B.C.'s new bail program aimed at streamlining the province’s court release system has hit a roadblock as the government goes to court to have an arbitrator’s decision stayed pending judicial review.
The arbitrator found the government contravened the Crown Counsel Act in not negotiating with the British Columbia Crown Counsel Association on bail work assignments.
In April 2022, former then-attorney general and now Premier David Eby directed the BC Prosecution Service to implement a comprehensive bail program to address all aspects of the staffing and assignment of Crown counsel who carry out bail-related responsibilities.
In a statement to Glacier Media, the Ministry of Attorney General said the program would cover all Crown counsel bail functions inside and outside of regular court sitting hours.
“It would be consistent with the public interest, would advance the goal of providing timely access to justice for accused persons, would meet the operational requirement of the court, and would be the most effective means for the branch to carry out its statutory mandate under the Crown Counsel Act in relation to bail,” the statement said.
However, the association took issue with the directive saying it superseded a letter of understanding regarding weekend bail assignments with the association as the bargaining agent (the association is not a trade union).
As such, the association filed a grievance on July 27, 2022, alleging repeated and ongoing breaches of its role as the exclusive bargaining agent.
The government relied on the fact that the agency does not extend to administration and claimed the program fell under that heading.
So, the situation went to arbitration before arbitrator John B. Hall.
His April 27 decision noted the government had entered into agreements in the situation with individual Crown lawyers.
“I have little hesitation concluding that, in the circumstances, the government contravened both its agreement with the association and relevant provisions of the (Crown Counsel Act) when it failed to recognize the association’s exclusive bargaining agency on behalf of the Crown counsel and entered into individual contracts of employment with the association’s members,” Hall said.
He ordered the government to cease and desist in dealing with individual Crown lawyers and to negotiate with the association.
However, in a June 22 petition to the Supreme Court of B.C, the government asked for Hall’s decision to be stayed pending a judicial review.
The petition asks the court to substitute Hall’s decision with one finding that the attorney general is statutorily empowered to issue a directive regarding the comprehensive bail program without entering into an agreement with the association.
In the alternative, the government asked that the decision and orders be referred back to the arbitrator for reconsideration with this court’s directions pursuant to the Judicial Procedure Act.
“Irreparable harm will occur if a stay is not granted because it will halt a program that was created in furtherance of the public interest,” the petition said.
It said the Crown Counsel Act allows the attorney general to issue a directive respecting the administration of the Criminal Justice Branch.
"At this stage, the association's position is that John Hall reached the right decision and the association's counsel will be filing our response in due course," association president Adam Dalrymple said.
