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

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.

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.

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'.

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