In 2019, the federal government amended the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Criminal Code”) to incorporate the principle of restraint into bail hearings. As stated in section 493.2 of the Criminal Code, a peace officer, justice or judge that is considering release shall give particular attention to the circumstances of (a) Aboriginal accused, and (b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release. Section 493.2 is remedial in nature, and is intended to “ameliorate the pre-trial over incarceration of overrepresented, vulnerable groups”, “release more of the accused described in the provision,” and “remedy the problem of overuse of pre-trial custody as well as the overrepresentation of certain populations in the criminal justice system”: R. v. E.B., 2020 ONSC 4383, at para. 22, and R. v. A.A., 2022 ONSC 4310, at para. 45.
Despite this clear direction from the Ontario Superior Court of Justice, vulnerable and racialized accused still represent a disproportionate percentage of inmates in pre-trial detention. As Professor Adelina Iftene recently stated in “Sentencing Vulnerability: Conceptualizing the Incorporation of Personal Characteristics and Experiences at Sentencing” (2025) 61-3 Osgoode Hall LJ 811, while “the crime rate has declined over the last twenty to thirty years and the number of incarcerated individuals has stayed stable, […] the number of incarcerated Indigenous people, Black people, women, older individuals, and those with mental illnesses have increased significantly.” This is a crisis that is long-standing, worsening, and complicated by the depreciating conditions of Ontario’s correctional facilities. Section 493.2 is failing, and it is past-time that all justice system participants take meaningful steps to remedy this crisis by familiarizing themselves with the provision.
Understanding the Applicability of Section 493.2 to the Primary and Secondary Grounds of Detention
Counsel invoking s. 493.2 of the Criminal Code must be prepared to address a common error when a vulnerable or racialized client is seeking bail: restricting it to the tertiary ground analysis. In R. v. St-Cloud, 2015 SCC 27, at para. 71, the Supreme Court of Canada clarified that the “circumstances surrounding the commission of the offence” in s. 515(10)(c)(iii) includes the personal circumstances of the accused, such as their age, criminal record, and physical or mental condition. At first glance, the circumstances of a vulnerable or racialized client seems to fall exclusively within this tertiary ground factor, and defence counsel often limit their s. 493.2 submissions to this specific subsection without considering the primary or secondary grounds for detention. This is an error that provides a disservice to the client, and invites the Court to similarly limit its application of s. 493.2. Section 493.2 is expansive in scope, and while the primary and secondary grounds may not be an issue in every bail hearing, the circumstances of vulnerable or racialized accused are relevant to each enumerated ground for detention in s. 515(10) of the Criminal Code.
The risk that an accused may not attend Court if released on a “lenient” plan, for example, can be viewed through a remedial lens that acknowledges the disadvantage vulnerable or racialized accused often face in presenting a release plan that includes sureties, transportation, internet access for remote Court appearances, and an ability to retain counsel. For many accused, these disadvantages are beyond their control and stem from the impact of intergenerational trauma, family and community displacement, substance use, homelessness, and/or the inability to obtain a surety. As the Canadian Civil Liberties Association stated in its 2024 Report titled Still Failing: The Deepening Crisis of Bail and Pre-Trial Detention in Canada, “[s]ecuring bail for clients who do not have resources, stable housing, or social supports remains exceptionally challenging.” This should not mean it is impossible.
When invoking s. 493.2 of the Criminal Code under the primary ground, counsel are encouraged to highlight the systemic disadvantages an accused faces in presenting a “fulsome” release plan, while simultaneously encouraging their client to engage with community support services such as bail supervision programs, Indigenous friendship centres, and warming centres, if available. In some communities, service providers loan cell phones to accused experiencing poverty and homelessness, which can help remind clients about their court dates and lessen their flight risk. While access to these programs may be limited for remote accused, counsel should canvass additional resources, such as client friends, band councils, or nearby justice programs for support. A detention order under the primary ground should be an exceptionally rare occurrence, and s. 493.2 can help ensure this is the case. For those exceptionally rare cases where flight risk cannot be adequately managed, counsel should emphasize the remedial purpose of s. 493.2 and highlight the disproportionate impact a detention order would have on public confidence in the administration of justice if bail is denied for a vulnerable or racialized client in these circumstances. See Chris Rudnicki, “Proportionality as Constraint on Indigenous Pre-trial Detention: Realizing the Remedial Potential of s. 493.2(a)” (2023) 71 Crim LQ 168.
Under the secondary ground, “the unique circumstances of the accused, including any systemic factors,” are relevant when determining whether an accused poses a substantial risk of re-offending if released: R. v. E.B., 2020 ONSC 4383, at para. 43. This can include circumstances that contributed to an accused’s criminal history, their non-compliance with past release orders, and the appropriateness of certain release conditions. Section 493.2 provides the Court with another way to view these issues, particularly in light of the Supreme Court of Canada’s comments in R. v. Zora, 2020 SCC 14, at para. 57. Namely,
[P]eople with addictions, disabilities, or insecure housing may have criminal records with breach convictions in the double digits. Convictions for failure to comply offences can therefore lead to a vicious cycle where increasingly numerous and onerous conditions of bail are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges, and ever more restrictive conditions of bail or, eventually, pretrial detention.
While there is ample practical guidance about s. 493.2 and the secondary ground of detention (see, for example, Legal Aid Ontario, “Raising Anti-Black Racism at Bail: Practical Guide”; Jonathan Rudin, Indigenous People and the Criminal Justice System (Toronto: Emond Montgomery Publications Ltd., 2022 at pp 170-198); and Benjamin A. Ralston, The Gladue Principles: A Guide to the Jurisprudence (Saskatchewan: University of Saskatchewan Indigenous Law Centre, 2021 at pp 300-319), little has been said about circumstances that mitigate risk separate and apart from Court imposed release conditions. In the context of s. 493.2, this may include a client’s relationship with their community, the impact participating in traditional ceremonies or activities can have on reducing their recidivism, and cultural perspectives of community or family hierarchies when assessing surety suitability. In the case of an Indigenous accused that respects matriarchal leadership, for example, s. 493.2 can shed light on the community repercussions that may result if an accused breached their release order while their mother or grandmother was a surety. Whether it be restricted access to Elders, community events, or banishment from spiritually significant locations, extrajudicial consequences of non-compliance are relevant to assessing a client’s risk of re-offending under the secondary ground. In addition to the practical guidance offered in the resources identified above, counsel should attempt to familiarize themselves with their client’s traditions and world-view when preparing s. 493.2 submissions under the secondary ground. What may appear to be a minor inconvenience to some can be a significant consequence to others, and the ability to explain that significance to the Court cannot be overstated. It may be the difference your client needs in securing judicial interim release, and the difference our justice system needs in rectifying the crisis of overrepresentation.
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