R. v. Crate, 2019 MBPC 80

R. v. Crate, 2019 MBPC 80 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Vuk Mitrovic ) ) Michael Bodner for the Crown - and – ) ) ) Rohit Gupta Amy Crate ) ) for the Accused ) ) ) Reasons for Decision on Voir Dire ) Delivered: December 18, 2019 M. McDonald, P.J. INTRODUCTION [ 1 ] This matter proceeded to trial on July 15 th and 16 th , 2019 in Norway House, Manitoba.

Originally, the accused, had been charged with impaired care and control of a motor vehicle, care and control of a motor vehicle with a blood alcohol level of over eighty milligrams in one hundred millilitres of blood, possession of property obtained by crime, and possession of marijuana for the purpose of trafficking all of which, allegedly, occurred on February 3 rd , 2018. [ 2 ] During the course of a number of pre-trials leading up to the eventual trial of this matter Counsel for the Public Prosecution Service of Canada, (“Federal Crown”), indicated they would only proceed on the lesser charge of simple possession of a marijuana concerning the Controlled Drugs and Substances Act ( CDSA ) matter.

At the commencement of the trial the Crown conducting the trial, representing Manitoba Prosecutions, who had taken over the prosecution of all the charges scheduled for trial, stayed proceedings on the s. 4(1) CDSA charge and the s. 354(1)(

a) charge under the Criminal Code of Canada ( Criminal Code ). [ 3 ] From the beginning, the trial was plagued by avoidable delays. On July 15 th , 2019 one half day of court time was lost when counsel for the defendant failed to catch his scheduled flight from Winnipeg to Norway House.

In addition, counsel for the defendant failed to file an application brief and supporting casebook regarding his application for Charter relief in the manner directed by the court in a pre-trial hearing held June 7 th , 2019 and in compliance with the Court’s Practice Directives. [ 4 ] Evidence on the voir dire was completed on July 16 th but because of the late start to the trial caused by the defendant’s counsel and then his failure to comply with filing deadlines, argument on the voir dire was adjourned to September 6 th , 2019.

Once again counsel for the defendant failed to file his brief and casebook and the matter was adjourned yet again to October 25 th for argument. Finally, on October 25 th the court heard argument on the voir dire . The matter was adjourned to November 27 th for the court to advise counsel when the decision of the court would be released. [ 5 ] On November 14 th , 2019 the decision of Justice Martin of the Manitoba Queen’s Bench was released in the case of R . v.

Balfour and Young 2019 MBQB 167 . [ 6 ] On November 26 th , 2019 I advised counsel by e-mail that my decision would not be ready for November 27 th , 2019. I advised them I wanted to hear from them if there had been any changes in the procedure employed by Judicial Justices of the Peace in the conduct of hearings under s. 503 of the Criminal Code since February of 2018. [ 7 ] On November 27 th the Crown provided the information they had on the question. Defence counsel indicated he would file an affidavit.

In consultation with both counsel I set the date of December 18 th at 1:00 PM for the decision on the voir dire to be delivered. [ 8 ] On December 17 at 6:25 PM Defence counsel sent a seventeen page affidavit with 21 exhibits attached totaling over five hundred pages (500) to my private e-mail. Despite this unreasonable timing, out of an abundance of caution, I reviewed the affidavit and a sampling of the exhibits and have concluded they do not materially add to my analysis or conclusions and I decline to accept them as

evidence in this matter. [ 9 ] As will become apparent the evidence and arguments in this case revolved around shortcomings in the bail system in Norway House immediately after the arrest of the accused and prior to her transport to Thompson to appear before the Provincial Court in that city. [ 10 ] This is my decision concerning the Charter relief requested by the defendant. FACTS [ 11 ] On February 3 rd , 2018 at approximately 8:11 AM Norway House RCMP officers, Cst. Kabernick, as he then was, and Cst.

George, received a dispatch regarding a silver car being operated by an impaired driver travelling from the Oman’s Point area of Norway House back toward the townsite. As a result of the information received Cst. Kabernick drove the police truck to the Oman’s Point area with Cst. George accompanying him as a passenger. Shortly thereafter Cst. Kabernick spotted a silver car that had come to a stop approximately 200 feet in front of his police vehicle. After the silver car stopped the passenger and driver switched seats. [ 12 ] Cst. Kabernick drove the police vehicle up beside the suspect vehicle.

He noticed the person now occupying the driver’s seat was Amy Crate with Matthew Hart now occupying the front passenger seat. Kabernick asked Ms. Crate to roll down her window. In response to this request she rolled the window halfway down, then back up and then down fully. Cst. Kabernick said that he observed Ms. Crate’s eyes to be very droopy. When asked for her driver’s license she told him she did not have one and when asked if she had consumed liquor she admitted to having approximately six beers. The officer also testified that Ms.

Crate’s eyes were very glossy, that he smelled liquor on her breath, that she appeared to be in a stupor or daze, and she was heavily slurring her words. The officer also noticed a smell of fresh cannabis in the car and observed what appeared to be a cannabis cigarette on the car’s dashboard. [ 13 ] At this point officer Kabernick formed the view that he had sufficient grounds to arrest the accused for impaired care and control and make the demand for a breath sample. Ms. Crate was formally arrested at 8:24 AM. In addition to the breath demand she was given the usual police warning and Charter warnings.

In response to being informed of her right to consult with counsel she responded “not right now”. [ 14 ] A search of the vehicle incident to arrest resulted in the discovery of a mason jar containing cannabis “nuggets”. This discovery resulted in Cst. Kabernick instructing Cst. George to “charter” both Ms. Crate and Mr. Hart for possession of marijuana for the purpose of trafficking. A further search of the car resulted in the discovery of a number of zip lock bags containing cannabis. The total quantity of cannabis seized was 40 grams. [ 15 ] On return to the Detachment Ms.

Crate was given an opportunity to contact counsel and she spoke with Kristen Jones from Legal Aid between 8:50 and 8:53 AM. At 9:02 AM Ms. Crate was searched by Cst. George and a cell phone and some cash were seized from her. After a period of time, a qualified breath technician arrived at the detachment and administered a breath test to Ms. Crate.

The accused’s readings were 100 milligrams and 100 millilitres of blood at 9:52 AM and 100 milligrams in 100 millilitres of blood at 10:13 AM. [ 16 ] The court heard evidence that the practice of the Norway House detachment is to have the lead investigator on a case make the decision as to whether to agree to an accused’s release or to oppose the release of an accused. In the case of offences prosecuted by the Manitoba Justice this decision is supposed to be made after consultation with an on duty Crown Prosecutor.

In cases involving offences prosecuted by the Federal Crown, a letter from the Prosecutor assigned to the Norway House region granted discretion to the RCMP officers to oppose the release of any accused arrested for s. 5(1) or s. 5(2) of the Controlled Drugs and Substances Act. Cst. Kabernick determined that he would not release Ms. Crate. At the time of her arrest Ms. Crate had no criminal record. [ 17 ] Ms. Crate was detained in the detachment cells. She was not brought before a Justice of Peace for a hearing under s. 503 of the Criminal Code (“ s. 503 hearing”) prior to Cst.

Kabernick going off duty in the afternoon. The night shift officers neglected to bring her before a Justice of the Peace during the evening of February 3 rd and when Cst. Kabernick returned to duty on the morning of February 4 th he realized that Ms. Crate had not been brought before a Justice. By the time she was brought before a Justice of the Peace at 9:45 AM the morning of February 4 th she had been in custody for over 25 hours. [ 18 ] At the hearing before the Justice of the Peace, Cst. Kapernick represented to the Justice of the Peace that the Crown position on bail was that they were opposed to Ms.

Crate’s release. I will have more to say later about the accuracy of that representation later in this judgment. [ 19 ] The Justice of the Peace inquired of Ms. Crate as to whether she had spoken to a lawyer to which she answered “yes”. Ms. Crate was then remanded to the next Provincial Court sitting in Thompson, Manitoba on Monday February 5 th at 10 AM. The whole hearing was very brief. Indeed the transcript of the proceeding is less than three full pages.

The prisoner log shows the accused being removed from her cell for the hearing at 9:45 AM and returned to the cell after the hearing at 9:48 AM. [ 20 ] During her stay in cells the accused was involved in a confrontation initiated by a cellmate. Little evidence was received as to the nature of the altercation. [ 21 ] The accused was eventually released from custody at the Thompson Provincial Court on February 5 th . At that hearing the Crown did not oppose the accused’s release.

ISSUES [ 22 ] Did the police violate the rights of the accused to be protected against an unreasonable search and seizure pursuant to s. 8 of the Charter and if so should evidence of her breath tests be excluded under s. 24(2)?

[23] Did the Cst. Kabernick violate the accused’s rights under s. 9 and s. 11(

e) of the Charter by failing to adhere to therequirements of s. 497 and 498 of the Criminal Code and by failing to release the accused on reasonable conditions? [24] Were the accused’s rights under s. 9, 10(

b) and 11(

e) violated by the manner in which the Justice of Peace conducted thehearing on the morning of February 4th, 2018 pursuant to s. 503 of the Criminal Code? [25] Do the violations alleged in paragraphs 23 and 24, as well as the admitted violation s. 9 of the Charter by the police failing tomeet the 24 hour time limit for a s. 503 hearing, require that the court enter a judicial stay of proceedings or is a lesser remedyappropriate as contemplated by s. 24(1) of the Charter? [26] I would note that I do not consider the remand to Thompson Court for February 5th, 2018 pursuant to s. 516 of the CriminalCode to be an issue requiring separate analysis from the adequacy of the s. 503 hearing before the JJP.

ANALYSIS Grounds for the breath demand [27] The indicia of alcohol impairment noted by the officer when he came into contact with Ms. Crate can be summarized asfollows:

a) odour of alcohol on her breath,

b) her admission to drinking approximately six beers;

c) droopy and glossy eyes;

d) poor motor skills evidenced by an awkward use of the drivers side window,

e) heavy slurring of her words; and

f) appearing to be in stupor or daze. [28] The officer did not conduct a field sobriety test or indeed conduct any physical coordination tests prior to making the demand.Cross-examination established the observations he did make took place over a period of about a couple of minutes. [29] There is no question that officer subjectively believed he had reasonable and probable grounds to make the demand.

The issueis whether his observations meet the objective standard. [30] Determining what constitutes objective proof of reasonable and probable grounds for a search and seizure has been the subjectof countless decisions by all levels of court for many years. In R v. Pilbeam 2018 MBCA 128 Justice Maniella, at para. 11, sets out the applicable standard for this court to employ: “Reasonable grounds to believe is something more than mere suspicion butsomething less than the existence of a prima facie case, proof on a balance of probabilities or the standard required for a conviction”.

The determination is to be made by considering an entire constellation of factors viewed in the context of the evidence of a whole.Concentrating on the presence or absence of one factor is an error as is placing undue weight on the weakness or strength of one factor.Further, the assessment is to be based on the observations made by the investigator prior to making the demand. [31] There is a paucity of evidence about the accused’s physical coordination at the time of the demand.

This weakness iscompensated for by extensive indicia of the effects of her admitted use of alcohol on her facial characteristics and ability to communicatewith the officer. Despite the fact the observations that led to the decision to make the demand took place over a short period of time Iconclude the objective standard for reasonable and probable grounds to make the demand for a breath test were satisfied in this case.

Police compliance with s. 497, s.498 and s. 515 of the Criminal Code [32] s. 497 and s. 498 of the Criminal Code set out the grounds to be considered by a peace officer, in the case of s. 497, or theofficer in charge, in the case of s. 498, when deciding whether or not to release an accused from custody after their arrest: Release from custody by peace officer 497

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b)or (c), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody bedealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. Where subsection (1) does not apply (2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3). Consequences of non-release

(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1). R.S., 1985, c. C-46, s. 497 1999, c. 25, s. 3 (Preamble) Release from custody by officer in charge 498

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (

b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, (

a) release the person with the intention of compelling their appearance by way of summons; (

b) release the person on their giving a promise to appear; (

c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs. Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. Where subsection (1) does not apply (2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3). Consequences of non-release

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; or (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1). [ 33 ] In essence, the grounds for further detention of an accused under each

section mirror each other. The presumption is the accused is to be released unless grounds under subsection (1.1) of both sections can be established to justify their detention. In the circumstances of this case the accused could have been released under either

section of the code as the most serious charge, possession for the purpose of trafficking, was a hybrid offence as 40 grams of marijuana was a

Schedule IV substance under the CDSA at the time. [ 34 ] During his testimony Cpl. Kabernick addressed the reasons why he decided to oppose the release of the accused. Primary among the reasons for his decision appeared to be his

interpretation of a letter sent to the NCO of the Norway House RCMP detachment by the Federal crown attorney responsible for Norway House. This letter, and how it was interpreted by the members of the Norway House detachment, was the subject of much testimony. The pertinent part of the letter reads as follows: “ I will also take this time to give you and your members authority to remand any individual charged with serious CDSA offences (such as trafficking or production) if the circumstances warrant their detention or for their release on a recognizance before a judge.

Feel free to use my name as the Federal Crown authorizing the remand/transport of the charged individual. Generally, individuals charged with only simple possession (s. 4(1) CDSA) should be released on a PTA w/ an undertaking.” [ 35 ] Cpl. Kabernick explained his understanding of the authority granted to him at page T38, Line 40 to page T39 line 29 of the transcript of proceedings from July 16th, 2019: “Q: Okay. And you prepared a bail brief in relation to this matter, correct? A: Correct. Q: (INDISCERNIBLE) and you indicated to the Court that the decision is an automatic remand when it is a 5(2) correct?

And that’s— 5(2) is a CDSA offence. A: Right Q: So you’re automatically opposed to their release. A: Right. Q: So, you don’t actually – do you individually consider whether or not you can release an individual, or do you just – it’s the default, I suppose. A: It’s the default. Q: Okay. So, you don’t actually – if Ms. Crate’s mom came to the detachment and said, hey, please release her to me, you guys would be opposed to releasing her to the mom? A: That’s – yeah, we’re – our Crown’s position is no. Q: And that’s regardless if it’s a criminal record or not. A: Correct Q: Regardless if there is a breach or not.

A: Correct. Q: And so when you are dealing with a 5(2) and a breach, you would be opposed again, correct? A: Correct. Q: And that’s just the default position no matter what? A: Correct.” [ 36 ] Cpl. Kabernick provided further clarification on this point in response to questions posed by the Court (see trial transcript Vol. 2, p. T71 line 15): Q: All right. And I take it you… your

interpretation of this email was that you were directed by the federal Crown in the case of any possession for the purpose of trafficking or trafficking offence, regardless of what the narcotic was, to oppose bail before a JJP, then … A: Correct Q: Is that correct? So you are of the view that it took away any discretion the officer had of not opposing release on conditions before an

officer in charge, then. A: Correct. And that’s been my experience since being in Manitoba. [ 37 ] During their argument, the Crown contended the officer did not ignore his responsibility to consider the grounds for opposing the release of the accused. They contend that “default” does not mean automatic and the bail brief prepared by the officer cites that the opposition to her release was based on grounds enumerated in in sections 497 and 498 as well as 515 of the Criminal Code . The bail brief was marked as Exhibit #3 in this proceeding.

It is worth noting that the bail brief is composed of pre-printed descriptions of charges and features of the investigation which are simply marked off by the police officer with a check mark. On the final page of the bail brief a number of pre-printed reasons to oppose release are set out for the officer to mark if appropriate. The boxes that were marked in this case were (

a) to prevent a continuation of the offence, (

b) the apparent strength of the Crown’s case, (

c) seriousness of the matter, (

d) circumstances surrounding the commission, (

e) potential for a lengthy term of imprisonment. Notably the box for reverse onus was not marked even though it applied. [ 38 ] The Defence suggested in their argument that the true reasons for opposing the release of the accused and seeking to remand her in custody were the direction from the Federal Crown and the police’s wish to obtain a warned statement from her.

On this latter point, I do not find the evidence supports a finding that such an ulterior motive drove the decision to oppose her release. [ 39 ] The Defence argues the practice followed here constitutes an unacceptable deprivation of his client’s right to reasonable bail which was attributable to the officer ignoring the law and not properly carrying out his duty to review the grounds for detention or release properly as required by the code.

Counsel suggests that the practice is wide spread in the Norway House Royal Canadian Mounted Police Detachment to the point where the problem is systemic. [ 40 ] On this later point, I did hear testimony from a number of officers respecting various aspects of bail practices and procedures. Some of this testimony revolved around how officers approach their duties when it comes to deciding whether or not to authorize the release of an accused or to detain them after their arrest.

My general impression was that requirements of the provisions of s. 497 and s.497 were generally understood, but that there was confusion over the use of an officer’s discretion in the case of charges under s. 5(1) and (2) of the CDSA given the erroneous

interpretation officers often applied to the meaning of the letter from the Federal Crown. [ 41 ] I reject the argument of the Crown that Cpl. Kabernick, appropriately used his discretion and considered, in any meaningful way, the grounds to justify the accused’s detention under s. 497 .

I am satisfied there is no doubt whatsoever that his testimony shows he viewed the correspondence from the Federal Crown as a direction to remand anyone charged with trafficking or possession for the purpose of trafficking as an “auto remand” and that the check marks placed on the bail brief were simply put there mechanically to support that direction. Any fair minded review of the stated grounds for detention contained in the bail brief show they had little connection to the facts of the case.

Indeed the accused’s consent release on her first appearance in the Provincial Court in Thompson supports this conclusion. [ 42 ] That being said I do not find there is sufficient evidence before me to find a systemic disregard by officers at the Norway House RCMP Detachment, for the duties and obligations as set out in s. 497 and s. 498 . I do find there is evidence of worrisome misconceptions among some officers towards these obligations and that steps should be taken to train officers in the proper

interpretation and implementation of the provisions or s. 497, s. 498 and s. 515 of the Code . Officers should be trained to approach these obligations in light of the entitlement of the accused to reasonable bail under the Charter and the re-statement of the fundamental principles of bail in Canada enunciated by the Supreme Court in R v. Antic . [ 43 ] Given my finding that the officer did not fulfill his lawful obligations to consider the release of the accused and simply moved to “auto remand” her, I must ask myself does such

an act constitute a violation of s. 9 and 11(

e) of the Charter ? [ 44 ] I conclude the initial arrest of the accused with respect to the all the charges was lawful in that there were reasonable and probable grounds to do so. No violation of s. 9 occurred at this stage. [ 45 ] In the case of R v. Shin 2019 ONCJ 162 the court found an accused had been held in custody on a charge of impaired driving because the officer in charge misperceived the law and concluded that accused was not eligible for release under s. 498 of the Code because he was a resident of the United States.

This misperception resulted in a failure to consider the relevant provisions of s. 498 by the officer in charge and in the accused’s arbitrary detention. This initial failure to consider the accused’s release in turn resulted in the accused being held in custody for number of days, being strip searched on multiple occasions, receiving an injection from jail staff for tuberculosis and being beaten by a fellow inmate. In a subsequent judgment, (see R v. Shin 2019 ONCJ 297 ), the court concluded a stay of proceedings was the only appropriate remedy. [ 46 ] In R v.

Provo 2015 ONCJ 311 the court faced a situation similar to that found in R v. Shin. Mr. Provo was a citizen of the United States who regularly travelled to Canada for business. He was lawfully arrested for impaired driving, however, as in Shin the Court found the officer in charge did not properly discharge his duty to consider the release of Mr. Provo.

In fact the court found there was a practice to remand non-residents to appear before a judge for a bail application regardless of the accused’s connection to the jurisdiction, his lack of criminal record and the significant likelihood he would appear for his court hearing. As a result, Mr. Provo spent a number of days in jail before he was eventually released from custody. The court found the violation did not warrant a stay of proceedings but did exclude evidence of Mr.

Provo’s breath test pursuant to s. 24(2) of the Charter. [ 47 ] Counsel for the defendant has cited a number of authorities that all stand for the proposition police officers are bound to release an accused persons unless there are reasonable and identifiable grounds as enumerated in s. 497(1.1) or s. 498 (1.1) to detained them further. Arbitrary practices that lump arrestees into groups that will not be considered for release violate s. 9 of the Charter. The practice that was followed by the lead investigator in Ms.

Crate’s case bears the hallmarks of the practices condemned by the court in both Shin and Provo and was a decision not informed by the appropriate application of the law but an arbitrary local practice unrelated to proper considerations for bail contained in the Criminal Code . [ 48 ] I find that the failure to fairly consider the release of the accused under the provisions of s. 497 to be a violation of s. 9 of the

Charter. For the same reasons I conclude that a violation of s. 11(

e) of the Charter has also occurred. The adequacy of the s. 503 hearing before the Judicial Justice of the Peace [ 49 ] The next step in the bail process involves a consideration of s. 503 of the Criminal Code which guarantees that accused persons held in custody will be brought before a judicial officer without unreasonable delay.

Section 503 reads as follows: 503

(1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law : ( Emphasis is mine) (

a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and (

b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible, unless, at any time before the expiration of the time prescribed in paragraph (

a) or (

b) for taking the person before a justice, (

c) the peace officer or officer in charge releases the person under any other provision of this Part, or (

d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him. Conditional release

(2) If a peace officer or an officer in charge is satisfied that a person described in subsection (1) should be released from custody conditionally, the officer may, unless the person is detained in custody for an offence mentioned in

section 522, release that person on the person’s giving a promise to appear or entering into a recognizance in accordance with paragraphs 498(1)(

b) to (

d) and subsection (2.1). Undertaking

(2.1) In addition to the conditions referred to in subsection (2), the peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things: (

a) to remain within a territorial jurisdiction specified in the undertaking; (

b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation; (

c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking; (

d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking; (

e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm; (

f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking; (

g) to abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription; or (

h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence. Application to justice

(2.2) A person who has entered into an undertaking under subsection (2.1) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and

section 515 applies, with such modifications as the circumstances require, to such a person. Application by prosecutor

(2.3) Where a person has entered into an undertaking under subsection (2.1), the prosecutor may (

a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or (

b) at the appearance,

apply to a justice for an order under subsection 515(2) to replace the undertaking, and

section 515 applies, with such modifications as the circumstances require, to such a person. Remand in custody for return to jurisdiction where offence alleged to have been committed

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(

a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested (

a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or (

b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may (

i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with

section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or (ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence. Interim release

(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released (

a) unconditionally; or (

b) on any of the following terms to which the prosecutor consents, namely, (

i) giving an undertaking, including an undertaking to appear at a specified time before the court that has jurisdiction with respect to the indictable offence that the person is alleged to have committed, or (ii) entering into a recognizance described in any of paragraphs 515(2)(

a) to (

e) with such conditions described in subsection 515(4) as the justice considers desirable and to which the prosecutor consents. Release of person about to commit indictable offence

(4) A peace officer or an officer in charge having the custody of a person who has been arrested without warrant as a person about to commit an indictable offence shall release that person unconditionally as soon as practicable after he is satisfied that the continued detention of that person in custody is no longer necessary in order to prevent the commission by him of an indictable offence. Consequences of non-release

(5) Notwithstanding subsection (4), a peace officer or an officer in charge having the custody of a person referred to in that subsection who does not release the person before the expiration of the time prescribed in paragraph (1)(

a) or (

b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of his duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; or (

b) any other proceedings, unless in such proceedings it is alleged and established by the person making the allegation that the peace officer or officer in charge did not comply with the requirements of subsection (4). [ 50 ] The Defendant argues that the hearing that took place on the morning of February 4 th , 2018 over the telephone with the Judicial Justice of the Peace, (JJP), was not constitutionally adequate and did not give the Defendant an opportunity to “be dealt with according to the law” as required by s. 503(1).

The Defendant says that the very brief hearing was simply another manifestation of the “auto remand” mentality and that attitude is further reflected by the fact police refer to s. 503 hearings as “remand hearings”. [ 51 ] The Crown, in response, argues that the accused was present at the hearing, told the justice she had spoken to a lawyer, had an opportunity to ask the justice for a bail hearing if she wished, but did not do so.

Moreover, she did not object when was told she would be remanded to appear in court the following day in Thompson Provincial Court where a lawyer would be available to assist her in person. In addition, the Crown observed that the court should not speculate about what advice she may have received from Ms.

Jones in her phone call the previous day and whether it may have touched on the whether or not to advance a bail application in front of the Judicial Justice of Peace or await an appearance in Provincial Court. [ 52 ] A review of the transcript makes it clear that the approach followed by the JJP at such a hearings is directed to glean basic biographical material from the accused and establish whether or not she had spoken to a lawyer. After determining those issues the Crown position is sought from the attending officer.

The representations made at this juncture of the hearing caused a concern that Corporal Kabernick may have misrepresented the level of consultation he had with the responsible Crown. The pertinent passage from

the transcript begins with the court addressing Cpl. Kabernick: “THE COURT: Okay. And did you speak to the Crown? CONSTABLE CABERNICK (sic): Yes. I have Matt Sinclair on file. [Emphasis is mine.] THE COURT: Okay. And what’s the position of (sic) release? CONSTABLE CABERNICK (sic): Crown is opposed to release.” [ 53 ] The court did not hear evidence as to whether the JJP was aware of the fact that police gleaned their authority to seek a remand in custody from a letter from the Federal Crown as opposed to actual consultation with the Crown on the specific case.

It would have been more forthcoming of the officer to make it clear that no actual consultation on the specific case had been sought or received by the officer. [ 54 ] At the hearing Cst. Kabernick , repeated the grounds contained set out in the bail brief on which the police were opposed to the accused’s release and the JJP wrapped up the hearing as follows: “THE COURT: Okay. So, Ms. Crate, you heard the officer and the Crown are not agreeable to your release at this time. You do have a right to a bail hearing. You also have a right to have a lawyer help you with that.

So you indicated that you spoke to counsel, so we will put the matter over to tomorrow morning, February 5th at 10 AM in Thompson Court. And you’ll have a lawyer help you with a bail plan. Okay. So we’ll see you tomorrow.” [ 55 ] There is little doubt there are aspects of this interchange that are not ideal. There is no invitation given to the accused to consider whether she may want to consult with counsel again with a view to advancing a bail application there and then. There is little doubt that the presumption of the JJP was that a remand to Thompson Court was the best option.

There is a concern that the accused, by not voicing any objection to the remand, may have been simply acquiescing to what she viewed as the inevitable. On this latter point, I did not hear from Ms. Crate on the voir dire and I cannot speculate on precisely how she viewed the proceedings. [ 56 ] The Defendant argues the procedure followed in this hearing is complacent and ignores the hardship inherent in being further detained and transported by Sheriffs for three plus hours from Norway House to Thompson for such hearing.

They argue it is not only difficult for the accused but for family members who will often travel to Thompson to ensure that their loved one is released from custody. [ 57 ] Justice Martin recently dealt with a similar issue in the case of R v. Balfour and Young at paragraph 28 of his Judgment he describes the nature of the s. 503 hearing that took place in Ms. Balfour’s case: “ [28] On November 1, 2017, she was again arrested and charged with assault related charges, and breach of her earlier undertaking. A video conference was held with a JJP from Winnipeg. Ms.

Balfour indicated she had spoken to a Legal Aid lawyer. The RCMP, having spoken to Crown counsel, was opposed to her release. When offered the option to have a lawyer assist with a bail application she agreed, and was remanded to Thursday, November 2 in Thompson Provincial Court. She was held in the RCMP detachment overnight and then taken by Sheriffs for the multi-hour drive to Thompson, arriving just around 4:30 p.m.” [ 58 ] Ms.

Balfour was subsequently arrested on May 7th, 2018 for breaching conditions she had been released on, at paragraph 46 Justice Martin briefly describes the process that then unfolded: [46] Things were better until May 7, 2018, when unwanted guests came over and left alcohol in her home. The next day the RCMP arrested her for breaching her bail condition to abstain from alcohol. The process repeated itself; again, she was held in custody at the RCMP detachment; the RCMP were opposed to her release, and; she consented to an in-custody remand for a lawyer to help with her bail. Again, she was taken to Thompson.

There however, on May 10, the Crown consented to her release. But again, she had to wait several days to be released as her father had to attend and sign the surety once more. [ 59 ] At paragraph 85 Justice Martin comments on the adequacy of the approach taken to the s. 503 hearing in that case: [85] As to the May 2018 bail, I do not find a Charter breach. But, the whole event lays bare the systemic flaws and waste, especially in light of the Crown appropriately agreeing to her release once she got to Thompson.

With proper consideration, and regard for the realities of the situation, she should have been released by a JJP at the first telephone appearance rather than be held for five days. This highlights another area of concern.

While I need not decide whether there was a Charter breach starting with the JJP telephone hearing, as urged by counsel, it is clear that the critical purpose of the JJP hearing – to meaningfully deal with release - was undermined because Crown and defence counsel were not more active participants. [Emphasis is mine.] [ 60 ] Like Justice Martin I do not find that the inadequacies of the s. 503 hearing in this case amount to a Charter breach, but like Ms.

Balfour there is little doubt with more active and meaningful participation of counsel at this stage the accused would have been released at that hearing and not transported to Thompson. [ 61 ] 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. [ 62 ] The fact of the matter is that poor decisions, or no meaningful decisions, made at this stage of the bail process lead to a further burdening of the Provincial Court bail system in the Thompson Centre.

This overburdening has resulted in systemic delays identified by

Justice Martin in Balfour that violate the Charter protected rights of pre-trial detainees caught up in that system. Fortunately, for Ms.Crate she did not suffer anywhere near the same prejudice that was suffered by Ms. Balfour. [63] This court heard significant evidence about a subsequent arrest of Ms. Crate on July 14th, 2018 for breaching her conditions andimpersonating another person on her arrest.

In that circumstance her counsel was denied the opportunity to appear at the s. 503 hearingby phone to make representations in support of her release from custody after he requested of the police he be able to do so. The defenceargued that this incident is evidence of systemic non-compliance with constitutional requirements. It should be noted the Crown has orwill be staying the charges arising from that arrest. [64] The Defendant also takes the position that Crown counsel should be involved in the s. 503 hearings and that it is improper forpolice to represent the Crown at such hearings.

Counsel cites the case of Alberta (Attorney-General) v. Edmonton City Police, [2017]ABQB 74 (Edmonton City Police) in support of this proposition. In Alberta, police officers were appearing on the behalf of the Crown atfirst instance bail hearings, (s. 503 hearings). Ministerial orders presumed to allow police officers to appear for bail hearings beforeJJP’s.

Chief Justice Wittmann found this contravened the provisions of the Criminal Code which required a legally trained prosecutor toshow cause why an accused should remain in custody. [65] The Court heard the practice in Manitoba is that police are required to obtain the instructions of a legally trained prosecutors, atleast with respect to Criminal Code prosecutions, before seeking to remand an accused person in custody pursuant to s. 516 of the Code. In this case no attempt to show cause why she should be released was forwarded by Ms.

Crate and so the officer was not required topresent the Crown case for her continued detention to the court which would have triggered the requirements of s. 515. [66] The court also received evidence, marked as Exhibit 6 , of a November 18th, 2013 memorandum from former Chief Judge KenChampagne, as he then was, which among other things required: “A Crown must also be present , either in person or via telecommunication, for all contested bail applications. If a hearing is in aremote community, a three-way telephone connection may be necessary.

Arrangements for a three-way connection should becoordinated between the police agency and the Crown.” [67] This memorandum establishes that the court as early as 2013 recognized that Crown counsel must be present for contestedhearings as contemplated by the court in the Edmonton City Police case. Moreover, the court required that necessary arrangements be putin place to accommodate counsel’s appearance by telecommunications for contested s. 503 hearings. [68] In summation, despite the noted shortcomings I do not find that the Charter protected rights of the accused under s. 9, s. 10(b)or s.11(

e) were violated by the manner in which the s. 503 hearing was conducted. Evidence concerning the July 14th, 2018 s. 503hearing is not relevant to my determination of whether or not a Charter violation occurred, likewise the shortcomings of that hearinghave been recognized by the Crown who has taken the appropriate action. [69] Further, the shortcomings of the July 14th, 2018 s. 503 hearing do not constitute proof of systemic failure to comply withconstitutionally protected standards.

As pointed out by the Crown in their argument, counsel for the Defendant represented to the courtduring the first day of the trial in this matter, July 15th, 2019, that he had been able to conduct telephone bail hearings before JJP’s on 13different occasions and was successful on 12 of those occasions.

Although when and where these hearings took place was not specifiedby counsel, the frequency and success rate is not consistent with an endemic failure to provide reasonable bail at such hearings. [70] All that being said, it takes little imagination to envisage a set of circumstances only slightly different from the one before thiscourt which could move a future court to find a deprivation of the accused’s right to reasonable bail if the s. 503 hearings continue to beconducted in the manner they were in February of 2018.

The shortcomings of these hearings have been referred to in Balfour and now bythis court and it is expected change will occur to make these hearings more meaningful opportunities to have bail considered in aninformed way with the routine involvement of counsel for the Crown and for the accused.

It is hoped that references to “remandhearings” will no longer be an apt description of these hearings. “Appropriate” remedies under s. 24(1) of the Charter [71] Having found that the accused was arbitrarily detained both by failing to bring her before the JJP within 24 hours and becauseof the failure of the lead investigator to consider her release in compliance with the applicable law, I now must consider what theappropriate remedy should be. [72] The Defendant maintains the breaches are serious and, in the case of the s. 497 violation, systemic and that the court mustdisassociate itself from such conduct. [73] They argue that this set of facts falls within the category of the “clearest of cases”, (see R v.

O’Connor (SCC),[1995] 4 S.C.R. 411 at para. 68), and that a stay of proceedings and an order of costs against the Crown is warranted. A mitigation of thesentence, should there be a conviction, it is argued would be virtually meaningless as there is a minimum punishment that would notlikely be significantly exceeded given the accused’s lack of criminal record and low blood alcohol readings. [74] In response, the Crown maintains that these circumstances do not constitute the clearest of cases required to justify a courtjudicially staying a criminal proceeding.

The prejudice to the accused has been limited as her release was agreed to on February 5th andthe Crown has stayed all charges related to the narcotics found in the car. Further, there is no evidence of systemic shortcomings, and onbalance a stay of proceedings would be a disproportionate remedy. [75] In R v. Babos 2014 SCC 16 , [2014] 1 S.C.R. 309, (Babos), the Supreme Court set out the three factors to beconsidered when determining if a judicial stay of proceedings is an appropriate remedy at para. 32 of the decision:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “theinterest that society has in having a final decision on the merits” (ibid., at para. 57). [76] The violations of the Charter in the case at Bar have not affected the accused’s right to a fair trial.

The only basis on which toconsider a stay of proceedings is if I conclude that prejudice to the integrity of the justice will be “perpetuated or aggravated” byallowing the trial to proceed to its conclusion. [77] Ms. Crate was held for a total of two days prior to her release by the Provincial Court in Thompson. Any period of time anaccused spends in custody that is unwarranted or unnecessary is a serious matter. That being said the authorities this court is bound byare clear that a judicial stay of proceedings is a remedy of last resort. [78] In R v.

Hardy (S.R.) 2015 MBCA 51 the court makes clear in obiter that courts should be slow to grant such a remedypost offence and post investigation Charter violations noting at para 67: Having found that no error was committed and therefore a s. 9 breach has not been established, there is no need to consider theappropriate remedy. However, I would note that appellate jurisprudence has consistently held that a judicial stay of proceedings is notan appropriate remedy in circumstances such as this, where the alleged conduct is post-offence and post-investigation. See Iseler,Cutforth, and R. v.

Salisbury (T.J.), 2011 SKQB 153 , 372 Sask.R. 242. In Manitoba, there has not been a case where a chargehas been judicially stayed based on a finding of a s. 9 breach as a result of arbitrary post-offence detention. [79] The Court then goes on to discuss more appropriate remedies involving post offence detention: In my view, a declaration of a Charter breach as occurred in R. v. Osiowy (D.L.), 2007 MBPC 61 , 221 Man.R. (2d) 222, or asentence reduction as recognized in R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, are more appropriate remedies. [80] In R v.

Reilly, 2019 ABCA 212 the Alberta Court of Appeal heard a case where the Crown conceded that the accused rightsunder s. 7, 9, and 11(

e) had been violated. The accused was detained for 35 hours before being brought before a JJP for a s. 503 hearing.The central issue was whether a stay should be granted as an individual remedy for perceived systemic Charter breaches. [81] The delays in bringing accused persons before a JJP arose from the government implementing a change to s. 503 hearings thateliminated police officers appearing on behalf of the Crown on indictable proceedings, which had been the practice in the province priorto the reform. The change in the system resulted in delays in getting cases on before the JJP.

The delays were worse in Edmonton. [82] The court found that the imposition of a stay of proceedings was inappropriate in the circumstances. The province wasattempting a reform of the s. 503 hearing system to include representation of all parties by lawyers at that stage. At para. 59 the court setout the principles for a systemic remedy while issuing a warning to government should there be continuing failures: As far as a systemic remedy goes, the following principles can be stated at this time: (

a) The responsibility for devising and implementing a specific systemic remedy lies on the Crown. (

b) The provisions of 503(1) of the Criminal Code and s. 9 of the Charter are clear. Inadequate funding is not an excuse. (

c) The immediate obligation on the Crown is for all detained persons to be taken before a justice within 24 hours, on time, everytime, for every detained person. (

d) Since two years have passed after full implementation of the system, the Crown is rapidly exhausting the argument that time isneeded to transition to the new system. The number of 24 hour violations should be reduced to close to zero in the immediatelyforeseeable future.

Unless the government takes steps to remedy the problem in very short order, it is inevitable that this issue will be back before thecourts. [83] Even where the violations are systemic in nature the court must be cautious to grant the ultimate individual remedy unless thereis a record of persistent neglect to remedy a systemic defect. [84] I have not found a systemic violation here, although I have noted worrisome shortcomings based on the evidence provided tothe court.

Up until this point, there has been little litigation on the issue of the adequacy of northern police detachments’ approach to theirduties under s. 497 and s. 498 and s. 515 of the Criminal Code or the adequacies of s. 503 hearings in rural areas. The appropriateauthorities have not had an opportunity to react to any shortfalls identified. [85] On balance, I am of the view there are more appropriate alternative remedies than granting of a stay of proceedings. [86] The Applicant argues that an award of costs is an appropriate remedy in conjunction with a stay. The Applicant cites the case ofR v.

Brown 2009 ONCA 633 , [2009] O.J. No. 3592 (C.A.), (Brown), to support this proposition. [87] In Brown, the court found the crown had failed to take the necessary steps to ensure it had adequate resources in place to bringthe accused before a JJP for a s. 503 hearing on a timely basis. The violation continued with the accused being remanded for his bailhearing, without his consent, beyond the three day limit set out in s. 516 of the Code. The crisis in resources was triggered by a large“takedown” operation by police that included the arrest of 80 individuals including the accused.

The Court of Appeal found theapplication Judge appropriately viewed the remands that violated s. 516 of the Code as the most serious violations of accused’s Charterprotected rights. Bail application dates were assigned for more than a week past the time of the original arrest.

[ 88 ] In addressing the appropriateness of costs as a remedy, the court observed that the long standing rule that costs should not be awarded in criminal proceedings pre-dated the advent of the Charter , however the court recognized it is still a remedy to be used sparingly. Of note at para. 20 the court observes: “Costs awards “are integrally connected to the court’s control of its trial process” and, in disclosure cases, may allow the court to avoid the extremes of either a stay of proceedings or a mere adjournment.

Costs may be “ the only effective remedy to control [the court’s] process and recognize the harm incurred, even in cases involving unjustified and flagrant disregard for the accused’s rights” and such awards are “a quintessential example” of the development of appropriate remedies “essential to the meaningful enforcement of Charter rights through the s. 24 guarantee.” [ 89 ] In Brown , the lack of planning by police in conjunction with the Crown to accommodate prompt bail hearings for the swell of arrestees resulted in the impugned violations.

Here the Crown has conducted the prosecution of this matter in accord with the highest standards of the profession. As set out in the introduction to this decision, the same cannot be said for the manner in which the defence has conducted its case. Numerous avoidable delays due to poor planning and non-compliance with court directives by defence have unnecessarily prolonged the proceedings. If there was any doubt in my mind on this issue it was put to rest by the events that unfolded as described in paragraph 7 of this decision.

The notion that a court should accept such a late filing and potentially further delay the proceeding is irresponsible and demonstrates a lack common sense. Zealous advocacy must be tempered by attention to the responsibility to act as a conscientious officer of the court. An award of costs payable through counsel as a remedy given this record and the nature and severity of the violation would not be appropriate. [ 90 ] I note counsel in this case did not argue the appropriateness of a remedy of damages payable to his client, the person who actually suffered the harm.

Given I have heard no argument on the issue I will not comment further. [ 91 ] The declaration of a Charter violation and the potential mitigation of sentence should the accused be convicted is on balance the appropriate remedy. Conclusion [ 92 ] Although I have not found that in the peculiar circumstances of Ms. Crate’s case a stay of proceedings or an award of costs are appropriate remedies, there should be no doubt the evidence in this case has raised serious concerns about the manner in which initial decisions are being made respecting the provision of bail in Norway House, Manitoba.

I would be surprised if similar shortcomings do not exist in other remote northern communities. [ 93 ] 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 in Balfour , and in turn affect individual rights to reasonable bail. [ 94 ] I can do no better than to echo the observations of Justice Martin from the concluding paragraph of the Balfour decision: “ In all the circumstances here, 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.

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.” “ORIGINAL SIGNED BY:” M. McDonald, P.J.