Pegah Memarpour, freelance columnist for Pardon Applications of Canada, explores recommendations on improving Canada’s bail system based on a recent report by the Canadian Civil Liberties Association.
The 2014 report titled “Set Up to Fail: Bail and the Revolving Door of Pretrial Detention”by the Canadian Civil Liberties Association, documents the use of pre-trial detention and bail within Canada. The report imparts the notion that the overuse of pretrial detention within the justice system is not only imprisoning the innocent and further marginalizing populations, but also costing tax payers more money.
Pre-trial detention is accorded to those who are not initially released by police after being charged. Police discretion is based on factors surrounding the seriousness of the offence, public safety, and the likelihood the accused will appear in court.
If detained, the accused will be placed in custody until their bail hearing. At which point, they may or may be awarded bail. If not placed on bail the accused will remain in custody until their trial, which can be months or years away. If given bail, persons are placed under numerous restrictive conditions until their trial date.
Although the pre-trial detention and use of bail within the justice system is to ensure public safety, the report argues that this system may be doing the complete opposite.
What Are the Stats?
To date, our provincial and territorial facilities are responsible for housing persons sentenced to serve two years less a day and those in pre-trial custody or remand.
In 2012, over half (54.5%) of those detained in provincial and territorial jails were in pre-trial custody. Variations do exist between provinces and territories, Manitoba topped the list with 66%, Ontario, Yukon and Alberta had rates of about 60%, and Prince Edward Island is at only 18%.
These staggering numbers can become very costly for Canadians.
The report highlights that custody is much more expensive than community supervision. It costs $183 a day to house an individual in a provincial institution (or $1000 a week), and only $5 to supervise someone in the community.
As the report suggests, this rate has been consistently rising, whilst crime rates steadily decrease in Canada.
Additionally, an increasing number of individuals are being detained for non-violent offences, suggested that public safety is not always a mitigating factor.
“Although the pre-trial detention and use of bail within the justice system is to ensure public safety, the report argues that this system may be doing the complete opposite.” – Memarpour, Pardon Applications of Canada
It is important to note, as the report suggests, those held in pre-trial detention or bail have yet to be convicted of anything. Meaning that they are still considered innocent under the law.
The report discusses a series of findings that raises concerns regarding the current system and who it is impacting.
First, the report eludes to the fact that unless it is a serious offence, police should exercise caution when detaining individuals.
Detaining someone can have significant consequences on employment, relationships with friends and family, and even health. Since bail hearings can take a significant amount of time, the potentially innocent person may be locked up for an unnecessary period.
Unfortunately, bail is not always a better alternative to detention. Release conditions are becoming extensive and restrictive, which are “setting people up to fail” as the report suggests.
Common bail conditions include curfews; reporting to police or bail supervisors; movement restrictions; no contact orders; drug and alcohol prohibition; medical addiction treatment order; ban on cell phones; bans on computers or internet use; and house arrest.
Having these strict and restraining conditions can be difficult to follow under normal circumstances for any adult.
The report also suggests that in many cases these restrictions have nothing to do with the offence itself. Meaning someone may have a bail condition that sets a curfew for 9pm, while their alleged crime was executed in the day time.
The study argues that many individuals, innocent or guilty, will accept these conditions simply to be able to go home. However, they have an increasingly difficult time upholding these regulations. When an individual breaches their conditions they are charged and once again detained. In turn, adding charges to their record and forcing them back to the pre-trial institution. Even if the individual is acquitted of the original charges, or their charges are withdrawn or stayed, the breach is still on their record.
In many cases, individuals will plead guilty to their charges just to escape the provincial system, which is plagued with scarce resources and limited rehabilitative programs.
In turn, having a criminal record can subsequently impact employment, education, future travel, and emotional well-being.
Additionally, the report found that socio-economic status can impact the likelihood of receiving bail. It states that the bail system is structured in a way that disadvantages certain groups.
Having a home, assets, enough income to afford a good lawyer, and friends or family who can be your surety improves ones chances of receiving bail. Therefore, marginalized groups or those living in lower socio-economic conditions have a decreased likelihood to receive bail. For example, one may only receive bail if they have a permanent address, if someone is homeless they are unable to get bail.
“In many cases, individuals will plead guilty to their charges just to escape the provincial system, which is plagued with scarce resources and limited rehabilitative programs.” – Memarpour, Pardon Applications of Canada
Finding an appropriate surety may also be problematic for some. A surety is an individual who is taking responsibility for you and can set your bail. This becomes an issue for many individuals as it puts family and friends in a difficult position, as they are now responsible for you and your actions. Additionally, the individual must be present at court to become your surety, which creates a problem for those with full time employment.
Based on the findings, the report makes a series of recommendations surrounding lenient bail conditions, minimizing pre-trial detention, and reducing the use of sureties. The hope is that this will have positive repercussions for our current system.
Pegah Memarpour 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].
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