Most Canadians would be shocked to learn that more than half of the prisoners in provincial jails in Canada today have not been found guilty of a crime.  Instead, they are being held on ‘remand’; being held because they have not been granted bail or released on their own recognizance.  This is so even though the Criminal Code of Canada specifies that someone accused of a crime should normally be released pending trial.  It is so even though the Supreme Court of Canada has recently reinforced (in R v Antic) the importance of holding people for trial only when necessary.   It is so even though in a significant number of cases (about30% across the country) the charges will be dropped and never come to trial, even after people spend months in jail.  Yet practice remains that large numbers of people – about 13,000 on any given day – are in jail waiting for a trial or other disposition of their case.  And most of the people being held in this way are poor or mentally ill or homeless or visible minorities, or more than one of the above.

Situation getting worse

This outrageous situation has been identified many times by those familiar with the justice system, including three major recent reports mentioned later.  Yet the situation has actually been getting worse in recent years.

In 1979, prisoners on remand were about 25% of those in provincial jails; by 2015 they were 57%).  The number of people held on remand has tripled over that time, even as crime rates and crime severity have both declined very substantially.  The chart shows the changes in the last ten years, but the trend dates back before that.

Blog bail chart

Source: Canadian Criminal Justice System: Overall Trends and Key Pressure Points.  Additional data are available on CANSIM (Table 251-0005).

Problems created by the bail system

Having so many people who are officially innocent in jail has created enormous problems.  The most serious problems are for those arrested and held, sometimes for many months, even though they have not been convicted.  These people may lose their jobs and their incomes.  They may lose their housing.  They may lose custody of children.  They may go bankrupt.  They may lose contact with family, especially if they are held far from where they live.  And of course they are subject to all the restrictions and indignities of being held in a jail, many of which are maximum security institutions.  All of this before anyone has been convicted of a crime, and when in many cases they will not be convicted of a crime.  No wonder that people held on remand are more likely to plead guilty, especially when their time to trial is likely to be longer than the sentence they would get for a guilty plea!

Moreover, even when people are granted bail, it comes with more and more conditions, often very stringent ones, that can result in people being sent back to jail for doing things that are not illegal for anyone else.  For example, a release on bail may include a curfew, or a prohibition on drinking alcohol, even if these things are not associated with the criminal charge.  Failure to observe these conditions can lead to a new criminal charge.  Indeed, violations of bail or parole conditions are now the most common criminal charge in Canada.

For more information

The reasons for this appalling situation are many, as pointed out in three major recent reports.  In 2013, The John Howard Society of Toronto issued Reasonable Bail.  In 2014, The Canadian Civil Liberties Association issued Set up to Fail: Bail and the Revolving Door or Pretrial Detention.  And in 2015, University of Ottawa criminology professor Cheryl Webster issued “Broken Bail” in Canada: How we Might Go About Fixing It.  All three reports describe the serious problems in our bail system, suggest reasons for these problems and offer ideas for improvement.    In future posts we’ll take up further aspects of their analysis and proposals.