R v Ashini

The Provincial Court of Newfoundland and Labrador released a decision on January 30, 2015 in R. v. Ashini, ruling on the proper interpretation of section 516(1) of the Criminal Code, which relates to remand orders, in context to the “judicial reality” in Labrador.

In this case, the accused was an Innu man with considerable mental health issues who had been arrested on multiple dates for various offences between July and September of 2014. Following an arrest in July, the accused was sent to hospital for psychiatric assessment and treatment and was subsequently released. Following another arrest in late September, the accused remained in custody while his counsel worked on arranging a treatment program for him to attend. However, a program could not be arranged and the Crown refused to request a remand order pursuant to Section 516 of the Criminal Code. Accordingly, the judge in this matter lost jurisdiction over the case and the accused was released on an undertaking without conditions pursuant to section 515(1) of the Criminal Code.

The Court relied on the Supreme Court of Canada’s authority in determining whether section 516 of the Criminal Code is a “substantial procedural safeguard” in Canada’s bail system. The Court explained that section 516 passes constitutional scrutiny because the denial of bail in those provisions is limited to: (1) a narrow set of circumstances; and (2) “where it is necessary to promote the proper functioning of the bail system, and not for extraneous purpose.” The Court found that section 516 is a “substantial procedural safeguard” because it is aimed at preventing an accused from being held in custody and awaiting bail for excessive periods of time. 

The Court was also tasked with determining whether judges have inherent jurisdiction to adjourn bail hearings. The Court noted that section 516 is the only avenue from which a judge can adjourn a bail hearing, either: (a) by the defense counsel’s consent remand; or (b) by the Crown’s remand request for a period not exceeding 3 clear days. In other words, “a judge cannot extend… remand time on his or her own motion” except in exceptional circumstances where a judge orders psychiatric assessments under sections 672.11 and 672.12 of the Criminal Code for the purposes of determining an accused’s fitness to stand trial and criminal responsibility.

In sentencing Aboriginal offenders, the Supreme Court of Canada has instructed courts to avoid jail sentences if possible, or, where imprisonment is the best option, to provide the minimum required sentence necessary to respect the principles and purpose of sentencing. The Court cited a previous decision by the Newfoundland and Labrador Trial Division for the proposition that “judges should consider Gladue principles, particularly where evidence during the bail hearing supports its consideration.”

The Court stated that it seems obvious Gladue should apply to bail hearings, especially when considering that approximately 45% of Labrador’s population is Aboriginal while “well over 80 percent of the prison population at the Labrador Correctional Centre are Aboriginal offenders or on remand.” The Court stated further, “Aboriginal citizens make up no more than 5 percent of the provincial population, but Aboriginal offenders probably exceed 20 percent of the prison population”. The Court found these numbers to represent a worsening trend in Canada’s justice system and the failure of Canadian courts to follow the Supreme Court of Canada’s binding authority on sentencing Aboriginal offenders.

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