Who gets bail — and who doesn’t? Take a look inside Manitoba’s courtrooms

An 18-year-old with severe fetal alcohol spectrum disorder accused of running drivers off the road in a stolen truck was among those denied release during recent bail hearings in Winnipeg.

Court heard the man, who started drinking when he was eight, was awaiting a meeting to get set up with community supports when he was arrested in September — and he was also on a probation order that forbade him from being in the driver’s seat of a vehicle, after being convicted of similar crimes.

A judge denied the man bail, saying while he had empathy for his situation, “it’s a risk analysis” — and even the ankle monitor proposed by the man’s lawyer “is not going to solve his impulsiveness,” which court heard is common among people with FASD.

“If he decides to go and steal a car, he’s capable of doing that — and he’s done it.”

CBC News went to bail court to learn more about who gets released, who doesn’t and why.

During two days of hearings in Winnipeg’s two dedicated contested bail courtrooms, seven accused people appeared onscreen from custody, as a judge listened to lawyers argue why each person should or shouldn’t be released as their case moves through the courts. 

Of those seven, only two who applied for bail were released.

The hearings come amid growing calls for changes to bail, which recently culminated in the federal government announcing legislation designed to make it more difficult to get, especially for repeat and violent offenders.

But lawyers on both sides of the courtroom in Manitoba say recent calls for reform largely miss the real issues — from the volume of cases moving through the system straining court resources, to the complex social issues often behind the crimes landing people in custody.

Issues like mental illness, addictions, homelessness and cognitive challenges like FASD come up often in bail court — and one senior Manitoba Crown attorney said from what he’s seen, there isn’t enough support in the community to help those people. 

“We are even less equipped to deal with it” in bail court, Paul Cooper said.

“We deal with it according to law,” said Cooper, who also teaches courses on bail to other prosecutors.

“‘Is this person a menace? Well, then I guess we have to keep them in custody. Are they manageable? Then we can release them.’ That’s really the only options that we have.”

And though stories of people on bail being arrested for new offences have made headlines, “the vast majority of what you don’t see is stuff that just runs the way that it should,” he said.

“From our point of view, what we do is guided, always, by public safety. It is really the only and key aspect of any analysis that we do when we review a file,” Cooper said.

“Does it always work? Of course it doesn’t — but it works way more often than it doesn’t.”

Reed Sitarik, a defence lawyer in Winnipeg who handles her firm’s daily bail docket, said what she sees in those courtrooms most frequently is people re-arrested for breaching their release conditions, not committing new crimes. 

And for many of them, struggles like homelessness and addictions are often both what land them there and what make it difficult to put together a suitable bail plan, making it harder for them to get out.

“I think calls for bail reform really are targeting the wrong issues,” Sitarik said. 

“It disadvantages people who have mental health concerns. It disadvantages people who have addictions and people who are homeless or struggling with poverty — and those are people we should be trying to support.”

During another recent bail hearing, a former legal assistant struggling with alcohol addiction was accused of repeatedly violating a court order forbidding her from contacting her mother if she’d been using drugs or alcohol.

She said didn’t have the phone number of the person she would live with if released.

“What she needs right now is support, not jail,” defence lawyer Ijeoma Ofokansi said of her client, whose record, court heard, only included one conviction — for impaired driving. 

But the judge denied her bail, too, saying he wasn’t satisfied with her plan, largely because she couldn’t confirm the person she said she’d live with could take her.

Defence lawyer Sitarik said it’s a common issue in bail court.

“There’s probably not a week that goes by that I don’t encounter someone who doesn’t have an address,” Sitarik said — and in some cases, left with no better options, lawyers propose a person be released to a shelter.

“And that’s not a very good bail plan.”

In another case, a homeless man with mental health issues, accused of acting aggressively at Winnipeg’s Victoria Hospital after being brought in with chest pain, was denied bail — not long after he’d also tried to go into restricted areas at the city’s St. Boniface Hospital.

“On the face of it, it’s a person who’s in distress causing chaos in a health-care setting,” the judge said, but the man’s lengthy criminal record and previous convictions for similar incidents told a different story.

“In the context of his record, this is a chronic issue,” the judge said. “I’ve sentenced him just in the last month for a very similar problem.”

During another bail hearing, a former gang member was accused of being involved in an attempted robbery in Winnipeg that ended in the victim being shot in the back by a co-accused. The man also was allegedly seen high-fiving the accused shooter as they fled together in a taxi.

Court heard the man had cognitive limitations, grew up in the care of child welfare services, and alcohol was frequently used in his early life. 

His lawyer proposed a bail plan under which he would abstain from drinking, follow a curfew and contact the Addictions Foundation of Manitoba within two days of being released.

However, a judge found he was “too big of a risk to be released, despite the bail plan” — in part because of his criminal record, which included convictions for weapons, drugs, assaults and breaches of court orders.

Only two people of the seven whose bail hearings came up when CBC News was in court were granted release. 

Both were accused of domestic violence and had bail plans that included following a curfew, not contacting the complainant and living with a family member or on a dry reserve to address their risk factors.

In one of the cases, a 22-year-old man with significant alcohol problems was accused of assaulting an intimate partner and threatening to kill her if she called police — allegations he denied.

Court heard information about the man getting an assessment done at the Addictions Foundation of Manitoba, and that he planned to live with his father, who doesn’t keep alcohol in his home.

“All I can suggest to you is if I give you this chance to be out of custody again, that you … get that counselling, so you don’t end up back in custody again,” the judge told the man.

“Because unfortunately, with your record, if you come back before the court again, the judge is not going to be able to let you out.”

Both prosecutor Cooper and defence lawyer Sitarik said one of the biggest challenges Manitoba’s bail courts face is the sheer number of cases they have to deal with, and the lack of time and resources they have to do that — an issue raised recently by the union representing the province’s prosecutors.

Sitarik said more time and resources to work on bails could help lawyers come up with more tailored plans, instead of relying on standard conditions like curfews. Better plans could reduce the number of people ending up back in court “on breaches of conditions that maybe weren’t super relevant to the allegations that they were facing.”

For Cooper, developing more specialized bail resources to respond to the complex social issues lawyers see in court could help take strain off the system, and help more accused people not end up back in court.

As calls mount to make it harder for some to be released, related to concerns about people reoffending while on bail, he said there isn’t a system he can think of “that removes the variable that is people.”

“Unless you go to a 100 per cent detention system, there really isn’t anything that can remove a level of risk,” Cooper said.

And while adding more specialized bail resources would likely require more court resources — and money — Cooper said making changes that would mean people accused of crimes would be locked up by default “would require about 10 times the resources.”

“And that’s not a society I want to live in,” he said.

Who gets bail in Manitoba — and who doesn’t?