Reforming the Bail System to Address Rural Crime

To:  Minister of Justice – Mr. Tyler Shandro

Rural Crime Committee Final Report to the Minister of Justice June 15, 2022

Committee History:  

Rural Crime has been an issue in the Drayton Valley Constituency for at least the 7 years that I have been in public office.  Much of the frustration by constituents centers around a belief that the justice system is broken as the courts appear to have a catch and release policy that has meant that repeat offenders are too often let go on bail by the court only to re-offend almost immediately in the local community.  This has created a great deal of concern in rural areas of the Drayton Valley – Devon constituency and Brazeau County as farms and isolated houses seem to be open picking for drug gangs as they steal to finance their habit or increase their profits.  After meeting with constituents in town hall meetings it was determined that Brazeau County Counsellors and the MLA for Drayton ValleyDevon and a representative of the local RCMP detachment would meet to study the issues faced by rural police and make recommendations for changes to the bail system in Alberta.

Committee Members:

Mr. Cody Brooks – Councilor Brazeau County

Mr. Randy Swap – Councilor Brazeau County

Staff Sargent Erin Matthews – Drayton Valley RCMP Detachment

Mark Smith – MLA Drayton Valley Devon Constituency

Committee Process:

Step 1:  The Committee met 3-4 times over the course of January, February and March of 2022 to talk with stakeholders and brainstorm suggestions for how to improve the bail system. Through these discussions the committee discussed a wide range of issues that included:  Bail Packages, the Bail ladder, Transportation of prisoners, 24 hour releases and the need for a cross-jurisdictional analysis of how other provinces are handling these same issues.

Step 2:  Rural Crime Committee then approached Justice asking for an analysis of the Rural Crime Committee’s recommendations to see if they had merit.  The Rural Crime Committee then reviewed the Ministry Analysis and eliminated some of the Rural Crime Committees recommendations.  The Rural Crime Committee also amended some recommendations or in some cases decided to continue our support for the original recommendations.

Step 3:  Final Report

1. The Rural Crime Committee has decided to send our Final Report with its recommendations to the Minister of Justice, Mr. Tyler Shandro for his consideration and would like to meet with the Minister to discuss the merits of the recommendations.
2. The members of the committee from Brazeau County will be taking these recommendations to the Brazeau Council with the recommendation that Brazeau Council use the recommendations as the basis for policy resolutions and debate on the floor of the RMA.
3. MLA Smith will be taking these recommendations to the Drayton ValleyDevon Constituency Association where they will be considered by the

Drayton Valley-Devon Policy Sub-Committee for submission to the UCP Provincial Policy Sub-Committee where hopefully they will be debated on the floor at the next UCP AGM.

Recommendations of the Rural Crime Committee for the Minister of Justice:

1. Bail Packages:

Original Rural Crime Committee Recommendation #1: Bail Packages

 “Justices should be given a complete bail package with details of arrest circumstances and history of previous offences by date.  

Justices or the bail Crown officer must read before the courts a summary of the details of the arrest circumstances and history of previous offences by date.”

Ministry Analysis ( Black) – Rural Crime Committee Response (Blue)

• Currently, the package available to the justices of the peace (JP) in bail hearings contains the criminal record (in written form), charging Information, as well as recent release documents (if received from the police).
• In the Provincial Court of Alberta, the criminal record is provided to the Provincial Court of Alberta judge by the prosecutor either in written form or orally, prior to or during the proceeding.
• Crown prosecutors in the Provincial Court of Alberta or before the JP will also provide updates to the criminal record that are not yet available on Canadian Police Information Centre (CPIC), either orally or with written addition to the CPIC record.
• The package, however, does not contain a copy of the police report or the prosecutor information sheet, as these items may contain information considered inappropriate on a legal basis (e.g., inadmissible evidence that may taint the court proceedings and impact the integrity of the criminal justice system).

– The prosecutor Information sheet is the particulars of the offence. It is the document we use to explain to the court our grounds that the offence we as police are alleging occurred and who did it.  We do not agree that this document may contain information considered inappropriate on a legal basis, it contains the elements of the offence. The current process allows the prosecutors and defence counsel to only present what they choose to the Justice and omit relevant details to ensure that their joint submission will be accepted by the sitting Justice. This puts the Justice in an unfair position when they are determining release. Having the Justice receive a copy of the prosecutor information sheet will ensure they know all the details around how the offence occurred when determining release. This was the practice in the past.

• As the bail system needs to be efficient, fair, and timely, having prosecutors and defence counsel present relevant information to the court is a balanced approach that serves the administration of justice.

• See above comments.

• Alternatively, presenting everything that a police officer or probation officer deems relevant, when they are not specifically trained in relation to matters of evidence, could potentially lead to an unbalanced or unfair proceeding in certain circumstances.

– While not crown prosecutors, police and probation are trained in the matters of evidence. In 99% of investigations police are the agency that determines if enough evidence exists to lay a charge, not the crown.  Crown then prosecutes the file.

• Offenders identified through law enforcement – using an objective, datadriven methodology – as those who are causing the most harm or having the most negative impact in communities are included in Integrated Offender Management (IOM).
• Crown prosecutors through their Court Packages and an upcoming flag on JOIN and PRISM – which will be named ‘IOM – Integrated Offender

Management’, will be able to identify offenders who are part of IOM.

• The Court Package includes:
  • a summary of the current charges before the court, other outstanding charges, and release details;
  • offender involvement with social, health, justice, and police agencies;
  • services that have been offered for the offenders and engagement level with same;
  • holistic picture of the offender; and
  • demonstrates if there is a risk to public should offender be released.
• The Court Package can be used for both bail and sentencing court matters.

• The Integrated Habitual Offender Management (IHOM, formally IOM) is a volunteer program. Offender’s have to sign a consent form to be involved in the program. As such there are very few offenders on this program.

• When determining if bail is appropriate, a judicial officer must also apply a reverse onus requiring the accused to justify why release should be granted in cases involving:
  • allegations of the commission of an indictable offence after release has been granted in respect of another indictable offence; or
  • allegations that the accused has breached the conditions of a previous release order. – Reverse Onus situations are not identified by the Crown Prosecutors and not applied by the Justice

Final Recommendation to the Minister of Justice – Bail Packages:

• Justices should be given a complete bail package with details of arrest circumstances and history of previous offences by date.
• Justices or the bail Crown officer must read before the courts a summary of the details of the arrest circumstances and history of previous offences by date.
• Police and Probation have been trained in matters of evidence therefore the Justice should receive a copy of the prosecutor information sheet which will ensure they know all the details around how the offence occurred when determining release. This was the practice in the past.
• Because the Integrated Habitual Offender Management (IHOM, formally IOM) is a volunteer program. Offender’s have to sign a consent form to be involved in the program. As such there are very few offenders on this program. This is another reason why the Justice should receive a copy of the prosecutor information sheet.
• Reverse Onus situations must be identified by the Crown Prosecutors and applied by the Justice.

2. Bail Crown Office

Original Rural Crime Committee Recommendation #2: Bail Crown Office

“Either increase funding so that the Bail Office is open 24/7, 365 days of the year or allow police officers to address the setting of bail when the office is closed and a Bail Crown Officer is not available.”  

Ministry Analysis:

In regards to the recommendation to allow police officers to address the setting of bail, it is important to note that:

• Prior to January 2015, police represented the Crown at 99 per cent of first instance bail hearings in Alberta.
• In light of an incident in January 2015, when RCMP Constable David Matthew Wynn was fatally shot dead by Shawn Rehn, an individual who had 30 outstanding charges and was out on bail at the time of the incident, an external review of the bail system in Alberta was triggered (i.e., Alberta Bail Review – Endorsing a Call for Change).
• Recommendations and accompanying analysis in the Alberta Bail Review (the Review) questioned the legal authority of police to present at first appearance bail hearings before JPs.

The Review concluded that police did not have the necessary authority to do so under the Criminal Code.

• In response to these recommendations, and to obtain legal clarity on this issue, Alberta Justice and Solicitor General (via the Attorney General), asked the court to determine if police officers had the authority to appear as prosecutors on bail hearings.
• On February 3, 2017, the Court of Queen’s Bench released its decision on the legal status of police presenting officers to act as prosecutors for the purposes of first appearance bail hearings before JPs. Former Chief Justice Neil Wittmann concluded that police officers do not have the authority to appear as prosecutors at bail hearings where indictable offences are charged. Also, ministerial orders are not sufficient to give police the authority to appear as prosecutors at first appearance bail hearings.
• The court’s decision meant that Crown prosecutors—instead of police— must attend first appearance bail hearings.
• Currently, Crown Bail Offices operate 365 days per year between 8 a.m. and midnight.
• Under the current operating hours of the Crown Bail Offices, the percentage of over-holds in Alberta (i.e., detention of an arrestee longer than 24 hours prior to being brought before a JP) from April 2021 to March 2022 is approximately 1.08 per cent.

Final Recommendation to the Minister of Justice – Bail Crown Office:  

Our committee concluded that with increased funding the bail office in Edmonton could be open 24/7 just as the Calgary office is which would increase the efficiency of the bail system.   

3. Bail Ladder:

Original Rural Crime Committee Recommendat #3: Bail Ladder

“If the accused has not lived up to the conditions of a no cash bail from a previous charge or offence then the judge must now move forward with a cash bail alternative for this and future offences. Implement an actual bail ladder that incorporates a guideline of increasing cash bail rungs.  This could be a mandatory minimum ladder or a publicly visible guideline.”  

Ministry Analysis:

• The rules of bail are set out by the Criminal Code. As only Parliament of Canada has the right to make or amend criminal law, Alberta’s Crown prosecutors and judiciary must work within this existing legislative framework.
• Bill C-75, amended the Criminal Code to make the criminal procedure more modern and efficient. For example, section 493.1 and section 515.2 of the Bill provide further clarity to the “restraint” and “ladder” principles.

It clarifies that the officer, justice, or judge shall give “primary

consideration to the release of the accused at the “earliest reasonable opportunity” and “on the least onerous conditions” appropriate in the circumstances, and require that conditions imposed must be “reasonably practicable for the accused to comply with.”

• Ultimately, the denial or granting of bail is a judicial decision. Judicial independence is a cornerstone of our justice system.
• It guarantees that judges make impartial decisions, free of government control or influence and based solely on the facts of a case and the law.

Final Recommendation to the Minister of Justice – Bail Ladder:  

The Rural Crime Committee recommends that the Minister of Justice lobby the Federal Minister of Justice to amend the Bail Ladder system such that if the accused has not lived up to the conditions of a no cash bail from a previous charge or offence then the judge must now move forward with a cash bail alternative for this and future offences. Implement an actual bail ladder that incorporates a guideline of increasing cash bail rungs.  This could be a mandatory minimum ladder or a publicly visible guideline.  

4. Cross Jurisdictional Analysis:

Original Rural Crime Committee Recommendat #4: Cross Jurisdictional Analysis

“The Ministry of Justice needs to do a cross jurisdictional analysis of other provinces to see how they are handling some of the issues:  Bail Packages, Bail Crown Offices, Bail Ladder and any other issue that may be impacting the increase in catch and release of the criminal element.” 

Ministry Analysis:

• Concerns from citizens regarding the bail process is not an issue unique to Alberta. For example, the city council of North Bay have recently raised concerns to the federal and provincial governments regarding the “catch and release” justice system in Ontario.
• While citizens have raised concerns about the release of accused persons on bail, it is important to understand that the rules of bail are set out by the Criminal Code. As only the federal government has the right to make or amend criminal law, Canadian jurisdictions, including Alberta, must work within the existing legislative framework.
• Despite a perception that remand is used sparingly, since 2004/2005, the average number of adults in the remand population (awaiting trial or sentencing) in provincial/territorial correctional services has been greater than the adult sentenced custody population (Statistics Canada – Adult and youth correctional statistics in Canada 2018/19).
• Among 10 of the 13 provinces and territories in 2018/2019, the adult remand population accounted for more than half of all adults in custody, the remainder of incarcerated individuals having been convicted and sentenced. Alberta’s remand population account for (71per cent) of those adults in custody was only surpassed by Ontario at 72per cent (Statistics Canada, Canadian Centre for Justice and Community Safety Statistics, Adult Corrections Key Indicator Report).
• Data from Statistics Canada show that between 2014/15 and 2018/19 (most current national data available) Alberta has consistently been one of the provinces with the highest proportion of adult remand population versus sentenced custody population. (Statistics Canada. Table 35-10-0154-01 Average counts of adults in provincial and territorial correctional programs).

Final Recommendation to the Minister of Justice – Cross Jurisdictional Analysis  

The Ministry of Justice do a cross jurisdictional analysis of other provinces to see how they are handling some of the issues:  Bail Packages, Bail Crown Offices, Bail Ladder and any other issue that may be impacting the increase in catch and release of the criminal element with the goal of making recommendations to the Minister of Just on ways to stop the catch and release scenario that is prevalent in Alberta.

5. Bail Sub-Committee:

Original Rural Crime Committee Recommendation #5: Bail Sub-Committee

“Sponsor the creation of a Bail Sub-Committee made up of stakeholders like:  Justices, Crown Prosecutors, Bail Crown Officers, Police/Sheriffs, Citizens etc.  to study how to amend the bail process to address the problem of a judicial system that has become a revolving door.”  

Ministry Analysis:

• From its implementation, the Crown Bail Office has worked with partners in policing and other justice partners including the hearing office, JP’s, legal aid and defence to ensure that appropriate factors are considered by JPs at these hearings.

Final Recommendation to the Minister of Justice – Bail Sub-Committee

It is the Rural Crime Committees recommendation that a Bail Sub-Committee be created that would include the stakeholders from the Ministry Analysis and the Rural Crime Committee  that would review the Cross Jurisdictional Analysis and any recommendations from the Ministry of Justice and the conversations with the Federal Government.  This committee would also meet several times a year to, canvass stakeholders and Albertans on ideas for improving the justice system.  These ideas would be reviewed by the committee and after analyzing the suggestions the committee would present a yearly report to the Minister making recommendations on how to make the justice system work in an efficient fashion and address the problem of a judicial system that has become a revolving door.