Criminal Law

SCC ruling a call to action for the Crown: Grey

By Patricia MacInnis, Senior Editor

A recent Supreme Court of Canada (SCC) ruling is a call to action for the Crown to reconsider how well the justice system balances people's rights with the goal of prosecuting those who violate the law, Alberta criminal lawyer Leighton Grey tells

In a 9-0 ruling, the SCC said people accused of crimes are entitled to a review of their detention under the Criminal Code, and that making an accused person wait in jail before trial should be the exception, not the rule.

“Delays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed,” Chief Justice Richard Wagner wrote on behalf of the court.

“Institutional delay is an endemic problem,” says Grey, senior partner with Grey Wowk Spencer LLP.

Cases involving serious crimes such as murder, drug trafficking, sexual assault and robbery are being judicially stayed due to insufficient resources, he says.

“There simply are not enough prosecutors, too few judges, underfunded legal aid programs, and most of all, insufficient court time,” Grey says. “This problem is inextricably tied to the issue of pre-trial remand. Accused persons are commonly remanded for periods in excess of the legal sentences to which they would be exposed to at trial, and they know it.

“Consequently, it is often very enticing for those awaiting trial to change their pleas to guilty, simply to avoid additional jail time — even in cases where they are innocent, or the charges can’t be proven at trial. There is no question that the police and the Crown use pre-trial detention as a method to incentivize early guilty pleas.”

Further, Grey says that keeping people in jail is prohibitively expensive, noting that the province of Alberta spends more than $1.3 billion each year on justice.

“According to 2018 Correction Service Canada statistics, it costs taxpayers almost $300 per day or $105,000 per year to keep adults in custody, and the total expenditure for correctional services is equivalent to $130 for each person in the Canadian population,” he says. “That adds up, to the tune of billions of dollars per year, to say nothing of the fact that every detainee is necessarily not at work, which hurts their families and the economy as a whole.”

Another disturbing aspect of pre-trial detention is that it disproportionately affects Indigenous people, which Grey says offends the principles established by the Truth and Reconciliation Commission.

“Aboriginal persons are the only demographic for whom detention rates are increasing, and at an alarming rate — 20 per cent within the past 10 years,” he says. “Overall, aboriginal males accounted for 28 per cent of the total prison population, despite comprising only four per cent of the Canadian population.

“In Manitoba and Saskatchewan, aboriginal males comprise three-quarters of the inmates in provincial jails, and most disturbing is the fact that 43 per cent of women in our prisons are aboriginal, a number that has doubled since 2001.”

Pre-trial detention also discriminates against financially disadvantaged offenders who are unable to raise cash bail or property to provide as surety, Grey says.

Prior criminal records form a large part of the Crown’s case in favour of pre-trial detention, which exposes people suffering from poverty and addictions to the greatest risk of being held pending the outcome of their trials, he says.

“These are also the same people who have the least access to the benefits of legal counsel and are thus more likely to make precipitous decisions about entering speedy guilty pleas,” Grey says. “This places tremendous stress on legal aid agencies throughout Canada, all of which are under increasing strain because the federal government has not increased their funding since 2005.”

It has often been said that the true measure of civil society is revealed in the way it protects the rights and liberties of its most vulnerable citizens, Grey says.

“Time will tell whether our federal government is prepared to address these concerns legislatively via amendments to the Criminal Code of Canada, or if there will simply be a shift in the way that judges interpret and apply the existing bail provisions set out in s. 525 of the Code," he says.

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