Today, I’ll take a look at some of the specific conditions you might encounter when conducting a bail hearing. I’ll also talk about how those conditions might significantly impact an Indigenous person, especially when they’re from a remote or northern community.
A release on strict conditions can be nearly as bad an outcome as detention. If you secure your client’s release on a bunch of conditions he can’t possibly comply with you haven’t really ensured his freedom. Not only is his liberty restricted in the community, he’ll inevitably wind up back in custody.
Innumerable reports, studies, statistics, and cases have emphasized the need for judicial restraint in the crafting of conditions for legally innocent accused. Despite that, courts around the country continue to impose draconian release conditions for accused who have no realistic likelihood of abiding by them.
This difficulty is particularly marked for Indigenous accused, who often find themselves before the courts with unenviable criminal records and difficult or unstable life circumstances.
Luckily for the defense bar, the Supreme Court has reaffirmed the importance of the ladder system of release in R. v. Antic. Each and every judge should be reminded in each and every case of the need to explicitly justify any form of release more onerous than an undertaking without conditions. The justification should take the form of admissible evidence that meets the credible and trustworthy threshold.
A few commonly imposed conditions deserve special mention in the case of Indigenous accused.
Keep the peace and be of good behavior
No one seems to be quite sure what this condition requires, what it prohibits, or what it accomplishes. It’s rarely, if ever, prosecuted. While this isn’t necessarily the hill for defense counsel to die on, there’s no reason to impose this condition other than to confuse the accused.
While it can make sense in some cases for accused with primary ground risk factors, it isn’t immediately clear what requiring an accused to reside at a particular address is meant to achieve.
This condition is particularly problematic for Indigenous accused with unstable living situations, especially on reserve. Housing assignments on reserve can fluctuate rapidly and many reserves struggle with a shortage of housing. This can result in unsavoury or unstable individuals living with the accused who is unable to remove himself from the situation without breaching his reside condition.
Do not attend
This condition can make sense in certain cases to protect the safety and security of a complainant, alleged victim, or witness. For example, it’s difficult to argue with a condition that the accused not attend the address of a home he’s alleged to have broken into or a store he’s allegedly stolen from.
It’s much easier to argue with non-attendance conditions that overreach and interfere needlessly with the accused’s liberty. The worst of these are banishment conditions that bar an accused from going to his own community. These are routinely ordered in some jurisdictions and are especially harmful to Indigenous accused from remote communities whose entire support system likely lives on reserve.
When a Crown proposes a non-attendance clause or a judge indicates he or she intends to impose one, consider how it would affect your client and the risk of a potential breach. Strongly object unless there is a persuasive argument that the condition’s imposition would bring to a level below substantial the likelihood of a serious reoffence AND your client can reasonably comply with it.
Non-attendance clauses that are remotely connected to, or entirely disconnected from, a substantial likelihood of reoffending should be opposed. For example, a clause that the accused not attend an establishment licensed to sell alcohol is rarely going to have a sufficient nexus to risk to be justifiable.
Non-attendance clauses that are overbroad, like a condition the accused not attend an entire community, should be opposed. Not only do they interfere significantly with an accused’s liberty, they arguably increase the likelihood of reoffending because the accused will often be separated from his entire support network and thrust into an unfamiliar environment.
Non-attendance clauses that are redundant, like a condition the accused not attend a store that has already issued him a barring notice under provincial legislation, should be opposed.
No contact order
No contact orders, sometimes referred to by complainants and accused as “restraining orders,” are routinely sought by Crowns and imposed by courts when allegations of violence are made. Particularly common in domestic violence cases, no contact orders are often unavoidable when the alleged victim of a violent offence is a domestic partner, child, or family member of the accused.
These conditions frequently ensnare the accused, however, if and when the protected party reaches out to him or her for whatever reason. Because of this, some jurisdictions will impose a condition that contact be permitted when it is “initiated by the protected party and with their ongoing consent.”
Typically, clients will be more concerned about no contact orders when they share a child with the protected party. In these cases, exceptions for indirect contact through a third party, contact by telephone or email, or contact in compliance with a family court order might be appropriate.
Regardless of the method you choose to facilitate child access, bear in mind that it should remain workable for the accused while providing adequate protection to the protected party.
Weapons prohibitions should typically be opposed. There is a standalone offence of possession of a weapon for a purpose dangerous to the public peace (section 88 of the Criminal Code of Canada) as well as a concealed weapon offence (section 90) and a catch-all weapons prohibition adds nothing to protect the public.
What this condition does is criminalize non-dangerous and unconcealed possession of items that could be perceived as weapons. By definition, non-dangerous possession can’t possibly be dangerous.
Firearms (and related devices) prohibitions are a trickier subject. It can be difficult to justify why a client who’s facing a credible and trustworthy allegation of violence should be allowed to keep his guns.
Do keep in mind, though, that many Indigenous clients hunt for cultural reasons. Just as the sentencing provisions in section 161 contain exceptions for Indigenous people, bail judges should be live to the possibility that your client may wish to maintain his cultural hunting practice.
There may be some instances in which it makes sense to impose a curfew. An accused facing repeated allegations of trespassing at night, for example, might be a good candidate for a curfew.
In most cases, however, curfews are imposed as a way of criminalizing otherwise non-criminal conduct in a way that does not add to public safety. A nighttime curfew for an accused with a record of offending at all hours of the day does not make sense. A nighttime curfew designed to prevent offences that can occur during all times of the day does not make sense.
Similarly, a curfew with exceptions for work, school, and volunteer activities will not usually make sense. After all, if your client is allowed out for these reasons and there is no substantial likelihood of dangerousness as a result then why does that risk all of a sudden arise if he chooses to go for a walk?
Absolute curfews (or “house arrest”) should only be imposed in very particular circumstances. In short, they should only be required if the following conditions are met:
- The Crown can establish with credible and trustworthy evidence that an accused poses a substantial risk of dangerousness any time he’s outside (which will be a very high bar),
- The defense can establish on a balance of probabilities that the accused will likely abide by the house arrest condition,
- The accused has a realistic and stable housing plan.
Courts should always be reminded that curfews are very similar to conditional sentence orders, which are custodial sentences. Your client is not being sentenced or punished at the bail stage and the deprivation of liberty inherent in a curfew is substantial. They should be “last-resort” conditions.
Abstain conditions are seriously problematic for many Indigenous accused in bail court. Not only is the abuse of alcohol and other drugs a serious issue in many Indigenous communities generally, it’s particularly linked to Indigenous involvement with the criminal justice system.
There are three main arguments you’ll hear from the Crown respecting the imposition of intoxicant abstention clauses:
- Intoxicant use is strongly associated with criminality and offending behavior, generally, so it makes sense not to allow your client to drink or use drugs, or
- Your client has a record of alcohol- and drug-related offenses (especially breaches of prior abstention clauses) and this is a good enough reason to keep him from drinking or using entirely, or
- The allegations at hand involve alcohol or other drugs, therefore your client shouldn’t be permitted to drink or use drugs at all.
With respect to the first argument, the fact that alcohol is generally associated with violence is neither here nor there. Youth, Indigeneity, testosterone, sporting events, and warm weather are all generally associated with higher crime. Taking judicial notice of a general association between crime and supposed causal factors is unwarranted, especially when your client’s liberty is at stake.
The second argument is much stronger. Typically, however, the Crown will have put insufficient evidence before the court to establish a link between a general pattern of offending and your client’s alcohol consumption. By itself, a record of drinking breaches shows only that your client tends to disregard abstention clauses, which renders them less effective, not more desirable.
To make a persuasive case on this argument, the Crown would need to present credible and trustworthy evidence that your client’s past behavior establishes a substantial likelihood that allowing him to drink would be dangerous.
The third argument is, in my view, unpersuasive. An allegation that your client was drinking or using other drugs while he’s alleged to have committed a crime (of which he’s presumed innocent) is not a very strong reason to impose a profoundly restrictive condition which he must follow for the next 18 to 30 months. Even if he actually was drinking, and even if he actually did commit the offence, a single intoxicated offence does not establish the need for imposing a general abstain condition.
Conditions impact each accused differently, and they can have a markedly pronounced effect on Indigenous accused. That’s especially true when your client is from a remote or northern community, or when they deal with other lifestyle or medical challenges.