Gladue principles, other considerations must be realized at bail

By Nathan Baker

Law360 Canada (February 5, 2021, 11:08 AM EST) --
Nathan Baker
In Canada, we continue to struggle with a problem with pre-charge detention. While s. 11(e) of the Canadian Charter of Rights and Freedoms provides that a person will “not be denied bail without just cause,” the number of people serving time in pretrial detention continues to grow, even during the pandemic. This issue is acutely problematic when addressing specific populations in the criminal justice system. As Justice Andras Schreck put it in R. v. E.B. 2020 ONSC 4383: “it is beyond dispute that systemic racism in the justice system is part of the cause.” 

In E.B., the court dealt with a bail review involving a person who was Black, Indigenous and suffered from mental illness. Each of these populations is overrepresented in the court system. This overrepresentation can only be addressed through the courts taking the time to identify the individualized issues that are present.

Obtaining this necessary information is all the more difficult at the bail stage. The case of E.B. recognizes this and adapts R. v. Ipeelee 2012 SCC 13 that courts “may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel.”

Many bail hearings see allegations read in on consent. It is important that the court can take judicial notice of factors put forward in an accused’s favour as well. Timeliness in bail hearings is important. Justice delayed truly is justice denied in cases where accused persons who are presumed innocent are unable to secure bail in a speedy manner. 

Being a member of a vulnerable group does not justify release on its own. Quoting the Ontario Court of Appeal, the court in E.B. reminded itself that “a dangerous person is no less dangerous because he or she is a member of a vulnerable group: R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.), at para. 18.”

However, modifications in bail plans must take into account the realities of an accused. This is stressed as all the more important with members of overrepresented populations. In E.B., the example of an Indigenous accused not having a surety due to being displaced from his or her community was provided as an example. A court must assess the reasonableness of a release plan by taking into account the circumstances of the accused and recognize that creative solutions must be utilized to prevent the continued overrepresentation of certain groups of peoples. 

The recent case of R. v. Papequash 2021 ONSC 727 further recognizes the importance of a careful consideration of Gladue factors at the bail stage. The court in Papequash was clear: “Make no mistake, failure to consider Gladue principles at a bail hearing is a serious error of law. Just giving lip service to Gladue principles is as big an error.” 

The unavailability of a surety was of concern in Papequash. The Crown argued that a surety was needed to ensure community safety and prevent further criminal action. The court recognized this concern but also the circumstances of the accused’s life that made a requirement for a surety akin to a detention. The court also considered other supports which could be put in place to keep the community safe.

This sort of detailed consideration to craft a plan is important in every case but should be further stressed in cases involving a person from an overrepresented group. In this case, the availability of “wraparound supports for people with serious mental illness and criminal records” was a deciding factor. Access to such supports will be a key tool in crafting release plans that can balance community safety and an accused person’s rights. 

Bail courts are some of the busiest courts in Canada. The impetus to move matters along to ensure timely access is a key component to their operation. However, balancing these time constraints with the importance of the decisions they make is integral to confidence in the justice system.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at

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