Canadian Report on Pre-Trial Detention: 'Set Up To Fail'

12th August 2014

The Canadian Civil Liberties Association (CCLA) recently released a report, ‘Set Up To Fail: Bail and the Revolving Door of Pre-Trial Detention,’ which considers the use of pre-trial detention in the country. The report states:

‘On any given day in 2012/2013, approximately 25,000 people were detained in Canada’s provincial jails. Over half of them were in pre-trial custody – legally innocent and waiting for their trial or a determination of their bail.’

The report highlights that the bail system is operating in a manner contrary to aims of safeguarding ‘individual liberty, the presumption of innocence and the right to a fair trial’:

‘Legally innocent individuals are processed through a bail system that is chaotic and unnecessarily risk-averse and that disproportionately penalizes – and frequently criminalizes – poverty, addiction and mental illness.’

The CCLA make a series of recommendations in the report, several of which are summarized below:

• All steps of the pre-trial process should facilitate the individual’s release from custody as soon as possible. Procedures should be explored to allow defence counsel to speak to accused individuals before the first bail appearance.

• Experienced legal counsel should be assigned to bail court. Rotating counsel should be avoided to promote work-group consistency, encourage case ownership and preserve institutional knowledge.

• The courts should refrain from imposing bail conditions that are likely to criminalize the symptoms of an underlying mental health or substance abuse problem. A history of failure to comply should be given significantly less weight where these prior incidents are tied to poverty or addiction. 

• Courts should refrain from requiring accused to provide a fixed address or imposing residency conditions where the individual is homeless or has transitory living arrangements.  

• Given the disproportionate barriers imposed by surety requirements, requests for surety releases should be made with restraint, and the Crown and judiciary should be more flexible when determining whether a proposed surety is appropriate. (Note: An independent surety is a person who makes him or herself responsible for the appearance of the accused in court. He or she promises to pay a sum of money to the court if the accused does not appear as agreed).

• A concrete strategy must be developed and implemented to reduce delays in the bail system, including measures to address and reverse over-reliance on sureties.

Read the full report online here.