If crime is down, why are jails crammed with legally innocent people?

File photo - inside an Ontario jail. (Photo by Peter Power/The Globe and Mail)

Crime is down – violent crime, especially. But provincial jails are overflowing with a growing number of people who are legally innocent and awaiting trial, a Canadian Civil Liberties Association report finds.

The report, by Abby Deshman and Nicole Myers, was published Wednesday and indicts a bail system it says is “setting people up to fail” without actually making the public safer.

READ MORE: Death behind bars: Canada’s sickest inmates are in its deadliest prisons
Canada’s provincial jails are notoriously overcrowded: While double-bunking has been decried at the federal level, “triple-bunking” has become the norm in many provincial jails.

“Accused who are innocent are pressured into pleading guilty just to escape the overcrowded ‘dead time’ of provincial jails,” the paper reads.

About 54 per cent of those in provincial jails across the country are legally innocent. But the situation’s worst in the territories and Manitoba, where two-thirds of people incarcerated in provincial jails haven’t been convicted of anything.

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In Ontario, the report says, 60 per cent of provincial inmates are on remand.

Rate of provincial residents in remand has doubled since 1999, from 20 per 100,000 to 40. During that same time period, the rate of people sentenced declined – as did the crime rate.

“It’s not what most Canadians think jails are for. It’s not what jails should be for,” Deshman said in an interview.

And it’s expensive to keep these people behind bars: Canada’s provinces and territories spend a total of $1.9 billion a year on adult corrections, according to the paper.

Ontario knows this.

“The need to improve bail processes has already been identified as a priority for all justice participants, and has been an area of focus for the Ministry’s Justice on Target strategy,” said Emilie Smith, spokesperson for Ontario’s Ministry of the Attorney-General.

Its “Bail Experts Table” has released a report calling for committees to identify local issues causing bail court delays; improving communication between various players, including courts and detention centres; finding interpreters faster; and possibly making Legal Aid available within institutions.

“Senior leaders across the criminal justice sector have endorsed these recommendations, which are being implemented using a collaborative, phased approach,” Smith said.

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“Some initiatives, such as the creation of local bail committees, are being implemented now.”

A page highlighting the province’s “Justice On Target” achievements notes it now takes an average of 8.5 court appearances and 192 days to bring a charge to completion, down from 9.2 appearances and 205 days in 2007 (but still more than double what it was 20 years ago).

Of course, those figures grow significantly if you don’t plead guilty.

But a persistent problem, advocates argue, is that releasing people on bail without conditions has become the exception, rather than the rule – even though Canadian law dictates that should be the default.

“It’s shocking that it’s not the default, because that is the law and the law is clear,” Deshman said. “There’s clear presumptions of unconditional release. … Unfortunately, the practices in our bail courts just aren’t matching.

Smith said the province is “carefully reviewing the results of the report that was released today.  We have no further comment at this time.”

The Civil Liberties paper contends, the bail system and stringent conditions it imposes “disproportionately penalizes – and frequently criminalizes – poverty, addiction and mental illness.”

It imposes abstinence conditions on addicts, requires fixed addresses from homeless people, curfews that interfere with jobs and sureties from people impoverished or without family members who can afford to even reach the courthouse from often remote communities.

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“Even individuals with significant family support and a steady income find it extremely difficult to live under severely restrictive bail conditions for the months – or years – that it usually takes to resolve criminal charges,” the report reads.

“Even when the original substantive charge is withdrawn or dismissed, the Crown will still frequently pursue a conviction for the failure to comply.”

The rate of people charged with failing to comply with a bail order quintupled nationally between 1999 and 2012.

Many of these bail restrictions, the paper charges, are unconstitutional and violate the accused’s Charter rights.

“The release conditions being imposed are too numerous and restrictive, frequently unnecessary and, at times, directed towards behaviour modification and punishment.”

In Ontario, crammed remand centres are swamping the system to the point of total dysfunction, the paper finds: Over the course of three weeks, 20 people were sent back to jail without having their bail hearings simply because there was no time.

“The continued systemic violation of constitutional rights in Ontario bail courts is unacceptable.”

Accused from remote communities face even greater obstacles: They’re often flown to detention centres hundreds of kilometres away, can wait a week or more for their first bail hearing and must rely on family members’ ability to pay for transport in order to have a surety appear in person.

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“Counsel in northern Manitoba report that Aboriginal clients regularly spend more time in pre-trial detention than they would if they were just sentenced for the crime, and will frequently plead guilty just to be released from custody and return home.”

Catherine Latimer, head of the inmate advocacy John Howard Society, argues the growing number of people in remand is also symptomatic of an overloaded system.

“There are some really serious infrastructure problems – the capacity of the provinces to deal in a timely way with charges,” she said. “It’s slow to get things heard and there are just far too many people behind bars.

“The crime rate’s going down: You would expect to see fewer people being brought into the system.”

Latimer admits that some people feel uncomfortable at the idea of catching alleged criminals, then letting them go to await trial. But that’s their constitutional right – the alternative is simply to incarcerate everyone, just in case.

“You’re presumed innocent until you’re convicted. ”

Among the paper’s recommendations:

  • Avoid restrictive or onerous bail conditions unless you absolutely need them – for case-specific reasons of public safety, for example;
  • Don’t impose abstention conditions for addicts; (the paper also argues that including treatment or medical care as a condition is unconstitutional, and suggests making that treatment available but not mandatory)
  • Don’t make fixed addresses a bail condition for homeless people;
  • Consider decriminalizing failure to comply with bail conditions;
  • Take systemic discrimination against aboriginal people into account when considering bail and bail conditions;
  • Police should release people more often pending first court appearance, and improve conditions in holding cells, where accused may spend several days while awaiting trial;
  • Get people bail hearings sooner – at least by limiting adjournments, and keeping a courtroom open until people awaiting a bail hearing that day get one;
  • Rely less on sureties, especially in more remote communities;
  • Give Justices of the Peace special training for dealing with bail hearings.

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