The Winnipeg Police Service has defended how — and why — decisions are made to release suspects accused of crimes with conditions to follow ahead of court proceedings.
The issue of releasing alleged repeat offenders and how bail and other forms of release are granted have become hot-button political issues locally and nationally in recent years, following public scrutiny of cases in which individuals accused of violent offences have gone on to be charged in further bloodshed after being let out on conditions.
Canada’s premiers have made requests to the federal Liberal government for changes to the bail system.
The Winnipeg Police Service says it is mandated by law to use custody as a last resort and to release charged persons on the least onerous conditions possible prior to their court date. (John Woods / The Canadian Press files)
Conservative Leader Pierre Poilievre has pledged to make “jail, not bail” for repeat offenders the law if elected prime minister.
In Manitoba, Justice Minister Matt Wiebe announced a plan earlier this year meant to encourage Crown attorneys to more stringently approach bail, though some prosecutors privately panned the policy.
The WPS argues its hands are tied by recent Criminal Code amendments in how supervising officers determine who to release and who to detain, with news releases frequently including a line that says the release of suspects on undertakings or appearance notices are “mandated” by the law.
But current Manitoba prosecutors and a University of Manitoba law professor who recently spoke to the Free Press say that’s a misinterpretation.
Police can decide to release an individual on an undertaking or appearance notice at their discretion, which both require attendance in court, or recommend to Crown prosecutors they be detained. If they’re detained, the accused will then be granted a hearing, where the courts will determine whether to grant bail pending further proceedings.
WPS Sgt. Grant Lindgren, who worked in the city police central processing unit for a long time, said Criminal Code amendments that followed two 2017 Supreme Court decisions have fundamentally changed how police make decisions regarding detention and release.
“Detention is absolute, 100 per cent, last resort…. We’re obligated, bound by law, to release people as early as possible on the least onerous conditions,” said Lindgren.
“Most importantly, our grounds for detaining somebody have to be on objective, reasonable grounds to believe that they pose a continued risk.”
He said, as a supervisor, when one of his officers makes an arrest, he must take into account what the person’s record of criminal convictions for related offences is, whether they’re reasonably likely to attend court and if they’re a reasonable and objective risk to public safety or for reoffending, among other considerations.
Lindgren added that now, following the law amendments, police are able to impose certain release conditions, such as curfews, that they were unable to prior.
“There are a lot of what-ifs — but we can’t base an objective decision on a what-if scenario,” said Lindgren. “What-ifs are always concerning, because human nature is such that we (develop) an idea based on what might happen, but the principles of justice are such that your Charter rights are based on what is, not what if; it’s just that simple.”
One Crown attorney told the Free Press it was “crap” that police “keep blaming it on the code” when they release an accused person alleged to have committed a crime of violence.
“The code allows for us to detain people when there is violence,” the prosecutor said, speaking on the condition of anonymity. “There are definitely times they release people and say it is because of the code, and that is not accurate.”
U of M law professor Brandon Trask, who used to work as a Crown attorney in the Maritimes, said he finds the police use of the term “mandated” concerning.
“It’s concerning that the public is being left with the impression that our law mandates release. Our law, generally speaking, does not mandate release — that’s a judgment call,” said Trask.
“In a lot of cases, that’s simply not accurate, and I’m puzzled as to why the police keep saying an individual’s release was mandated. There are pathways in our Criminal Code… to take a person into custody.”
Police have “ultimate discretion” to release an accused on an undertaking as they see fit, a second Crown attorney said. “They can release them on an undertaking without referring to us at all,” the prosecutor said.
Lindgren said that he thinks the police service is interpreting the Criminal Code accurately. “If somebody says down the road, you didn’t interpret it correctly, then that’s their prerogative.”
Winnipeg defence lawyer Chris Gamby said bail and other forms of release pending trial underpin Canada’s justice system — and emphasized it’s a Charter right.
“It’s tied directly to the presumption of innocence — anybody that is arrested and charged by police is presumed innocent, until a court decides otherwise,” said Gamby. “It is distasteful, I think, to detain people prior to that final decision, but it is necessary to do just that in some cases.”
Cases that require detention include those where the public is at risk, the accused won’t show up in court or if it would be shocking to the public to see the accused bailed, shaking confidence in the administration of justice, said Gamby.
He said detaining individuals without bail can upend the lives of accused people before their guilt or innocence is determined.
— With files from Dean Pritchard
erik.pindera@freepress.mb.ca
Erik Pindera
Reporter
Erik Pindera is a reporter for the Free Press, mostly focusing on crime and justice. The born-and-bred Winnipegger attended Red River College Polytechnic, wrote for the community newspaper in Kenora, Ont. and reported on television and radio in Winnipeg before joining the Free Press in 2020. Read more about Erik.
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