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'Serious matter': second judge demands northern court review

The Thompson provincial building which houses the Provincial Court.

KATIE MAY / WINNIPEG FREE PRESS FILES

The Thompson provincial building which houses the Provincial Court.

Hey there, time traveller!
This article was published 8/1/2020 (265 days ago), so information in it may no longer be current.

A second Manitoba judge has called for an independent review of northern bail courts, after finding police automatically jailed a woman with no criminal record rather than fairly considering whether she should be released.

About a month after Court of Queen’s Bench Justice Chris Martin called for an independent review of what he described as a "dysfunctional" bail system in northern Manitoba, provincial court Judge Malcolm McDonald echoed his remarks.

Judge Malcolm McDonald - Manitoba Provincial Judge</p></p>

Judge Malcolm McDonald - Manitoba Provincial Judge

"Deficiencies in the initial bail processes in remote communities in northern Manitoba inevitably lead to downstream consequences that further hinder the overburdened system of the Provincial Court in Thompson centre as identified by Justice Martin... and in turn affect individual rights to reasonable bail," McDonald wrote in a Dec. 18 decision.

McDonald, who is based in The Pas, stated he found "worrisome shortcomings" with how police interpret their powers to release or detain people, but he said he didn’t find evidence of systemic violations.

He ruled a Norway House woman’s charter rights were violated in February 2018, when she spent two days in custody before she got a bail hearing.

Amy Crate is headed to trial this spring on impaired driving and drug charges even though McDonald decided she was arbitrarily detained and denied her right to reasonable bail. The judge refused to stay the charges against her, writing in his decision the fact two of her charter rights had been violated didn’t affect her right to a fair trial.

"Any period of time an accused spends in custody that is unwarranted or unnecessary is a serious matter. That being said the authorities this court is bound by are clear that a judicial stay of proceedings is a remedy of last resort," McDonald wrote in his decision.

In slightly different circumstances, McDonald decided, Crate would have been released right after her arrest, before she was shipped nearly 300 kilometres north to Thompson.

"The practice of the federal Crown to not be actively involved in custody remand decisions from outlying communities into Thompson is a practice that should be reviewed." — Manitoba Provincial Judge Malcolm McDonald

After she appeared in court there, the Crown attorney agreed to release her on bail. Instead, she was detained for two days because police in Norway House didn’t speak to a federal prosecutor about her case.

Based on a previous letter regarding drug charges from the federal prosecution’s office in Winnipeg, police believed they had the authority to "auto-remand" Crate into custody, the judge found. This happened despite a court policy — in place since at least 2013 — that requires Crown attorneys to participate in all bail hearings.

"The practice of the federal Crown to not be actively involved in custody remand decisions from outlying communities into Thompson is a practice that should be reviewed," McDonald wrote.

McDonald’s decision, which noted some delay caused by Crate’s defence lawyer later in her case, also pointed out problems with the brief, perfunctory telephone hearings that happen after someone is arrested in a remote community.

Criminal defence lawyer Rohit Gupta launched the constitutional challenges that prompted calls for an independent review.

MIKE DEAL / WINNIPEG FREE PRESS FILES

Criminal defence lawyer Rohit Gupta launched the constitutional challenges that prompted calls for an independent review.

"It is expected change will occur to make these hearings more meaningful opportunities to have bail considered in an informed way with the routine involvement of counsel for the Crown and for the accused," McDonald wrote. "It is hoped that references to ‘remand hearings’ will no longer be an apt description of these hearings."

Crate’s defence lawyer, Rohit Gupta, also launched the constitutional challenges that prompted Martin to call for an independent review Nov. 15.

Martin ruled the rights of a Norway House woman and a Split Lake man were violated when they were jailed for 51 and 23 days, respectively, without bail hearings. Gupta said it’s unfortunate the province hasn’t committed to undertaking an independent review.

"These two incidents are not isolated," he said. "This is not a rare occurrence... Everyone (in the North) knows this is occurring."

In November, Manitoba NDP justice critic Nahanni Fontaine repeatedly questioned Justice Minister Cliff Cullen about whether the government would heed Martin’s call for an independent review. The government hasn’t said whether it will undertake a review, but it has blamed the Opposition for past inaction while the NDP was in government.

"Why is there so much resistance to calling an independent review when experts, judges, are saying that there’s a problem?" Fontaine said in an interview Tuesday, suggesting costs are at issue.

"The only time they want to do a review and give millions of dollars to consultants is when they know that that review is going to enable them to make cuts."

Late last year, the NDP filed freedom of information requests seeking data on average wait times for bail hearings in Manitoba, as well as the number of hearings held in northern Manitoba since 2016. That data isn’t being tracked by the province, so those records don’t exist.

Fontaine said it’s "problematic" the data doesn’t exist.

"How can you in any way, shape or form, address the judicial processes of the north, which are repeatedly being shown to be problematic?" she said, describing those processes as "discriminatory" toward Indigenous people in northern communities.

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 Wednesday, January 8, 2020 at 9:39 AM CST: Adds link to court decision

11:19 AM: clarifies a letter was sent

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