‘We need help’: Toronto’s overburdened new bail court is leaving people stuck in jail

It was now past 5 p.m. on Tuesday in Courtroom 204 at the new Toronto regional bail centre and tensions were running high.

The Crown attorney had been working since 7:30 a.m. and was exhausted. The clerks were set to end work at 5:30 p.m. And there were still multiple people in custody waiting for their bail cases to be dealt with — including people the Crown was agreeing should be released, subject to conditions.

“You can hear our language,” Walker said to lawyers appearing via Zoom. “We’re having trouble even speaking and getting terms correct because of the exhaustion.”

The courtroom was having to juggle the bail matters from the jurisdictions of two courthouses that had recently shut down as part of the amalgamation of Toronto’s provincial courts. The Ontario Court of Justice decided that Courtroom 204 would hear cases from the former courthouses in both North York and Scarborough.

“They’ve merged two courts together and it’s just not something that is reasonable,” Walker said.

A bail hearing typically takes place shortly after a person has been arrested, when a justice of the peace decides whether they should be kept in jail or released into the community — usually with conditions — until their criminal charges have been dealt with in the courts.

Among the cases that had to be put over for another day on Tuesday were four “consent releases” — cases in which the Crown is prepared to agree to the person’s release.

Those individuals — who, like everyone else in bail court, are presumed innocent — had to spend a night in jail solely because there wasn’t enough time to reach their case.

“This is the first time in my life that I’ve ever put over consent releases,” Walker said, adding the outcome “bothers me a lot.” She said the cases would be added to the following morning’s docket with priority.

“We know that these people are in custody and liberty lost is liberty never regained,” she said. “At the same time, something has to change, and if we keep enabling the system to do what it’s doing, things are not going to change.”

Court finally adjourned just after 6 p.m., after having sat until 7 p.m. on Monday. “This is a systemic issue,” Walker said. “It’s not proper. We need help.”

The Ontario Court of Justice’s operations in Toronto have been plagued by delays and staffing shortages since the province began amalgamating the city’s criminal courthouses in March.

The union representing duty counsel — legal-aid-funded lawyers who can assist unrepresented accused persons — says the bail courts are now routinely sitting late into the evening, and that Tuesday was not the first time consent releases had to be put over.

The problems have raised questions about whether criminal charges will end up being tossed over violations of a person’s constitutional rights. They have also raised concerns that long days could lead to mistakes at a time when the bail system is under increased scrutiny.

In response to the Star’s queries, the Ontario Court of Justice said that to “support planning” for the new bail centre, the court decided to combine some courtrooms “in consultation with justice participants,” but provided no further reasoning.

The court said it was “concerned that consent releases were not reached” and that “we will be having discussions with the Ministry of the Attorney General to reduce the risk of this happening again.”

The ministry said it couldn’t comment on remarks made in court, saying it continues to work with the judiciary and others to “identify any necessary improvements as we move forward.”

With the amalgamation almost complete, nearly all adult bails in the city are now dealt with at the old 2201 Finch Ave. W. courthouse, near Highway 400, which has been renamed the Toronto regional bail centre.

“There’s not enough staff, not enough courtrooms, and the wrong decision can be made,” said Dana Fisher, local vice-president of the Society of United Professionals, which represents duty counsel.

Meanwhile, almost all criminal cases are now heard at the new downtown mega-courthouse on Armoury Street, which has been hit by multiple courtroom closures each week due to staff shortages attributed to burnout, inadequate pay, and a refusal to commute downtown due to the time and cost.

The Ford government, which is responsible for funding and staffing the courts, has described the bail system as broken, but for different reasons. The province recently announced over $100 million for police to better monitor potentially dangerous people on bail, and for prosecutors to handle complex bail hearings.

Attorney General Doug Downey’s office did not return the Star’s request for comment about the problems at bail court, nor did it answer previous requests regarding courtroom closures at the new downtown courthouse.

On Tuesday, duty counsel Kayvan Vakili said in Courtroom 204 that applications under the Charter of Rights and Freedoms need to be filed to toss charges “so that the minister of justice understands the absolute chaos they’ve created in what they’ve done here.”

Crown attorney Rita Koehl flagged that she and a colleague had been at work since 7:30 a.m.

“I am exhausted, as I believe Your Worship is,” Koehl said to Walker, “and I’m certain the clerks and the court reporter are as well. Mistakes are made when we sit this late.”

Fisher questions whether it’s even legal for a person to spend a night in jail when the Crown is prepared to consent to their release. The Criminal Code says a person should typically not be detained unless the Crown can show why they should remain in custody.

If the “only reason they’re not being released is because there’s not enough time to listen and write down the terms and conditions, then the Crown obviously has not shown cause for why this person should be detained,” she said.

“So what’s the legality of holding the person in custody?”

And it’s not just consent releases that are impacted; trying to schedule a contested hearing has also proven to be difficult.

Toronto lawyer Rocco Achampong was in court every day this week trying to schedule his client’s hearing, only to be told each time — after waiting for hours — to come back the next day.

He told the Star that delays not only impact the accused person but also disrupt the lives of others who take time off work to show up at court to be a surety — the person who ensures that the accused will abide by their bail conditions. Being at court for hours each day also takes him away from his other clients’ matters, he said.

“Something is fundamentally broken, and it could happen to any of us, because no one gets special treatment, rich or poor, no one is put ahead of the other,” Achampong said of the backlog of bail cases.

“This is an all-society mess that we need to deal with immediately.”