Are bail hearings different if I’m Indigenous?

3. Show how the Gladue principles apply to you

At your , your lawyer or will need to address the Gladue principles. This includes information about your background and experience as an Indigenous person. Your background information is sometimes called Gladue factors.

Examples of Gladue factors include:

  • Is the accused person or someone in their family a residential schools survivor?
  • Is the accused person or someone in their family a survivor of the “Sixties Scoop“, where the government removed Indigenous children from their homes?
  • Was the accused person put in a foster home or involved in the child protection system?
  • Has the accused person experienced poverty?
  • Has the accused person or someone in their family experienced racism, trauma, childhood abuse, violence, or addictions?

Your lawyer must also make arguments to show how the Gladue principles apply to you. This is called making “Gladue submissions”. Examples of Gladue principles include:

  • Has the accused person experienced systemic discrimination in their or ? For example, were they removed from their community in order to be brought to court?
  • Will a jail have an unreasonable or unfair effect on the accused person?

It’s important to tell your lawyer or duty counsel if you self-identify as Indigenous. Everything you tell a lawyer is confidential and can’t be shared in court without your permission. With your permission, your lawyer will tell the court about your Indigenous identity. You can choose both what you want to share with your lawyer and what your lawyer shares with the court.

Sharing information about your personal background might make you feel uncomfortable. But telling the court about the Gladue factors you have experienced can help to get you a that is reasonable in your circumstances.

This is particularly true if:

  • you have a lengthy criminal record,
  • you’re going for bail again while already on a bail, or
  • your charges are very serious.

For example, if you have a lengthy criminal record, the Crown might only agree to your bail if you have a surety. But you might not have one if you’re not in touch with your family because of trauma, involvement in child welfare, or because you moved to the city from a remote community. With your permission, your lawyer or duty counsel can explain to the court why you don’t have a .

If the court is aware of your personal circumstances, it can decide if it’s appropriate to give you bail without a surety.

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