This is a guide for defense counsel who seek to obtain bail for a recently, or not-so-recently, arrested Indigenous person. It is, I hope, a practical roadmap to release for at least some of your Indigenous clients.

The guide is written chronologically. It contains advice for assisting in the release of your Indigenous client at any stage of the criminal justice process, from initial arrest to appeal of conviction or sentence.

The Arrest

If you’re dealing with an accused who has just been arrested and has phoned you pursuant to a section 10(b) request for counsel, keep the issue of release at the front of your mind.

You’ll typically speak with the arresting officer as well as the accused. If it’s not already your practice, ask the officer about his position on release and politely investigate the possibility of an officer release on a promise to appear and, if necessary, an undertaking with appropriate conditions.

Remind the officer of his obligation to consider release at the earliest opportunity and to consider the circumstances of Indigenous offenders found in sections 493.1 and 493.2 of the Criminal Code of Canada. They read as follows:

Principle of restraint

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of

(a) Aboriginal accused; and

(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

Criminal Code of Canada

The officer is likely going to do what they think is right, regardless of your input. But it never hurts to investigate the possibility of an officer-in-charge (OIC) release.

Logistical Issues

Assuming the officer is opposed to release, and if you’re dealing with an Indigenous person from a remote community, find out from the officer how the accused is going to be brought before a justice and how long that will take. Many Indigenous accused in remote communities are, by virtue of geography, denied the right to a timely hearing because of transport issues.

If transport issues apply in the case of this accused, politely remind the officer of his obligation to bring the accused before a justice within 24 hours:

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

Criminal Code of Canada

Remind the officer that the accused does not waive that right (and make note of this reminder).

Representation Issues

Find out if the accused will have access to counsel at the first hearing. If not, do everything possible to arrange for counsel (yourself or someone else) to appear by phone or video at the hearing.

Also, include in your conversation with the accused instructions regarding how to proceed at the 503(1) hearing. Advise them about their options regarding adjournment and immediate bail application, as well as the likely consequences (with respect to their liberty) of an adjournment or bail application.

Key Takeaway

Remember that, while the accused’s trial is likely months or years away at this point, the question of release is a much more pressing one. The substantive legal advice you provide to the accused should include information about how he or she can best go about securing release as early, and on as favorable terms, as possible.

For Indigenous accused, especially in remote areas, this means knowing where, how, and when they’ll be transported. It means ensuring they understand the steps they need to take to obtain bail. And it means taking every possible step to ensure that their first bail appearance before a justice is a meaningful one.

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