With a substantial number of inmates in pre-trial detention, known as remand, justice advocates are raising the argument that the criminal justice system is flawed.
The number of adults on remand has risen across all Canadian provinces and territories by 39 per cent over a period of 10 years, although the number of adults charged with a crime declined by 2 per cent.
On any given day in Ontario’s correctional facilities, 65 per cent of adults held in custody are awaiting trial compared to 51 per cent in 2005, according to a recent report by Statistics Canada, which examined the use of remand in the country between 2004/2005 and 2014/2015.
“The alarming rate of pre-trial population detention is an issue all across the country and it makes you question the whole presumption of innocence,” says Howard Sapers, former correctional investigator of Canada who is currently the Independent Advisor on Corrections Reform to the Ontario provincial government.
Ottawa criminal defence lawyer Michael Spratt says that people in remand can wait as long as several months before their trial. According to Statistics Canada, 78 per cent of adults are held in remand custody for one month or less.
“These are innocent people who are deprived of their liberty and many of those people may ultimately be acquitted and have spent time under control of the state behind bars despite the fact that they are not guilty of any offence,” says Spratt.
The growing number of adults in remand has not only impacted the backlog in criminal court processes, but it has also resulted in significant costs to taxpayers, with no real benefits to community safety, according to Sapers.
According to the John Howard Society of Ontario, the province spends hundreds of millions of dollars detaining legally innocent people every year. On average, it costs $217.93 per day to incarcerate a person in Ontario’s jails, compared with $5 per day to supervise an individual in the community.
“It’s wrong to shoplift, but it might be worst to spend tens of thousands of dollars to prosecute a poor individual who has shoplifted food because he was hungry,” says Spratt.
Canada’s Criminal Code states that persons charged with a criminal offence should, in general, be released on bail unless the Crown can demonstrate that the detention is necessary.
Increasingly, many of the people who are in pre-trial custody have issues such as mental health, addiction, and homelessness. “The justice system is too often used as an easy way to try to cure social problems, which does much more harm in the long run,” says Spratt.
According to the Statistics Canada report, individuals in pre-trial custody do not have access to any rehabilitative or recreational programs.
“When you detain an alcoholic and don’t offer any rehabilitation programs to help overcome the addiction, we should not be surprised when that individual reoffends shorty after their release,” says Spratt.
Some of the problems in the criminal justice system are a legacy of the Harper Government’s “Tough on Crime” strategy, in which legislative and policy changes were implemented in order to tackle crime. At the same time, the government enacted significant budget cuts ultimately affecting the ability of the correctional system, according to a report from the Canadian Centre for Policy Alternatives.
“Under the Harper government’s reign, prisons and jails in Canada have become increasingly overcrowded and dangerous places”, the report says. “The ‘tough on crime’ measures and budget cuts have shifted the orientation from rehabilitation to warehousing prisoners.”
The Ontario government announced January 19 that it will invest $25 million in the criminal justice system, allowing the province to hire more defence lawyers and crown attorneys.
“There are far too many vulnerable, low-risk individuals on remand who should be out in the community,” Attorney General Yasir Naqvi said.
“We all collectively feel confident that this is going to release the pressure off our correctional facilities and will ensure better outcomes for individuals who are low risk and vulnerable.”
On the other hand, accused with issues of addiction and homelessness who are released under conditions often find themselves quickly back in jail for breach of court orders.
According to a 2013 report on reasonable bail done by the John Howard Society, “clients with underlying substance use issues are essentially ‘set up’ to breach by being given conditions that they may find difficult to abide by 100% of the time, given their addiction and/or mental health issues.”
Giving examples of such court orders, Spratt says “we see homeless individuals who are prohibited from going to certain areas like the Byward Market where essentials services are located.”
“The actors in the justice system — the police and the Crown — aren’t releasing enough people and when they do release people, the conditions that are imposed by the court are often overly onerous which lead to breaches of those conditions.”
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