Justice of the Peace K.W. Bouchard’s recent decision in R. v. B.H., [2025] C.C.S. No. 2571 is a meaningful step toward a culturally responsive justice system and confirms the judiciaries discretion to use a mechanism in support of Indigenous traditions while leaving legal safeguards intact.
The accused, Indigenous person, requested a Bail Circle Format (BCF) for their Judicial Interim Release (JIR). This included a circle layout with family and an elder, but no drumming or smudging.
The court acknowledged that requiring a bail planning conference created an unintended delay, potentially prejudicing B.H. The Justice stated that a presiding justice in remand court should have the authority to schedule JIR proceedings with cultural accommodations directly, without an intermediate step.
By relying on s. 11(c) of the Canadian Charter of Rights and Freedoms: s.11(c), s.493.2, s.515, s.518, s.518(1)(b), s.518(1)(e), s.518(1)(a), s.537, s.551, s.540(1)(a) of the Criminal Code of Canada and the United Nations Declaration on the Rights of Indigenous Peoples Act to which Canada assented in 2021, the court confirmed it had statutory and common law authority to conduct informal inquiries, which includes using culturally responsive formats like BCF—similar to using phone or video formats. It interpreted s.518(1)(a) of the Criminal Code to permit taking unsworn testimony and incorporating Indigenous practices that don't align with typical adversarial norms. However, if the accused or any witness chooses to speak in the BCF, the Crown retains the right to cross-examine—whether the testimony is sworn or not. This is grounded in both procedural fairness and statutory entitlement (s.518(1)(b)).
The Court proposed a two-stage approach. At stage one an informal BCF is heard in which all participants speak freely and respectfully, without being sworn in. At stage two the Court transitions back to the standard court format, with witnesses sworn in and opportunities for Defence to adopt or expand on the testimony, followed by Crown cross-examination.
By adopting this procedure Indigenous accused benefit from more respectful cultural practices and the Court is live to the ongoing reconciliation journey.
The accused, Indigenous person, requested a Bail Circle Format (BCF) for their Judicial Interim Release (JIR). This included a circle layout with family and an elder, but no drumming or smudging.
The court acknowledged that requiring a bail planning conference created an unintended delay, potentially prejudicing B.H. The Justice stated that a presiding justice in remand court should have the authority to schedule JIR proceedings with cultural accommodations directly, without an intermediate step.
By relying on s. 11(c) of the Canadian Charter of Rights and Freedoms: s.11(c), s.493.2, s.515, s.518, s.518(1)(b), s.518(1)(e), s.518(1)(a), s.537, s.551, s.540(1)(a) of the Criminal Code of Canada and the United Nations Declaration on the Rights of Indigenous Peoples Act to which Canada assented in 2021, the court confirmed it had statutory and common law authority to conduct informal inquiries, which includes using culturally responsive formats like BCF—similar to using phone or video formats. It interpreted s.518(1)(a) of the Criminal Code to permit taking unsworn testimony and incorporating Indigenous practices that don't align with typical adversarial norms. However, if the accused or any witness chooses to speak in the BCF, the Crown retains the right to cross-examine—whether the testimony is sworn or not. This is grounded in both procedural fairness and statutory entitlement (s.518(1)(b)).
The Court proposed a two-stage approach. At stage one an informal BCF is heard in which all participants speak freely and respectfully, without being sworn in. At stage two the Court transitions back to the standard court format, with witnesses sworn in and opportunities for Defence to adopt or expand on the testimony, followed by Crown cross-examination.
By adopting this procedure Indigenous accused benefit from more respectful cultural practices and the Court is live to the ongoing reconciliation journey.