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