Konrad Bongard, freelance columnist for Pardon Applications of Canada, explores two reports about crime in Canada including the recently released StatsCan report for 2013, and an even more recent report by the Canadian Association of Civil Liberties which suggests major issues in Canada’s bail system.
Two very divergent reports about crime in Canada have dominated the news for the past week.
On one hand, outlets like The Toronto Star and CBC News ran articles distilling the findings of StatsCan’s recently released Crime Severity Index (CSI) for 2013, which suggested that reported crime in Canada reached its lowest level last year since 1969.
It is rare, in Canada or elsewhere, that major newsrooms devote this much attention to publicizing a positive story. So even if StatsCan’s CSI for 2013 was not without its dispiriting aspects (extortion, child pornography, aggravated sexual assault, sexual violations against children and identity fraud all were all reported more in 2013 than in the previous year), it still comes as a welcome development.
But there was also a less positive story.
A new report put together this month by Abby Deshman and Nicole Myers of the Canadian Association of Civil Liberties, “Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention”, suggests that the Canada’s bail system has a serious problem — that of extensive, and potentially unconstitutional, pre-trial detention.
Of provincial jails in Canada, 54 per cent of inmates are currently in remand, awaiting trial. In Ontario, the rate is 60 per cent. Over the past 25 years, while the number of Canadians sentenced has steadily declined, the number in remand has doubled, from 20 per 100,000 residents in 1999 to 40 per 100,000 today. Indeed, 2005 was the first year in Canadian history that there were more Canadians in pre-trial detention than in sentenced custody.
“…the median time for case completion in Canada is 117 days, longer than the two or three months many of those detained would face in sentencing — and it’s understandable why many Canadians choose to plead guilty rather than wait weeks, months, or even years to argue their case.”
According to the Supreme Court of Canada, “an accused placed in remand is often subjected to the worst aspects of our correctional system by being detained in dilapidated, overcrowded cells without access to recreational or educational programs.” In the report, a duty counsel is quoted describing how “a woman told me recently that she was coming back and forth for a few days, and had not been given access to clean clothing or underwear, and she had been menstruating.”
Couple this with the extensive wait times — the median time for case completion in Canada is 117 days, longer than the two or three months many of those detained would face in sentencing — and it’s understandable why many Canadians choose to plead guilty rather than wait weeks, months, or even years to argue their case.
The costs associated with pre-trial detention are staggering. Each year, the Canadian provinces spend approximately $800m on pre-trial detention, or $1000/week per accused. As the report points out, this public expenditure is not buying public safety. On the contrary, individuals in pre-trial detention (the majority of whom are non-violent offenders) can lose income, housing, employment, and social connections.
The problems in the bail system, however, are not limited to incarceration in public jails. Even in cases where individuals are able to pay a surety to ensure their pre-trial release, they are often forced to submit to numerous restrictions, including “curfews; reporting to police or bail supervision workers; movement restrictions and geographical boundaries; no-contact orders; drug or alcohol abstention orders; medical or addictions treatment orders; bans on cell phones, computers or internet use; and house arrest.” Once released, a the person arrested has to adhere to all of their bail conditions, or else face further charges. Indeed, in 22% of legal cases in Ontario in 2011/12, an administration of justice charge was the most serious charge brought forth.
Sometimes, this process can be exceedingly cruel.
In Manitoba, for example, the adoption of “zero tolerance” policy with respect to bail conditions means that being a few minutes late for a bail appointment can result in a breach reported being filed, criminal charges, and a return to jail. Often, the bail conditions enforced seem to be aimed more at “behaviour modification” than “the legally permissible purposes of conditions of release”, such as forcing substance addicts to refrain from using said substances. Inevitably, the result is that many of these people get caught up in a vicious cycle of prosecution. In the report, a defense counsel from Manitoba describes dealing with a man whose entire recorded consisted of 25-26 breaches.
All in all, the rate of people charged in Canada for failing to comply with a bail order quintupled from 1999 to 2012.
Beyond being economically wasteful and unconscionably cruel, it is likely that (as the reports suggests) the pre-trial detention problem in Canada is unconstitutional.
In the Charter of Rights and Freedoms, Canadian citizens are guaranteed the right to be presumed innocent and the right to reasonable bail. In the Criminal Code, the presumption is that individuals will be released prior to being tried without conditions. In the 2002 Ontario case R v Villota, the Peel Criminal Lawyers’ Association filed affidavit evidence of the systemic delays faced in Peel Region bail courts. The court at the time commented that
“The routine adjournment of bail hearings other than at the request of the prosecutor or the accused as ‘not reached’ cases, is an entirely unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system. . . . There appears to be a widespread indifference to the injustice done to accused persons by reason of unnecessary incarceration pending arraignment.”
At the conclusion of the report, several suggestions are offered for how to effectively reform the bail system in Canada. Among these are for onerous bail conditions to be avoided, for abstention conditions for addicts to be curtailed, to rescind demands for fixed addresses for homeless people, to consider decriminalizing the failure to meet bail conditions, to consider discrimination against aboriginal people, to improve cell conditions, to expedite bail hearings, and to rely less on sureties. Until some or all of these measures are implanted, however, it is likely that our bail system will remain one which “disproportionately penalizes – and frequently criminalizes – poverty, addiction and mental illness.”
The Ontario government has acknowledged the report.
Emile Smith, spokesperson for Ontario’s Ministry of the Attorney General, commented that
“the need to improve bail processes. . .has been an area of focus for the Ministry’s Justice on Target strategy.”
Information available online from the Ontario government boasts that it now takes an average of 8.5 court appearances and 192 days to bring a charge to completion in Ontario — less time than it took in 2007.
But still twice what it took 20 years ago.
Konrad Bongard is a freelance columnist for Pardon Applications of Canada, the nationwide processing firm for Canadian Pardon (Record Suspension) & U.S. Entry Waiver applications. The opinions expressed are that of the author and do not necessarily reflect those of Pardon Applications of Canada. For a list of statistical references used in this article, or more information on Pardon Applications of Canada, call 866-383-9744 or email [email protected].