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Native bail reform urged

Current rules 'Eurocentric'

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Placing disadvantaged aboriginal people accused of crimes on "Eurocentric" bail rules divorced from the realities of their lives and backgrounds only further criminalizes them and exposes them to unjust stints in jail, a Winnipeg defence lawyer has argued.

This was one of the central thrusts of a novel legal position advanced by lawyer William Marks in the Court of Queen's Bench Thursday as he fought a losing battle to see a young aboriginal client with a learning disability given a sixth shot at freedom pending trial.

'Constrained circumstances' and 'moral culpability'



"Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability."


Supreme Court of Canada (2012)


"(Canadian sentencing law) seeks to recognize that there exists residual effects stemming from the historical mistreatment of the aboriginal population. The reality is that that treatment has disadvantaged aboriginal people in a number of ways including: decreased levels of education, lessened opportunities for employment, higher frequencies of violence and substance abuse when compared to the non-aboriginal population. All of these factors impact or detract from the moral blameworthiness of the aboriginal offender."


-- Manitoba Judge Dale Schille (2013)

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Marks argued Manitoba's courts are misapplying the law when it comes to consideration of Gladue factors at bail hearings. Too often, he said, courts are detaining aboriginals because they can't live up to requirements the justice system places on them when bail is set, and not carefully considering each of the release conditions and the impact they may have before imposing them.

'We're criminalizing his upbringing... by putting conditions on him that aren't necessary' -- lawyer William Marks on his client

That, in turn, triggers a chain reaction -- they become ineligible for further chances at bail because judges deem them too much of a risk because of their track records of breaching, Marks told Justice Sheldon Lanchberry.

"We're taking these aboriginal offenders... bail-denying them not because of public safety but because they're going to breach," he said. Because of this, they wind up in jails unnecessarily, sometimes for longer periods of time than are warranted. It can expose them to violence in jail and the possibility they may have to affiliate with a gang for protection, Marks said.

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

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

Marks was asking Lanchberry to overturn a recent provincial court decision from Judge Catherine Carlson denying bail to Christopher Ferland, 20. Since his arrest for a domestic assault last November, Ferland has allegedly breached bail conditions and been rearrested numerous times, a few for not living where he was supposed to. He has no criminal record.

Marks argued Ferland's background as a displaced aboriginal from a First Nations community who came to Winnipeg as a foster kid, only to wind up periodically homeless and fending for himself as a "street kid," makes it impossible for him to keep a steady address, not to mention try and navigate the complexities of the justice system.

"He's nomadic by the nature of his upbringing," Marks said, adding it wasn't Ferland's choice to be that way. "We're criminalizing his upbringing... by putting conditions on him that aren't necessary," said Marks. "Let's not continue to criminalize people for breaching conditions they don't have the background to follow in the first place."

The Crown took a different view, saying while Gladue factors are a relevant consideration at bail hearings, the overriding concern is public protection and risk management. In the case of domestic violence, prosecutor Amy Wood said, the focus has to be on halting the "cycle of violence" and the protection of victims. Carlson did look at Gladue factors in Ferland's case before denying him bail and found they didn't make his release plan sufficient, Wood argued.

Lanchberry agreed, saying he wasn't prepared to overturn Carlson's decision. Ferland will remain in custody, he ordered. He said he could appreciate Ferland may have found the court system confusing at first -- triggering his initial breach -- but after Marks came on board to represent him, that explanation no longer held water.

Lanchberry said he was declining to use his judicial discretion to deal with Marks' Gladue-related arguments, saying he was essentially being asked to rewrite the Criminal Code and commit the province to providing additional resources. "These are matters for politicians," Lanchberry said.

Republished from the Winnipeg Free Press print edition October 4, 2013 A7

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