Court File and Parties

COURT FILE NO.: CR-22-00000003

DATE: 2022-02-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

Joseph DeGrace Applicant

COUNSEL:

Daniel Thorpe, for the Provincial Crown and Kimberly Miles, for the Federal Crown, Respondents

Christopher Hanson, for the Applicant

HEARD: February 7, 2022

BAIL REVIEW – REASONS ON JURISDICTIONAL ISSUE

CHRISTIE J.

[1] The Applicant, Joseph DeGrace, 22-years old, has brought a bail review. He was ordered detained on October 18, 2021 by Justice of the Peace C.B. McLean. The sole ground for this application is that the Justice of the Peace failed to give due weight to Gladue considerations.

[2] It should be noted that the Applicant was not present at this hearing but, on consent of all parties, the court agreed to hear this jurisdictional issue.

[3] A brief summary of the circumstances will provide some context.

[4] The Applicant is presently charged, along with two other individuals, with a number of offences, alleged to have occurred on September 30, 2021, including the following:

a. Robbery b. Careless use of a firearm c. Unauthorized possession of a firearm d. Possession of a weapon for dangerous purpose e. Possession of a loaded prohibited firearm (x2) f. Possessing firearm knowing that serial number has been altered g. Occupant of motor vehicle knowing there was a prohibited weapon / device h. Possession for the purpose of trafficking of a Schedule I substance (x5) i. Possession of property obtained by crime over $5000 j. Uttering threat to cause death (x2)

[5] The allegations involve pointing a loaded handgun at the complainant’s head, striking him with the gun, punching him in the head, kicking him in the stomach and back, striking him with a belt and forcing him to strip to show he did not have any drugs on his person. The accused parties are also alleged to have threatened the complainant that if he told anyone what happened they would kill his family. The car the accused parties were arrested in contained significant quantities of drugs (approximately $20,000 worth), including fentanyl (30 grams), methamphetamine (1375 tablets and a further 9 grams), cocaine (133 grams), oxycodone, and a loaded handgun. The parties were all arrested on September 30, 2021.

[6] The reverse onus bail hearing was held on October 15, 2021, more than two weeks post-arrest. At the initial bail hearing, the Crown sought detention on primary, secondary and tertiary grounds, albeit with less focus on the primary grounds.

[7] The only surety proposed was Susan DeGrace, the Applicant’s mother. Other family members live in the same household, who were willing to assist with supervision, but were not proposed as sureties. During her testimony, Ms. DeGrace confirmed the Indigenous heritage of her son, specifically, she stated that he was Ojibwe, from Fishing Lake First Nation in Saskatchewan. Nothing else was said about his Indigenous heritage. Ms. DeGrace did testify that her son had some difficulties in school. She stated:

…He didn’t finish his education. They actually kinda threw him out. They didn’t want any part or anything to do with him.

She explained that this was in grade 8. Ms. DeGrace also explained that she reached out to various organizations for help but “nobody wanted to help”. She stated:

…I even tried organizations in Toronto, Native Child and Family Services but unfortunately because we were residents of Durham, they couldn’t help. I, I tried to call Children’s Aid for help. I tried Pinewood. I tried everybody to try to get help. Nobody wanted to help. I tried the school to help get counsellors, they pretty much just turned their back, they didn’t want to even help.

Ms. DeGrace stated that her son had self confidence issues and that was why he did not often leave the house. She stated that he had been assessed when he was in school, determined to have attention deficit disorder, and that he then attended a specialized school.

[8] At the very end of his submissions at the initial bail hearing, counsel for the Applicant made reference to the Indigenous heritage of Mr. DeGrace. The exchange was as follows:

Mr. Hanson: …Oh, and I beg your pardon, he’s also Ojibwe so the Gladue principles (unintelligible) come into play, come into play as well.

The Court: Do you have anything further to say about those principles and how they relate to this young man specifically?

Mr. Hanson: Nothing specific, Your Worship. It’s just that, you know, ostensibly they come to play, I think that’s well-known and I think, they come into play indirectly because, you know, if you’re (unintelligible).

[9] The Crown’s submissions on this issue at the initial bail hearing were as follows:

Finally with respect to the Gladue principles, Your Worship queried Mr. Hanson with respect to their specificity in relation to the accused and we have nothing specific that has been put forward and so I say, yes, it must be considered that the accused is Aboriginal, but that would be the end of it because there’s nothing further to bring us within any mitigating factors at this time…

[10] The Justice of the Peace released her decision on Monday, October 18, 2021, ultimately detaining as a result of secondary and tertiary ground concerns which were not alleviated by the plan put forward. With respect to the Applicant’s Indigenous heritage, the court stated as follows:

You are Indigenous and therefore I must consider Gladue principles which has been codified in s. 493.2 of the Criminal Code. This advises me to take into account and to pay particular attention to the circumstances of the accused. Here I note that you left school in grade eight and have not worked or been to school since. I heard that your mother tried to get some counselling or help from a variety of sources, but no real detail was provided on those efforts. I did not hear that you had been enrolled in any online courses that may be available, and I heard that the only work you may have done is occasional roofing. Your mother said you had not worked in any other capacity, in her words, as far as she knows. I find it odd that your mother seems so unsure of what you’ve been doing for seven years while living under her roof.

I am also concerned that although it is a fact that Indigenous are individuals who are overrepresented in custody, there were no submissions made on what might be done as part of your release to assist with issues arising from these considerations, nor was any evidence given as to how any of your personal circumstances are connected to your Indigenous status.

[11] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, in the context of sentencing, the Supreme Court of Canada emphasized that the language of section 718.2(e) of the Code requires the Court to consider two main elements:

(a) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

The Court made it clear that judicial notice could be taken of the broad systemic and background factors affecting Indigenous people. However, in order to properly consider these elements, the sentencing judge would require information relating to the particular accused.

[12] In R. v. Robinson, 2009 ONCA 205, the court was dealing with a s. 680 review. One of the grounds for the review was that the bail judge had failed to apply the Gladue principles to the issue of whether the Applicant could be released on bail. The court stated as follows:

[13] It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.), have application to the question of bail. However, the application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.

[14] Notwithstanding that the applicant is a lawyer and was represented by counsel nothing was tendered to assist the application judge in any such analysis. It appears that the matter was only raised in final submissions. While the applicant testified and evidence was also introduced from other aboriginal persons, none of that evidence touched on matters that would inform a Gladue analysis. In the absence of such evidence, and in the circumstances of this case, I am satisfied that there is no basis to direct a review by a panel of the court on this ground.

[15] If the applicant is able to adduce evidence relevant to Gladue principles that would amount to a material change in circumstances, there is nothing to preclude him from bringing a fresh application on that basis. However, I note that the Supreme Court in Gladue , in the context of sentencing, stated at para. 79 that "the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non aboriginals will be close to each other or the same". I would think that the same practical reality would apply to applications for judicial interim release.

[13] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the court re-emphasized the principles from Gladue and stated:

[60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society….To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.

[14] In R. v. Myers (2019), 2019 SCC 18, 375 C.C.C. (3d) 293 (S.C.C.), the court pointed out the state of pre-trial detention in Canada and the overrepresentation of Indigenous persons. The Court stated:

[26] Nonetheless, on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody: Statistics Canada, Adult and youth correctional statistics in Canada, 2016/2017 (June 2018), at p. 7; Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015 (January 2017). In 2016-2017, approximately 7 percent of those in remand were still in custody after 3 months, and some spent upwards of 12 or even 24 months awaiting trial in detention: Statistics Canada, Table 35-10-0024-01 — Adult releases from correctional services by sex and aggregate time served (online). It must be said that the conditions faced by such individuals are often dire. Overcrowding and lockdowns are frequent features of this environment, as is limited access to recreation, health care and basic programming: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.), at paras. 2 and 28; Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, by A. Deshman and N. Myers (2014) (online). Moreover, as is the case elsewhere in our criminal justice system, Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions: Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015.

[15] Also in 2019, amendments to the Criminal Code made clear that in making decisions with respect to release or detention, particular attention must be given to the circumstances of an Indigenous accused. (see s. 493.2) This section eliminates any uncertainty about the necessity of taking Indigenous heritage into account at the bail stage.

[16] In R. v. Brown, 2020 ONCA 657, in the context of sentencing, the court made it clear that the accused Indigenous person is not required to demonstrate a causal link between Indigenous status or experiences and the offences before the court. The court stated in part as follows:

[48] An accused person is not required to draw a straight line between Aboriginal status and the offences for which he or she is being sentenced: see Ipeelee, at paras. 82-83; R. v. Kreko, 2016 ONCA 367, 2016ONCA 367, 131 O.R. (3d) 685, at paras. 21-22. Such a requirement “imposes an evidentiary burden on offenders that was not intended by Gladue”: Ipeelee, at para. 82. However, more is required than the bare assertion of Aboriginal status: R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115; F.H.L., at para. 38; R. v. E.C., 2019 ONCA 688, at para. 16.

[49] This court’s decision in R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274 outlines what more is required. Drawing on the framework in Ipeelee, Watt J.A. said the following, at paras. 54-55:

Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence: Ipeelee, at para. 83. [Emphasis added.]

See also F.H.L., at paras.40-41.

[50] In determining the extent to which Gladue factors bear on an offender’s culpability, the court must consider whether the offender has “lift[ed] his life circumstances and Aboriginal status from the general to the specific”: F.H.L., at para. 45. Put another way, the sentencing judge must determine the degree to which unique circumstances related to the offender’s background played a part in bringing that offender before the court. This is necessarily a case-specific inquiry.

[51] The extent to which an Indigenous offender’s unique circumstances mitigate moral culpability is a matter of degree…

[17] This Court acknowledges that bail hearings often occur very soon after arrest and it is, therefore, difficult to obtain formal materials to present to the court. However, rules of evidence are frequently very relaxed at bail hearings, allowing accused persons to present information in very informal ways.

[18] There is no question that the Indigenous heritage of an accused is relevant at a bail hearing. In the context of considering Indigenous heritage at a bail hearing, this court would suggest the following:

a. As stated in Ipeelee, but applied in the context of bail, the court must take judicial notice of such matters as the existence of racism, the history of colonialism, displacement, and residential schools and how that history continues to impact such things as education, income, employment, substance abuse, and criminal records.

b. Taking judicial notice of this reality will not automatically result in release from custody, rather, it provides the necessary context for understanding and evaluating the case-specific information presented by an accused being considered for bail.

c. There is absolutely no requirement for the accused to establish a causal link between Indigenous heritage and the offences before the court. In most cases, such a link would be impossible to demonstrate.

d. However, the accused should provide the unique systemic or background factors which may have played a part in bringing them before the courts and which bear on considerations of release versus detention, and bear on specific conditions of release, which will then be considered in the context of the matters of judicial notice addressed above.

e. At a bail hearing, courts should be flexible about the form in which such information is provided.

[19] It is the view of this court that the Justice of the Peace was acutely aware of the Applicant’s Indigenous heritage and the applicability of that heritage to the court’s determination regarding detention or release. Even though no particular submission was made, the court considered the difficulties that the Applicant experienced in receiving an education and getting counselling services. The Justice of the Peace fully and completely considered the unique circumstances of this Applicant, to the extent that it was available to her, in the necessary context of his Indigenous heritage.

[20] For all of the foregoing reasons, it is the view of this court that the Justice of the Peace did not err in the manner alleged. Therefore, this court has no jurisdiction to review the bail.

[21] Application is dismissed. If the Applicant is able to adduce evidence relevant to Gladue principles that would amount to a material change in circumstances, there is nothing to preclude him from bringing a fresh application on that basis.

[22] Given this court’s ruling on jurisdiction, the return date of February 11, 2022 can be vacated.

Justice V. Christie

Released: February 7, 2022