“Broken Bail” in Canada: How We Might Go About Fixing It

1. The Problem

In recent academic, professional and media conversations regarding pre-trial detention in Canada, a new expression has been taking shape. Specifically, an increasing number of people have claimed that “Bail is Broken” in this country. It is likely safe to assume that the generic reference to ‘bail’ in this context refers not only to the bail process (i.e. the criminal procedure of determining whether an accused detained by the police will be released or formally detained until trial) but also to remand (i.e. the detention of these accused in provincial/territorial custody awaiting either a bail determination or, having forgone or been denied bail, the resolution of their court case). Indeed, not only are a greater number of criminal cases beginning their lives in bail court and the determination of bail is taking longer to occur, but those (formally or informally) detained until trial are also spending longer periods of time in remand. Both of these separate but interrelated phenomena have contributed to the problem of pre-trial detention in Canada.

Figure 1 tells half of the story.

Figure 1: Provincial Sentenced and Remand Rates (1978-2012)

Titre décrit ci-dessous

Figure 1 : Text Version

A chart representing the number of provincial prison counts for 100,000 residents from 1978 to 2012.

Figure 1: Provincial Sentenced and Remand Rates (1978-2012)

A line graph illustrates the number of counts per 100,000 residents for provincial prison counts. Three lines are depicted in the line graph: one for provincial total prison counts per 100,000 residents over time, one for provincial sentenced and one for remand. The Y-axis measures the prison counts and increases in increments of 10 from 0 to 80. The X-axis shows the years, increasing in increments of five from 1979 to 2009. The count for provincial sentences has generally decreased over the years from 42 in 1978 to 31 in 2012. The remand count has steadily increased, from 12 in 1978 to 40 in 2012. The remand count exceeded the provincial sentenced count in 2004 and continued to do so until 2012.

While the sentenced population in Canada shows a relatively steady decline over time, the remand population has increased more than threefold over the last 35 years. Specifically, it has risen from a rate of 12.6 per 100,000 in 1978 to 40.9 per 100,000 residents at its peak in 2009. Although the remand rate dropped somewhat between 2009 and 2010, it would appear to have been creeping back up between 2010 and 2012. At approximately 40 per 100,000 residents, the Canadian rate is still higher than most comparable Western European nations as well as many English-speaking countries (Australia, New Zealand, England/Wales, Scotland and Ireland). Notably, this significant increase in Canada has occurred in the wider context of relative stability in the overall provincial/territorial prison counts over the last 3-4 decades as well as declining (overall and violent) crime rates since the early 1990s. By 2012/13, 54.5% of all adults in provincial/territorial institutions on an average night were on remand. In fact, a greater number of legally innocent (or at least unsentenced) people have been held in remand than offenders actually serving custodial sentences post-conviction in provincial/territorial correctional facilities in Canada since 2004/5. While there is substantial variability in remand rates across provinces/territories, the extent of the growth of the problem is clearly illustrated in Table 1. The five largest provinces have been depicted, constituting roughly 90% of the Canadian population. As one quickly notes, the increase in each of these jurisdictions is large, even for those provinces that were already quite high in 1980.

Table 1: Percentage of Average Total Provincial Prison Population that are on Remand
Province 1980 2013 (2012 for Alberta)
Québec 32% 46%
Ontario 18% 61%
Manitoba 19% 63%
Alberta 37% 61%
British Columbia 24% 52%

Of course, the other half of the story is rooted in the numerous and far-reaching repercussions of our problem of “Broken Bail”. Fiscally, our large and growing remand population represents significant additional economic costs to the provincial/territorial governments, further straining limited resources. Institutionally, correctional institutions are also facing progressively greater challenges associated with the effective management of this population. Particularly given the unique characteristics of remand prisoners (i.e., unpredictability in terms of length of stay, the need for their separation from sentenced offenders, their frequent need to be transported to/from courthouses, and their lack of access to activities/programming), the day-to-day operations have quickly become an administrative nightmare, with serious repercussions for the safety of staff and inmates. In fact, this burgeoning population of remand offenders has frequently resulted in prison overcrowding and less than optimal living conditions – a reality which has been linked to prison disturbances in other nations.

On a more individual level, detention – even for short periods – can have devastating effects on an accused’s life. In terms of criminal justice consequences, remand may negatively impact the ability of the accused to defend him/herself (e.g., rendering it more difficult to hire and communicate with a lawyer, find evidence or witnesses to support one’s case or procure employment or engage in other activities which might demonstrate intent to ‘mend one’s ways’). In addition, pre-trial detention can affect an accused person’s decision to plead guilty – an effect that also appears to differ across races. In one study, accused who were denied bail were two and a half times more likely to plead guilty than those released into the community, controlling for other legal factors. Further, detained suspects are more likely to receive (longer) custodial sanctions than those who are released, even across cases in which the most serious offences are relatively similar in nature.

Even with regard to non-criminal justice ramifications, remand can have equally damaging consequences for the accused. Beyond possible job loss and its collateral effects on family members relying on this income, the stigmatization of the accused (and family) reduces subsequent reintegration. Moreover, pre-trial detention for even the shortest of time has been suggested to be onerous for the accused who is often housed in overcrowded detention centres with no recreational, educational or rehabilitative programs. These harmful effects are only exacerbated for the non-trivial proportion of those held in remand who are ultimately never found guilty.

More broadly, a reality in which a greater number of people are being held in custody before rather than after trial has been considered by several legal scholars to be a flagrant disregard for the principles of justice. Beyond challenges to the presumption of innocence, Canada’s current remand problem also risks distorting sentencing. As ‘time served’ credits are frequently taken into account at sentencing which reduce the severity of the actual sentence handed down, public perceptions of inappropriate leniency on the part of the court have increased.