Last week a Winnipeg Court of Queen's Bench judge rejected an accused's aboriginal heritage as a factor courts must expressly weigh on bail applications. Justice Sheldon Lanchberry declined to apply Criminal Code sentencing provisions, which mandate "particular attention to the circumstances of aboriginal offenders," to a bail hearing.
The judge rightly saw the argument as a clumsy attempt to graft a sentencing principle onto bail law.
But the legal argument was, at base, also unnecessary. Judges already often factor in an accused's aboriginal background when molding bail conditions.
Criminal Code bail provisions are flexible in the extreme, giving judges broad discretion to tailor release conditions to an accused's particular circumstances in order to minimize the risk of re-offending pending trial or a guilty plea.
The Criminal Code recites a litany of conditions -- regular reporting to a peace officer, residing in a specific location and refraining from communicating with a complainant -- and gives judges the latitude to impose "such other reasonable conditions specified in the order as the justice considers desireable."
By design, bail provisions take into account an accused's circumstances and background. And the courts have always considered the particular causes of both an accused's past convictions and current charges when weighing whether, and on what conditions, an accused might be released.
The proper competing principles on a bail application are an accused's presumption of innocence, which includes the right not to be deprived of liberty longer than necessary, and the safety of the public.
Justice Lanchberry correctly declined to "re-write" the Criminal Code on a bail application, determining a re-working of the law is best left to Parliament.
But more to the point, the aboriginal offender's application to redraw the law was redundant.