Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters
Both judges and police exercise considerable discretion regarding the decision to grant an accused person bail. The consequences of being held in jail pending trial are very serious for both men and women. Beyond the deprivation of liberty, people detained until trial are prevented from helping in their own case. They are unable to find a job, reimburse money stolen, or engage in volunteer activities – all factors that serve to mitigate a sentence if convicted, and, more generally, positively predispose a judge toward an accused person.
In a one-day snapshot of adults in all provincial and territorial prisons in 1996, the proportion of all female prisoners who were on remand after being refused bail (24 percent of all female prisoners) was similar to the proportion of all male prisoners in the same situation (25 percent). Given the Statistics Canada data that women are consistently charged with less serious offences than men, and that their offences are less likely to involve violence, it should follow that a much smaller proportion of women should be detained until their trials in order to prevent danger to society. The inequality of this treatment seems evident.
For people in northern and other remote communities, including Aboriginal people, the absence of local detention facilities frequently means that accused persons are separated from their home communities. This is particularly true where a person is accused of a serious offence punishable by five or more years of imprisonment. In these cases, the police have no discretion to release. As a result, many Aboriginal accused are sent to prisons in the south of Canada, separated from their children and other family members, their first language, their culture and their food while they await trial and, potentially, for the entire duration of their sentence.
A study of Provincial Court cases completed for the Aboriginal Justice Inquiry of Manitoba indicated that Aboriginal women aged 18 to 34 were 2.4 times more likely to be held on remand than non-Aboriginal women in the same age category. More than 90 percent of accused young Aboriginal women and 50 percent of accused young Aboriginal men were held on remand. Many of these Aboriginal women were mothers – whose removal from their communities forced them to abandon their children. In part, this occurs because several of the criteria that judges use to determine bail decisions have an adverse impact on Aboriginal people. The criteria include family ties, whether the accused person is employed, whether the accused has a fixed address, and the accused person’s links to the community.
Aboriginal women typically migrate to urban centres to flee intimate violence. When they do so, they can then be characterized as lacking a fixed address or lacking strong links to the community, despite the fact that their transience is a consequence of their vulnerability at the hands of abusive intimate partners, rather than their potential for criminality.
The Commission on Systemic Racism in the Ontario Criminal Justice System found that Black women are incarcerated at a rate that is almost seven times higher than for White women. Since at least half of all prison admissions for Black people were pre-trial, it is safe to conclude that Black women are disproportionately denied bail to a corresponding degree pending trial. The exact reasons for this treatment are unclear but many criminologists speculate that women who do not fit a gendered model of female passivity – those who are assertive, for example, or those who are single parents – will be treated more harshly. In this regard, stereotypical societal notions about Aboriginal women, that "we as Native women should be "unobtrusive, soft-spoken and quiet,’" have also led to confused or otherwise inappropriate judicial commentary.
The risk of community-based discrimination in respect of bail decisions looms even larger in light of the 2002 Supreme Court of Canada decision in R. v. Hall, regarding the proper criteria to be attached to judicial decisions granting bail. In this particular case, a brutal murder had taken place. The murder caused significant public concern and a general fear that a killer was at large. The bail judge, noting a high level of concern within the community after a murder, and considering such factors as the strength of the Crown’s case and the grave and horrific nature of the crime, held that it was necessary to deny bail to the accused in order to maintain public confidence in the justice system. By a narrow majority, the Supreme Court upheld this decision. Chief Justice McLaughlin writing for the majority stated:
… it seems to me that the facts of this case, as well as the facts in (other) cases … offer convincing proof that in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the justice system, to deny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration of justice.
Notwithstanding the admonition that such judicial deliberations must take account of specific factors and ought not to be used frivolously, four of the Supreme Court judges disagreed with the decision. Writing for the minority, Mr. Justice Iacobucci emphasized that to detain an accused solely on the basis that the crime is a serious one and the Crown’s case is strong would serve to undermine rather than promote confidence in the administration of justice, given the importance of the presumption of innocence to the proper administration of justice. Going further, he voiced concern with permitting societal opinion to carry weight in such decisions, arguing that the Court’s role is to guard the Charter rights of the accused even when they conflict with irrational and subjective public views, however sincerely held.
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