Application granted. An Indigenous applicant has met their onus on judicial review, as the Justice of the Peace made an error in law by failing to consider Gladue principles at the bail hearing. The applicant will be released on their own recognizance in the amount of $500, and be supervised by the Toronto Bail Program.
Indigenous Law Centre – CaseWatch Blog
The Applicant, Deeandra Papequash (“they/them” preferred pronouns), was denied bail in 2018, and seeks review of this denial of bail. The Applicant is facing four separate sets of charges that involves assaultive and threatening behaviour, petty theft, possessing or using a knife, and failing to follow conditions of bail. They had been released on bail before, on these charges and more than once. But when all the charges came again before the Justice of the Peace on December 18th, 2018, after they had again been arrested on new charges, those releases came to an end. The Justice of the Peace did not release the Applicant again, and detained Deeandra Papequash on the secondary ground. The Justice of the Peace made a serious mistake in his decision. There is also a new and material change in the Applicant’s situation.
Deeandra Papequash is 34 years old, is mixed Cree and Saulteaux, and a member of Key First Nation. A Gladue report which had been previously prepared, was given to the Justice of the Peace. It describes the horrible childhood endured by the Applicant, including sexual abuse, physical abuse and discrimination at being a two-spirited person. The Applicant suffers from many mental illnesses including Fetal Alcohol Syndrome, ADD, PTSD, anxiety, depression, as well as alcohol and drug addiction. There was also involvement in gang activity in Regina and long periods of jail. Though the Applicant currently stands charged with assaulting their intimate partner, she remains supportive.
Given Deeandra Papequash’s lived experiences as an Indigenous person, the question of their release required a careful application of the Gladue principles (R v Gladue, [1999] 1 SCR 688), which the Justice of the Peace did not do. Failure to consider Gladue principles at a bail hearing is a serious error of law (R v Robinson, 2009 ONCA 205).
Deeandra Papequash has been living precariously, including in shelters. At the bail hearing, it was hoped that secure and stable subsidized housing would become available sometime soon. This housing opportunity is now available through the COTA organization, where a one bedroom awaits them, but this offer is time limited. If the Applicant does not move into the apartment within three weeks, COTA will no longer hold it for them, which is a material change in circumstances. At the bail hearing this housing had not yet crystalized. The stable supportive housing is now real and this material change is significant. The law permits the Court to consider anew whether Deeandra Papequash has met their onus on this bail review regarding the primary, secondary, and tertiary ground for release.
The Applicant proposed a Bail Program release and the Bail Program has approved them. Given the Applicant’s life trajectory bent by trauma, the focus regarding bail should not be on whether a surety is available to supervise them. Rather it should be on whether supports can be put into place to meet secondary ground concerns. The criminal record, which is bad, must also be seen through a Gladue lens. While this does not extinguish the secondary ground concerns, it provides an explanation and a context for this criminal record. A number of organizations and professionals with skill, experience, and compassion have offered support if Deeandra Papequash is released on bail. They know the Applicant’s weaknesses as well as strengths, emphasizing that jail is not a good place for someone like Deeandra Papequash.
Secure housing can be crucial to the rehabilitation and treatment of people with mental health problems, addictions, and other challenges born from the effects of discrimination and marginalization. It provides the steady and firm ground for people to climb out of poverty. Stable housing means stable people, thereby reducing conflict with the law and better protecting the community. Deeandra Papequash has never received such intensive wraparound services before. Deeandra Papequash has met their onus and will be released on their own recognizance in the amount of $500. They will be supervised by the Toronto Bail Program. They will abide by the conditions set out by the Toronto Bail Program and the conditions proposed by the Applicant including no contact, treatment, and counselling.