Her Majesty the Queen ) ) M. Bodner v. S., 2021 MBPC 13

Citation: 2021 MBPC 13 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) M. Bodner and S. Sivarouban, ) ) for the Crown - and – ) ) ) Howard Andrew Budd, Accused ) ) ) R. Gupta, for the Accused ) Sentencing Decision delivered: ) March 9, 2021 Mary Kate Harvie, P.J. INTRODUCTION 1 . In the context of a sentencing hearing, the Court has been asked to determine the impact, if any, of a series of alleged breaches of the Charter of Rights and Freedoms (“ The Charter ”) on the proposed sentence. 2 . The accused is charged with a series of offences arising from an incident on September 5, 2018.

After the commencement of a preliminary inquiry, the accused entered guilty pleas to assault and forcible entry. A pre-sentence report with a Gladue component was ordered and the matter was adjourned for sentencing. Defence counsel subsequently raised concerns about the troubling history of the proceedings immediately after the arrest of the accused but prior to his judicial interim release. Specifically, counsel argues that the detention of the accused and his lack of access to reasonable bail amount to a breach of his client’s rights under the Charter .

Defence counsel initially applied for a Judicial Stay of proceedings under Charter s. 24(1) , but has since abandoned that application, seeking instead a reduction in the sentence if the Court finds that his client’s Charter rights were breached. 3 . With respect to actual sentence, Crown counsel seeks a custodial period in the range of four months but concedes that it could be served conditionally within the community. Alternatively, he asks the Court to note the time the accused spent in pre-trial detention and to impose a period of probation.

Defence counsel seeks a suspended sentence with probation, or alternatively, if the Charter breaches are made out, a notation of a one dollar fine with respect to one or both of the offences. CIRCUMSTANCE OF THE OFFENCE AND ARREST 4 . The circumstances of the offence were put before the Court by way of two Agreed Statements of Facts, one of which was appended to the Pre-Sentence Report (“PSR”), the other respecting the arrest and processing of the accused was filed during the Charter breach motion. 5 .

On September 5, 2018 there were only two members of the Norway House Royal Canadian Mounted Police (“RCMP”) on shift. At approximately 8:00 a.m. they were called to investigate an allegation of a break, enter and commit sexual assault involving this accused. On that day there were five calls to the RCMP, two of which involved sexual assault allegations, one of which was this case and another which involved a reported eight child victims. The officers attended to the scene of this incident, spoke to a number of witnesses, including two child witnesses and took audio statements. 6 .

In support of the guilty pleas to assault and forcible entry, it is agreed that the accused knew the mother of the complainant, and that on September 5, 2018 he entered the complainant’s residence through an unlocked door in search of the mother. He had no lawful reason to enter the home. The 12 year old complainant was in her bedroom, and because she was frightened when she saw the accused enter her room, she pretended to be asleep.

The agreed statement of facts indicates that when the accused went into the bedroom “his intention was to wake the child but due to his intoxicated state, his hand actually lands on the breast of the child” and that “he has no sexual purpose in touching her on the breast.” The complainant jumped out of bed and ran to her brother, and the accused left the residence, asking the children to “say hi” to their mother as he departed. 7 . The accused was located by police in an intoxicated state. He was arrested for sexual assault, sexual interference, and identity fraud.

At 9:40 a.m., he was given his Charter right to counsel and police caution and was transported to the Norway House RCMP Detachment where at 10:00 a.m., he spoke to his lawyer, Rohit Gutpa. By all accounts the accused was heavily intoxicated, and he testified at the sentencing hearing that he had no recollection of speaking to counsel. 8 . At 10:30 a.m., his clothing was seized for investigative purposes. Between 3:15 P.M. and 5:30 P.M., the two child witnesses were interviewed on video and were asked to complete photo packs. At 6:35 P.M., the on-call Crown was consulted by telephone as to

whether the accused could be released by RCMP. The Crown indicated opposition to his release due to primary and secondary ground concerns. APPEARANCES, TRANSPORT, AND BAIL APPLICATION: SEPTEMBER 5, 2018 THROUGH TO SEPTEMBER 11, 2018 Access to Counsel Prior to a JJP Appearance 9 . It was once active consideration was given to the accused’s judicial interim release that matters became complicated. A review of the treatment of this accused reveals a number of very troubling and concerning shortfalls. 10 . Prisoner log notes confirm that the accused spent the early portion of the day sleeping in a holding cell.

However, as the day progressed, he repeatedly requested an opportunity to speak to counsel and inquired as to his release. At the request of the accused, at approximately 9:00 P.M., RCMP Constable Brocklebank contacted counsel for the accused. However, once counsel was on the line, the officer changed his position and indicated that he was advised by his supervisor not to allow the accused to speak to defence counsel because the accused’s “jeopardy hasn’t changed”.

The following exchange occurred prior to the accused being interviewed by RCMP members for the purpose of giving a statement and prior to appearing before the Judicial Justice of the Peace (“JJP”): Mr. Gupta: You could pass him the phone that way even if jeopardy hasn’t changed, he’s asked to speak to a lawyer, right? Constable Brocklebank: Yeah, but his right to counsel has already been satisfied. Mr. Gupta: I understand but now he has asked to speak to a lawyer again. You called me and I’m on the phone right now. You are going to deny him the right to talk to me?

Constable Brocklebank: Well, what is the legal obligation? Mr. Gupta: The legal obligation to talk to me is just, you know, to assure that you’re making sure that the accused understands his rights. Right? He clearly expressed the need to talk to me, I believe you should give him that opportunity. No? Constable Brocklebank: But that was satisfied as long as he speaks to you prior to his bail hearing. 11 . The call ended without the accused being afforded an opportunity to speak to counsel. Criminal Code s. 503 Appearance before the JJP 12 .

At approximately 9:25 P.M., the accused was interviewed by an RCMP member and provided a statement. At 10:35 P.M., the accused appeared by telephone in front of the presiding JJP and was advised of the five charges alleged against him. The RCMP constable indicated that the Crown attorney was opposed to his release “on the primary and secondary grounds.” A transcript of the proceedings clearly indicates that the accused was having difficulty understanding the proceedings and the opposition to his release. After further review, the JJP stated as follows: The Court: Okay. So you have a couple of options.

You can apply for bail on your own. You also have a right to have a lawyer help you, and that can happen tomorrow morning in Thompson Provincial Court. The Accused: Mhm. So I’ll be going to Thompson? The Court: Do you want to have a lawyer help you? The Accused: Probably, yeah. The Court: Okay, so then your matters will appear in Thompson Provincial Court tomorrow morning, September 6 at 10:00 a.m. (emphasis added) 13 .

It is conceded that neither Crown nor defence counsel attended this appearance and that the JJP did not advise the accused that he had the option of having counsel appear that night to make application for his release. Nor was there any discussion as to which party bore the legal onus respecting the detention or release of the accused. The accused remained in police custody. Transport and Appearance in Thompson Provincial Court 14 .

Although he was advised that he would appear in Thompson the next day, being a Thursday, the accused was not transported for Court, despite the necessary documentation having been completed and the matters appearing on the docket. Crown counsel appearing in Thompson bail Court addressed the matter by simply advising that “Howard Budd is not making it in today”. The Court responded by noting that the accused “could not be transported” and adjourned the matter to Monday, marking the matter as a “must transport”.

As is the regular practice, defence counsel had attempted to communicate electronically with Crown counsel prior to his client’s appearance but was unsuccessful. At the time, because bail Courts in Thompson were not scheduled to sit on Fridays, the accused’s Thursday September 6 th non-appearance meant his matters were adjourned over the weekend to the following Monday, September 10. 15 . The accused was eventually transported by the RCMP from the cells at Norway House to the RCMP cells in Thompson where he was lodged for the weekend.

It is conceded that while an accused is in RCMP custody, they have no access to telephones except that which is granted by the RCMP. Crown counsel appearing on this motion could not explain why the accused was not transported in time for the September 6 appearance, nor could they explain why he was held at the RCMP Detachment rather than being transported to the Provincial Correctional facility in The Pas, Manitoba.

Judicial Interim Release Application and Ultimate Release 16. On September 10, the accused appeared in Thompson Court for a contested bail application. Despite the Court being advisedthat the application was a “reverse onus” hearing, Crown counsel now concedes that the onus rested with the Crown to “show cause”why the accused should be detained. After hearing submissions from both counsel, the accused was granted judicial interim release onconditions, including that he reside in Winnipeg and that his mother sign as a surety. 17.

Again, for reasons which are concerning, the accused was not released from custody until the evening of September 11.

Afterthe conclusion of arguments on this matter and at the request of the Court, Crown counsel on this motion confirmed that the releasedocuments were prepared by the Thompson Court office the evening of September 10 and that those documents would be “saved intoCCAIN, which is an application shared between all Court offices in the province.” It is clear that the accused’s mother could haveattended the Winnipeg Court offices that night to sign the surety documents, contrary to what the accused was advised in Court at theconclusion of his release application.

In the intervening period, the accused was transported to The Pas Correctional facility. He was notreleased from custody until approximately 8:30 P.M. the next day, at which time he was accompanied to a Greyhound bus stop where hecaught a bus to Winnipeg. All told, the accused spent seven days in custody prior to his release on bail. THE ALLEGED CHARTER BREACHES 18. Defence counsel alleges breaches of Charter sections 7, 9, 10(

b) and 11(e), asserting that that some of the alleged breaches“go hand in hand”. He argues that the Charter s. 9 breach relates to the unauthorized detention of the accused and the s. 11(

e) breachrelates to the lack of access to reasonable bail. The s. 7 and s. 10(

b) Charter breaches relate to the failure to provide the accused withaccess to counsel prior to making a statement and appearing before the JJP. He expresses an overall concern about the complacentattitude taken towards the S. 503 hearing before the JJP and the lack of disclosure and lack of access to counsel prior to that hearing. 19. I agree with counsel that many of the issues raised are intertwined and engage overlapping Charter sections. I therefore intendto focus my findings under Charter s. 9, 10(

b) and s.11(e). Alleged Charter s. 11 Breach: “Reasonable Bail”- “Liberty lost is never regained” Some Preliminary Observations 20. Charter s. 9 states that “Everyone has the right not to be arbitrarily detained or imprisoned.” In R. v. Grant, 2009 SCC 32,[2009] 2 S.C.R. 353, the Supreme Court of Canada noted (at para. 20) that the purpose of s. 9 “is to protect individual liberty fromunjustified state interference” A lawful detention is not arbitrary unless the law authorizing it is arbitrary. However, a detention notauthorized by law is arbitrary and violates s. 9 (at para. 54). 21. Charter s. 11(

e) guarantees the right to “reasonable bail.” There is ample authority confirming that this phrase references notjust the conditions of release, but the timing of release as well. In R. v. Morales (1992), (SCC), 77 CCC 3d 91 (SCC),the Supreme Court of Canada encouraged the adoption of a bail system which is “liberal and enlightened.” In the nearly 30 years sincethat decision, Courts of all levels have reiterated the need for a system that recognizes the presumption of innocence at the pre-trial stageand one that safeguards the liberty of the accused.

I note as well that Parliament has chosen to use mandatory language in the bailsections of the Criminal Code. Some Courts and commentators have gone so far as to say that the bail provisions are the most importantprocedural provisions in the Criminal Code: see for example R. v. Simpson (1994), (NL CA), 117 Nfld. & P.E.I. R.110 (Nfld.C.A.): “The paramountcy of the liberty of the subject has been recognized in English law from the earliest times. Freedom is afundamental right. It is not to be taken away except in strict accordance with the law.” 22.

These sentiments were once again confirmed by the Supreme Court in R v. Antic, 2017 SCC 27 CanLII which opened withthe following very clear message: [1] The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminaljustice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguardsthe liberty of accused persons. 23. More recently, in R. v.

Zora, 2020 SCC 14 the Supreme Court again began their decision with the reminder that “Whenindividuals are charged with a crime, they are presumed innocent and have the right not to be denied reasonable bail without just cause.”The Court discussed concerns that a system which fails to allow for reasonable bail can result in an accused feeling compelled to pleadguilty, increasing the risk of wrongful convictions. The Court emphasized the need for restraint on the part of both Crown and defencewhen crafting bail conditions.

I would note that these latter comments presuppose the setting of bail conditions, not the lack of access toa bail application, as was the case here. 24. The message has been clear and it has been consistent: all parties within the criminal justice system must work to ensuretimely access to bail, and the Courts must demand and enforce a process which provides meaningful and timely access to bail hearings. Itis against this jurisprudential backdrop that the facts of this case must be assessed. ACCESS TO TIMELY BAIL: Criminal Code Sections 503 and 515 25.

In order to address the need for timely bail, Criminal Code sections 496, 498, 503 and 515 establish a tiered system respectingthe release of an accused. One of the issues in this case is the procedure followed with respect to the “s. 503 hearing”. In argument,defence counsel focused his concerns on the process and procedures in northern Manitoba, although I note that the concerns raised areequally applicable anywhere in the province. 26.

I note as well that s. 503 must be read in conjunction with Criminal Code s. 498 which requires a police officer in charge tofirst consider the release of the accused “as soon as is practicable” in accordance with the provisions of the Code. It is only when thepolice do not exercise their discretion to release a prisoner that Code s. 503 is engaged.

27. Criminal Code

section 503 states: 503

(1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has notreleased the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to betaken before a justice to be dealt with according to law: (

a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be takenbefore a justice without unreasonable delay and in any event within that period; and (

b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall betaken before a justice as soon as possible. 28. Defence counsel filed extensive materials suggesting that “telephone bails” before a JJP are at best inconsistently available inNorthern Manitoba and in some instances the s. 503 appearance is treated as a perfunctory requirement.

With respect to the specifics ofthis matter, defence counsel raises the following deficiencies with the s. 503 hearing which he argues amount to a breach of his client’srights under Charter S. 9 and 11: a. The delay in bringing the accused before the JJP; b. The lack of meaningful access to counsel (s.10(

b) Charter breach); c. The lack of meaningful disclosure prior to the hearing to the accused; d. The lack of participation by counsel. Delay prior to the JJP Appearance 29. The accused was arrested on September 5 at 9:40 a.m. and was not brought before the JJP until 10:53 that evening. Defencecounsel argues that the delay was excessive, offends the provisions of Criminal Code s. 503(1)(

a) and represents a breach of Charter s.9. 30. Crown counsel on this motion acknowledges that an accused should be detained in custody for as brief a period of time aspossible before being given access to a bail hearing. He acknowledges as well that the evidentiary onus rests with the Crown to satisfythe Court that the delay of over 13 hours before the accused was brought before the JJP was justified: see R. v.

Hardy 2015 MBCA 51 which states (at para. 42): Thus, where an accused presents a prima facie case of arbitrary detention, an evidential burden arises for the Crown to present evidencejustifying the detention. The evidential burden arises because, it is the police officers who have the exclusive knowledge of the reasonsfor the detention. 31. Applications of this nature are evidence based and highly contextual in nature. From the Agreed Statement of Facts and theprisoner log notes it is clear that the accused was highly intoxicated at the time of his arrest.

He testified, and I accept his evidence, thathe did not recall speaking to counsel due to his state of intoxication. As the day wore on, however, he requested information about hisrelease and his right to counsel. On its face, the delay of 13 hours before bringing an accused before a JJP, while lengthy does not seemexcessive and unwarranted. On the facts of this case, its impact is significantly lessened by the fact that, due to his state of intoxication,the accused was sleeping for a portion of the day. 32.

It appears that some of the delay was caused by the workload of the two officers who were on shift on the day in question.When speaking to RCMP at 9:00 P.M. that evening, counsel inquired why the accused had not been brought before the JJP. In response,the officer gave the following frustrated response: “Because there are two of us working and we’ve got a thousand files.” 33. It is also difficult to consider this alleged breach on a stand alone basis. Had the delayed JJP appearance ultimately resulted inthe release of the accused, its impact would have been significantly lessened.

While I note that the workload of the officers on other filesas well as the investigation involving this accused impacted the timing of the JJP appearance, staffing and workload issues cannot justifythe failure to follow prescribed Criminal Code procedures. Under all of the circumstances, I am not satisfied that the delay amounts to aCharter breach. Charter s. 10(b): Right to Counsel prior to a 503 Hearing and Meaningful Disclosure 34.

Defence counsel argues that an accused should be provided access to counsel and meaningful disclosure prior to a s. 503hearing and filed material which suggests that this is a systemic problem in northern Manitoba. Because they are closely related, I intendon dealing with these two issues together. 35. It is clear that the arresting officer (or his supervisor) was under the impression that they need only provide the accused accessto counsel upon arrest and did not believe further access to counsel was necessary immediately prior to the JJP hearing.

On the facts ofthis case, there are some obvious difficulties with that position. First, it is clear that the accused was highly intoxicated at the time of hisarrest. It should have been obvious that his ability to understand and instruct counsel during that initial phone call was questionable atbest. Secondly, it is clear that he was repeatedly requesting to speak to his counsel (and inquiring about his own release) as the day woreon. If there was any question after the first call, it should have been apparent that because of his intoxicated state the accused did notmeaningfully exercise his right to counsel.

36 . Crown counsel agrees that an individual who wants counsel to represent him should have that request facilitated and fairly concedes that there were some shortcoming in the right to counsel. However, he takes issue with any suggestion that this represents a systemic problem and points to the circumstances in the accused material which confirms where counsel had appeared before the JJP for other clients. On a factual basis, he questions why, in this instance, Mr. Gupta did not specifically request to be present at the appearance before the JJP. 37 .

I am mindful that counsel did not specifically request to appear with his client when he appeared before the JJP. The absence of that request must be considered as to whether a breach has been made out on the facts of this case. It must also be considered contextually as well, in that counsel was not given access to his client before the hearing and had not been provided any police particulars. While there may be circumstances when a meaningful application could be made without such details, serious allegations such as those faced by the accused would necessitate more information. 38 .

Crown counsel expresses the concern that requiring police to provide access to counsel prior to a s.503 hearing may have the effect of creating a second “layer” of right to counsel consultation. With respect, I do not share the Crown’s concern. Charter s. 10 states as follows: 10. Everyone has the right on arrest or detention: (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. (Emphasis added) 39 . I am also satisfied that an accused must have an opportunity to consult with counsel prior to appearing before a JJP for a s. 503 hearing, and that the failure to facilitate access to counsel represents a breach of Charter s. 10(b) . This does not mean that every accused will require or even want two or more calls to counsel.

In instances where the accused is promptly brought before a JJP following arrest, an initial call to counsel may provide an accused sufficient opportunity to “retain and instruct counsel” and to discuss a strategy regarding the s. 503 appearance. In this case, I note that there was a 13 hour delay between the arrest of the accused and his JJP appearance, and that this delay was coupled with problems relating to meaningful access to counsel due to the intoxication of the accused. In this instance, it is hardly surprising that the accused required a second call to counsel to fully understand his rights and options.

The failure to do so represents a signficiant breach of the s. 10(

b) Charter rights. 40 . Defence counsel argues that for a s. 503 hearing to be meaningful, some form of disclosure ought to be provided to defence counsel upon request. I am aware that individual circumstances may cause defence counsel to conclude that a bail application ought not to occur before the JJP, thus deferring the need for disclosure. I am also concerned that a requirement to provide extensive disclosure may result in longer delays prior to an accused appearing before a JJP. However, some basic disclosure such as a

summary of the offence and criminal record ought to be routinely provided to defence counsel upon request prior to a s. 503 hearing. Indeed, for Crown counsel to formulate a meaningful position on an accused bail, it would seem logical that they would need similar information regarding the allegations. In fairness, Crown counsel indicates that since the introduction of a new policy following the COVID-19 outbreak, such disclosure is now made routinely available. While the Court was not provided the policy, I am satisfied that some basic disclosure must be provided prior to a s. 503 hearing.

Attendance of counsel at the s. 503 hearing 41 . It is essential that counsel be provided an opportunity to make representations for their client’s release at a s. 503 hearing if they so choose. Such representation benefits not just the accused but the prosecution and the JJP. In this case, for example, the transcript shows that the accused was having difficulty understanding his options. The JJP was left in the awkward position of explaining the charges to the accused and providing the accused with his options. It was left to the RCMP officer to advise the JJP of the Crown’s position.

Crown and defence counsel represent opposing and often competing interests within an adversarial system. It is unfair to both the RCMP and the JJP that they be left in the position of filling the role of both counsel. 42 . I am concerned that the JJP not only failed to advise the accused that he could have counsel participate in the hearing, but also stated “you have a right to have a lawyer help you, and that can happen tomorrow in Thompson Provincial Court”.

This is 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. 43 . I also note that, despite the confusion when this matter eventually appeared for a bail, that the onus respecting the accused’s ongoing detention in custody rested with the Crown. At no time was that explained to the accused. The participation of counsel may have assisted to address this issue (although I note that it was not properly identified when the matter ultimately appeared in court).

I recognize that many counsel may choose not to make a bail application before a JJP but rather take the time to consult with their client and prepare a bail plan. That option, however, should rest with counsel and their client after there has been a reasonable opportunity to review the allegations. 44 . I am satisfied that it is critically important that an accused be given an opportunity to consult with counsel and, where they chose to do so, to make a bail application before a JJP.

This is the case anywhere in the province, but in particular in rural and remote locations, where the denial of such a right will often result in the removal of an accused from their community and signficiant travel to appear in Court, with all of the delays and risks associated with such an appearance. 45 . However, I am not satisfied from the evidence before me that the accused was actually denied the opportunity to have his counsel appear at the s. 503 hearing. Rather, it is the case where the appearance of counsel would have been severely limited by a lack of access to both particulars and to his client.

46 . Defence counsel filed materials in support of his argument that the issues related to the s.503 hearing are systemic in nature. While the transcripts and other materials identify a number of concerning matters where accused were treated in a manner not dissimilar to this accused, based on the somewhat limited evidence before the Court I am not prepared to conclude that there was a systemic problem. Having said that, the other matters brought to my attention do suggest a concerning pattern which ought not to be allowed to continue. ADJOURNMENT TO THE THOMPSON BAIL DOCKET- Reasonable Access to Bail? Charter s. 9 and 11(

e) Breaches 47 . After appearing before the JJP, the accused was adjourned to appear in Thompson on their bail docket the next day. Crown counsel argues that the accused consented to this adjournment. Indeed, in his submissions to the Court on bail, defence counsel referred to the one day adjournment as having been “by consent.” Having read the transcript he has now changed his position. 48 . I am not satisfied that the accused was making a fully informed and consensual decision when he vacillated and allowed his matter to be adjourned to September 6.

It is well settled law that any consent must be fully informed and not coerced. The comments made by the accused after the exchange with the JJP fall far short of the mark. 49 . Even if the accused had meaningfully consented to having his matter adjourned to September 6 so that he could consult with counsel prior to a bail application, I find the consent was conditional and based on the assertion that he would be transported the next day. We now know that did not occur. Adjournment from September 6 to September 10 50 . The accused’s matter appeared on the docket on Thursday, September 6.

As indicated, for reasons which remain unknown, the accused was not transported from Norway House to Thompson. Although no explanation was provided for his non-attendance, his matter was further adjourned without his consent. Crown counsel argues that this falls within the Criminal Code s. 516 which allows for an adjournment of “three clear days” without the consent of the accused. 51 . Despite the timeliness requirements, s. 516 recognizes that circumstances may exist that require an adjournment of a bail application. To that end, this

section is often read in conjunction with Criminal Code s. 515(1) which states that a prosecutor must be given a “reasonable opportunity” to “show cause” why the accused should be detained. However, it is important to recognize that the s. 515(1) presumes the release of the accused, not his detention. It seems reasonable, then, that an application to adjourn what should be a timely hearing should be explicitly made and carefully considered. A lengthy remand should be the exception, not the default position. 52 .

I am extremely concerned that the matter was adjourned without inquiry or the input of the accused through defence counsel. Documents filed by defence counsel show that he repeatedly requested to be advised as to the status of his client’s application. He did not receive a response from the Crown or the Court. I note as well that there was no “application” per se made by Crown counsel, but rather the matter was adjourned towards the end of a lengthy Court day without any further inquiry. 53 .

In light of the Criminal Code and Charter provisions mandating timely access to bail, and the jurisprudence which emphasizes the importance of these provisions within the larger justice system, I cannot accept that it was intended that s. 516 be used to automatically justify an adjournment in circumstances where counsel is not consulted and the accused is not transported. To conclude otherwise in these circumstances would allow for the complete defeat of the provisions mandating timely access to bail. I am aware that this matter was adjourned for three days because at that time the demands on the Thompson Court

schedule meant that there was no bail Court sittings on Fridays. It is also inappropriate to use this provision to accommodate issues related to a lack of resources. Finally, it bears noting that defence counsel have no mechanism by which they can have an already adjourned matter brought forward to an earlier docket for hearing. 54 . In 2019, the bail system in northern Manitoba was the subject of much comment in R. v. Balfour and Young , 2019 MBQB 167 , where Martin, J. described a bail system as being “disturbing” and “dysfunctional”.

Commenting on Criminal Code s. 516 , he made the following observations (at para. 76): Fourth, it is a matter of common sense, and law, that the court must ensure that an accused understands s. 516(1) and its implications, and the

section must be strictly adhered to. Although addressing different release/detention provisions of the Criminal Code , at para. 41 in Myers , the court made comments that are analogous here: 41 … T he reviewing judge’s exercise of this supervisory authority must ultimately be guided by the overarching purpose of the provision , which is to prevent an accused person from languishing in pre-trial custody and to ensure a prompt trial by subjecting lengthy detentions to judicial oversight.

As a result, adjournments must always be used in a manner that safeguards and is consistent with the right of the accused to a prompt and thorough review of his or her detention when the 90-day mark is reached. Reviewing judges must rely on good sense and experience in order to ensure that adjournments enhance rather than undermine the purpose of the s. 525 detention review. [emphasis added] 55 . I am also very troubled by the fact that the accused was detained in the Thompson RCMP holding cells throughout the weekend.

In Balfour and Young Martin J. made the following comments about the routine detention of remand prisoners at the Thompson RCMP detachment cells: [15] When in Thompson, accused are initially held in the RCMP detachment jail cells, as there is no other jail in Thompson. The cells are not designed for this; a local judge described the idea of a multi-day stay in these cells as inhumane. There is limited cell capacity. As suitable, accused are driven to court by Sheriffs for an appearance. The Sheriffs have few holding cells at the courthouse.

Accused have to be rotated in and out from the RCMP detachment to the court, a few kilometres away. It is an inefficient use of time and

manpower that affects court proceedings. (Emphasis added) 56. It is an admitted fact that an accused who is detained at the detachment has very limited access to the telephone to accesscounsel or anyone else who may need to be contacted in order to finalize a bail plan. This seemingly routine practice further adds to theseriousness of the accused’s ongoing detention. 57.

Taking into account all of the circumstances, I find that the accused did not consent to an adjournment of his charges fromSeptember 5 to the Thompson court docket, and that adjournment of the charges from September 6 to September 11 was not authorizedor justified by Criminal Code s. 516. On the totality of the facts, I am satisfied that the detention of the accused from September 5 toSeptember 10 was one which was not authorized by law, and as such was a breach of his rights under s. 9 of the Charter.

I am furthersatisfied that these adjournments deprived the accused of his right to reasonable and timely bail and therefore amounted to a breach of hisrights pursuant to Charter s. 11(e). THE POST BAIL HEARING DETENTION 58. The accused appeared in Thompson Provincial Court on September 10 and was granted release. He was not, however, releasedfrom Thompson but was transported to The Pas Correctional facility and was released the next day.

While I recognize that his motherneeded to sign as surety before he could be released, I am concerned about the in Court comments which seemed to suggest that theaccused could not be released under any circumstance until the following day. It seems clear that once the information was loaded intothe Court’s computer system, his surety could then have attended the Winnipeg Court office to finalize his release. There is no evidenceas to why she didn’t attend until the following day or whether the in Court comments impacted the timing of her attendance.

Although itseems unlikely that the accused would have had any means to communicate with her, he was represented by counsel who could havealerted the surety as to her options, including attending that night to the Winnipeg Court office. It is important that all participants in theCourt system must ensure that they provide an accused with accurate information about the post-release process in order to avoid anyunnecessary detention after release is granted. CONCLUSION 59.

I am satisfied that the lack of access to counsel and the delays in having the accused appear in bail court amount to a breach ofthe rights of the accused pursuant to Charter s.9, 10(

b) and 11(e). I am further satisfied that these breaches must be taken into accountwhen fashioning the appropriate sentence 60. Having considered the considerable volume of materials filed in support of this application, a few final comments arewarranted. Concerns about the challenges surrounding the resourcing of the justice system in rural areas, and particularly in northernManitoba, are not new. After careful review, I am satisfied that one of the biggest contributors to the problems in this case is related toworkload and resources.

From the comments of the arresting officer regarding the delay in processing the accused (“Because there aretwo of us working and we’ve got a thousand files” ), through the electronic messages of defence counsel that went unanswered prior tohis client’s non appearance in bail, to the 24 hour delay in processing the surety application and releasing the accused, it is abundantlyclear that the overwhelming workload in Thompson and the surrounding areas was a major contributor to the problems in this case. In R.v.

Reilly 2019 ABCA 212 the Court decried systemic complacency respecting timely access to bail, noting “The time limits inthe Criminal Code must be met on time, every time, for every detained person. The government must indeed design a system that is ableto handle “any bail volume” at any time. Section 503(1) of the Criminal Code and s. 9 of the Charter do not say that they only apply“when funding permits”. CRIMINAL CODE SENTENCING CONSIDERATIONS 61.

The Criminal Code mandates a sentencing Judge to consider a range of well recognized factors to craft a proportionatesentence which balances the circumstances of the offender against the seriousness of the offence. 62. As noted at the outset, the facts of the offences were put before the Court by way of an Agreed Statement of Facts. The actionsof the accused on the day in question were serious and very troubling. A young girl was assaulted, not only in her own home but in herown bedroom.

The accused had no business being in that residence, and while his level of intoxication may negate any sexual intentbehind his actions, his behaviour caused considerable trauma to a 12 year old girl. 63. The accused is now 48 years of age. The pre-sentence report reviews the personal circumstances of the accused, including theGladue factors. The accused was raised in a loving, nurturing family environment, although his father struggled with substance abuse,leading eventually to his parents’ separation.

The accused is also presently separated from his wife and is the father of four children.Issues related to alcohol abuse impacted both the accused and his wife and contributed to the breakdown of their relationship. 64. With respect to this incident, the author of the report confirms that while he accepts responsibility and expresses regret for hisactions, he also minimized the seriousness of the offences. Particular concern was expressed by collaterals about the need for theaccused to address this substance abuse problem, which has been at the root of all of his legal and marital problems.

However, theydescribe him as “stubborn”, refusing to attend AA or other meetings and thinking he can “do it alone”. 65. There are some concerning discrepancies in the report, such as the assertion by the accused that he has been working 3-4 daysa week when his employer advised that it was closer to 3-4 days a month. The writer expresses concerns that the accused may havedisregarded the reside requirements of his present bail order. 66. The accused has a previous criminal record which includes entries for domestic assault, Drive over .08, Escape LawfulCustody, and failing to comply with a recognizance.

The sentences have ranged from probation, fines and a short period of custody. 67. Despite the foregoing, the pre-sentence report concludes that the accused is “a suitable candidate for a carefully structured and

supervised probation order”. 68 . I am aware that these matter have been before the Court for a very long period of time. Some of that is attributable to the manner and timing of the Charter challenges. Other delays have flowed from the COVID -19 Court closures. The net effect is that these matters have been outstanding for approximately two and a half years. CONCLUSION AND SENTENCE 69 . I am satisfied the accused’s Charter rights were breached and that the appropriate remedy is a reduction in his sentence. A $1 fine will be imposed on each offence. The accused will be given 14 days to pay the fine. 70 .

However, I remain concerned that the accused requires further support and supervision to assist with his rehabilitation.

To that end, a period of one year of supervised probation with the following conditions: • The statutory conditions including keep the peace and be of good behaviour; • Report to probation services within 7 days of his appearance in Court and thereafter as directed to do so by probation services; • Attend for an addictions assessment as directed to do so by your probation officer; • Attend, participate and complete any counselling or programming as directed to do so by your probation officer; • No contact directly or indirectly with the complainant; • Not to attend to the complainant’s place of residence, employment , schooling or worship. 71 .

Under the circumstances, I am not ordering that the accused provide a DNA sample. I am not ordering a weapons prohibition. 72 . There are no costs or surcharge respecting these proceedings. “Original signed by” Mary Kate Harvie, P.J.