the assault and sentenced him to one year of supervised probation.
"I remain concerned that the accused requires further support to assist with his rehabilitation," Harvie said.
Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.