Canada’s broken bail system penalizes the most vulnerable

Posted on July 28, 2014 in Child & Family Delivery System – Opinion/Editorials – A bail system that has strayed from its original purpose results in clogged courts, crowded jails and wasted taxpayer dollars.
Jul 28 2014.

Common sense would suggest that we operate prisons to house the guilty. An eye-opening new report from the Canadian Civil Liberties Association, however, shows a very different situation: on a typical day, more than half (54.5 per cent, to be precise) of the 25,000 people in Canada’s provincial jails aren’t guilty of anything. Instead, they are being detained while awaiting trial or for their bail conditions to be set.

This is enormously inefficient and expensive. In Ontario, according to the association’s study, it costs an average of $183 a day to keep someone in jail – enough to put them up in a pretty nice hotel. Overall, the province spends hundreds of millions of dollars a year to house prisoners, and most haven’t even been convicted.

More importantly, this broken system is unjust. As the association concludes: “Legally innocent individuals are processed through a bail system that is chaotic and unnecessarily risk-averse and that disproportionately penalizes – and frequently criminalizes – poverty, addiction and mental illness.”

The irony is that more people are being detained at great public expense even as crime rates fall to record lows. Just last week, Statistics Canada reported that the Crime Severity Index, which measures both the frequency and severity of criminal acts, fell in 2013 for the 10th consecutive year. The national crime rate is at its lowest level since 1969.

Not surprisingly, the number of people convicted of crimes has also fallen – yet more and more people who haven’t been found guilty of anything are being kept behind bars.

The reason involves a bail system in which, among other things, courts too often impose “numerous and restrictive conditions” for release that set offenders up to fail. For example, ordering addicts and alcoholics to abstain may be an impossible requirement – leading them to violate their bail conditions and land back in jail for that offence. Likewise, residency conditions for the homeless and rigid curfews that make holding a job difficult too often make it likely that people will re-offend.

All these problems disproportionately affect the poor, the addicted, and especially aboriginal people, who quite predictably are greatly over-represented in the prison population. “The most marginalized in our society are set up for a revolving door of charges, detention, release and further charges,” the civil liberties association found. “Our courts are bogged down with administration of justice charges stemming from unnecessary or overly broad release conditions that should not have been imposed in the first place.”

This is hardly a new problem. As long ago as 2005, more than half of those in provincial jails were being held while awaiting trial or setting of bail conditions. And in a report last year, the John Howard Society, which lobbies for prison reform, outlined many of the same issues in Ontario’s jail system.

It found that bail has strayed far from its original concept of simply requiring that an accused give an undertaking to appear in court. Instead, the use of “presumptive detention” has increased dramatically in the past decade. The result is clogged courts, crowded jails and wasted taxpayer dollars. It concluded that “bail needs to be rebuilt from the ground up.”

These problems are well-documented. Governments can’t claim not to be aware of them. Both justice and efficiency demand that they be addressed.

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