The presumption of innocence, bail and the explosion of pre-trial detention

by Laura McKendy, PhD Student, Sociology, Carleton University

Despite the right to reasonable bail in Canada, there has been a population explosion of people on “remand” (i.e. people who have not been found guilty of anything, but are simply awaiting their day in court).  In fact, provincial jails now hold more legally innocent people than convicted prisoners.  In September 2013, Minister of Justice Peter McKay noted "this is a specific area that we intend to look at", yet no actions have been taken to address this crisis since that time.  The inaction on this file is problematic for a number of reasons.

The increasing use of pre-trial detention is an affront to the highly-valued “presumption of innocence” principle. Making matters worse, conditions in remand centres are much harsher than in federal institutions, often featuring severe crowding (with people sometimes sleeping on the floor), under-staffing, violence, inadequate medical and psychiatric care, lack of programming and recreational activities, and a host of other problems.

Detaining legally innocent persons is also an extremely expensive endeavor, costing about $183 per day, per prisoner in Ontario, which averages to roughly $1,647,000 per day, or $601,155,000 per year in Ontario alone.  This does not even account for the cost of building new facilities.

In the past, judges granted double credit – and sometimes triple credit – for time served on remand. This was partially because conditions in remand are so harsh. Giving extra credit for time served on remand had an overall stabling effect on jail populations, so that even though more people were being held in pre-trial detention, subsequent jail sentences were shorter.  

The Truth in Sentencing Act (Bill C-25) sought to do away with this practice. Passed under Harper’s ‘tough-on-crime’ political agenda, the Act reduced judicial discretion in granting extra credit for time served on remand. The Act replaced the standard 2 to 1 credit with a new 1 to 1 credit, while allowing a 1.5 to 1 option only in exceptional circumstances. The Supreme Court (R. v. Summers) recently reaffirmed the need to grant extra credit for time served on remand by stating that this “exceptional” 1.5 credit should apply in all cases.

When we hear of individuals on bail committing violent acts, it is tempting to call on judges to err in the side of caution when determining bail decisions. But in reality, the majority of people on remand have been charged with non-violent offences. In fact, many people on remand are in custody because they breached one of the many conditions attached to their bail release. Because breaching a bail condition is a criminal offence – even if the act or behavior prohibited itself is legal (e.g. alcohol consumption) – the bail system is literally producing more ‘crime’. Put simply, it is "setup to fail". Not only do conditions often have no logical connection to the original criminal code offence, they are often so extensive and restrictive that compliance is virtually impossible.

In an era of declining reported victimization, we are putting more people in jail for longer. We are spending millions on the revolving door of detention in place of addressing pressing social issues faced by many prisoners, including mental health issues, poverty, and addiction. By rounding up people in crowded jails as they wait for their trial, we are not making our streets safer. By attaching endless conditions to bail release, we are making it easier for people to break the law.  As Canadians, we should be both ashamed and alarmed that the right to bail and presumption of innocence are slipping away in our country. 

BACK TO THE MARCH 2015 EDITION OF TCPC-CANADA