Her Majesty the Queen - v. -, 2018 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 029 Date: April 6, 2018 Information: 991036908, 991036909, 991040859, 991040858 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ronald Heathen Appearing: K. R. Humphries, I. A. Bachelor For the Crown C. A. Lavier For the Accused DECISION ON JUDICIAL INTERIM RELEASE Q. D. AGNEW, J [1] On March 14, 2018 Ronald Heathen came before me for a judicial interim release hearing. The Crown opposed his release.

In the course of submissions, defence raised the applicability of the Supreme Court of Canada’s decision in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]. I ordered the release of Mr. Heathen, and indicated that I would provide written reasons on theGladue issue alone at a later date. I did not want to delay Mr. Heathen’s release in order to write these reasons, when I had alreadydecided that he could be released notwithstanding my conclusion that Gladue does not apply to judicial interim release. [2] In Gladue, the Supreme Court interpreted s. 718.2(

e) of the Criminal Code, which requires that one of the principles to be

applied in sentencing is that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders ” (emphasis added). The Court subsequently reviewed this subsection, and Gladue itself, in R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ].

The impact of these decisions is, broadly speaking, that in imposing sentence on Aboriginal offenders, the court is to take judicial notice of Canada’s history of colonialism with respect to Aboriginal peoples, including such specifics as the displacement of Aboriginal peoples and Canada’s use of residential schools, and the continuing impact that such history has on Aboriginal peoples, such as lower educational attainment, lower incomes, higher unemployment, and higher rates of substance abuse and suicide. [ 3 ] Gladue factors (a frequently-employed shorthand for the above considerations) are used in sentencing in two ways: (1) to highlight the systemic and background factors which may have played a role in bringing the particular offender before the Court, as these may bear on the moral culpability or blameworthiness of the offender; (2) to suggest particular types of sentencing procedures and sanctions which might be particularly appropriate to the particular offender because of their specific Aboriginal heritage (see Ipeelee , paras. 72 and 73 ). [ 4 ] Both Gladue and Ipeelee were sentencing decisions.

The question raised by Mr. Heathen is whether or not the Gladue factors, or the principles which are derived from Gladue and Ipeelee , apply to judicial interim release (“bail”) under s. 515 of the Code . With the greatest of respect for those who hold a contrary view, I believe that Gladue principles do not apply in the bail context. [ 5 ] The Criminal Code provides sentencing instructions to judges in two different ways. Firstly, sentence ranges for specific offences are found with those individual offences.

Secondly, sentencing principles and guidance which apply generally to all sentences are found in ss. 718 - 718.3. The latter are provisions that sentencing judges are to apply in every sentence they impose (where applicable: there are principles which apply only where the offence involved the abuse of a child, for example). It is in this area where s. 718.2 (

e) is found. These principles include, for instance: the use of sentencing to denounce unlawful conduct, to provide general and specific deterrence, and to rehabilitate offenders; to take into account if the offender was motivated by racism, or if the offence involved spousal abuse; the importance of imposing similar sentences for similar offences by similar offenders in similar circumstances; and others.

All of these principles, however, are in support of the overarching purpose of sentencing, which is expressed in the opening words of s. 718: “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society . . .” [ 6 ] The purposes behind judicial interim release, or more particularly behind non-release, are rather different.

Subsection 515(10) specifically states that pre-trial detention of an accused is justified only on one of three grounds (typically referred to as the primary, secondary and tertiary grounds respectively):

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following 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 of or witness to the offence, or any person under the age of 18 years, 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; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [7] The considerations for whether or not to release an accused on bail therefore are, to paraphrase: - primary - to ensure that the accused will appear in court as required; - secondary - the protection of the public; - tertiary - where, even if the primary and secondary grounds are not in issue, the detention of the accused is nonetheless necessary tomaintain confidence in the administration of justice. [8] It is clear from the above that the objectives of sentencing and bail are completely different.

Sentencing is the process ofimposing just consequences on an offender for their behaviour, ultimately with the goal of developing and maintaining “a just, peacefuland safe society”. Bail is more prosaically focussed on getting accused persons to trial so that their guilt or innocence can be establishedby law, and protecting the public in the interim. [9] Given that Gladue is a sentencing decision which interpreted s. 718.2(

e) of the Code, and given that the bail provisions ofthe Code in s. 515 do not contain any equivalent to s. 718.2(e), it is not immediately obvious how Gladue applies to the bail regime ofthe Code. Broadly speaking, courts have justified doing so in one of two ways. These two lines of authority might be referred to as the apriori and the cultural-context arguments. A priori cases [10] The a priori cases are those which simply assume the applicability of Gladue to bail, without analysis. The earliest reportedbail decisions citing Gladue fall into this category.

Thus: - R v Wesley, 2002 BCPC 717: “The defence submits that the court in a bail hearing must also be guided by the principles in Gladue, and I am satisfied that that, indeed,is the case” (para. 7); - R v Bain, [2004] OJ No 6147 (QL) (Sup Ct), in discussing bail the Court said (para. 12): “clearly the principles of Gladue are overriding principles in the justice system from the time a person comes into the system tosentence” - R v Crawford, 2007 CarswellOnt 8757 (WL) (SC) at para. 2,: “the Crown acknowledges that it was an error in principle, having been referred to the decision of the Supreme Court of Canada in R. v.Gladue (SCC), [1999 CarswellBC 778 (SCC)] not to refer further and make a determination based on those principles,which as the other cases referred to by Mr.

Ford in his argument at that stage clearly indicate that the principles applicable to aboriginaloffenders apply throughout the proceedings, including at the bail stage.” Unfortunately, the “other cases referred to” are not cited in thedecision. [11] Most later a priori cases derive their authority from the Ontario Court of Appeal’s decision in R v Robinson, 2009 ONCA 205,

95 OR (3d) 309 [ Robinson ], either via explicit citation or by citing authorities which in turn cite back to Robinson . A quick search suggests that Robinson has been cited over 30 times, including recently by the Ontario Court of Appeal itself in R v Hope , 2016 ONCA 648 , 133 OR (3d) 154, where it is cited in support of the statement, “Ontario courts have accepted that Gladue principles apply to bail hearings”. It is therefore instructive to examine Robinson . [ 12 ] Mr.

Robinson argued that a number of errors had been made with respect to his application for judicial interim release, including a failure “to apply the Gladue principles to the issue of whether the applicant could be released on bail” (para. 3). The Court’s reasoning is found in paragraph 13: “It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v.

Gladue . . . have application to the question of bail.” Although there is further discussion of the manner in which Gladue is to be applied (see below), there is no further discussion of whether or not it is actually applicable. It appears that both counsel, as well as the Court, simply accepted a priori that Gladue applies at bail. There is no discussion of how an interplay between s. 718.2(

e) and s. 515 might work; there is no attempt to justify adopting in a bail context a principle which is explicitly about sentencing; there is literally no analysis at all. There is simply the bald statement that Gladue applies. [ 13 ] Robinson continues to the present to be applied without further analysis , including recently in R v Oakes , 2015 ABCA 178 , [2015] AJ No 561 and R v Wanakamik , [2017] ONSC 6567 (WL). [ 14 ] The a priori line of authority proceeds, therefore, from the assumption that Gladue applies at bail, with no theoretical foundation or analysis to support that assumption.

It has now attained a certain weight of authority by virtue of having been followed a large number of times, but this weight has a tail-chasing circularity to it: it is authoritative because it is considered authoritative; it is followed because it has been followed. Cultural context cases [ 15 ] The other main stream of cases which refer to applying Gladue at bail could be called the “cultural context” cases.

The essence of this approach is perhaps best summarized in R v Brant , [2008] OJ No 5375 (WL) [ Brant ] at para. 21 : What the principles in Gladue do alter is the method of analysis which the justice must use in determining whether detention is justified. Specifically, the Court must look at whether the sureties offered, in the context of the Aboriginal culture, can control the accused's behaviour. The Court must also look at whether detention of the Aboriginal accused has a disproportionately negative impact on that accused, and whether that impact could be alleviated by strict bail conditions.

Finally, the Court must look at whether Aboriginal law and customs provide the assurances of attendance in court and protection of the public that are required for release. Each case will be dependant on its specific facts, but a broader analysis is required where the accused is an Aboriginal. [ 16 ] This approach has been adopted in a number of other decisions. The following is only a sampling: - R v Silversmith , [2008] OJ No 4646 (WL), 77 MVR (5th) 54 - R. v.

Green , [2009] OJ No 1156 (WL) - R v Daniels , 2012 SKPC 189 , 412 Sask R 52 [ Daniels ] - R v Magill , 2013 YKTC 8 , 113 WCB (2d) 791 [ Magill ] - R v Trodd , 2014 ONSC 3648 , 114 WCB (2d) 80 [ 17 ] Cultural context is also briefly mentioned by the Ontario Court of Appeal in Robinson , but only as a means of implementation rather than as a justification for implementation: [t]he exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy

the primary, secondary and tertiary grounds for release. (para. 13) [ 18 ] The essence of this approach is the idea that there may be specific factors, unique to this accused’s circumstances, which are not obvious to the Court but which alter the view the Court might otherwise have of this accused’s likely performance on bail. These include: (

a) whether the sureties offered can control the accused ’ s behaviour, specifically considering that issue in the context of this accused ’ s culture – for example, while a grandmother might not be a controlling influence in some cultures, she might be more so in the accused ’ s cultural circumstances, and thus the willingness of this accused ’ s grandmother to stand as surety is of greater significance than it might be for some other accused; (

b) whether, as a result of this accused ’ s particular circumstances, detention will have a disproportionate effect on them, and whether that disproportionate effect can be alleviated by appropriate bail conditions; (

c) whether this accused ’ s culture ’ s laws and customs provide the Court with additional assurances of attendance in court and protection of the public , which might not be present for other accused persons. (see Brant , as cited in R v Cyr , 2012 SKQB 534 , [2012] SJ No 803 (WL) [ 19 ] What is striking about the above is that there is nothing in them which is specific to Aboriginal culture. All of these considerations apply to any accused, of any background or circumstances, facing a bail hearing. They will all be relevant to the release of any accused to whom they apply, whether Aboriginal or not.

Any person may have personal circumstances, whether cultural or otherwise, which speak to primary, secondary or tertiary ground concerns in ways which do not apply to other persons; in any such situation, the Court would expect to hear about such circumstances, and the Court would be expected to take such circumstances into account. The analysis is not unique to Aboriginal offenders. [ 20 ] Furthermore, nothing in the list above is related to Gladue factors or issues.

Again, Ipeelee specifies those as including: the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. (para. 60) [ 21 ] The Brant list of factors, quoted above, is unconnected with factors listed in the Ipeelee quote.

While there may well be persons to whom both the Brant and Ipeelee lists apply, the lists themselves are independent of each other. [ 22 ] It is therefore a misnomer to suggest that this approach is the application of Gladue to a bail hearing. This approach in fact has nothing to do with Gladue . Cultural-context factors are completely independent of Gladue factors. [ 23 ] This mis-naming is not without consequence, however. By referring to it as a Gladue approach, both counsel and the Court are encouraged to focus on the wrong considerations.

Rather than addressing the particular circumstances of this accused, and how those particular circumstances may answer the questions posed by the primary, secondary and tertiary grounds, reference to Gladue prompts attention to be focussed instead on colonialism and its consequences.

To put it another way, a culture-based bail submission shows how the primary-, secondary- and tertiary-ground concerns are lessened by the particular circumstances of the particular accused; a Gladue -based bail submission focusses on the history of how the accused came to be in the social, economic and racial situation they are in - a history which does not affect the primary, secondary or tertiary grounds for bail, and is therefore unhelpful to the Court (and thus to the accused).

[ 24 ] There are thus two separate, significant problems with referring to the cultural-context approach as “ Gladue at bail”. The first is that it is inaccurate: the cultural-context approach does not relate to Gladue factors, and any attempt to introduce Gladue factors is at best a distraction, and at worst risks diverting the bail hearing into issues which are legally irrelevant.

The second is that such a label suggests that cultural-context considerations apply only to Aboriginal accused persons, potentially leading to situations in which non- Aboriginal accuseds are denied bail because they do not raise cultural-context arguments in the mistaken belief that such arguments apply only to Aboriginal persons.

Other approaches [ 25 ] Various courts have attempted to approach Gladue at bail in other ways. [ 26 ] In a series of three decisions ( R v Pitawanakwat, [2003] OJ No 5029, 2003 CarswellOnt 4779 (WL)(SC) [ Pitawanakwat ] , R v Neshawabin , [2008] OJ No 5606, 2008 CarswellOnt 8598 (WL)(SC) and R v Misquadis-King , 2010 ONSC 4592 ), O’Neill J proposed the use of Gladue at bail on the following basis: “I believe it is in the interest of all concerned that, to the extent possible, the root causes and not merely the symptoms of an offender's action be dealt with at all stages in the criminal justice process” ( Pitawanakwat , para. 10). [ 27 ] This line of cases has not been subsequently followed. [ 28 ] Subsequent to the Pitawanakwat series of decisions, the Alberta Court of Queen’s Bench suggested a different approach.

In R v DDP, 2012 ABQB 229 , 94 CR (6th) 86 [ DPP ], the Court said as follows: Based on my understanding of the Supreme Court of Canada's decisions in Gladue in 1999, and most recently in 2012 in Ipeelee , they expressed grave concerns with the Courts not fully taking into account the specific and special circumstances of the Aboriginal offence on sentencing.

While neither case specifically addresses Aboriginal persons in applications for Judicial Interim Release, I conclude that in addition to the rights of all Canadians under the Charter to reasonable bail, persons of Aboriginal status applying for bail should have their individual special circumstances considered as well irrespective of the existence of the primary, secondary or tertiary grounds.

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.

If the rehabilitation of the Aboriginal offender is to be deal [ sic ] with meaningfully, it should begin as soon as possible; and if the recidivism rates for Aboriginal offenders are to be brought down, their special and individual circumstances must be addressed at the pre-trial custody stage. (para. 9) [ 29 ] In essence, this decision seems to be a suggestion that Gladue and Ipeelee mandate that rehabilitation efforts should commence as early as possible in the criminal process.

With the greatest of respect, it seems to me that this approach ignores the fundamental premise of our entire justice system, namely the presumption of innocence. Until the accused person is found guilty, the Court is not to be attempting to rehabilitate them. “Rehabilitation” is an objective which is applied to offenders, not accused persons: until a person is found guilty, the state is not entitled to attempt to change their behaviour against their will.

The wording in the quoted portion of DPP explicitly confuses offenders and accused persons: “pretrial custody can adversely, directly and inevitably affect the Aboriginal offender long before the time he/she is sentenced” - but by definition, during pretrial custody the person is not an offender , but an accused .

In R v Antic , 2017 SCC 27 , [2017] 1 SCR 509 [ Antic ], the Supreme Court of Canada listed the presumption of innocence as the very first of the principles which apply to bail: Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing: (a)Accused persons are constitutionally presumed innocent . . . (para. 67) [ 30 ] Although DPP has been considered in a number of decisions, none of them have applied its reasoning regarding bail. See, for example: - Magill - Daniels

- R v Benson , 2013 ABQB 75 - R. v. Omeasoo , 2013 ABPC 328 , [2014] 5 WWR 598 - R. v. Legere , 2014 ONCJ 604 - R v Duncan , 2015 BCSC 2688 [ 31 ] A somewhat different approach was outlined in R v Chocolate , 2015 NWTSC 28 , [2016] 11 WWR 575 [ Chocolate ] at paras. 49 and 50 : [49] In my view, honouring the constitutional right to reasonable bail requires consideration of the socio-economic factors present in the life of any accused, regardless of whether they are Aboriginal.

For many Aboriginal people who come before the courts, however, the factors identified in Gladue will form a large part of their overall socio-economic context. It would be unreasonable and unfair to conclude detention is justified based solely on an accused’s criminal record and/or the circumstances of the alleged offence without considering the role Gladue factors may have played in leading to that person committing criminal acts in the past, being charged again and, consequently, seeking bail.

There simply must be more than a superficial review of an accused’s past criminal conduct and/or the circumstances leading to the current charge. [50] An examination of the intergenerational impact of the residential school system, cultural isolation, substance abuse, family dysfunction, poverty, inadequate housing, low education levels and un- or underemployment on an Aboriginal offender may inform questions about why an accused has an extensive criminal record and, if applicable, why that person has demonstrated an inability to comply with pre-trial release conditions in the past.

They will also inform the decision about whether, given the accused’s circumstances, there are release conditions which can be imposed so 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. [ 32 ] The opening sentence of para. 49 suggests a cultural-context analysis, with its reference to “consideration of the socio- economic factors present in the life of any accused”.

The subsequent lines, however, make it clear that “socio-economic factors” are not factors which apply to whether or not the accused will attend court, or whether the accused poses a risk to public safety which can be managed by the imposition of conditions; rather, “socio-economic factors” refer to the reasons why the accused has a record and why they have demonstrated an inability to abide by conditions. [ 33 ] Subsection 515(10) does not instruct the bail court to consider why the accused will not attend court, or why the risk to the safety of the public cannot be managed by appropriate conditions.

Rather, s. 515(10) instructs bail judges to consider whether detention is necessary for those reasons; why the accused is in the position they are in is not a consideration under s. 515(10). [ 34 ] The closing sentence of para. 50 of Chocolate brings the analysis back to a cultural-context conclusion. The detour through Gladue is unnecessary to that conclusion, however. As noted above, the circumstances of the particular accused and how those inform primary, secondary or tertiary concerns are always relevant, but are not Gladue matters. [ 35 ] Chocolate does not appear to have been followed.

Supreme Court of Canada treatment [ 36 ] In 2017, the Supreme Court of Canada handed down Antic, a very comprehensive and detailed decision regarding Canada’s system of judicial interim release. Although Antic was specifically a case about sureties and cash deposit bail conditions, the Court’s decision contains very explicit instructions to lower courts regarding bail, bail conditions, and the manner of applying s. 515 generally. Given how few bail cases are heard by the Supreme Court of Canada, the Court seems to have taken the opportunity in Antic to pronounce more broadly on how s. 515 is to be applied.

It is striking that nowhere in this compendium of instructions to bail courts is there any reference to either Gladue or Ipeelee . This might be because the accused was not Aboriginal (it is never specified whether he is or not). However, the decision goes into significant detail on areas of bail which are not strictly required to decide Mr. Antic’s case: it appears that the Court wished to give instructions to bail courts beyond the specifics of Mr. Antic’s situation, yet there is no suggestion whatsoever that bail courts should consider Gladue .

[37] Earlier, in 2014, the Supreme Court of Canada commented on an Ontario Court of Appeal decision which sought to extend theapplicability of Gladue beyond sentencing. The Court of Appeal’s decision in United States of America v Leonard, 2012 ONCA 622,112 OR (3d) 496 [Leonard] was an appeal of an extradition decision by the Minister of Justice.

The Court of Appeal incorporatedGladue into this issue in the following terms: First, the minister's reasoning rests on the proposition that to consider the disadvantages suffered by the applicants on account of thesystemic wrongs they have suffered because of their Aboriginal backgrounds would be "unfair" to other accused persons.

As I havealready attempted to explain, Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactlythe same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced thecrisis of criminality and over-representation of Aboriginals in our prisons. Yet it is on the idea of formal equality of treatment theminister rests his Gladue analysis.

That approach was soundly rejected by the Supreme Court in both Gladue and Ipeelee, whichemphasize that consideration of the systemic wrongs inflicted on Aboriginals does not amount to discrimination in their favour orguarantee them an automatic reduction in sentence.

Instead, Gladue factors must be considered in order to avoid the discrimination towhich Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their specialcircumstances. (para. 60) [38] Although leave to appeal Leonard to the Supreme Court of Canada was refused, the Supreme Court nonetheless commentedon the Leonard reasoning in R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 [Anderson].

Anderson was a case involving a question ofwhether prosecutors are required to take into account an accused’s Aboriginal status in making certain decisions which will have aneffect on sentencing choices - in that case, serving a Notice of Intention to seek greater punishment in a “subsequent conviction”impaired-driving case. [39] The Supreme Court of Canada first declined the opportunity to extend Gladue to Crown prosecutors, specifying that Gladueand Ipeelee apply to sentencing courts alone, not prosecutors: Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginaloffenders.

They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors mustconsider Aboriginal status when making a decision that limits the sentencing options available to a judge. (para. 25 - emphasis inoriginal) [40] The Court then went on to consider Leonard, and (notwithstanding the expansive wording used in Leonard) restricted theLeonard reasoning to sentencing considerations only: [26] In so concluding, I have not ignored United States of America v. Leonard, 2012 ONCA 622 , 112 OR (3d) 496, leave toappeal refused, [2013] 1 S.C.R. v, a case upon which Mr.

Anderson relies. In Leonard, the United States sought the extradition of twoAboriginal Canadians. Sharpe J.A. held that in deciding whether or not to surrender the accused, the Minister of Justice was required toconsider their Aboriginal status, noting that the Gladue factors are not limited to criminal sentencing but . . . should be considered by all “decision-makers who have the power toinfluence the treatment of aboriginal offenders in the justice system” (Gladue, at para. 65) whenever an Aboriginal person’s liberty is atstake in criminal and related proceedings.

That category includes extradition. [para. 85] [27] Mr. Anderson submits that, like the Minister of Justice in Leonard, Crown prosecutors should be required to consider Aboriginalstatus as they are “decision-makers” who “have the power to influence the treatment of aboriginal offenders in the justice system”(Gladue, at para. 65). With respect, I cannot agree. The excerpt from Leonard upon which Mr. Anderson relies should not be taken out ofcontext. Pursuant to s. 44(1)(

a) of the Extradition Act, S.C. 1999, c. 18, the Minister of Justice must refuse to surrender an individual if“the surrender would be unjust or oppressive having regard to all the relevant circumstances”. As Sharpe J.A. notes, determining whetherthe surrender would be unjust or oppressive requires the Minister of Justice to compare the likely sentence that would be imposed in aforeign state with the likely sentence that would be imposed in Canada — a task which is impossible to do without reference to theGladue principles. As Sharpe J.A. explained, the proper exercise of the Minister’s discretion in this context

requires an assessment of the likely result if the case were prosecuted domestically and a comparison of that result to the likely outcome in the foreign state if the individual sought were surrender[ed]. In the case of an Aboriginal offender, I fail to see how that assessment and comparison could be accomplished without reference to the Gladue principles. [para. 87] [28] It follows, in my view, that Leonard does not support the much broader application of Gladue that Mr.

Anderson seeks. [paras. 26 - 28, emphasis in original] [ 41 ] It is interesting to note that in neither Gladue nor Ipeelee did the Supreme Court of Canada suggest that the principles in those cases applied to bail. In Gladue , the Supreme Court of Canada used the word “bail” only once outside of the recitation of the facts and history: The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.

It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. (para. 65. Emphasis added) [ 42 ] This reference to bail does not appear to be a direction to judges to consider the Court’s reasoning in bail decisions, as the balance of the paragraph refers strictly to sentencing.

The bail reference simply appears to be an acknowledgement of one of a number of factors which have resulted in the “unbalanced ratio” of aboriginal versus non-aboriginal incarcerated persons. [ 43 ] In Ipeelee , the Supreme Court of Canada mentions “bail” only once, when the decision quotes the above passage from Gladue (para. 61 ).

There is no suggestion that the reference is meant to apply to bail: the paragraph in which the quotation appears specifically refers to sentencing. [ 44 ] The Supreme Court of Canada, therefore, referred to “bail” in both Gladue and Ipeelee , but without making any reference to expanding the scope of those decisions to bail cases. Furthermore, the Supreme Court had two recent opportunities to extend Gladue to bail, and did not do so.

In Anderson , the Court went out of its way to address Leonard , to restrict Leonard as a sentencing decision only, and to decline to extend the reasoning beyond the judicial act of sentencing. In Antic the full Court, in a unanimous decision specifically giving instructions to bail courts, did not see fit to even mention Gladue , despite the fact that courts have been attempting to use Gladue in bail decisions since at least 2002 in a variety of contradictory ways. Conclusion [ 45 ] The idea that Gladue should be extended to bail has no basis in the Criminal Code .

The cases which make such an extension offer no theoretical justification for so doing: they simply assert or assume its applicability as an a priori truth, with no analysis to support that assertion. [ 46 ] In four separate decisions over the course of 17 years, the Supreme Court of Canada has had the opportunity to declare that Gladue should be applied to bail hearings. Each time, the Court has chosen not to direct lower courts to take such a step. Even in Antic , when the Supreme Court laid out an explicit set of rules for bail courts to follow, the Court did not see fit to mention Gladue .

It would seem that the Supreme Court of Canada is not interested in expanding Gladue to a bail context.

[ 47 ] I accordingly conclude that Gladue has no place in bail hearings. Culture-specific considerations which speak to the primary, secondary or tertiary grounds with respect to the specific accused before the bail court will always be potentially relevant, but are not Gladue -related: they have nothing to do with the Gladue factors outlined in Gladue or Ipeelee , and they are not unique to Aboriginal accuseds but are applicable equally to all accused persons seeking judicial interim release. _______________________ Q. D. Agnew, J