The number of people awaiting trial in provincial prisons across the country has quadrupled since the 1980s, according to a new report released by the Canadian Civil Liberties Association.
The 93-page report was delivered by Shakir Rahim, Executive Director of the CCLA’s Criminal Justice Program, alongside Queen’s University Associate Professor Nicole Myers, at Queen’s Park on Monday.
“The findings are dire,” Rahim told reporters. “Conditions in pretrial detention in our country are dangerous and inhumane.”
The report comes 10 years after the CCLA’s landmark 2014 publication on the national bail system, Set Up To Fail: The Revolving Door of Pre-Trial Detention, and suggests that little has changed in the last decade for those serving in pre-trial detention.
When Set Up to Fail was published, the CCLA reported that nearly 55 per cent of people detained in Canada’s provincial and territorial jails were awaiting trial and considered legally innocent. The new report suggests that figure is now at 70 per cent across the country.
As far as provincial data, which was obtained by CTV News Toronto through a Freedom of Information Request last month, 82 per cent of individuals jailed in Ontario last year were awaiting trial.
“We are facing very serious and long-standing nuclear issues in Canada’s bail system despite the political rheotoric of leniency,” Myers said.
To produce the report, the CCLA, alongside justice system professionals and volunteers, monitored 79 days of bail court throughout 2021 and 2022. In total, 1,284 bail appearances were observed and 33 professionals were interviewed.
When reached for comment on the issue last month, the Ministry of the Attorney General, which oversees Ontario's court system, told CTV News Toronto that $100-million has been spent on measures meant to prioritize public safety and security.
"This funding will help police apprehend high-risk violent offenders wanted for breaching bail and community supervision order conditions and support prosecutors and courts when dealing with bail hearings for repeat offenders involved with serious violent crimes," it said.
CTV News Toronto has reached out to both the Ministry of Attorney General and Solicitor General for comment on the report.
Bail court challenges
The CCLA researchers found that Canada’s bail courts continue to struggle to ensure that all accused people have access to a timely hearing, and that, when those hearings do take place, the law is not always fairly applied.
In turn, individuals are made to spend unnecessary time in custody, they found.
“People who are legally innocent – people who may never be convicted of the charges they are facing – are deprived of their liberty, housed in overcrowded jails, and separated from their families and communities for days and weeks,” the report reads.
Several Ontario interviewees, mostly defence counsel, highlighted practices in their jurisdictions that “stand in the way of timely, efficient bail hearings.”
In one mid-sized Ontario city, an interviewee raised concerns that new arrests were not receiving same-day bail hearings, as the local court rarely stayed open past 4:30 p.m.
“That often results in people sitting at the police department for 28 hours, 30 hours. I mean, if they’re arrested at 11:00 in the morning, they may not appear in court until 3:00 the next day,” the interviewee said.
Frequent adjournments are also cause for concern, the association reports. Of the court appearances observed by CCLA researchers, over 65 per cent were adjourned to another day.
In Ontario, the most recent data shows that 74 per cent of bail matter hearings were adjourned.
“It is important to remember that each adjournment is effectively a short detention order – the accused is required to remain in detention until the next appearance, and there is no guarantee that a bail decision will be made on their next appearance," the report states.
Conditions in pre-trial detention
Time spent in pre-trial detention is not only dangerous but criminogenic, further increasing the chance of reoffence, the report suggests.
“Over-crowding and under-staffing continue to be significant concerns,” it states. “In Ontario, for example, courts have repeatedly decried the frequent lockdowns caused by inadequate staffing.”
During such lockdowns, prisoners may receive only 30 minutes outside of their cells a day, and be forced to go days without showers, recreation, or phone time, the report says.
As one Ontario judge put it, “it is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950s.”’
A number of defence lawyers who spoke to the CCLA said rolling lockdowns have proved a challenge in accessing their clients.
“Even getting contact with your client by phone is near to impossible, so, you’re relying on these [Zoom] court appearances to hopefully just get a breakout room with them or to at least exchange a few sentences on the record so that they know what is going on," an interviewee in Ontario said.
Meaningful access to the telephone would solve the issue, they said, as clients are often hesitant to speak openly about their charges during video conferences. "They don't know who's listening," they said.
"It’s not very helpful in ensuring that there’s a trust there that you would be working in their best interest.”
Despite the conditions, the report suggests bail courts and pre-trial detention facilities are often acting as makeshift shelters for vulnerable populations.
“[This] means that people who really need housing, health care, and community support end up cycling through the criminal justice system.”
Numerous interviewees emphasized that changes in the bail system have not made a meaningful difference for the most marginalized accused people.
"Securing bail for clients who do not have resources, stable housing, or social supports remains exceptionally challenging," one said.
Recent changes not evidence-based
Recent changes to the national bail system are not based in evidence, according to the CCLA.
On Jan. 4, Bill C48, the most recent amendments to Canada’s bail system came into effect.
The changes, first introduced by the Liberal government in May 2023, expanded the use of reverse-onus provisions. Instead of prosecutors having to prove why the accused should remain in custody, the onus has shifted to the accused to prove why they should be released.
The bill landed amid increased anxiety over public safety in the wake of the fatal shooting of Ontario Provincial Police Const. Greg Pierzchala in December 2022.
A month after Pierzchala was killed, a letter that originated in Ontario Premier Doug Ford’s office, penned alongside several premiers, urged the federal government to take “swift action” on the bail system.
That spring, the Ford government also announced it would spend $112 million on measures meant to “fix Ontario’s broken bail system,” including the introduction of specialized prosecution in court hearings and police compliance teams.
According to the CCLA, the legislation was premised off the notion that Canada’s bail system is too lenient, particularly when it comes to “repeat offenders.”
This isn’t the case however, it says.
“An extensive body of research contradicts the contention that Canada’s bail system has become unduly lenient or that the bail system is propelling an increase in crime,” the report reads. “Against the backdrop of these debates, it is vitally important to focus on careful research, empirical evidence, and thoughtful policy-making.”
When asked in January what meaningful bail reform might look like, Rahim pointed to community-based programs that help the accused meet their conditions successfully.
“These evidence-based programs supervise and support people on bail, but no money is being directed to them and that's one of the central problems.”
The Bail Program, run by the John Howard Society, is one such example. The program offers beds to those with no fixed address who have been released on bail, ensuring they can meet their conditions by returning to a set location each night.
