Judge riled by delays in inmate transfers
A Superior Court judge has asked Ottawa police to justify a policy that requires three weeks’ notice to transfer a prisoner from an outof-town jail to Ottawa for a bail review, even if the jail is only as far away as Brockville.
During a bail review last month, Ontario Superior Court Justice Kevin Phillips said the police department’s policy not to bring an accused man to court in a more timely fashion seems inconsistent with sections of the Criminal Code dealing with bail provisions and the review of a judge’s order.
Phillips made the comments after it was explained to him by a defence lawyer that accused Michael Wiwczaruk wasn’t in court on April 19 because Ottawa police didn’t bring him in from the Brockville jail.
Lawyer Gary Barnes said that was because he was only able to give a week’s notice of the court appearance after a rehabilitation bed had become available for Wiwczaruk in a North Bay drug treatment centre.
There was no guarantee that bed would still be available if he waited the three weeks Ottawa police required to transport Wiwczaruk from the Brockville jail, which is a little more than an hour’s drive away. Wiwczaruk is facing charges of break-and-enter, resisting arrest and carrying a concealed weapon.
Fortunately for Wiwczaruk, the bed was still available when he was able to return to court on May 1. Phillips ordered his release on bail to the treatment facility, but not until after Wiwczaruk had spent an extra 11 days in custody.
“If the Ottawa police have established a policy that three weeks is required to accommodate the task of bringing a man charged in Ottawa but housed in Brockville into Ottawa to be dealt with by the court, that policy in my view should be reconsidered,” said Phillips. “Unless unique or special circumstances warrant, it ought not to take three weeks to accomplish that sort of transportation.”
Wiwczaruk is only in Brockville because he can’t be held in the Ottawa-Carleton Detention Centre because of a $700,000 lawsuit he filed against the province over his alleged treatment there. That treatment included an admission by the then-superintendent that substantiated Wiwczaruk allegations he was subjected to excessive force by a correctional officer.
Phillips cautioned that his comments should be taken with a “grain of salt” since Ottawa police weren’t represented and didn’t have a chance to make submissions in court, but he asked that the Crown ensure a transcript of his comments was provided to police Chief Charles Bordeleau.
“The court expects some justification or explanation if indeed it is true that three weeks is required to bring a man in from Brockville. That sort of pace, in my view, is inconsistent with the purpose of Section 515 and 520 of the Criminal Code in the sense of the importance of the issue of pre-trial detention and its continued review as the circumstances may change,” he said.
The policy, which is posted on the window of the police liaison office in the Ottawa courthouse, advises all Crowns, defence lawyers and court liaison staff that the minimum lead time required to bring a prisoner in from another Ontario or Quebec jurisdiction is three weeks. The policy also requires three days’ notice to bring a client to court from the Ottawa-Carleton Detention Centre, even though inmates are moved between the courthouse and jail daily.
“These restrictions are required in order to ensure that adequate time is provided for process the request and ensure that the holding facility is provided enough time to produce the inmate,” reads the notice. “Requests outside this time frame will no longer be accepted by court liaison.”
But Ottawa police Staff Sgt. Roger Giasson said the requirements aren’t policy but considered best practice. He said police routinely make efforts to accommodate transfer requests sooner. Giasson, the staff sergeant in charge of court operations, said the time is needed to make the necessary arrangements with whatever jail the prisoner is in.
There is also a question of who will pay for the transfer, Giasson said. Ottawa police must send someone to do the pickup themselves if the inmate can’t be moved to the Ottawa-Carleton Detention Centre before the court appearance. In the case of Wiwczaruk, he said, Ottawa police had no record of the transfer request.
“If we have no request, then I can’t go and pick him up,” said Giasson.
Barnes alleged the reason there was no record was because the Ottawa police officer he gave it to didn’t want to take it because it wasn’t three weeks’ notice.
“They took the order to produce and said, ‘ We aren’t doing it,’” said Barnes. “This is an order signed by a Superior Court judge ordering them to produce him. They just said no.”
Barnes said he left messages with both the Crown’s office and Ottawa police court liaison in an attempt to have Wiwczaruk brought to court sooner. Barnes added that prosecutors don’t seem to face the same restrictions as defence lawyers.
Deputy Chief Steve Bell said police are reviewing what happened in Wiwczaruk’s case and are looking at changing their tracking of information to a process that documents each request to bring in a prisoner. There are also efforts under way to expand video appearances to avoid delay.
Bell admitted “resource and logistics” are major factors in the police’s ability to meet the requests.
“While we are making these efforts it is important to remember that our resources are limited and we need to balance our operational requirements while fulfilling requests,” he said.
In a court system currently grappling with both bail reform and crippling delays that are leading to criminal cases being stayed because they aren’t being dealt with in a timely enough manner, Barnes told the Citizen, the Ottawa police policy is particularly troubling.
Barnes said the time requirements seem arbitrary, adding that Crown prosecutors and judges don’t face the same three-week requirement that defence lawyers are subjected to when they want to bring their clients in for a bail review.
The police policy runs counter to moves the province has been making in recent months to speed up the court process and reduce pressure on overcrowded jails. An accused person might spend as long as three weeks taking up a bed in a provincial jail when they could be released to a treatment program, said Barnes.
A recent Supreme Court decision that highlighted delays in Ontario’s criminal justice system prompted Ontario Attorney- General Yasir Naqvi to appoint 13 new judges across the province and ask the federal government to eliminate preliminary inquiries.
Naqvi has also announced a series of bail reforms designed to speed up the bail process and reduce the number of people sitting in jail awaiting trial.
Ottawa lawyer Dominic Lamb, who sat on the OCDC task force and is a member of the executive of the Defence Counsel Association of Ottawa, called the transfer policy “preposterous.”
Lamb said the policy causes “delays in the constitutional right to reasonable bail, delays for trials, delays for people to be dealt with when there is mental health issues involved.”
“It’s diametrically opposed to how everyone is striving for efficiencies and it’s unacceptable,” said Lamb.
The significance of bail and the continued detention of an accused when there was a change in circumstances that could result in their release wasn’t lost on Phillips.
“Arguably it is among the most important work that the court is asked to do,” he said.
“The presumption of innocence is, of course, a golden thread that permeates our entire approach to criminal justice, and the idea of detaining a subject in advance of trial is a very complex and, as I say, important job,” said Phillips.