Correspondence from Minister David Eby regarding British Columbia’s court system

Ref. 617726

August 5, 2021

His Worship David Screech Mayor for the Town of View Royal 45 View Royal Avenue Victoria BC V9B 1A6 Email: mayorscreech@viewroyal.ca

Dear Mayor Screech:

Thank you for your letter of June 2, 2021, addressed to the Honourable Mike Farnworth, Minister of Public Safety and Solicitor General, regarding delays in British Columbia’s court system. As this matter falls under the jurisdiction of the Ministry of Attorney General, I am responding on behalf of Minister Farnworth.

The Ministry of Attorney General is committed to ensuring the provision of adequate resources to manage the justice system to reduce delays, and to improve the timeliness of matters coming before the courts. The ability of all citizens in this province to access timely justice is a constitutional right and is a top priority of mine.

Any case dismissed due to delay is cause for concern. The Ministry of Attorney General continues to take proactive measures in the reduction of these delays. Thanks to the efforts of those who administer our courts, our courts did not close at any stage during the COVID-19 pandemic.

The ministry and Courts work together to identify innovative approaches that assist in the reduction of court delays. As an example, in the Capital Regional District, bylaw matters were frequently scheduled to be heard only for a party to pay their fine prior to the hearing occurring. This resulted in a use of court resources that could otherwise have been allocated elsewhere. The Ministry of Attorney General identified this inefficiency, and the Office of the Chief Judge is now providing our courts with the opportunity to pre-trial these matters, allowing for a more efficient use of judicial resources.

In your email, you express concerns about the release of offenders on a promise to appear, rather than being held in custody, pending a court date. The police’s decision to release an accused person is made separately from the charge assessment process completed by Crown Counsel regarding a specific case. When the police arrest someone for a crime, they can release them on an appearance notice to attend court at a future court date. The individual may also have to sign an undertaking, requiring them to obey specific conditions until the case is resolved. If the person breaks these conditions or does not appear in court, they may be charged with additional criminal offences. During the time prior to the court appearance, police can complete their investigation and submit a Report to Crown Counsel (RCC), requesting that a charge be approved. If, following an independent review of the RCC, Crown Counsel determines that the two-part test set out in the Charge Assessment Guidelines (policy CHA 1, available here: www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1-charge-assessment-guidelines.pdf) has been met, a prosecution is initiated.

Within 24 hours of their arrest, arrested persons must be released or be brought before a judge for a bail hearing. A “Judicial interim release”, or bail, occurs when a judge or justice releases an accused conditionally into the community after a charge has been laid and pending trial. Under our system of law, accused persons, even those facing serious charges, have the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. This principle is fundamental to the right, guaranteed under s. 11(e) of the Canadian Charter of Rights and Freedoms, not to be denied bail (conditional release) without just cause. For most offences, an accused person can only be detained in custody pending trial if the Crown can satisfy the Court that detention is necessary to secure the accused’s attendance in court, ensure the protection or safety of the public, or maintain confidence in the administration of justice, pursuant to s. 515(10) of the Criminal Code. In most circumstances, Crown counsel bear the burden of proof to show that an accused should be detained.

In exercising their discretion with respect to bail matters, Crown counsel are guided by the BC Prosecution Service’s policy Bail – Adult (policy BAI-1, which is publicly available here: www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/bai-1.pdf). Additionally, when referencing federal matters you may wish to consult the Public Prosecution Service of Canada’s Deskbook, here: www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/d-g-eng.pdf.

Justices can release an accused on conditions which are intended to protect the public and impose terms that allow for close monitoring of the accused through bail supervisors, police or a private person known as a surety. Which form of bail is used in a particular case will depend on the nature of the offence the accused is alleged to have committed, the background of the accused, and the risk the accused would present if released. Non-compliance with a term of bail can result in a new charge or a revocation of bail or both.

I appreciate the time you have taken to write and share the concerns of the Committee of the Whole and I trust that you will be able to share the information provided to the Committee.

Thank you again for writing.

Yours truly,

David Eby, QC Attorney General and Minister Responsible for Housing

pc: The Honourable Mike Farnworth