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Images inside the old Toronto Jail on Feb. 24, 2011. (Photo by Peter Power/The Globe and Mail) (Peter Power/Peter Power/The Globe and Mail)
Images inside the old Toronto Jail on Feb. 24, 2011. (Photo by Peter Power/The Globe and Mail) (Peter Power/Peter Power/The Globe and Mail)

Most of Canada’s prisoners have never been convicted of anything. Why are they in jail? Add to ...

On any given day in Canada, there are more innocent people in prison than guilty ones.

By “innocent people,” we mean those who have been accused of a crime and are being held on remand, awaiting a bail hearing or a trial. Across the country, 55 per cent of prisoners in provincial and territorial jails are not behind bars because of a conviction.

It wasn’t always that way. In 2001, the majority of Canada’s prisoners had been tried and convicted, and were serving a sentence. But steady declines in the crime rate and in the number of convicted offenders in prison, coupled with an ever-tightening bottleneck in bail courts, has put the country in this absurd situation.

This isn’t exactly news, by the way. In 2013, the John Howard Society of Ontario reported that the number of accused held on remand doubled from 2001-2010, and called for reforms to the bail system. The minister of justice of the day, Peter MacKay, said it was something that “we intend to look into.”

Unfortunately, he made the comment just before heading into a meeting with victims’ rights advocates, which said everything. The Harper government has made “victims’ rights” the cornerstone of its legal outlook. Reforming the conditions under which people charged with crimes are allowed to remain in society is not something the Conservatives have shown much interest in pursuing.

But it’s not just the Conservatives. No federal or provincial politician of any stripe with an instinct for self-preservation would take on the cause of the accused person in this country. They would risk being branded as “soft on crime,” with Prime Minister Stephen Harper likely leading the chorus.

We are thus at a stalemate. The people elected to lead are ignoring a crisis that needs immediate attention. But the only response from governments to date has been the construction of larger remand centres, in Toronto and Edmonton, to hold the growing hordes of legally innocent people trapped in the system. The politicians run for cover while the crisis feeds on itself.

On the statistically insignificant occasion that a person gets released on bail and then commits a heinous crime, the public outcry is enormous. The bail system is accused of being a “revolving door” for criminals. Opportunistic politicians stir the pot with calls for tougher bail rules.

Stung by the criticisms, the courts and cops become overcautious. The police release fewer suspects charged with minor offences, even though it is in their power to let someone go with a summons to appear in court. Instead, they detain them and cycle them into the justice system, where their first stop is in an overburdened bail court. There, judges are likely to set punitive conditions and demand a surety – someone who will vouch for the accused person, make sure they meet his or her conditions and agree to forfeit a set amount of money should the person fail to return to court.

In most cases, the accused are minor offenders: drug users, people with mental health issues accused of non-violent crimes, first-time offenders. Twenty years ago, they would have automatically gotten bail. Today, “low-risk individuals charged with minor offences have their bail matters put over numerous times on account of the increasing reliance on sureties as a condition of release, along with other delays,” says the John Howard Society of Ontario’s 2013 report.

The result? “Less people are being released on bail, less quickly, and with more conditions, during a time of historically low and still-declining crime rates.”

And keeping someone behind bars is expensive. Economist Don Drummond, in his 2012 report on the reform of Ontario’s public service, said it costs $183 a day to hold an accused person in remand, compared to $5 a day on supervised release. Pilot programs have shown that nine out of 10 people in supervised release show up for their court dates.

Unnecessary remand deprives the legally innocent of the ability to work and support their families, or continue their education. And those who do get bail are often saddled with exceedingly difficult and even counterproductive conditions, which set people up to fail. The John Howard Society of Ontario found that nearly 81 per cent of accused people with an alcohol problem “had a bail condition to not consume alcohol.” The percentage of drug addicts under a bail order to “abstain from drugs” was even higher. Given what we know about addiction, ordering sick people to stop being sick as a condition of release seems unlikely to succeed. When the inevitable breach occurs, back to court they go. It is estimated that one in five court cases today are for breaches of bail conditions.

“Continuously cycling individuals through the courts makes it highly improbable that the individual will be able to participate in a structured rehabilitation program and treat the underlying cause of their substance use and, accordingly, remove him/herself from the cycle of arrest, release, breach and rearrest,” the report said.

The system is broken. There are civil servants, judges, lawyers, prisoners’ advocates and others who are trying to fix it. They have studied the issues and made excellent recommendations in several reports. But without political will, their efforts will go nowhere.

Is there a politician in Canada with the courage to take up the cause? Someone who won’t pander to fears whipped up by the tough-on-crime crowd, but will instead build a better system based on evidence, enlightened self-interest and a genuine respect for the right to liberty? Or will we continue to be a country where two out of three people behind bars haven’t been convicted of anything?

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