Publications, opinions, and speeches
Lessons of the COVID-19 pandemic could help shape the future of bail and remand
Published on 26/05/2020
Almost overnight, due to the risks posed by the COVID-19 pandemic, the situation in Ontario prisons has dramatically changed.
For several decades, the human rights issues associated with the difficulties of accessing bail in Canada have been of ongoing concern. The COVID-19 pandemic gives us the opportunity to reform bail practices to ensure that the constitutional right that all Canadian residents have to reasonable bail is upheld.
While the right to reasonable bail can only be denied when there is a just cause such as risks to society, the number of individuals being held without bail has risen dramatically in the past several decades. This has resulted in a staggering reality: up until very recently, over 60 per cent of inmates being held in Ontario prisons, as in other provinces, have not yet been found guilty of the crimes of which they are accused. These individuals endure incarceration in overcrowded conditions, and the impacts of such high rates of remand have been extensively documented.
The loss of freedom because of the denial of bail, or the inability to access bail due to the lack of a surety, is the most obvious impact to the individual. And then there are the ripple effects of being held on remand: loss of employment; loss of housing; deteriorating mental and physical health; economic and psychological damage done to family and children; and the tendency to plead guilty to lesser charges, even when innocent, just to regain freedom.
The overcrowded nature of many prison systems around the world, and the associated impossibility of adequately practicing the physical distancing required in response to COVID-19, has raised concerns about the safety of prisoners and prison staff. Prisons, like other congregate settings, have been called “incubators” for COVID-19. This is a human rights issue. Various international and national bodies including the UN Human Rights Commission, the World Health Organization (WHO), and the Canadian Human Rights Commission have issued declarations calling on authorities to reduce prison populations wherever possible.
Prison systems around the world have responded differently to the situation and to the need to safeguard the health and lives of detainees. While some have focused on improved cleanliness, and others have done little or even nothing to address the issues, a number of jurisdictions, including Ontario, have actively and thoughtfully reduced the prison population.
From the onset of the COVID-19 state of emergency in Ontario, both the Courts and the Ministry of Community Safety and Correctional Services have implemented processes to reduce COVID-19-related risks to prison populations.
First, the Courts have expedited the processes associated with bail hearings by implementing electronic hearings and electronic filing of documents to ensure that the vital work of the courts continues while physical distancing is practiced. They also implemented new electronic methods for securing declarations from individuals who would act as sureties to those seeking bail.
Second, the Ministry has actively reduced the prison population by supporting early release of lower-risk accused individuals who had been remanded without bail. These measures do not add up to a “get out of jail free card” due to COVID-19. The directives have been clear about releasing only lower-risk inmates, and there are many who are still incarcerated in provincial correctional facilities.
As a result of these and other measures, Ontario’s prison population, which exceeded 8,000 individuals in mid-March, has been reduced by over 25 per cent, resulting in a provincial prison population that is the lowest since 1990.
Ontario’s courts and corrections systems acted correctly in their rapid response to the COVID-19 crisis. But now we must ensure that these important lessons will be applied to the much needed reform of the bail and remand system – both here in Ontario and across the country.
Various attempts have been made to address this bail situation, but the risk-averse culture of the criminal justice system effectively nullified such attempts on the part of governments and the Supreme Court to ensure that Canadian residents can access reasonable bail. The response of courts and correctional systems to the COVID-19 crisis shows us that cultural change is possible. The sudden ability of Ontario’s courts and correctional facilities to release thousands of detainees in a few short weeks begs the question: Why were these inmates incarcerated in the first place? If these are individuals who are not yet found guilty and pose low risk to the public, what possible reason is there for denying them their constitutional right to bail in the first place?
What needs to be key to the decision-making formula for determining whether or not bail should be granted in the wake of the COVID-19 crisis is the risk of incarceration to the accused person. This is a crucial lesson that must be brought forward because there is tangible risk associated with unnecessarily detaining accused persons, even when a pandemic is not a factor.
It took an international health crisis to help us re-evaluate what really constitutes the appropriate bar for determining who should be released on bail. If in the shadow of COVID-19, accused individuals can be safely placed in the community to wait to stand trial, on bail and with appropriate bail conditions, then there is no need to return to the practices of the past decades in a post-pandemic world. Comprehensive legislation supporting bail reform will need to be put in place to prevent such backtracking, and those who hold decision-making authority with respect to bail and remand need to apply the lessons of the last two months to their ongoing practice.
COVID-19 is causing us to reconsider many things we have taken for granted in our lives and in society. It is helping us better appreciate the collective responsibility that we have to protect human life, uphold human rights, and to advance human dignity. We now have an opportunity and an obligation to take these lessons to help shape the future of bail and remand systems in Canada.