Are bail hearings different if I’m Indigenous?
In Ontario, if you're an Indigenous person, at your , the court must take into account:
- your Indigenous background, and
- the impact and history of discrimination against Indigenous people by Canada and the criminal justice system, also called systemic discrimination.
A bail hearing is not a . The court doesn't decide whether you're guilty or innocent. Instead, it decides if you should be released from into the community while your case is in criminal court. Bail is also called “Judicial Interim Release” and the order releasing you is called a “”.
If you're denied , you will be kept in custody until your case is completed by either a trial or a .
A bail is also known as a “show cause hearing”. Showing cause usually means that the Crown must show why an accused person shouldn't be released from custody. In some cases, the accused must show why they should be released from custody. This usually happens when an accused is:
- charged with certain offences, such as drug trafficking or an involving guns
- not from the area where they're
- already on bail for another criminal offence and is now charged with new offences
You usually don't have to deposit any money to get bail.
It's important to tell your lawyer or if you self-identify as Indigenous. With your permission, your lawyer must tell the court about your Indigenous identity. Your background information is sometimes called Gladue factors. Your lawyer must also make arguments, called Gladue submissions, based on how the Gladue principles apply to your case.
What is Gladue?
In the Gladue case, the Supreme Court of Canada recognized that because of the history of discrimination by Canada and the criminal justice system, Indigenous people are more likely to be sentenced to jail. As a result, there are higher numbers of Indigenous peoples in jails.
To address this discrimination, courts must look at an Indigenous accused's background and the impact of discrimination on them when deciding on a sentence.
Courts must take “judicial notice” of the history of discrimination, including residential schools and involvement with child protection agencies, and how this has resulted in:
- lower employment
- substance abuse
- involvement in the criminal justice system
Judicial notice means you don't have to prove these things because they are accepted as fact.
Courts in Ontario have said that the Gladue principles also apply to bail hearings. This means all types of releases must be considered. Detention, or holding an accused without bail, is a last resort.