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Risk aversion stalls bail process, overcrowds remand prisons, group says

|Written By Yamri Taddese

On one of the hottest days of the year in Toronto, an audience in an air-conditioned hall at the Canadian Civil Liberties Association got a glimpse of what it’s like to live in overcrowded Ontario prisons without being convicted of any crime.

Detention conditions are so deplorable that ‘a lot of people plead guilty just to get out of remand,’ says Jacqueline Tasca. Photo: Yamri Taddese

In front of them, Jacqueline Tasca of the John Howard Society of Ontario flipped through photos displaying a shared toilet an arm’s reach away from bunk beds, a small fenced yard where prisoners get 20 minutes of fresh air every day, and a small, dark segregation room.

Detention conditions are so deplorable “a lot of people plead guilty just to get out of remand,” said Tasca.

As trends show Ontario’s court system taking longer to make bail decisions, and denying bail in higher number than the decades before, pretrial detention centres see more traffic and worse living conditions.

About 67 per cent of all people in Ontario prisons are on remand, Tasca said.

“It wasn’t always this ways,” she said, noting in the ’80s, the remand population was only about 20 per cent.

 “Something happened in the ’90s and in the early 2000s to really shoot that rate up. Bail is one major issue that has caused increasing rates of remand. Less people are granted bail nowadays than decades ago. More cases than ever start their lives in detention centres,” she said.

Police are less inclined to release people once they’re charged, Tasca added, while Crown counsel are also less likely to want to release people on bail without a surety.

It’s a trend toward what Tasca termed “risk aversion.” The phrase was also cited in a 2009 report published by Current Issues in Criminal Justice about the increase in remand population in Canada.

“We would suggest that Canada’s growing remand population is largely the product of an increasing culture of risk aversion which is permeating the entire criminal justice system,” the authors wrote. “Indeed, we appear to be witnessing a generalized practice whereby decisions are either being continually passed along to someone else or simply delayed by those responsible for making them.”

According to the same report, 63 per cent of bail hearings were adjourned to another day in 2006, a jump from just 15 per cent in 1974. Before getting a bail disposition, an accused on average needed 7.7 appearances in 2001, the report notes, adding by 2007, that number went up to 9.4 appearances.

While the delay in disposition is the starkest change over the years, the outcome of most dispositions has also changed, according to the report. A study that looked at a Toronto bail court over a period of time showed that, contested or otherwise, bail was granted in about 49 per cent of cases in 1974. In 2006, only 12 per cent of dispositions were in favour of the accused’s release.

“The process kind of creates this domino effect where more people are held for bail hearings, more people are denied bail at their bail hearings, and therefore more people are sitting in our prisons awaiting trial as opposed to being convicted,” Tasca said.

Second only to Manitoba, Ontario has one of the largest remand prison populations in the country. It’s the reason behind the Ontario government’s Justice on Target program, which aims to curb delays in the court system. According to the Ministry of the Attorney General, the Justice on Target program was responsible for bringing the average number of court appearances down to 8.5 by June 2012.

“It does seems to have some impact,” Tasca noted, adding the program has brought “a renewed emphasis on bail.”

But the program is not without its own critics.

“It’s focused on deceasing times, and it’s a laudable goal, but the fact that they just started looking at the bail system, the fact that the more systemic issues weren’t part of that from the outset, for me, is a concern,” says Abby Deshman, director of the public safety program at the Canadian Civil Liberties Association.

“It’s one thing to try and streamline processes and to push people through faster but if we don’t start asking why more and more people are being detained in the first place, if we don’t start asking why we’re seeing rising numbers of people being in pretrail detention, you can try and push people through but it may not be addressing the underlying process,” she says.

While on remand, detainees get few to no programs and activities. According to Tasca, the top complaint of people in remand custody is health problems, followed by poor living conditions, treatment by correctional officers, and bad food.

“Because our detention centres are so crowded, health conditions also spread like crazy,” Tasca added.

Karen Harrison can relate to these complaints. Three years ago, she was detained for six months after being arrested while protesting Dump Site 41 in Simcoe County. A sufferer of wheat allergies, Harrison says she “nearly perished” while in remand.

“I survived on rice crackers and water,” she says. “I lost so much weight that I nearly perished. I consider myself lucky to be alive today but it bugs me that there are people in the prison system going through this.”

In over 40 per cent of cases, all charges against remand prisoners are dropped.

[em]Update Aug. 1: Paragraph on bail statistics for 1974 and 2006 modified to note they relate to a study of one Toronto bail court.

For more, view the Law Times video 'Remand conditions worsen'.

[/em]

  • Leon MacDuff
    The biggest difference is that Crowns are now insisting on a residential surety for all men accused of assaulting a female partner. The Justices of the Peace in Ontario are in agreement with this practice, although Superior Court justices recognize that this practice does not comply with the spirit and letter of the Code and case law. Accused men who are immigrants or do not have established family in the area are unlikely to get bail from a J-P because they cannot show that they will be supervised by a surety who owns property. After a detention order on the grounds that there is insufficient supervision to prevent further offences, the Crown will then do a 360 and offer a plea deal where the accused will be released with a sentence of time served. In many cases, the Crown's opposition to bail is more for the purpose of extorting a plea rather than protection of the public. A immediate release is a great temptation for an innocent accused facing lengthy pretrial detention.
  • Bail Coalition
    Please tell me how those people that are currently being denied bail because they cannot find a personal surety that owns property that will commit to supervising them 24/7 365....will not benefit from a commercial surety that will commit to supervising these people and ensure that they return to court? These people are not being released now and would happily pay for their own release and supervision.
  • southwest
    Only 12% of bail hearings result in release? In over 40% of cases, all charges against remanded prisoners are dropped?

    I've been in the system for 13 years, I've worked in eight different jurisdictions, and those numbers are absolute nonsense.
  • Mary-Lynne
    Using a generalization like 'lawyers' is not accurate 'itsthelawyersstupid' It's the crown attorneys that are fighting to deny bail. They have been instructed/strong armed by their offices and government, to impede the process during every step of the system in order to increase conviction rates. This increases conviction rates by forcing the accused to plead guilty just to get out of remand (guilty or not) so that they don't lose their houses, jobs, marriages and sometimes lives. The more guilty pleas that are entered, the higher the conviction rate, justifying requests for increase in police and crown attorney office budgets. This higher conviction rate in turn also supports the Conservative government's law and order agenda; an agenda that wants to move us towards a US style privatized mega-prison system so that some small group of people can make a ton of money. Defence lawyers do fight for justice and their clients' liberty.
  • Bail Coalition
    Maybe it's time that Canada look into the use of commercial bail bonds again. The citizens benefit heavily from this program and it reduces cost to the taxpayer.
  • itsthelawyersstupid
    after arrest, the cops pass the ball on to the lawyers/judges. at that point - the lawyers/judges control what happens. these lawyers/judges are suppossed to be the defenders and protectors of rights, especially liberty and freedom before trial. well guess what - the lawyers/judges apparently don't really give a damn about your liberty and freedom before trial, and if they do, the just give it lip service. they claim to be fighters for justice. its the lawyers/judges stupid - pilaging and plundering yours and your taxpayer money - one defendant at a time.
  • camileri
    what a silly user name, but your user name pales in comparison to your lack of understanding. firstly, it is special interest groups pressuring the political forces at play who pressure the police and crown counsel offices. the reason there are more and more court appearances, is because of the way the judges are interpreting the law and applying it to the facts of the case before it. this causes lawyers to try even harder to make sure there is a decent bail plan in place before having the hearing. and as for the lawyer and judges plundering taxpayer's money, what a joke. the legal aid system in this province pays so poorly that it takes persons with a commitment to seeing justice done to even take on a legal aid case. lawyers cannot pay overhead and have a decent quality of life doing legal aid cases. workers driving truck in alberta make oodles more money than those non-existent lawyers plundering taxpayer's money.
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