Racial Disparities in Canadian Bail Decisions

by A.W.

Indigenous people in Canada are denied bail more often than any other group, despite bail being a constitutional right grounded in the presumption of innocence.[i] This blog examines how the Canadian bail system disproportionately impacts marginalized communities, particularly Indigenous Canadian, and questions whether bail is truly applied equally for all accused individuals.

It is well recognized that the Canadian justice system disproportionately impacts marginalized communities, and this is a pattern that is also seen in the bail system. In Canada, a person accused of a crime is presumed innocent until they are proven guilty.[ii] When someone is granted bail, they are able to remain in the community rather than in custody while their case moves through the justice system.[iii] Cases move through the justice system very slowly, and bail allows someone who has not been officially charged with a crime to continue to function in the community rather than holding them in custody.[iv] Bail is considered a right under the Canadian Charter of Rights and Freedoms, stating that an accused person has the right “not to be denied reasonable bail without just cause.”[v] This means that being detained is the exception, and the default is for individuals to be released pending their trial unless they are denied bail for a “reasonable and just cause.”[vi]

Marginalized populations face unfair treatment in the justice system including a higher likelihood of being denied bail.[vii] In Canada, Indigenous people are denied bail more often than any other people, and this is an example of the clear disparity within the bail system.[viii] The Aboriginal Justice Inquiry of Manitoba identified the denial of bail and pre-trial detention as a problem Indigenous Canadians face often, stating that Indigenous men and women would spend significantly more time in pre-trial detention than any non-Indigenous accused.[ix] Although the bail system is intended to protect an individual’s presumption of innocence, these patterns make it clear that the bail system often fails to operate equitably for all Canadians. The Supreme Court’s decision in Ewert v. Canada (Correctional Service) highlights how correctional policies that seem neutral can disadvantage Indigenous people, mirroring the broader systemic equalities such as the disproportionate denial of bail to Indigenous Canadians.[x] Like inequalities in the bail system that undermine the presumption of innocence, the use of unvalidated assessment tools demonstrates how the justice system often fails to operate equally for Indigenous individuals and other marginalized populations.[xi] Given the over-representation of marginalized groups in pre-trial detention, we are often left to ask: “is bail really applied equally for all Canadians?”

Attempts to Mitigate the High Percentage of Incarcerated Indigenous Peoples:

The current Canadian bail system is failing Indigenous people who are overrepresented in custody across the nation.[xii] In 2024, Indigenous men make up approximately 32% of the prison population, and nearly 50% of the female prison population is made up of Indigenous females.[xiii] Because the over-incarceration of Indigenous people has been apparent for many decades, Section 718.2(e) of the Criminal Code was enacted in 1996 which requires all sentencing courts to consider incarceration as a last resort sanction for all offenders, with particular attention in the circumstances of Indigenous offenders.[xiv] In R v. Gladue, the Supreme Court has interpreted this section as a remedial provision and provided that courts must take judicial notice of any background or systemic factors of Indigenous people relating to how these factors might have contributed to bringing the offender into the court system.[xv] The Supreme Court has taken this interpretation and created “Gladue Reports” which are reports that provide the court with information on the unique systemic and background factors affecting an Indigenous offender.[xvi] Factors that must be taken into consideration include colonization, intergenerational trauma, racism and discrimination which may have contributed to the individual’s circumstances.[xvii]

Gladue Reports are intended to provide context about the systemic and personal circumstances of Indigenous individuals in the criminal justice system, but they do not necessarily aid in securing bail. The Gladue framework originates in sentencing law where there are considerations for rehabilitation, restorative justice, and the root causes of criminal behaviour are relevant only after finding someone guilty of a crime.[xviii] When courts apply the principles of Gladue reports to bail hearings, they can inadvertently undermine the presumption of innocence due to many courts treating Indigenous people as an already accused individual who is in need of rehabilitation.[xix] In cases such as R v Pitawanakwat, bail hearings focused primarily on addressing personal circumstances such as substance abuse and social disadvantages.[xx] In this case, rather than using these factors to determine if detention was justified under the standard bail considerations of public safety, flight risk, or likelihood of re-offending, the factors were used as factors to determine if rehabilitation was necessary.[xxi] The use of Gladue Reports at the bail stage can mix up sentencing goals with decisions about pre-trial release. This can result in strict bail conditions and treating the accused as if they are already guilty, rather than recognizing their right to be presumed innocent until found guilty.[xxii]

Gladue Reports used at bail hearings can unintentionally reinforce the already existing biases by focusing on Indigenous individuals as if they are more likely to commit crimes rather than helping the court properly decide whether they should be granted bail based on individual factors.

How Stereotyping Indigenous Individuals Leads to Being Denied Bail:

Stereotyping Indigenous people in the criminal justice system can have severe and immediate consequences, including the denial of bail. Indigenous and racialized communities experience higher levels of policing, and this over-policing is a form of structural racism.[xxiii] This form of racism is considered racial profiling, and this involves police consciously or unconsciously applying stereotypes about Indigenous groups when deciding to stop, detain, and arrest these individuals.[xxiv] There have been numerous studies which have confirmed that Indigenous people are more likely to be detained by the police following an arrest, and this is most often on the basis of prejudice and racism.[xxv]

Indigenous people are also more likely to be detained for longer periods of time in the criminal justice system because accused Indigenous individuals are often placed hundreds of kilometers away from their communities without any social support.[xxvi] Being farther away from their community makes it harder for the accused to come up with a bail plan that will be granted by the courts due to the inability to have social supports outside of detention.[xxvii] Another significant factor leading to Indigenous overrepresentation is the notion that Indigenous accused are more likely to breach their bail conditions because they live in poor communities.[xxviii] This is a stereotype seen throughout the justice system where all Indigenous people will not be able to follow their bail conditions, so judges will not grant bail based on this stereotype.

The stereotyping of Indigenous individuals within the criminal justice system creates a cycle where bias shapes the decisions involving policing, detention, and bail. When police officers and courts rely on these stereotypes and assumptions, Indigenous individuals are more likely to be over-policed, held far away from their communities, and denied a fair opportunity to be released on bail. These systemic barriers contribute to the higher rates of pre-trial detention, but they also reinforce the stereotypes that created these same exact barriers. Overall, this perpetuates the ongoing inequalities faced by Indigenous individuals and deepens the overrepresentation of Indigenous people present in the criminal justice system.

How Courts Should Move Forward in Bail Hearings with Indigenous Individuals:

Moving forward, courts must take a more proactive and intentional approach to address the clear overrepresentation of Indigenous people in the Canadian justice system, especially at the bail hearing stage. Indigenous individuals are denied bail more often, spend more time in pre-trial detention, and face systemic barriers that non-Indigenous accused do not. Judges must treat these inequalities as the central factor in decided whether detention is truly necessary and not as background factors as to why an accused must remain in detention.

Gladue principles should serve as an important supporting feature in deciding whether or not an individual will be released on bail and not as a source to keep someone detained. The principles in Gladue Reports should be used to ensure the systemic and historic inequalities of Indigenous individuals are considered when assessing the risk of granting bail, creating bail conditions, and determining whether detention aligns with the Charter’s presumption of innocence. Gladue Reports can help illustrate how colonialism, trauma, discrimination, and social marginalization may have shaped an accused’s life and circumstances. Courts must use this information to help support the release of an Indigenous accused rather than justify why detention is proper or support the stereotypes of Indigenous people as “high risk.” Gladue principles are meant to help courts understand the broader social and systemic circumstances of Indigenous accused, but at the bail stage they should only be used to decide whether release is appropriate under the bail criteria. Courts have warned that using sentencing or correctional tools at the bail stage, especially risk tools that were not designed or tested for Indigenous people, can be unfair, weaken the presumption of innocence, and reinforce existing bias as recognized by the Supreme Court in Ewert v. Canada.[xxix]

To move towards real fairness in the criminal justice system, courts must recognize the clear overrepresentation of Indigenous individuals as evidence of a systemic failure. Courts must also avoid contributing to this systemic failure by defaulting to detention or imposing strict conditions that Indigenous accused are set up to fail if they are granted release. Courts have the ability to uphold the right to reasonable bail and begin to move away from the patterns of inequality that have been seen throughout Canada’s justice system by intentionally applying Gladue principles to counteract the clear disadvantages Indigenous individuals face.

Up Next in the Blog Series:

In the upcoming blog I will dive into the bail reforms that have been recently announced by the Canadian government and share my thoughts on how this may work or how it might become more harmful. I will also share my personal thoughts on what isn’t working in the current bail system and what might be beneficial for bail reform in the future. This comparison between what the government believes will work for bail and what I believe might benefit the current bail system will help keep you thinking: “will there ever be an effective reform for bail?”

Endnotes

[i] “The Inequality of Canada’s Criminal Justice System” (last visited 25 November 2025), online (website): <https://johnhoward.ca/blog/canada-criminal-justice-disparities/>.

[ii] “How does Canada’s bail system actually work? And where Does it fall short?” (last visited 25 November 2025), online (website): <https://ici.radio-canada.ca/rci/en/news/1945366/how-does-canadas-bail-system-actually-work-and-where-does-it-fall-short->.

[iii] Ibid.

[iv] Ibid.

[v] “Section 11(e) – Right Not to be Denied Reasonable Bail Without Just Cause” (last visited 26 October 2025), online (website): < https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11e.html>.

[vi] Ibid.

[vii] “The Inequality of Canada’s Criminal Justice System” (last visited 25 November 2025), online (website): <https://johnhoward.ca/blog/canada-criminal-justice-disparities/>.

[viii] Supra at note 2.

[ix] Supra at note 7.

[x] Ewert v. Canada (Correctional Service), 2018 SCC 30, [2018] 2 SCR 165.

[xi] Ibid.

[xii] “Use of the Gladue principle has ‘largely failed’ Yellowhead Institute report finds” (last visited 25 November 2025), online (website): <https://www.aptnnews.ca/national-news/use-of-the-gladue-principle-has-largely-failed-yellowhead-institute-report-finds/>.

[xiii] Rogin, Jillian. Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada. 95 Can. Bar Rev. 325 (2017) at 326.

[xiv] Ibid.

[xv] Ibid. at 236-27.

[xvi] Ibid.

[xvii] “This justice system is failing our people: Report meant to help Indigenous people in court often causes harm” (last visited 25 November 2025), online (website):  <https://www.cbc.ca/documentaries/the-passionate-eye/this-justice-system-is-failing-our-people-report-meant-to-help-indigenous-people-in-court-often-causes-harm-1.7039543>.

[xviii] Supra at note 11 at 335.

[xix] Ibid.

[xx] Ibid

[xxi] Ibid at 335-36.

[xxii] Ibid at 226.

[xxiii] House of Commons, Systemic Racism in Policing in Canada: Report of the Standing Committee on Public Safety and National Security (43rd Parl, 2nd Sess, June 2021) (Hon. John McKay, Chair) at 54.

[xxiv] Ibid. at 55.

[xxv] Ibid.

[xxvi] “Under suspicion: Issues raised by Indigenous peoples” (last visited 25 November 2025), online (website): <https://www3.ohrc.on.ca/en/under-suspicion-issues-raised-indigenous-peoples>.

[xxvii] Ibid.

[xxviii] Canada, Department of Justice, Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses (Research and Statistics Division) (20 January 2023) at p 4.

[xxix] Supra at note 1.