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NEWS

Canada’s Bail System Needs to Return to Presumption of Innocence

editor - December 17, 2014

On any given day in Canada, over 25,000 people are imprisoned in the country’s provincial and territorial jails. And on any given day, the majority of those individuals are legally innocent – waiting for a bail decision or their trial.

Our jails have not always looked like this. Canada’s crime rate and violent crime rate have been in long-term decline. But our pre-trial detention rate has nearly tripled in the past 30 years; 2005 marked the first time in Canadian history that our provincial institutions were primarily being used to detain people prior to any finding of guilt, rather than after they had been convicted and sentenced.

These statistics alone are alarming – pre-trial detention should be exceptional, not routine. The issue becomes even more pressing when it is recognized that the conditions in pre-trial detention facilities in Canada are some of the harshest prison conditions in the country.  As described by one Ontario Court in 2013,

…generally, detention centres do not provide educational, retraining or rehabilitation programming for those in custody awaiting trial; and due to overcrowding, inmate turnover, labour disputes and other factors, the custodial conditions for remand prisoners can be unusually onerous.

Living in very overcrowded conditions, with the threat of violence among the inmates, being regularly triple bunked in a windowless cell that is 6’ by 9’ including a toilet and not even being able to go outside for much of the time let alone exercise is harsh for anyone ... The conditions in these institutions are disturbing…[1]

In July 2014 the Canadian Civil Liberties Association (CCLA) released a report, Set up to Fail: Bail and the Revolving Door of Pre-Trial Detention.  The report, based on in-court and interview data collected from five jurisdictions across Canada, argues that Canadian governments need to take urgent action to ensure the bail system returns to legal and constitutional compliance.

Canada’s Criminal Code and the constitution set out a legal presumption of innocence, and start from the presumption that individuals should be unconditionally released while they are waiting for trial.  The CCLA’s study, however, found that almost everyone who is processed through Canada’s bail courts is being released under onerous bail conditions. Indeed, out of 196 bail releases observed across the country, not a single person was released unconditionally.  The conditions imposed frequently include strict curfews, movement and communication restrictions, treatment orders and supervision check-ins. Canada’s bail courts also order alcoholics not to drink, and tell homeless persons that they must reside at specific addresses. Violating any of these conditions is a criminal offence – even if the person’s actions would not otherwise be illegal.  Once a person is charged with violating a bail condition, he or she is frequently returned to pre-trial detention and held for another round of bail court appearances. In CCLA’s view, the many of these people are simply being set up to fail.

The cost – personal, societal and financial – of heading down this path is overwhelming. Even a relatively short stay in detention can result in lost income and employment, emergency child care, missed medication and loss of housing. The greatest impacts are felt by those who are already at risk and marginalized. The financial cost is also staggering. Collectively Canadians spend over $850 million dollars on pre-trial detention, even though the majority of people who are jailed upon arrest are facing non-violent, minor charges. Pre-trial detention is widely recognized as one of the harshest forms of incarceration, and is frequently characterized by overcrowded cells, high security, regular lock-downs, and little to no education or programming.

The report, which can be read in full online, offers a number of key recommendations for governments and professionals involved in the bail system, including a system-wide return to the presumption of innocence, concrete measures to combat institutional risk aversion and a moratorium on imposing abstention conditions at the bail stage.

[1] R. v. Morant, 2013 ONSC 1969, at para 52, 55.

This is a guest post written by Abby Deshman, Public Safety Program Director, Canadian Civil Liberties Association and may not reflect the views of Fair Trials International. If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851.

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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