“We’re in crisis mode”: A bail lawyer on backlogs and burnout at the Toronto Regional Bail Centre

In February, the Ontario government announced plans to merge Toronto’s six criminal courts into a new 17-storey courthouse near University and Dundas. Meanwhile, the Toronto Regional Bail Centre (TRBC) at 2201 Finch Avenue West is handling all the bail hearings that used to be divided between the six old courthouses—and it isn’t going well. Staff, judges and lawyers are working 13-hour days, and the backlog of cases has grown so severe that some people who merely need consent releases—cases where the Crown’s lawyer has already agreed to release them from custody—are being forced to remain in jail while their hearings are delayed. Bo Arfai, a representative of the Society of United Professionals’ Legal Aid Ontario Local, is one of the lawyers scrambling to handle the overwhelming caseload. Here, he talks about how the amalgamation is affecting him, his colleagues and their clients—and why the situation won’t improve without substantial change.

Let’s start with the basics. What exactly is a bail court?
After someone gets arrested, usually the police release them once they’ve been charged. But sometimes there’s a concern that the accused may not attend court or that they could pose a risk to public safety. In that case, they’re taken to a bail court, where a justice of the peace and a Crown attorney decide if the person in question should be released and under what conditions.

And where does a bail lawyer come in?
Anyone can hire their own lawyer to represent them at any stage of the criminal proceeding, which includes bail hearings. But Legal Aid Ontario’s duty counsel office—which includes lawyers like me—tends to handle most bail cases. Essentially, we help people get bail. And we’re publicly funded, so accused people can request our services for free.

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When did you first notice a mounting backlog of hearings?
That’s been around for as long as I can remember. Running over capacity isn’t a new problem, but since amalgamation started in March, it’s become much more obvious to everyone involved.

Last month, the backlog at the TRBC led to four people spending a night in jail after the Crown had already agreed to release them. How did we get to this point?
The primary cause is pretty straightforward: we aren’t getting enough resources from the Ministry of the Attorney General. The volume of cases going through the system is increasing as the city’s population grows, and the amount of resources isn’t keeping up. There aren’t enough lawyers on either the Crown or Legal Aid sides, and staffers—like court reporters and clerks—are increasingly unwilling to work late to cover backlog. We’re running at 120 per cent capacity, which is completely unsustainable. Bail hearings are delayed regularly, and people are languishing in cells unnecessarily.

With all that going on, what’s your typical day at the TRBC like?
Court staffers triage on a daily basis to decide what absolutely needs to be done and what can wait. Many of my colleagues and I power through the day without stopping for lunch or even taking breaks. We’re juggling multiple cases as we jump in and out of courtrooms, sending or receiving hundreds of emails. When volume is particularly high—which these days is often—the court sits late, sometimes until 9 p.m. Staff from all the different organizations that work at the TRBC are burnt out. I can only speak for the membership of Legal Aid Ontario, but morale is low. Usually, at the end of my shift, I don’t feel good. I’m not able to meaningfully move forward the majority of my clients’ cases. Even on the best days, I’m just tired. Many of us have started thinking about practising other types of law—ones that don’t ask so much of us. Some have already made that change. And since staffing is an ongoing issue, that only makes matters worse.

When people are burnt out, they might succumb to apathy or even cutting corners. Are those issues cropping up?
It may be overstating it to talk about cutting corners, but we certainly can’t do our jobs to the standards we’d like. Our role is to ensure that the law is followed to the best interest of our clients, but right now there just isn’t enough time to advocate for them. For example, some clients have accepted levels of supervision and bail conditions from the Crown that are overly onerous and restrictive—and, to be frank, not at all consistent with the law—just so they can go home.

Advocates have voiced concerns about the effects of courthouse consolidation on Toronto’s at-risk residents. Has that come up at the TRBC?
Yes. Many of my clients are among the most marginalized members of our community—people with serious mental health issues, people who are precariously housed, or people from groups that are overrepresented in the criminal justice system, including Indigenous people and people of colour.

Spending the night in jail when all you need is a consent release sounds awful. How else are the backlogs affecting your clients?
It’s important to remember that a lot of people going through the court system actually did nothing wrong. In that context, regardless of whether it was a consent release, we have to consider that these innocent people are spending long days in cold cells. If they’re taken to a jail overnight, they’re exposed to risks of violence and infection, particularly at places like the Toronto South Detention Centre, in Etobicoke, where you can be confined by yourself for more than 23 hours a day with no opportunities to shower or use a phone. People are losing their jobs because they’re forced to miss work. They have pets at home that aren’t being fed. In the past couple of weeks, one of my clients missed a chemotherapy session. I’ve seen multiple clients miss important surgeries. I can only imagine the stress they must feel.

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Are there any legal consequences to delaying bail hearings?
Each time there’s a delay, it’s a potential breach of that person’s Charter rights. After all, everyone is presumed innocent until a judge finds them guilty. If someone’s bail hearing doesn’t take place in a timely manner, down the road they can apply for a stay of proceedings, which could result in charges being dropped.

So, hypothetically, a person could be guilty but then released because their delayed bail hearing constituted a Charter violation?
Yes.

You mentioned a lack of resources as the primary cause for the backlog. What resources are needed?
We need the Ministry of the Attorney General to hire or reassign additional staff, and we need more courtrooms. Prior to amalgamation, there were courthouses allotted to handle overflow from the prior week. Bringing those kinds of additional spaces back would definitely help. Even minor things like hiring more correctional officers to speed up the transportation of accused persons and installing more video booths for remote hearings could make a big difference.

Requests for more resources often face pushback in terms of funding. How would you respond to those concerns?
When guaranteed Charter rights are breached through delayed hearings, that leads to more court proceedings down the line. That takes up courtroom space and time, and in cases where the accused person is relying on publicly funded legal aid, we all end up footing the bill. You have to balance the upfront cost with those other costs further along in the process. To use a health care analogy, if you spend a little bit on prevention, you save a lot on treatment.

If nothing changes, what does the future of the TRBC look like?
Right now, we’re still in crisis mode. I’ll give you an example. This past Friday, there were four hearings that couldn’t be held because the court ran out of time. Three of them were consent releases, and they all got adjourned until Monday. In other words, three women had to stay in custody over the weekend despite there being no legal justification for keeping them there. One of those women—just 21 years old—started sobbing. She was afraid that she was going to lose her new job due to missed work. Fortunately, a clerk managed to convince the justice to hear her case, so she was released. The others were not so lucky. As Toronto’s population continues to grow, these problems will get worse. Many of us at Legal Aid Ontario really care about the clients who come through the courthouse. They’re the main reason we got into this profession. But, in order to properly do our jobs, we need breathing room—and we haven’t had that in years.

This interview has been edited for length and clarity.