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.