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Why are so many unconvicted Canadians behind bars?

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When it comes to crime and punishment, Canada presents a puzzling paradox. Crime is on the decline and has been for decades – Statistics Canada reported on Wednesday that the crime rate fell again last year, to its lowest level since 1969. Provincial jails, however, contain more prisoners than ever. The surprising reason? It isn't because of harsher sentences or more convictions. The number of convicts in provincial jails has plummeted. But the number of people not convicted of anything, yet still behind bars, has soared.

How can this be? A recent report by the Canadian Civil Liberties Association shows that large and growing numbers of legally innocent people are in jail, mostly awaiting trial. It happens because of police imposing unreasonable bail conditions on people charged with non-violent crimes, or courts that are alarmingly quick to remand people into custody awaiting trial or bail. The upshot? The presumption of innocence – supposedly the bedrock of our justice system – is eroding. People are in effect being punished with prison time, without having been convicted of anything.

This problem is neither sudden nor small. The country's remand rate – people behind bars but not convicted – has nearly tripled over the past 30 years. Since 2005, provincial jails have had more people in pretrial detention than in sentenced custody. More than 25,000 provincial inmates are legally innocent, and simply awaiting trial.

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It's an untenable situation. On a very basic level, the cost of incarcerating so many non-violent, presumed innocent people is massive. In Ontario, even a short stay in custodial detention for a person awaiting a bail hearing costs roughly $183 a day. If these people stood accused of serious violent crimes, pretrial detention might in some cases make sense. But the vast majority are charged with minor and non-violent offences.

The propensity to remand also represents a serious violation of our most fundamental rights. And those already most overrepresented in our prison system suffer most: the poor and aboriginals. There is no single reason why the remanding of people in pretrial detention is on the upsurge, but there are lots of possibilities: overpolicing, defence lawyers who adjourn cases too quickly, a risk-averse court system that treats all crimes as serious ones. Prisons are supposed to punish the guilty. They aren't supposed to serve as holding pens for the innocent.

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