Winnipeg Free Press - PRINT EDITION

Change bail system for natives: lawyer

'Gladue' consideration of background urged

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A high-stakes legal battle over a young man's loss of freedom could trigger sweeping changes in how Manitoba judges account for the aboriginal heritage of accused persons in bail decisions.

Judges have a "judicial duty" to consider "Gladue" factors when aboriginal people apply for bail, and the Court of Queen's Bench should issue a ruling requiring those factors be considered in decisions at that stage of the court process, city defence lawyer William Marks will argue today.

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Gladue factors are derived from a landmark 1999 Supreme Court decision mandating judges to take an aboriginal offender's personal and cultural history of dislocation, disadvantage, addiction and abuse into account in sentencing.

They go hand-in-hand with the law on sentencing offenders, which states all options other than jailing them -- particularly aboriginals -- should be on the table when judges dispense punishment.

The law was changed in the 1990s by adding Sec. 718.2 (e) to the Criminal Code's sentencing provisions. It marked an attempt to address a dramatic overpopulation of aboriginals in provincial and federal jails, which has only gotten worse since. Currently, more than 70 per cent of inmates in Manitoba's provincial jails are aboriginal.

Marks seeks to have judges apply Gladue factors at "judicial interim release" (bail) hearings on the premise that aboriginal offenders are more likely to be jailed at the bail stage, which chafes against the spirit of the law. Virtually all bail hearings are held in provincial court.

"The door to incarceration exists at two stages -- bail and sentencing," Marks will argue, according to court documents obtained by the Free Press. "Given how closely the former is tied to the latter, it is respectfully submitted that failure to consider Gladue during bail frustrates the remedial purpose imagined in 718.2 (e)."

The case isn't likely to find favour with Crown prosecutors, who contend bail hearings are essentially "risk-management" proceedings in which the Gladue principles don't apply as they do at sentencing or consideration of parole eligibility.

Underpinning Marks' fight is the fact his client, Christopher Ferland, is in custody after recently being denied a sixth chance at bail in provincial court. He's a periodically homeless young man with a learning disability and an unstable personal background. A school counsellor has described him as a "street kid."

Ferland, who has no prior criminal record, was first arrested for a domestic assault on Nov. 5, 2012, and was released by police on a promise to appear in court.

In the following months, he's been accused of breaching bail conditions a number of times and returned to custody. His most recent arrest came just six days after being granted a fifth shot at bail by Judge Dale Harvey.

Judge Catherine Carlson refused to release the 20-year-old again on Sept. 12, saying his habit of being rearrested and detained after being given chances at freedom tied her hands.

"I have to say that I just feel it would be making a mockery of the whole system if I were to release you again," Carlson told him.

Marks argued Ferland didn't present a public risk and Carlson was obliged to consider Gladue factors at the bail hearing.

He said details she needed to weigh included racism Ferland claims he experienced in his dealings with police, his economic disadvantages and his involvement as a youth with the child-welfare system.

It's not the first time Gladue has been broached regarding bail hearings in Manitoba. In May 2012, Judge Marvin Garfinkel delayed his decision on whether to free a man accused of aggravated assault in order to get a Gladue report examining his background. Garfinkel ultimately found the report was "not helpful" to him.

 

-- with file from Mary Agnes Welch

james.turner@freepress.mb.ca

Republished from the Winnipeg Free Press print edition October 3, 2013 A8

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