Post #237
1300 words; 5 minutes to read
A report from the CCLA shows that the public and media conversation on bail is entirely inconsistent with the research evidence, which is that bail is too hard to get, with dire results.
Over the past year politicians, law enforcement, and media outlets were quick to assert that Canada’s bail system had become too lenient. These assertions are contradicted by decades of research documenting the operation of the bail system and the impact of pre-trial detention. The evidence shows that Canada’s bail system is indeed facing a crisis – but it is a crisis of over-detention and over-criminalization, not leniency.
That is the conclusion of a new report by the Canadian Civil Liberties Association that provides a careful, comprehensive, evidence-based account of bail and remand in Canada.
More people being held
Seldom mentioned in the public debate is that many more people are being held In jail before trial than used to be the case. Indeed, the rate of pre-trial detention has more than doubled in past 40 years and the number of people in pre-trial detention has quadrupled over the same time period…. By contrast, the sentenced custody rate, which reflects the rate at which people are sentenced to imprisonment after a finding of guilt, has decreased steadily over the same period.
In 1984-84, about 20% of people in provincial jails were on remand. By 2014 it had grown to 55%, and in 2021 it was over 70%! The vast majority of people in provincial jails are there despite not having been found guilty of any crime. Most comparable countries have much lower rates of people held on remand.
Remand up, crime down
While more people are being held than ever before, Canada has less crime than it used to. Crime and violent crime rates have decreased substantially over the last 30 years. That includes violent crime. … the Crime Severity Index tracked by Statistics Canada has declined from 119 in 1998 – the first year it was measured – to 73.68 in 2021. The dominant narrative about the threat to public safety is simply wrong – but it is politically valuable for some parties.
The overuse of remand is even more problematic because provincial jails are badly overcrowded, with truly deplorable conditions. As one Ontario judge put it, “it is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950s.”
Not a new problem
Canada’s Supreme Court has made several rulings on bail in recent years, all holding that bail is a constitutional right that is not being sufficiently honoured. in practice. The CCLA finds that these rulings have resulted in some improvement, but it is uneven. In far too many cases, Canadians’ right to bail is still not being recognized.
Despite the impression given in the media and by political attacks, the vast majority of people who are seeking bail are from poor and marginalized communities, or with addiction or mental health issues. They have committed relatively minor and non-violent crimes. They struggle to find a place to live, an income, and the other basics that would allow them to live a decent life. Rural and northern people also face big problems getting bail.
Indigenous people are especially affected. … in 2019/20, Indigenous people represented 12.7% of admissions to provincial custody on sentence – but 16.6% of admissions on remand. Academic research has concluded that bail proceedings frequently become an occasion to impose “treatment” on Indigenous people.
Bail problems clog our courts
The problems in bail also contribute to the crisis in Canadian courts, for 2 main reasons. First, many remand cases have 2, 3 or more court hearings before bail is finally set or rejected. This uses a lot of court time. The CCLA found inefficient use of court time, and frequent adjournments in bail court… we observed that bail courts make remarkably few bail decisions each day.” Nearly 2/3 of cases on any given day were adjourned, often with no explanation as to why.
The second problem is that when people are released on bail, they continue to face too many conditions. In 204 CCLA found the average bail included 6 or 7 conditions; in 2021, despite Supreme Court guidance otherwise, it was still between 5 and 6 conditions covering many issues such as place of residence and non-contact with possible victims.
Bail conditions tend to lead to further charges for breaches. Between 2006 and 2016, the police-reported rate of people charged with an administration of justice offence increased 28%. In 2020/21, an administration of justice offence was the most serious charge in 21% of all cases completed in adult criminal courts; 44% of these administration of justice charges stemmed from alleged violations of bail conditions. In other words, thousands of court cases result from bail conditions even when those conditions are not related to public safety, such as violating a curfew.
In an effort to improve this situation, the law was changed a few years ago, creating something called a ‘judicial referral hearing’ as an alternative to holding someone on remand, but it appears these are hardly ever used.
While the courts are clogged with hearings on bail and bail violations, serious charges are being thrown out because they can’t be heard in a timely way. If we addressed the bail issue properly we would dramatically increase court capacity for other, more important purposes.
The high cost of holding people
The financial costs of maintaining a high remand population are staggering. In 2012, an Ontario report warned that the costs associated with the province’s growing remand population were unsustainable…. Since then, the cost of detaining an individual on remand has risen from $183/day, to $409. In total, Canada’s provinces and territories spend $2.84 billion each year on adult corrections – 70% of which is devoted to people who are not (at least yet) guilty of anything. Two billion dollars per year to lock up innocent people.
The Supreme Court of Canada has recognized that, for accused people, pre-trial detention “comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods. A report commissioned by the federal Department of Justice in 2015 put it plainly: “It is no secret that any time in prison increases the likelihood of future criminal behaviour”. Research shows that people who spend time in custody have higher rates of subsequent contact with police than those whose pathway through the criminal justice system ends with the police or the courts.38 Incarceration disrupts connections to the community and makes it more likely – not less – that someone will engage in crime
The CCLA report does not mention that more than 40% of all criminal charges in Canada do not end in a guilty finding, so a large portion of this $2 billion is locking up people who will walk away with no conviction. Surely this is a scandalous waste of public money – and a huge injustice. Surely any political party interested in wise spending of public money, or any person with an interest in reasonable public policy, would be advocating for many fewer people being held on remand.
Inadequate services
Services for people released on bail are entirely inadequate. Having nowhere to live and no income is a main reason for bail violations. Courts have insisted that pre-trial detention “should not be used as a substitute for shelter, food, mental health or other social measures.” Yet, in practice, the lack of adequate, accessible social services and community supports drives people into bail court and has a direct impact on their trajectory through the criminal legal system. It seems we are quite prepared to spend huge amounts to lock people up, but not very much to allow those same people to live a reasonable life free of crime.
The CCLA report contains many recommendations to improve the situation. These address the problems already discussed, but the most important is ensuring the broad understanding of bail as a right, and as a positive contribution to criminal justice and public safety – an approach very different from the narrative being put forward by some, but much more consistent with the evidence and with the law.
The John Howard Canada blog is intended to support greater public understanding of criminal justice issues in Canada. Blog content does not necessarily represent the views of John Howard Society of Canada. All blog material may be reproduced freely for any non-profit purpose as long as the source is acknowledged. We welcome comments (moderated) and suggestions for content. Contact: blogeditor@nulljohnhoward.ca
Back