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KDFN bail program aims to give accused “fighting chance”

How the First Nation is trying to fix the Yukon’s bail system
Kwanlin Dün First Nation’s justice consultant Mark Stevens poses for a photo outside of the Whitehorse courthouse on Aug. 28. Stevens is the person behind KDFN’s bail program, which aims to get more people out on bail and give them a “fighting chance.” (Crystal Schick/Yukon News file)

Mark Stevens is a few minutes late for the interview, having just gotten off the phone with a client.

He smiles apologetically as he sits down on a plush chair in the common area of Kwanlin Dün First Nation’s (KDFN) justice office, tucked away in downtown Whitehorse building that happens to be across the street from the only full-time courthouse in the Yukon.

There’s barely time to get formalities out of the way, though, before his phone starts ringing again.

Already up out of his chair and halfway across the room, KDFN’s justice consultant apologizes again. It’s technically after-hours, but it’s important. He needs to take it.

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Spend enough time in the Whitehorse courthouse — in particular, Courtroom 5, where bail hearings are conducted — and chances are, you’ll eventually encounter Stevens and come to know his phone is often ringing.

That’s because he’s the man behind Kwanlin Dün First Nation’s (KDFN) bail-plan program, an initiative that, at its most basic level, helps create workable bail plans for accused people who might otherwise never get released from jail while awaiting trial.

Still in its pilot-project phase, the program first launched in June 2018. Available to any Indigenous accused in the Yukon as well as non-Indigenous inmates with ties to a First Nation (a spouse, for example), the program has three overarching goals: tackling the disproportionate number of Indigenous people jailed at the Whitehorse Correctional Centre (WCC) who are awaiting trial; creating effective bail plans that don’t set the accused up for failure; and working with communities to address safety concerns.

It’s the only program of its kind in the territory, and Stevens, its only worker.

“To be fair, it’s not necessarily my idea and it certainly isn’t rocket science,” he said. “It’s a very sort of practical stop-gap to address some of the issues that arose with the way that bail happens in the Yukon.”

First Nations inmates account for approximately 60 to 70 per cent of the WCC’s population, despite First Nations people making up only about a quarter of the Yukon’s population. Similarly, inmates who have been charged with an offence but whose cases haven’t gone to trial — known as inmates “on remand” — account for anywhere from 60 to 75 per cent of WCC’s population (the remaining inmates have been found guilty and sentenced).

Being held on remand is one of the most serious circumstances someone can be incarcerated under, because, under Canadian law, everyone is presumed innocent unless proven guilty.

In theory, this means that most people should be getting bail. In practice though, accused people, and Indigenous accused in particular, can face a host of social, financial and other systemic barriers when trying to put together a bail plan that satisfies the court.

Among the challenges for more disadvantaged accused are finding a safe address to live at while out on bail, finding a reliable surety (basically, a person who agrees to be legally responsible for the accused), or even finding a ride back to the WCC to collect their belongings.

“If you’re a white middle-class guy and you get charged with an offence … you can speak to your lawyer, you can say, ‘You know what, I phoned my wife, she’s come down with the mini-van, she’s willing to be my surety, I’ve got a letter from my employer, or, he’s even come to court to say what a great guy I am.’ So those guys don’t need my help because circumstances have allowed them to be able to cobble together a really good plan,” Stevens said.

“The folks that tend to get referred to my program are the ones who have a number of barriers to success, so they probably will have horrible records, they might be charged with more serious offences, they probably have other barriers to success, like addictions, mental health concerns, like homelessness.”

Although Stevens describes himself as a “glorified translator” for the legal system, his job, in practice, means he takes on the role of a personal investigator, driver, event planner, people coordinator, writer, legal advocate and fact-checker.

And it’s more than just working the phones and showing up to court — it’s not uncommon for Stevens, for example, to walk or drive around town in an effort to track down a surety that doesn’t have a phone, or to go check out a proposed residence in-person.

“I mean, if you have to wade through knee-deep beer cans and empty whisky bottles and used hypodermics to get through the front door, then you know it’s probably not a great residence,” he said.

“There have been a few occasions where … I’ve kind of had to talk to the homeowner and say, ‘You know what, this was the residence, somebody from the residence came to court and said this was a good place to stay, I’m seeing that maybe that isn’t true … please give so-and-so a fighting chance, he’s got an abstain (from alcohol) clause, please clean up all of the liquor bottles so that he isn’t having to deal with that temptation.’”

Stevens and KDFN’s director of justice, Gary Rusnak, are quick to point out the program isn’t aiming to spring everyone and anyone from the WCC’s cells — it’s aiming to create bail plans that will actually work, and if Stevens doesn’t think they will, he won’t shy away from telling the courts.

“People do call Mark because they know that he will do a lot of research and digging but … I can think of a few very prolific fellows who are like, ‘I’m not calling Mark, because I know I don’t have a good release plan and I know my record is such and Mark will do that legwork,’” Rusnak said.

Rusnak said his department hasn’t had the chance yet to collect and analyze data on whether the program has led to more people being released on bail, or whether those released on plans vetted by Stevens have better compliance rates.

Even without that information, though, Rusnak said, the program, and Stevens’ work, has “gained a lot of traction and confidence from the courts as well as the clients that it serves.”

In separate interviews, Crown prosecutor Noel Sinclair and Yukon Legal Services Society assistant executive director Lynn MacDiarmid both said bail hearings go faster and smoother when an accused person presents a plan vetted by Stevens.

“It definitely improves the efficiency of the hearings,” Sinclair said of the program, adding that the Yukon Crown’s office is “excited by the justice initiatives that KDFN has implemented over the last several years.”

MacDiarmid also applauded the program, saying it helps alleviate some of the heavy workload Legal Aid lawyers already deal with.

The Yukon government is also “very supportive” of the program, assistant deputy minister of justice Allan Lucier said.

“(We) see it to really address some of the major issues such as over-representation and ensuring individuals are receiving you know adequate and just bail considerations whenever possible,” he said.

“… It is not in justice’s best interest to have individuals incarcerated who can otherwise safely and appropriately be in the community. Jail is there for a purpose and so any time we can support that safe and positive integration, in even a pre-trial situation of individuals within the community, then that is beneficial.”

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Despite the accolades, Stevens admits that he still has a “level of discomfort” with his role — namely, that he’s a non-First Nations person doing the work.

“I think in an ideal world … all people kind of doing the work I’m doing would be Indigenous,” he said.

On that front, Stevens has been mentoring other justice workers, with the goal of eventually, in his words, training himself out of a job — something he said has been his goal since he started working for KDFN about four years ago.

“It would put me on the unemployment list I suppose,” he said, “but I would feel very, very good about that.”

Contact Jackie Hong at