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SET UP TO FAIL

The costly, confusing and counterproductive cycle of Canada’s bail and pre-trial detention system

Over 25,000 people are currently detained in Canada’s provincial and territorial jails. More than half are  legally innocent  – waiting for their trial or a determination of bail.


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Our provincial imprisonment rate is relatively stable, but the number of pre-trial detainees has drastically increased. 2005 marked the first time in Canadian history that we had more people in pre-trial detention than we had in provincial sentenced custody.

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Provincial
Incarceration

Incarceration Rate
Pre-trial

Incarceration Rate Sentenced

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SET UP TO FAIL

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55% of the people in Canadian provincial and territorial jails are legally innocent.

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Canada’s crime rate has steadily decreased for the last 25 years

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Crime
Rate

Violent
Crime
Rate

Canada’s 2013 crime rate was the lowest since 1969.

Our violent crime rate was the lowest since 1985.

19billion

spent each year on adult corrections across all provinces and territories

Nearly 80% of this money is spent on incarcerating people in provincial and territorial jails.

Everybody pays

Canadians spend over $850 million each year to keep people in pre-trial detention

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$350,000,000

Ontario

$18,998,040

Nova Scotia

$144,010,820

Quebec

$78,862,760

Alberta

$96,126,800

British Columbia

$170 x 365

It costs about $170 per day to keep someone in provincial jail. A typical pre-trial stay of seven days costs $1290 per person.

In contrast, it costs about $5 per day to supervise someone in the community.

CANADA

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The Human Cost

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People who are incarcerated in pre-trial custody are generally given no warning. Unexpectedly removed from their daily lives for days, weeks or months, they may face lost income and employment, eviction, emergency child care needs, missed medication, and any number of other negative repercussions.

Individuals with mental health or substance abuse issues, as well as those from racially and socioeconomically marginalized communities, are disproportionately impacted. Aboriginal people represent under 4% of Canada’s population, but 25% of admissions to pre-trial custody. One in every three women in pre-trial detention is Aboriginal.

Pre-trial detention is generally recognized as one of Canada’s harshest forms of incarceration. The Supreme Court of Canada has stated that “an accused placed in remand is often subjected to the worst aspects of our correctional system by being detained in dilapidated, overcrowded cells without access to recreational or educational programs.” People may plead guilty or agree to any bail conditions suggested by the Crown simply to get out of detention.

Why people are brought to bail court

Administration of justice charges – mostly alleged failure to comply with a previous bail or probation condition (e.g. being out past curfew, changing addresses, drinking alcohol, etc.)

20%

Other non-violent charges – primarily property, mischief, drug and traffic offences

45%

Allegations of violence – just under half of these are common assault or “uttering threats” charges; the rest are allegations of more serious assaults, sexual offences, homicide, weapons offences, criminal harassment, kidnapping, robbery, etc.

35%

THE VICIOUS CYCLE OF INCARCERATION

How the Bail System Sets People Up to Fail

THE VICIOUS CYCLE OF INCARCERATION

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The cycle of pre-trial detention starts with an arrest. Most people are arrested for non-violent, minor offences. Even though police have the power to release a person immediately, a significant proportion are detained for a bail hearing.

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Typically, 7 days in detention at a provincial jail. Although some people will be detained for months while waiting for a bail decision.

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On an average day,
50% of bail cases
are put off to another day

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Most people are eventually released on bail. They then often have to live under very restrictive conditions for months or even years. The average case is resolved in four months, usually because charges are withdrawn or the person pleads guilty. Cases that go to trial can take much, much longer.

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Violation of any bail condition is a crime. Breaking any by-law or statute – speeding, trespassing, or other regulatory offences – can also be a violation of the common bail condition to keep the peace and be of good behaviour.

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When an individual is charged with violating a bail condition, police frequently detain that person for another bail hearing. In 2008/2009, failure to comply with a bail condition was the most common reason for a person to be sent to pre-trial detention.

man running on treadmill. The cycle continues.

The cycle of pre-trial detention starts with an arrest. Most people are arrested for non-violent, minor offences. Even though police have the power to release a person immediately, a significant proportion are detained for a bail hearing.

In Ontario, approximately half of those arrested are detained for a bail hearing. If the police do not release you immediately, you will be taken to holding cells in the police station. Typically, within 24 hours, you will have an appearance before a justice and be transferred to a provincial jail.

People can spend days, weeks, months or even years in pre-trial detention. In Ontario, a person will typically spend seven days in pre-trial detention at a provincial jail. There is variation across the country, however – from a low of four median days in Quebec, to over three weeks in the Northwest Territories. Some people will be detained for months before they have a bail hearing and it is decided whether or not they can be released before trial.

What happens in bail court? Usually, an adjournment. The person waiting for the bail decision is returned to jail, and his or her case will be brought back to court on another day. In the CCLA’s courtroom observations, over 50% of bail cases were adjourned each day. Often the adjournment is requested by the defense, but the Crown also asks for – and is granted – more time. And sometimes the person is returned to jail simply because the court is too busy to hear their case that day.

Almost everyone who is released has to follow bail conditions imposed by the court. In CCLA’s courtroom observations, an average person was subject to seven conditions – although we saw one case where 34 conditions were imposed. Common conditions include restrictions on where a person can go, how late they can be out, where they have to live, who they can contact, possessing weapons, following the rules of the home or maintaining good behaviour, attending treatment or counseling and abstaining from drugs and alcohol. In some provinces, it is very common to require a person to have a surety. A surety is generally a friend or family member with a job, financial resources, and no criminal record, who agrees to monitor the individual in the community. Typically, sureties also have to promise money – in our study the amounts ranged from $500 to $25,000 – that may be lost if the person they are supervising fails to abide by the bail conditions or appear in court when required.

Breaching any of these conditions while on bail is a criminal offence – even if the actions would not otherwise be a crime.

Failure to comply with a bail condition is a criminal offence. So, for someone on bail, behaviour that was not previously criminal, like being out past curfew or drinking alcohol, is now, for that person, a crime. Under these circumstances, many actions that would not otherwise be illegal become criminal offences, punishable by jail time.

Many, many different types of conditions can be imposed…

Restricted or no internet, email or cell phones

No participation in demonstrations
or public meetings

Do not operate a vehicle

Report to the police at specific times

Surrender your passport

Conditional access to your own child

Abstain from alcohol

Present yourself at the door on police request

Not to be at X address

Take medicine

Report to the bail program within a specified time

Reside at an approved address

Between 2006 and 2012, there has been a 27% increase in the number of charges of failure to comply with a bail order.

167,291 charges of “failing to comply” were processed in Canadian courts in 2012.

Backwards burden: When a person is charged with violating a bail condition, the law imposes a reverse onus on them in bail court. This means it is up to the accused person to prove why they should be released.

Bail then Jail: Compared to other offences, violations of court orders are more likely to get a jail sentence. In 2012, 45% of “failure to comply” offences were punished with custody, compared to a 35% custody rate for all criminal offences.

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