Canada is facing criticism over provincial jails bursting with prisoners who are presumed innocent, creating in effect a system of punishment without trial.

More than half of the country’s 25,000 provincial inmates – 54.5 per cent – have not been convicted of a crime, but are simply waiting for a bail hearing or being held until their trial, at a massive cost to taxpayers. The provincial corrections system costs $1.9-billion a year. One day in an Ontario jail costs $183 – as much as a luxury hotel room.

In a new report, the Canadian Civil Liberties Association lays some of the blame at the feet of police, for imposing needless release conditions on people charged with minor, non-violent offences. The report cites a case from Alberta in which an aboriginal woman, an alcoholic since childhood, was released on a minor charge on condition that she not drink. When she was found passed out on a sidewalk a few weeks later, she spent five days in jail before being put on trial for breaching her bail condition.

A judge later commented on her case: “Ordering an alcoholic not to drink is tantamount to ordering the clinically depressed to ‘just cheer up.’ ” The judge said she had spent more time in jail than she would have had she been found guilty of public intoxication.

The system “is a basic inversion of what we think our jails are there for,” Abby Deshman, a co-author of the report, said in an interview.

“When we think about prison, we think about people who are serving time for a crime they’ve committed, not people who are waiting for their trial.”

A spokesman for Ontario’s police chiefs said the report’s authors were guilty of generalizing. “To suggest that police are needlessly doing this [imposing release conditions] is a little unfair,” said Joe Couto, a spokesman for the Ontario Association of Chiefs of Police. “Our role is to ensure public safety.” As for non-violent crime, he asked, “It’s subjective, isn’t it? Non-violent to whom?”

Ontario established a “bail experts table” two years ago to improve the bail process. “We are working with senior leaders across the criminal justice sector to ensure that bail processes in Ontario are as effective and efficient as possible,” a spokesperson for the province’s Attorney-General’s department said by e-mail.

The number of people who are presumed innocent and in jail hasn’t always been so high. Thirty years ago, there were more than three times as many people in jail who had been convicted and sentenced as those who had not been tried. By 2005, the number of “remand” inmates had passed the number of convicted ones.

In Manitoba, the figures are even more stark. Two in every three provincial prisoners have not been convicted. The province has a zero-tolerance rule for those who break release conditions, and being a few minutes late for an appointment with a bail supervisor can lead to jail, the report says.

Many people brought to Ontario bail courts observed by the CCLA’s researchers were kept in detention at the end of the day because time ran out to hear their case. “In the 1970s, when a person was brought to Old City Hall [in Toronto] for a bail hearing, it was seen as an unbelievable failure of the system” if their case wasn’t heard that day, Tony Doob, a professor emeritus of criminology at the University of Toronto, recalled in an interview.

Driving the increase in prisoners detained prior to trial is “the relatively short and frequent returns to pretrial detention,” Ms. Deshman said. “It’s not that people are being denied bail more often.” The report also blamed a “risk-averse culture” where, because of high-profile incidents of released individuals committing terrible crimes, the system has become too cautious.

The Globe and Mail
Published Wednesday, Jul. 23 2014, 6:32 PM EDT
Last updated Wednesday, Jul. 23 2014, 7:42 PM EDT