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SECTION 493.2(A) OF THE CRIMINAL CODE AND THE APPLICATION OF THE GLADUE PRINCIPLES TO BAIL HEARINGS

R. c. Kadjulik, 2021 QCCQ 4344, May 26, 2021, at paragraphs 123, 124, and 130 and 131:  

The bail provisions in the Criminal Code were amended in 2019. Among the modifications, s. 493.2(a) C.C. now statutorily requires judicial officials making bail decisions to give particular attention to the circumstances of accused persons who are indigenous.

Alas, Parliament did not specify how these circumstances should impact the ultimate assessment. Obviously, the objective behind the amendment is an acknowledgement that vulnerable and marginalized populations are often disproportionately incarcerated before trial, or even subjected to conditions (1) that they will struggle to meet, or (2) by which they cannot reasonably abide. In the recent R. v. Zora, the Supreme Court underscored that indigenous people are particularly affected by bail conditions that make future breaches highly likely.

The following principles should guide the Court in determining the impact of the accused’s aboriginal background – if any – at the bail stage:

1) A sentence hearing and a bail hearing are fundamentally different proceedings with different objectives. It would therefore be illogical to apply s. 718.2(e) C.C. or the Gladue principles equally in both cases. For example, at the sentencing stage, the principles of deterrence, denunciation and retribution are all relevant, sometimes predominant; moreover, these are precisely the principles that are most likely to be adjusted downwards after the principled consideration of Gladue principles. Yet these same factors should not be considered at the interim release stage. The analytical framework is simply different.

2) That being said, the Gladue principles must nevertheless be considered at the interim release stage. The Court must be particularly sensitive to unique systemic or background factors relevant to the accused, consider the over-representation of aboriginal persons in the prison system and…seek to the extent possible to find an appropriate release plan that would allow incarceration to be avoided. In particular, the Court shall consider:

(i) Whether the sureties offered, in the context of the aboriginal culture, can control the accused’s behaviour. Here, the Court considers whether there is particular cultural pressure encouraging the accused to comply with the conditions imposed, in addition to the usual factors such as the physical proximity of the sureties and their ability to supervise and control the accused.

(ii) Whether interim detention of the aboriginal accused would have a disproportionately negative impact on the accused in the circumstances and whether that impact could be alleviated by strict bail conditions. At this stage, the Court takes into account the potential loss of employment, but with emphasis on the fact that the unemployment rate in aboriginal communities is very high.

(iii) Whether aboriginal law, customs and traditions provide the necessary assurances of attendance in court and protection of the public. At this stage, the Court considers whether the accused has children and/or a family who have offered to act as sureties, their proximity, and whether their culture/traditions/customs place a sufficiently high emphasis on the family such that the accused will be more inclined to comply with the conditions imposed.

3) Even a generous application of the Gladue principles does not allow the Court to disregard the criteria set out in s. 515(10) C.C. or distort the analysis of grounds (a), (b) and (c) for the purpose of promoting the principles of corrective justice, however commendable that objective may be. In other words, the policy considerations behind s. 493.2 cannot trump public safety. Section 515(10) was not repealed. It would be up to Parliament to amend the provision, not the courts.

4) The Gladue principles are more likely to influence the analysis of the primary and tertiary grounds set out in s. 515(10) C.C. Conversely, they will have less weight in the assessment of the secondary ground. Therefore, if the Court finds that there is a substantial likelihood that the accused’s release will endanger the safety of the public, this consideration must prevail.

Fundamentally, the Gladue-type considerations must be considered within the parameters of the existing s. 515(10) framework (including the principle of restraint), which provides sufficient flexibility to take these issues into account. The two exercises are not mutually exclusive or incompatible.