Our bail system is failing. In Canada, over 250,000 pre-trial persons, are held in provincial and territorial detention centres across the country, more than triple that a decade ago,[1] exceeding even the population of sentenced inmates – [2] housed in environments that that fuel “crowding, violence and inhumane conditions”.[3]

But it appears that this crisis in a failing bail system visits its harshest consequences on aboriginal persons, who represent only 3% of the general population, but 21% of the remand population,[4] and 35% of provincial inmates in Alberta.[5] In her final public address, McLachlin C.J.C. identified these concerns as symptomatic of colonialization and the “mutilation of a culture”, and among the most significant obstacle facing our Canadian justice system.[6] Notwithstanding, as the SCC has suggested that things are in fact becoming worse,[7] leading one judge to attribute this trend to “a failure of Canadian courts to follow the binding authority of the [SCC] which all judges at every level have sworn to do”.[8]

The Test for Bail

When a person accused of a crime is arrested, he or she must either be released or be taken before a judge for a bail hearing. At the end of that bail hearing, he or she can either be ordered detained or is released pending the determination of his or her criminal matters. The procedure for a bail hearing is governed by 515 of the Criminal Code. In determining whether an individual should be released on bail, a Court will consider three grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law,

(b) where the detention is necessary for the protection or safety of the public, including any victim or witness … having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice, [or]

(c) if the detention is necessary to maintain confidence in the administration of justice.

The Presumption of Innocence and Right to Reasonable Bail

In all cases, the application of the test for bail is interpreted in accordance with an overriding presumption of innocence”,[9] and with s. 11(e) of the Charter – the right not to be denied reasonable bail. The presumption of innocence, is “a hallowed principle lying at the very heart of criminal law… [and] confirms our faith in humankind”.[10] Further, our society places a high value on individual liberty, and “where the potential exists for the loss of freedom for even a day, we… must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.”[11] As such, particularly in considering whether detention is necessary to maintain public confidence in the administration of justice, the SCC emphasised in R v St-Cloud,[12] that public confidence must be viewed through the lens of an individual who appreciates the fundamental importance of these rights.[13]

Gladue Principles and Bail

Given the gross overrepresentation of aboriginal persons in the pre-trial population, a significant point of attention, in past years, is whether, in addition to these principles, a Court should also consider the unique circumstances of aboriginal offenders.

A recognition of the need to alleviate these problems is set out under 718.2(e) and was the subject of attention in R v Gladue, in the context of sentencing. However, in Gladue, the SCC expressly acknowledged that systemic and institutional bias leads to an increased tendency to “refuse bail” and is “rampant in penal institutions”.[14] As such Gladue principle must be considered in all of the “justice system’s engagement with Canada’s First Nations”,[15] and “any situation where the liberty of an Aboriginal person is at stake ”.[16] Given gross overrepresentation and the need to apply bail provisions “consistently and fairly”,[17] the author would suggest that Gladue principles “play an equally, if not more important, role at the bail stage”.[18]

Gladue principles require that bail judges “be alive to the ways in which the bail system, in its current operation, exacerbates systemic disadvantage for Aboriginal accused”.[19] The tragedy is that in too many cases, the very circumstances which make aboriginal persons poor candidates for release, including  their “employment record, substance abuse issues and an unstable family and community support network” are in fact “the very results that flow from the Canadian history of colonialism, dislocation and residential schools”.[20] On this basis, in the past decade, Canadian Courts, including the Alberta Court of Appeal,[21] have consistently found that an accused’s First Nations status is a relevant factor in the judicial interim release process. The ONCA recently commented that it is “common ground” that Gladue principles “have application to the question of bail”.[22] As an “an over-arching guiding principle, Gladue should be understood as part of the right to reasonable bail”,[23] and “presumptively innocent Aboriginal accused are also entitled to have their systemic disadvantage considered.”[24]

In line with the spirit of Gladue, the SCC has made it clear that, regardless of whether it is raised by the defence, a Court “must take judicial notice” of Gladue factors,[25] and as in sentencing,[26] the failure to consider these factors as part of a bail hearing is also an error that will justify appellate intervention.[27] The ABQB found in R v P (DD),[28] that Gladue principles should be considered independently “irrespective of the existence of the primary, secondary or tertiary grounds”.[29] Generally speaking, this requires considering whether the “detention of the Aboriginal accused has a disproportionately negative impact on that accused and whether that impact could be alleviated by strict bail conditions”.[30]

Further, Gladue has also been found to be relevant to all grounds of release, most significantly, requiring a bail justice to “the types of release plans, enforcement or control procedures… that would, because of his or her particular aboriginal heritage or connections…[,] circumstances of the offender”,[31] including aboriginal law and customs,[32] ensure that “future compliance is realistic and concerns about securing attendance at trial, public safety and overall public confidence in the justice system are meaningfully addressed.”[33]

Moving Forward – A Need for Reform

As Gillian Rogan recently stated:

The causes of Aboriginal over-incarceration are complex and multifaceted and the remediation of high incarceration rates extend far beyond the court’s interpretation and application of Gladue. The ongoing process of settler-colonialism, the lack of recognition of Aboriginal sovereignty, and modes of de-colonization are issues that must be addressed in order to begin to unravel the over-criminalization of Aboriginal people in Canada. However, exploring how the criminal law, and in particular the regime of judicial interim release, is being applied to Aboriginal people can provide insight into the ways in which Aboriginal people are criminalized through the bail process and may also point to ways that systemic bias might be alleviated.[34]

While the causes of Aboriginal overrepresentation in the pre-trial prisoner population are complex and multifaceted, what should be clear, is that we have reached a point of crisis. Any defence lawyer who has advocated for persons charged with crimes, or any person with any involvement in the criminal justice system in Alberta, is acutely aware of the of the harms occasioned by a legacy of dislocation, systemic discrimination, and the estrangement of aboriginal peoples from the justice system.

It is hoped that, in the near future, that Alberta Courts will clarify the ways in which Gladue principles should be considered as part of the bail process and provide guidance which will facilitate the just administration of the law of bail in respect to aboriginal persons accused of crimes. It is also hoped that bail judges, in Alberta, will have a heightened sensitivity of their sworn duty to consider these factors and seek a solution to this serious problem. This, in turn, may require a degree of initiative not only by bail judges, but through government agencies, and public and community initiatives aimed at assisting aboriginal persons in accessing resources necessary to formulate suitable release plans, and securing strong community supports.

At present, a reasonable member of the community, fully appraised of the presumption of innocence, rights to liberty, and the devastating legacy of colonialization, should remain troubled by the present state of affairs, and recognize a pressing need for change.

[1] Abby Deshman & Nicole Myers “Bail and the Revolving Door of Pre-trial Detention” (Toronto: Canadian Civil Liberties Association and Education Trust, July 2014) online: <ccla.org/dev/v5/_doc/CCLA-set-up-to-fail.pdf>.

[2] Martin L Friedland, “The Bail Reform Act Revisited” (2012) 16 CCLR 315.

[3] Ibid.

[4] Statistics Canada, “Trends in the Use of Remand in Canada’ by Lindsay Porter Donna Calverly in Juristat, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2011) at 14, online: <www.statcan.gc.ca/pub/85-002-x/201 1001/article/i 1440-eng.pdf>.

[5] David Milward “The Sentencing of Aboriginal Accused with FASD: A Search for Different

Pathways” (2014) 47 UBC L Rev 1025-1083 at paragraph 7.

[6] Beverley McLachlin CJC “Exit interview with The Sunday Edition’s Michael Enright” Online: < http://www.cbc.ca/radio/thesundayedition/the-sunday-edition-december-17-2017-1.4448153/we-can-do-a-lot-better-retiring-beverley-mclachlin-on-what-s-wrong-with-our-justice-system-1.4448165>.

[7] R v Ashini, 2014 CarswellNfld 418, 1122 APR 76 (NL PC) at para 172.

[8] Ibid.

[9] R v Dong, 2008 ONCJ 32.

[10] Ibid at para 66.

[11] Ibid at para 47

[12] 2015 SCC 27 [St Cloud].

[13] Ibid at 79 [Emphasis Added].

[14] Gladue, supra at para 65. Generally speaking, it reflects an appreciation that in Canada, aboriginal persons have historically been subjected to a “legacy of dislocation”, stemming from ongoing “systemic and direct discrimination”, and the estrangement of aboriginal peoples from the justice system, the impact of dislocation. estrangement of aboriginal peoples from the justice system, the impact of dislocation, and whether imprisonment would be meaningful to the community of which the offender is a member (Gladue at para 65).

[15] Frontenac Ventures Corp v Ardoch Algonquin First Nation, 2008 ONCA 534 at paras 56-57.

[16] R v Brant, 2008 CarswellOnt 9594, 89 WCB (2d) 431 at para 15. See also Jocko v Canada (Attorney General), 2012 ONSC 4219 at para 11.

[17] R v Antic, 2017 SCC 27 at para 66.

[18] R v Magill, 2013 YKTC 8 at para 26 (emphasis added). This particularly true, given then the practical realities of our bail system, and the fact that there are presently more aboriginal persons incarcerated awaiting trial, than sentenced.

[19] Rogan, “The Application of Gladue to Bail” supra at p. 96.

[20]R v Magill, 2013 YKTC 8 at para 26 (emphasis added).

[21] R v Oakes 2015 ABCA 178 at para 11.

[22] R v Robinson 2009 ONCA 205 [In Chambers] at para 13.

[23] Rogan, Jillian “Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada” Can B Rev 95, 326 at p 96.

[24] Ibid at p. 356.

[25] R v Ipeelee 2012 SCC 13 at para. 60.

[26] Ipeelee, at para 87.

[27] See R v Brant, [2008] O.J. No. 5375 (SCJ) at para. 15 citing R. v. Kakekagamick (2006), 81 O.R. (3d) 664


[28] R v P (DD), 2012 ABQB 229 [PDD] at para 9 (emphasis added). He further notes “The failure to consider an Aboriginal person’s special circumstances during the often lengthy, protracted and stressful pre-trial period would amount to ignoring the important reality of our criminal justice system, which is that pretrial custody can adversely, directly and inevitably affect the Aboriginal offender long before the time he/she is sentenced” (ibid at para 9).

[29] Ibid at para 9.

[30] R v Brant, 2008 CarswellOnt 9594, 89 WCB (2d) 431 at para 21.

[31] Ibid.

[32] Brant, supra at para 21.

[33] Robinson, supra at para 50 (emphasis added).

[34] Rogan, “Gladue and Bail”, supra at pp. 328-329.