Gladue's unintended consequences at bail

By Jillian Rogin January 5, 20185 January 2018

Gladue's unintended consequences at bail

The over-representation of Aboriginal persons in remand custody in Canada is an ongoing cause for concern. Representing about 3 per cent of the general population, statistics indicate that Aboriginal individuals make up over 20 per cent of those in remand custody (or pre-trial detention) in Canada. Some measures have been adopted to mitigate the risks of Aboriginal individuals being unfairly treated by the criminal justice system – chief among them the principles outlined in R v Gladue and reiterated in R v Ipeelee – but author Jillian Rogin draws a portrait of persisting systemic failure.

In her recent Canadian Bar Review article, Rogin writes that Gladue sentencing principles are even in some cases -- in bail matters particularly -- making matters worse:

A review of Gladue bail jurisprudence reveals the ways in which Aboriginal people in Canada are improperly being sentenced via bail proceedings. The courts have failed to identify the relevant legal principles that should animate bail. Instead, judicial interim release is being utilized as a diagnostic tool and Aboriginal people are inappropriately being subjected to “treatment” via the over-use of sureties and conditions of release. The relevant systemic factors are not properly considered and should play a far greater role in the assessment of risk and the interpretation of Gladue.

[…]

Three main arguments support this conclusion. Firstly, courts are evoking sentencing principles in a manner that erodes the Charter protected right to the presumption of innocence. The erosion of constitutional protections is inextricably linked to the perpetuation of bias against Aboriginal people. Secondly, bail jurisprudence improperly uses bail proceedings as a diagnostic tool necessitating “treatment” of Aboriginal people via the use of sureties and conditions. In this vein, misunderstandings of the relevance of Aboriginal culture and heritage proliferate. Thirdly, the systemic considerations that should animate Gladue bail proceedings are not properly taken into account in the adjudication of judicial interim release.

Acknowledging that the causes of Aboriginal over-incarceration are complex and multi-faceted, Rogin takes readers through relevant legal frameworks, examines the application of the principles stemming from Gladue to bail and pre-trial sentencing, and discusses the systemic and cultural factors at play in this issue.  She concludes her article by providing a potential framework for the application of Gladue to judicial interim release.

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