After interpreting the new provisions that codify the consideration of Gladue principles at bail, specifically s 493.2(a) of the Criminal Code, the Court found no basis for detention of the accused if supervisory measures are established.
The accused, Mr. Dubé, is an Aboriginal person and a member of the Opitciwan Atikamekw community. He is charged with a number of offenses, but he undertakes to respect all the conditions that the Court may impose. The prosecution objected mainly on the ground of the substantial likelihood that he would not comply with any potential conditions, as had been demonstrated by numerous past breaches. The accused has regularly found himself before the courts for assaults, threats, mischief, and thefts. There are about 20 breaches of conditions related to recognizances or probation orders and he has had several stays in prison.
The Court considered the new provisions of the Criminal Code that came into force concerning the principle of restraint, s 493.1, and the particular attention that must be paid to Aboriginal accused who are overrepresented in the prison system, s 493.2. Section 11(e) of the Charter enshrines the right not to be denied reasonable bail without just cause. Release is to be favoured at the earliest reasonable opportunity and on the least onerous grounds (R v Antic, 2017 SCC 27). The Supreme Court of Canada [“SCC”] examined the principles governing interim release and noted that nearly half of the individuals in provincial jails are accused persons in pre-trial custody, where the conditions are dire; Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions; such a situation can have serious detrimental impacts on an accused person’s ability to raise a defence in addition to proving costly for society; and therefore, pre-trial detention is a measure of last resort (R v Myers, 2019 SCC 18).
The SCC pointed out the recurring problem of the overrepresentation of Aboriginal people in the prison system. Based on section 718.1(e), the Court proposed a special approach to sentencing in light of the particular circumstances of these offenders whose lives are far removed from the experience of most Canadians. Judges were encouraged to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally (R v Gladue,  2 CNLR 252; R v Ipeelee,  2 CNLR 218).
The Gladue factors, with the necessary adaptations, are applicable to the hearing on interim release (R v Hope, 2016 ONCA 648). This Court places the accused’s lengthy criminal history with respect to breaches in the above context. The accused’s release plan with various supervisory measures put in place, while imperfect, makes sense given this Aboriginal context.
Note: French translation of R c Dubé, 2019 QCCQ 7985 found here.