This week, I continue the series on bail for Indigenous people with a chapter on the show cause hearing itself.

The Show Cause Hearing

Assuming you’ve been unsuccessful in securing a favorable consent release you’ll have to argue the bail. As a preliminary matter, keep a couple of points in mind:

  • Know your adjudicator. Arguing a bail before a Superior Court justice on a section 469 offence is different from arguing a bail before a non-lawyer Justice of the Peace. The latter may need to be explicitly walked through some of the finer points of bail.
  • Take your time. Yes, bail courts are extremely busy. But that doesn’t mean you should rush your client’s bail application. Some counsel, especially junior counsel, can sometimes feel rushed by the court or the Crown. Don’t fall into this trap. Take all the time you need to fully argue your client’s case.
  • Argue the bail review, not the bail. When you’re arguing a bail, it can be helpful to remember that you’re merely taking one of the first steps of many in securing your client’s release. There’s a strong possibility that you’ll need to apply for a review of the order made at the first instance. For this reason, ensure the record and your submissions are fulsome, adequate and will be of assistance at the review(s).

There are two aspects of a bail hearing that have particular relevance to all accused but take on a different flavor when the accused is Indigenous: evidence and argument.

Evidence at the bail hearing

Remember that facts and evidence, not argument, determine the course of most litigation. It’s important to control the narrative presented to the bail court judge and limit the prejudicial evidence relied upon by a judge.

Give notice

A quick note: If you wish to apply for bail on behalf of an accused, give as much notice to the Crown as possible. Of course, don’t delay the hearing for the sole purpose of giving notice, but do your best to let the Crown know, in advance, of your intention to apply for release and any evidentiary issues you anticipate might arise during your application.

This deprives the Crown of the opportunity to ask for an adjournment at the time of the judicial interim release hearing. After all, if they’ve had notice of both the hearing and the issues that might arise, they can’t argue they’ve been taken by surprise and need a day or two to sort it out.

Credible and trustworthy

The standard for admissibility of evidence at the bail stage is that it must be “credible or trustworthy.” See 518(1)(e) of the Criminal Code of Canada. How that standard is applied in practice depends heavily on the jurisdiction in which you appear. That said, in many jurisdictions the Crown’s evidence at the bail stage consists simply of an investigative report and the criminal record of the accused.

Know the evidence as well as the allegations

Where this is the case, it is valuable to know the underlying evidentiary foundation of the allegations contained within the police report. For example, if the report states that “the accused was intoxicated,” it is useful to know how the report writer came to that conclusion and what evidence may support the allegation.

Challenge unwarranted allegations

Recent appellate case law from British Columbia (R. v. Cheung, 2016 BCCA 221) stands for the proposition that, while the defense may not take a general “prove it” stance at a bail hearing (as that would turn each bail hearing into a mini-trial), it can take issue with individual allegations. When it does so, the court is entitled to give the allegation less or no weight depending on the nature of the proof offered by the Crown.

Consider the Crown’s ability to prove, with credible and trustworthy evidence, each allegation contained within the police report, even where the allegation doesn’t constitute a criminal act but might still be used to justify a condition of release.

Why is this Gladue?

Issues of credibility and trustworthiness are particularly important for Indigenous accused. Indigenous communities, especially in remote areas, are frequently policed by less experienced officers whose investigations may be less than complete. This is sometimes exacerbated by the fact that police in these communities can be quite busy, laying large amounts of charges and entering into many investigations. This leaves less time for each individual case.

In some areas, especially in northern Canada, investigations may consist of little more than an unsworn audio statement from a complainant. These files are long on allegations and short on supporting evidence. Without appropriate care, such allegations can turn into denials of bail or lengthy lists of conditions even when the case to meet is skeletal.

If you find that the case contained within the file is threadbare, use this to your client’s advantage. While you can argue that the Crown’s case is weak, conviction is unlikely, and therefore your client should be released, consider framing the argument differently.

Remind the judge that there are admissibility standards for evidence at a bail hearing and the Crown has presented insufficient evidence at the bail stage to justify conditions or detention. The issue is not whether the accused will be convicted or acquitted. That’s for a trial judge or jury to consider. The issue is whether the Crown has met the substantial burden required to justify significant and lengthy limitations on your client’s liberty.

Moving on, we’ll discuss the most significant piece of evidence in a bail hearing: the criminal record.

The probative value of the criminal record

I suggest that the probative value of the criminal record is markedly reduced as the factors identified in Gladue become more pronounced.

Each entry on a record represents a string of decisions made by the state and by the justice system inside a system that remains heavily biased against your client.

If, for example, you represent an Indigenous person from a remote or northern community who has a long record you can point out that the record reflects not only a series of criminal offences, but:

  • An ongoing history of intentional economic deprivation that drastically increases the likelihood of a criminal offence occurring,
  • An ongoing history of police surveillance of your client (Indigenous communities often have far more police per capita than other communities),
  • An ongoing history of “tough-on-crime” and “zero-tolerance” government policies that specifically target Indigenous people and limit the ability of police, Crowns, and courts to exercise their discretion,
  • An ongoing history of the overuse of pretrial detention and conditions to criminalize still more conduct,
  • An ongoing history of institutional resource limitations leading to a markedly higher rate of guilty pleas for Indigenous accused.

In other words, the state has created conditions that breed crime, installed a heavy police presence to detect that crime, imposed polices that ensure charges will be laid, aggressively sought to limit liberty where a charge is laid, and deprived those charged of the means to defend themselves. Is it any wonder that your client now has a three page record?

How Gladue applies to a criminal record

The purpose of highlighting Gladue in a bail hearing is not to excuse, justify, or explain your client’s past criminal behavior. You’re not (or shouldn’t be) arguing that “the system” turned your client into a criminal and therefore she’s less responsible for her behavior. Gladue does not apply to bail the same way it does to sentencing. You’re not (or shouldn’t be) concerned with moral blameworthiness at all.

The Crown is arguing that the criminal record of your client demonstrates that he or she is likely to commit further criminal offences. The purpose of highlighting Gladue at the bail stage is to make clear that the fundamental premise of the Crown’s argument for detention is flawed. What you’re arguing is that systemic factors have warped the implementation of the criminal law so much that the criminal record is no longer a reliable indicator of dangerousness.

The criminal record isn’t primarily a record of the accused’s behavior. It’s much more indicative of the tendencies of the police, the crown, the court, and the defense bar.

Because many of your Indigenous clients from remote areas will have some form of criminal record, it’s crucial that you limit the weight a judge is likely to give it. And you can do that by pointing out that the record has to be viewed through a Gladue-informed lens. If a judge acknowledges that the record says more about the system than it does about your client, your client is halfway home.

Gladue-informed arguments

As in all hearings during the criminal justice process, Gladue-informed arguments in bail require you to take a closer look at the quality and nature of the evidence being presented in court.

Respond to the evidence actually presented by the Crown, not what’s in the file

There’s a big difference between the Crown saying, “The accused was likely intoxicated,” and the Crown saying, “Three witnesses gave sworn statements that indicated the accused was drunk.” The latter is credible and trustworthy. The former, arguably, is not.

Where the allegations presented by the Crown do not meet the credible and trustworthy standard, make sure to point this out in your arguments. If the Crown has made a strong case on the need for a limited no contact order, but has presented minimal evidence on the role that alcohol played in the allegation, say so.

Similarly, if the file is full of credible and trustworthy evidence relevant to the imposition of a condition, but the Crown does not refer to it, point out the lack of evidence on this issue currently before the court. Don’t lie about what’s contained in the file, but don’t hesitate to say that the Crown has not presented evidence on this point sufficient to justify a condition.

The Crown will frequently be extremely rushed and overburdened in bail court. Use this to your advantage. If their submissions consist of a hurried read-through of the police narrative and a brief reference to the criminal record, out-argue them. Point out the gaps and mistakes in their submissions and explain why the evidence presented does not justify the position they have taken.

Argue conditions, not release

Focus your arguments on specific conditions that might conceivably be imposed by the justice and incorporate Gladue arguments into your submission. This accomplishes several things.

  1. It forces the justice to turn their mind to justifying each and every condition.
  2. By presuming your client is releasable, you get the justice thinking about conditions, rather than detention.

Key Takeaway

The rules of evidence and argument apply in unique ways in show cause hearings for Indigenous accused. Ensure that you take into account the very real ways that Gladue factors have shaped the investigation and the criminal record.

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