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criminal justice

The haunted look on Ntorian Bompolis's face says it all. Straining forward in the prisoner's dock, he hangs on every word as Crown and defence lawyers debate whether it's safe to release him.

The stakes are high. If denied bail, the 48-year-old Greek immigrant faces months in an overcrowded jail awaiting trial on domestic-abuse charges.

The justice of the peace presiding over the hearing notes that this is the third time Mr. Bompolis has faced such allegations.

Because of that, Simone Bern, the duty counsel representing him, has gone to great lengths to help Mr. Bompolis get his life back on track. As well as having him report regularly to a bail-supervision program, she has arranged to check him into a residential facility for alcohol abusers, which would keep him away from his wife but still enable him to work as a Web designer.

The Crown remains unconvinced – as does the JP. "Under the circumstances," John Akkanen decides, "releasing him to the bail program is not sufficient." So Mr. Bompolis is led away, and five more shackled prisoners are herded into the dock, their eyes searching the room for familiar faces.

This is a Toronto bail court, but similar rulings are made every day across the country, accelerating a trend that has seen the total number of Canadians kept in custody after being charged with a crime soar. More people are now under lock and key waiting to find out if they are guilty or innocent than are there serving a sentence – it's why almost 70 per cent of Ontario's prisoners are behind bars.

With the costs of imprisonment climbing steadily, and the prison system bracing for the onslaught of arrests expected to accompany the federal government's tough new crime legislation, many in the justice system are openly questioning whether something has gone terribly wrong. Public confusion about bail has precipitated a kind of systemic paralysis in which cases are postponed for a profusion of reasons – and sometimes no reason at all.

The greatest fear of a judge or a justice of the peace is to release a defendant who then goes out and commits a high-profile crime – such as the man accused this week of shooting seven people and killing one at Toronto's Eaton Centre. Because the suspect, Christopher Husbands, 23, was free on bail and under house arrest, Ontario Attorney-General John Gerretsen spent the week in the legislature facing angry questions about the system.

However, influential figures in the criminal justice system see the situation quite differently. They acknowledge that, while some accused criminals fail to honour the conditions under which they are released, an even bigger problem with bail is the fact too many people wait too long to get – or don't get it at all.

There were 18,969 admissions to remand custody across Canada in 1978-79 – but that figure rose to 153,774 over the next 30 years. Many feel that this increase of more than 700 per cent demonstrates that the time has come for a full review of the philosophical underpinnings and practical realities of a system that has not had an upgrade in four decades. In his recent blueprint for restoring Ontario to fiscal health, economist Donald Drummond reported that, unless something is done about the rising cost of bail, the province may not balance its budget as planned by 2018.

Concern has become so acute that 75 senior judicial officials, Crown prosecutors, defence counsel and key civil servants from across the country gathered in Victoria recently to discuss the problem. After much soul-searching, they concluded that the predicament is the result of ignorance, buck-passing and fear of public backlash.

In a report yet to be released, the group says more restraint must be shown both when denying bail and when putting conditions on it. Unpopular as it may seem, the delegates also target outcries such as the one following the Eaton Centre mayhem and call for a halt to condemnations of specific decisions. Second-guessing, they argue, undermine public confidence in the system – even if there are times when bail is granted and perhaps it shouldn't be.

The federal Bail Reform Act was enacted 40 years ago with a central premise: People who have not been convicted of a crime should be able to carry on their lives until their trial dates. However, that notion has been buried under a culture of caution and adjournment. Authorities defer bail decisions, and duck for cover.

As a result, from 1986 to 2000, the number of accused offenders on some form of remand in jails across the country doubled. Then it doubled again from 2000 to 2010. Most were accused of non-violent offences.

Provincial correctional systems must accommodate every inmate the courts send to them on any given day – regardless of whether that inmate is awaiting a distant trial date or merely sitting out a brief adjournment. It can mean double- or triple-bunking people in existing cells or costly prison expansions.

Alberta recently pumped a half-billion dollars into a new remand centre, and in taking a swipe at the high cost to Ontario, Mr. Drummond noted that remanded offenders account for 67 per cent of the province's jail population (about 6,000 inmates).

Although the number of people denied bail outright has held steady at 12 to 13 per cent for several years, the decision-making process has been drawn out to such a degree that it is straining the system. A study of 4,013 bail-court cases in Ontario from 2006 to 2008 found that 76 per cent of court appearances were adjourned without a decision – which came only after an average of three appearances.

"It costs hundreds of dollars a day for each person in custody, compared to five or 10 dollars a day for a person who is being supervised outside of jail," says University of Toronto law professor Martin Friedland, whose research in the 1960s provided the impetus for the last overhaul of the system.

The total price of policing, court proceedings and incarceration for a typical inmate is difficult to pin down, but keeping someone in a provincial cell costs an estimated $183 a day, versus $5 for someone on probation or bail supervision.

Much of the money spent on remand cells could be better used on bail supervision or to provide mental-health services for the large number of accused people with psychiatric problems, Prof. Friedland says. "There is a tremendous cost to this – not only to those in custody, but for society."

The human costs include first-time offenders who are denied bail and lose their jobs, families who are traumatized by the lengthy absence of a parent and the mentally ill who, when housed in jail, may deteriorate or be victimized by predatory inmates.

Few dispute the need to incarcerate those who are clearly dangerous and face serious charges; the question marks surround those accused of minor or middling offences.

The problem begins with arresting officers, who rarely exercise their authority to release people after they are charged. In Ontario, for example, police release only about one-third of those they take into custody.

"There's no reason why it can't be higher than that," Prof. Friedland contends. "In England, a lot more people are released. If the police officers who arrested the person would be willing to release them, what is our interest in having that person caught up in the bail process?"

Detention removes people from their everyday lives and plunges them into a world that is bleak, uncomfortable and often populated with seasoned criminals. Then they are paraded into bail court, where they encounter a system seemingly bent on keeping him behind bars.

"The fact that they might spend even one night in jail is a huge deal," says Sylvie Doiron, supervisory duty counsel at Toronto's 1000 Finch courthouse. "Any bail hearing is an emergency situation. The starting point should be that these people are presumed innocent."

The predominant theory to explain the escalation in remand cases is fear. Timorous prosecutors, judges or justices of the peace are unwilling to stick their necks out and recommend bail. Those who are freed are expected to provide sureties – respectable citizens prepared to pledge the amount of money bail is set at and to supervise the accused. Those fortunate enough to obtain bail must often also comply with a laundry list of restrictive conditions.

Mr. Justice David Cole of the Ontario Court of Justice traces this fearfulness to a handful of high-profile cases in the 1990s in which women were killed by estranged spouses who had been out on bail. The entire system became risk-averse.

Judge Cole, the author of a seminal report on systemic racism that pointed fingers at the bail system, says that over-cautious judges, JPs and prosecutors insist that virtually every defendant have someone prepared to take responsibility for them. "Why are we insisting on sureties all the time?" he asks. "If somebody is fit for release, they are fit for release."

According to the law, defendants should not be detained as a public danger unless they represent a substantial threat. Yet, Judge Cole says, many denied bail do not meet that criteria.

"There is a great fear – particularly on the part of Crowns – about consenting to release and then being held accountable later on. One of the things you consistently hear from Crowns is: 'I'm not going to be the one who wears it if something goes wrong. I'm not going to testify at the next inquest.' "

Requiring sureties causes delays, as defendants try to find someone willing to take a risk. Bail set as low as $500 or $1,000 may serve little purpose, yet it can keep an indigent offender in custody a week or two as he scrambles to line up a surety.

The conditions attached to bail cover a wide spectrum. Shoplifters are prohibited from going to particular stores. Offenders are ordered to stay away from particular individuals. Curfews, house arrest, alcohol prohibitions and geographical boundaries may be imposed on the pettiest of criminals.

These conditions provide cover for officials if anything goes wrong. However, they also set up scenarios where individuals are thrown back in jail for technical breaches. About 25 per cent of inmates in remand end up behind bars for breaching a bail condition.

"It not only brings them back into custody, but breaching a condition also a criminal offence," Prof. Friedland explains. "The whole thing is circular. Get somebody charged, pile on the conditions, require sureties, and when they finally get out, you get them for a breach. Why do we impose all these conditions?"

Nicole Myers, a doctoral candidate in criminology at U of T, has studied bail closely, and confirms that postponements are routinely granted, as are conditions on bail. "Everyone is pretty happy just to have put it off to another day," she says. "But the remand problem consumes incredible resources. Besides what it takes to house people, there are transportation costs and court costs."

The problem is exacerbated in Ontario because many bail decisions are made by justices of peace with no legal training. With less job security and peer support than judges enjoy, JPs are more likely to err on the side of caution.

"I think that the higher you get up, the more independent you are," Prof. Friedland says. "You are more inclined to make decisions that might be unpopular. Justices of the peace are no doubt confused about the whole bail system and are not applying the Bail Reform Act with the spirit that was intended."

For someone denied bail, the consequences do not end with a simple loss of liberty. "Juries assume that an accused was retained for a reason," Toronto defence lawyer Reid Rusonik says. "They start out prejudiced against such an accused."

It is also far more difficult for accused people to aid their lawyers from a jail cell. They have trouble locating witnesses and preparing to testify. Drained by the demands of daily survival, they are also less able to withstand the mental rigours of a trial. "They cannot even appear for their trials in fresh clothes," Mr. Rusonik says.

Research shows that race and wealth also play a role. "It's awful," Judge Cole remarks. "The rich get good lawyers who come to court quickly and put together really good-looking release plans. It is the poor who stay in jail."

Those most likely to be refused release are black, aboriginal or indigent. According to federal figures, aboriginal offenders held on remand increased by 92 per cent from 1994 to 2009 – often because, says Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, they have failed in the past to comply with bail conditions or to appear for court proceedings.

The system is so replete with unintended consequences that a full, independent review and overhaul are needed, says David Daubney, a former Conservative MP who later led the Department of Justice's Sentencing Reform Team.

"It is an area of the law that creates confusion and often consternation with the public," he says. "Since every appearance and adjournment that can be eliminated represents a significant saving, reform would go a long way to reducing correctional deficits."

And it would reduce the number of people who wind up being convicted – something those calling for reform have not failed to notice.

Defendants denied bail are 2 1/2 times more likely to plead guilty – even if they aren't – just to get out of jail.

"This is one of the reasons," Prof. Friedland argues, "why some prosecutors want people in custody."

Mr. Rusonik agrees, saying what infuriates him is that, by pleading guilty, defendants encourage the authorities to cut corners and violate their rights.

"The police think: 'We'll get the guy detained, he'll plead guilty and we won't be held to account for violating a half-dozen of his most basic rights.' "

Recommended repairs

So what can be done to rejuvenate the system?

A gathering of 75 top-level justice officials in Victoria this year produced a shopping list of recommendations, such as:

  • Junior police and prosecutors should rarely be involved in bail cases as they are more likely to fear the repercussions of an unpopular decision.
  • Judges should compel prosecutors to justify any demands for restrictive conditions – and not hesitate to turn down any they consider unrealistic or unfeasible.
  • Because cases are often adjourned when the paper-clogged court system lacks the necessary documentation, there should be greater use of electronic disclosure.
  • The system should create both community programs for bail supervision and “bail hostels,” where the accused can be watched with far less security – and cost. University of Toronto law professor Martin Friedland says that using high-powered detention centres for bail cases is a waste of money. “Why do we need all of those guards and security perimeters?” he asks. “Maybe they could acquire a hotel that nobody is using and make it a bit more secure. There should be facilities that are consistent with the presumption of innocence.”

Additional measures

Other proposed improvements include having the courts make greater use of "electronic bracelets" or GPS tracking systems, both of which make it difficult for defendants on bail to stray.

They also could reduce costs and delays by relying more on video remands, which avoids the need to ferry defendants between jail to court.

One simple reform would be to extend the hours when courts operate in order to accommodate sureties who, even if they would like to bail someone out, cannot always leave work long enough to wait around at a hearing.

Jail populations could also be sharply reduced if bail conditions were reduced and the consequences for breaching them were more in keeping with the gravity of the breach.

And senior officials could help to change the culture: Appellate judges could agree to review representative bail decisions in order to send messages to the lower courts about what factors should or should not weigh heavily in a bail decision, while senior Crown officials could encourage prosecutors in the trenches to adopt a more moderate approach.

"This would have to come from a high level," Prof. Friedland says. "They would have to say: 'We are keeping too many people in custody. It is expensive and unfair. Be more realistic – and we will back you up.'"

Kirk Makin is The Globe and Mail's justice reporter.