The Supreme Court of Canada mandates recognition of systemic factors that create barriers for Indigenous peoples’ access to equitable justice. Specifically, R. v. Gladue directs courts to consider the unique circumstances of Indigenous peoples when engaging in decision-making processes in all criminal courts. Drawing from interview data with Indigenous and non-Indigenous defence counsel in Ontario, this study assesses whether and how Gladue factors shape bail hearings. Our findings reveal that the application of Gladue principles exists along a continuum, ranging from mere “lip service”, to the tailoring of bail decisions based on meaningful recognition of systemic disadvantages. We also highlight the importance of lived experience and representation of Indigenous legal actors and the challenges they encounter working within a colonial system. We situate these findings within broader critiques of risk-based bail frameworks and settler colonial legal systems, concluding with policy recommendations and directions for future research.

Bail decisions are largely shaped by private, out-of-court negotiations between Crown attorneys and defence lawyers. While accused persons rely on the professional expertise of defence lawyers to navigate bail negotiations and secure them the best possible outcome, much remains unknown about how lawyers prepare for and negotiate bail. This study examines the process of bail preparations and negotiations from the defence’s perspective based on data from 18 semi-structured interviews with defence lawyers. The findings show that, while defence lawyers argue for reasonable bail terms, their ultimate goal is to obtain a release for their client. Defence lawyers also prioritize collecting and strategically using information about the case and the Crowns and justices with whom they work. They often adopt a risk-averse and cooperative approach with Crowns to avoid delaying or preventing their client’s release, even if that means agreeing to additional conditions. Our findings inform efforts to reform bail processes.