A recent rash of violent crimes committed by people who were out on bail has spurred the Liberal government to toughen some bail rules, and for the Conservative Opposition to call for alleged repeat offenders to automatically lose the right to bail.
This is an important issue. But as we said earlier this week, an equally important issue – one that politicians don’t talk about, and which rarely makes the headlines – is the thousands of people accused of non-violent crimes who are held behind bars by an overcautious bail regime that disproportionately harms the poor and marginalized, and is a key contributor to Canada’s clogged courts.
It’s a problem that has never been properly addressed by Ottawa and the provinces, in spite of the many reports and Supreme Court rulings in the past decade that have laid bare its root causes.
The ludicrous result is that, on any given day in this country, there are more legally innocent people in detention awaiting trial or a bail hearing than there are convicted people doing time.
The evolution of the prison population over the past three decades is shocking. Adults in remand accounted for 59 per cent of the custodial population in provincial and territorial facilities in 2016, according to a 2017 Department of Justice report, compared with just 26 per cent in 1991.
The same trend exists in the youth system. In 2016, 58 per cent of youths in custody were in pretrial detention, up from 23 per cent in 1998.
This stands in stark contrast to the sharp drop in Canada’s crime rate over the same period – from a peak of 10,342 per 100,000 population in 1991 to 5,375 per 100,000 population in 2021, according to Statistics Canada.
So what happened? The Canadian Civil Liberties Association and the John Howard Society of Ontario point the finger at police who increasingly detain people charged with non-violent crimes – such as graffiti, fraud or theft – instead of releasing them with a promise to appear in court, and at courts that set bail conditions that are onerous and sometimes unrelated to the alleged crime.
One 2013 study of the bail conditions set for youths by four Toronto courts found that 40.7 per cent of the conditions had no apparent connection to the alleged offence and grounds for detention, and 21.5 per cent had an ambiguous one.
Problems also exist in adult courts, where some accused people seem set up to fail, as the CCLA points out. Drug addicts are ordered not to take drugs, alcoholics are ordered not to drink, homeless people are given residency conditions and working people are given curfews that prevent them from reporting to their jobs.
Courts are also ever more reliant on sureties, in which a third party agrees to supervise an accused person’s release at the risk of losing a monetary bond. The difficulty for low-income people to raise the money keeps them behind bars, for the crime of being poor.
But the most perverse aspect of the system’s failings is that thousands of people who violate unnecessary and impossibly onerous bail conditions wind up facing new criminal charges called administration of justice offences and are returned to detention.
It is not uncommon for a single minor alleged offence to turn into a slate of criminal charges that keep people in jail for months or years. There are even cases in which the original charge is dropped but the accused still faces prosecution for bail violations related to an offence they were never convicted of.
The Supreme Court decried this practice in a 2020 ruling when it said the excessive prosecution of bail condition violations was “over-criminalizing” the poor, Indigenous peoples and substance users.
The court offered common-sense solutions in its ruling, such as ending the practice of turning routine bail violations into new criminal charges and setting more reasonable and appropriate conditions in the first place.
Those are two easy fixes that have been self-evident for years. Federal and provincial politicians need to take this on together. It’s the right thing to do, and it could also help relieve the pressure on courts – which in turn could allow judges to focus on the most serious cases and prevent them from slipping through the cracks.
In short, a win-win situation.