The Burden of Bail on Canada’s Correctional Systems

by M. Yuel

Designed to strike a balance between individual liberty and public safety, administering bail is paramount in the State’s process of administering justice. As a response to the ongoing social concern of increasing rates of violent crime across Canada, the Government of Canada introduced Bill C-48 which modifies the Criminal Code’s current bail regime to allegedly ameliorate public safety.[1] However, the cracks in our bail system and its operation call for more than a short-term “band-aid” solution.[2]  This Bill is a temporary “tough on crime” approach that will further damage an inefficient system. Bail is presently being overused in Canada; over the past several decades the rate of pre-trial detention has increased astronomically.[3]  This overuse of bail will be exacerbated by Bill C-48 and it will have profound effects on our criminal justice system. From overcrowded facilities to a burdened administrative system and exacerbated social issues, this blog will unpack the multifaceted systemic challenges faced by individuals navigating the Canadian bail process.

This blog will argue that the implementation of Bill C-48 is severely misguided; the reality of the bill will cause further harm to the individual and the community by contributing to the revolving door of the criminal justice system. This blog is the second part of a two-part series. The previous submission, linked here, demonstrated the effects of this bill at the individual level. This second submission will consider its impact on the broader correctional system. More specifically, this blog will begin by examining empirical data and literature that explains the current conditions of Canada’s correctional system and how these conditions will be exacerbated through the implementation of Bill C-48. This blog will then discuss the further implications, including the larger impact on our correctional system. Lastly, the disproportionate impacts on racialized populations will be examined. Properly understanding the implications of Bill C-48 will contribute to the discussion around criminal justice reform and will aid in the pursuit of a more equitable legal system.

Canada’s Correctional System

This section will begin by establishing how Canada’s current correctional system is struggling to adapt to the massive trend in increasing remand populations. First, I will clarify the current concepts and processes justifying Canada’s current approach to administering bail.

While the federal government establishes the criminal law, provincial and territorial governments are responsible for the administration of justice which includes most bail hearings, enforcement of bail conditions, and the maintenance of the facilities where people are kept while awaiting trial.[4] This indicates that the problems associated with bail vary by province; however, there is a common trend of large remand populations across the country. Pre-trial detention in Canada has increased of over 158% in the remand incarceration rate since 1986.[5] To clarify, remand refers to a person who has been charged with an offence but has been ordered by the court to remain detained in custody while waiting for their court appearance.[6]  Why has this population increased so dramatically? Several scholars believe that this is done to manage risk, and this over-cautiousness approach has significantly impacted the efficient and proper functioning of the bail court.[7] This hyper-vigilance could be related to the risk that remains when someone is released on bail. There always remains a risk of re-offending, and the blame would fall on the justice system for failing to detain the individual. I would argue that the courts may find it easier to just keep those in detention because when someone breaches a bail condition, the public confidence in the justice system is impacted.

This denial of bail has resulted in a massive expansion in pre-trial detention populations, which in turn would impact the conditions and experience of imprisonment. This massive expansion in the denial of bail has caused carceral populations to increase beyond what facilities are prepared for. In R. v. Myers, the court commented on the conditions of Canada’s correctional system and observed that the conditions faced by those in pre-trial detention are dire, there is overcrowding and limited access to recreation, healthcare, and basic programming.[8] This is harmful on the individual experience of imprisonment. Pre-trial detention comes at a significant cost in terms of loss of liberty, the impact on the detainees’ physical and mental well-being, and their families.[9] 

Beyond the individual, the larger system is greatly impacted by the growth of remanded populations, as seen across many provinces in Canada. For example, in British Columbia, their correctional system is currently operating at 140% over capacity.[10] Specifically in Manitoba, there has been a significant increase in our province’s remand population since 2000.[11] Even two decades ago, Manitoba experienced overcrowding at two provincial facilities, resulting in an overload being transferred to Stoney Mountain Penitentiary, a federal prison.[12] These are just two examples of the trends seen across Canada that inform the pervasiveness of this problem. Correctional institutions are facing progressively greater challenges associated with the effective management of this population.[13] Considering that these impacts have occurred before the formal implementation of Bill C-48, evidently, this Bill will further damage the system that is already struggling to function efficiently. It is paramount that we address these organizational deficiencies before advancing a “solution” that will ultimately increase bail populations and further stretch a system that is already being worn down.

Impact on the System

The escalation in the remand population has exerted substantial pressure on the bail process. This section will now expand on further ways the growing population has impacted the system and will argue that the implementation of Bill C-48 will further negatively impact our institutions.

One of the primary concerns pertains to administrative delays which have left the courts overburdened. The increase in pre-trial detention will result in longer processing times and administrative delays, and will increase the overall time in detention.[14] These administrative delays are profound, and they have long-term impacts on both the larger system and the individual. For example, it is causing significant economic expenditures in our criminal justice system.[15] Additionally, the unique circumstances of remand prisoners have also largely impacted the administrative process. These circumstances include 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 helpful programming.[16] This in turn has caused serious repercussions for the safety of staff and inmates.[17]

The increase in remand population is not the only factor impacting the system. It would also appear that the number of cases related to failing to comply with a bail condition is increasing the number of cases being held in pre-trial detention, which further impacts processing times.[18] The risk management approach we’ve seen from the courts has resulted in more onerous conditions being applied. However, rather than deterring crime, this increases the likelihood of a breach and further expands the bail system.[19] Scholars argue that the criminal justice system is fostering conditions for ‘crimes’ to be committed because this greater number of conditions increases the prevalence of crime, rather than deterring it.[20]  There seems to be an ongoing generalized practice where decisions are either being continually passed along to someone else or simply delayed by those responsible for making them.[21] 

In summary, the dynamic factors of an increasing remand population, the rising number of cases due to non-compliance to bail conditions, and the risk management approach applied by the courts are collectively proliferating the inefficiencies of our bail system. With the implementation of Bill C-48, the remand population is only expected to further increase, resulting in all of these factors being further exacerbated The following section will expand on how these inefficiencies disproportionately affect racialized populations.

Disproportionate Impacts on Racialized Populations

Systemic racism influences many sectors of the criminal justice system, including the bail system. Mass pre-trial incarceration in Canada is disproportionately felt by Indigenous, Black, and marginalized populations.[22] Even the Supreme Court of Canada has recognized that Indigenous people are more likely to be denied bail and make up a disproportionate percentage of the population in pre-trial detention.[23] This section will elaborate on how these populations are at a greater disadvantage, and how Bill C-48 will contribute to these racial injustices.

Many different processes throughout bail impact the outcome that vulnerable populations achieve due to prejudices and stereotypes that are built into the system. Resultingly, these populations often receive stricter and more onerous bail conditions. These populations are also arguably more likely to be caught breaching a bail condition because their communities are over-policed. Once confined in pre-trial detention the disproportionate impact continues, as seen with Black people in Canada spending longer time behind bars while awaiting trial than white people charged with many of the same categories of crimes.[24] Another example is seen in Ontario with the use of sureties; there is a large impact on minority populations because the court finds it difficult to find a surety they deem appropriate.[25]

The bail system is producing results that contradict the intentions of governing legislation, such as s. 11(e) of the Charter.[26] Further, Section 493.2 of the Criminal Code stipulates that the circumstances of an Indigenous offender and vulnerable accused be considered during the pre-trial detention phase of the criminal justice system.[27] However, we fail to see this provision actively applied, which is evident in the disproportionate representation of Indigenous People in our prison system. Rather than the process remaining sentient towards racial differences, racial stereotypes and presumptions may influence the assessments of reliability and dangerousness that prosecutors and judges make during bail hearings due to their quick nature.[28] This may lead to the unjust pretrial detention of an Indigenous accused, further causing harm to this vulnerable population.[29] In addition, the policing system intersects with bail decisions and further contributes to the disproportionate impacts. Academics argue that the racist, structural violence seen in policing impacts judicial interim release.[30] 

To conclude, the pervasive influence of systemic racism within the bail system continues to disproportionately impact Indigenous, Black, and marginalized populations. The processes within the bail system are laden with biases and stereotypes which exacerbate these racial disparities.

Conclusion

Preventative detention has become the norm rather than the exception. It is paramount to address significant systemic and organizational shifts that must take place to increase the efficacy of this system. As this blog established, the overuse of bail in Canada will be amplified by Bill C-48 and will have profound effects on our criminal justice system. The overuse of bail has led to an increasing number of individuals being held in pre-trial detention and contributes to issues such as overcrowded jails and an increased strain on resources. Moreover, the use of bail impacts racialized populations in a different and arguably more harmful manner. Evidently, the implementation of this bill is misguided and the larger systemic effects from its implementation will be damaging to correctional institutions across Canada.

[1] Government of Canada, “Bill C-48: Proposed changes to strengthen Canada’s bail system” (May 16th, 2023) < https://www.justice.gc.ca/eng/csj-sjc/pl/pcscbs-cprslscc/index.html> [https://perma.cc/6T6Z-5M4H] [Proposed Changes to Canada’s Bail System].

[2] John Howard Society of Ontario, “Reasonable Bail?” (September 2013) at p. 5, online (pdf): <JHSO-Reasonable-Bail-report-final.pdf (johnhoward.on.ca)> [https://perma.cc/XMS8-5MTB] [Reasonable Bail?].

[3] Shakir Rahim & Noa Medelsohn Aviv, “Submission to the Senate Committee on Legal and Constitutional Affairs on Bill C-48, An Act to amend the Criminal Code (bail reform)”, Canadian Civil Liberties Association, (2023) online (pdf): https://mcusercontent.com/de85a14a3dcadd8e377462ff6/files/eb2114cc-4516-8050-c7f4-da7771b9261b/CCLA_Bill_C_48_Submission_Final.pdf [https://perma.cc/R9TM-M3Q2] [Rahim & Medelsohn Aviv].

[4] Proposed Changes to Canada’s Bail System, supra note 1.

[5] Rahim & Medelsohn Aviv, supra note 3 at 2.

[6] “Corrections Population Report Fourth Edition” (September 2000) at 13, online (pdf): < https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/crrctns-ppltn-rprt/crrctns-ppltn-rprt-eng.pdf> [https://perma.cc/GCY5-VCG6].

[7] Nicole Myers, “Shifting Risk: Bail and the Use of Sureties” (2009) 21:1 Current Issues in Crim Justice 127 at 146.

[8] R. v. Myers, 2019 SCC 18 at para 3 [Myers].

[9] Ibid.

[10] Auditor General of British Columbia, “An Audit of the Adult Custody Divisions’ Correctional Facilities and Programs” (January 2015), at pp. 4, 6, online (pdf): https://www.bcauditor.com/sites/default/files/publications/2015/special/report/AGBC%20Corrections%20report%20FINAL.pdf < https://perma.cc/B97X-CX3V>.

[11] Proposed Changes to Canada’s Bail System, supra note 1 at 20.

[12] Ibid. 

[13] Cheryl Marie Webster, “’Broken Bail’ in Canada: How We Might Go About Fixing It”, (June 2015) at 5, online (pdf): < https://www.justice.gc.ca/eng/rp-pr/jr/bb-lr/bb-lr-eng.pdf> [https://perma.cc/MW66-GUTR] [Broken Bail in Canada].

[14] Reasonable Bail?, supra note 2 at p. 3.

[15] Broken Bail in Canada, supra note 13.

[16] Proposed Changes to Canada’s Bail System, supra note 1 at 20.

[17] Ibid.

[18] Cheryl Marie Webster, Anthoney N. Doob & Nicole M. Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada”, Current Issues in Crim Just 79 at 91 [Cheryl Marie Webster].

[19] Ibid at 99.

[20] Ibid.

[21] Ibid at 98.

[22] Jillian Rogin, “Police-Generated Evidence in Bail Hearings: Generating Criminality and Mass Pre-trial Incarceration in Canada” (2023), 46:1 Dal LJ 1.

[23] R. v. Summers, 2014 SCC 26 at para 67 [Summers].

[24] Anna Mehler Paperny, “Exclusive: New data shows race disparities in Canada’s bail system” (October 19, 2017), online: <https://www.reuters.com/article/us-canada-jails-race-exclusive-idUSKBN1CO2RD> [https://perma.cc/4SJ3-HKYT].

[25] Ibid.

[26] Canadian Charter of Rights and Freedoms, s.11(e), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[27] Criminal Code, RSC 1985, c C-46, s. 493.2.

[28] Amanda Carling, “A Way to Reduce Indigenous Overrepresentation: Prevent False Guilty Plea Wrongful Convictions” (2017) 64:3/4 Crim LQ 415 at 426-427.

[29] Ibid.

[30] Cheryl Marie Webster, supra note 18 at 4..