Reform to criminal justice system must not be forgotten

This month’s Speech from the Throne in Ontario was notable for what it said – and even more notable for what it didn’t say. Namely, that criminal justice reform has been and will remain an important part of this government’s mandate.

Throne speeches tell us a lot – in broad strokes – about what the government’s priorities will be and the direction it will take in the upcoming session. That the speech did not mention reviewing or reforming our criminal justice system is not surprising. Like many issues that affect the most marginalized in our society, the pernicious effects of our current system on people who have been charged with an offence do not get a lot of public attention. Our legal system is large and complex – not easy for those outside of it to understand. And it can be hard to garner public sympathy for the individuals involved. Governing parties are not eager, especially in the period leading up to an election, to publicly discuss their efforts to ensure that those entangled in the system are treated reasonably and equitably.

An area that deserves particular attention is our system of bail and remand. It has a dire effect on the life chances of people who have been charged with a crime, disproportionately so on those with the least access to power: young people, people from racialized communities, Aboriginal people, women, and people living in poverty.

If you have been accused of a crime, you can be subject to bail conditions while you await trial. These conditions might be reasonable if they relate to the offence you’ve been charged with. Or they might be arbitrary if they don’t. For example, you could be given a curfew and have to be home by 8 p.m. But what if you have a job that involves shift work and a long commute by public transit? Will you make it home in time? Or you could be required to live with a family member who is acting as your surety (if you even know someone who can afford to pay a surety for you). What if that puts you in a situation that exposes you to intolerable conditions or abuse, and so you decide to leave? You could also be required to maintain a home address. What if you are evicted from your home because you cannot pay rent, either because being charged has interrupted your income or for another reason?

The answer to these “what if” questions is: you could be put in remand – that is, taken into custody or put in jail – because you have committed a criminal offense by violating your bail conditions. Pre-trial detention is harsh. Unlike regular prisoners, people in remand do not have access to health or mental health services, or to educational, recreational or rehabilitation programs. The conditions are crowded and the threat of violence is real.

Keep in mind that at this point in the process, you have not yet been tried for the original charge against you. In the eyes of the law, you are innocent. But you are treated like you are guilty. A clogged court system and frequent delays mean that you might spend a week, months or even years in remand before having your day in court.

These kinds of bail conditions are unreasonable and amount to unfair and unequal treatment. Many come from overly cautious Crown attorneys, judges and justices of the peace, fearful of press stories of the rare occurrence when someone on bail commits a serious crime. Many are the result of inexperience by those same actors who merely check as many boxes of bail conditions as they can. All but a few come from a lack of understanding of how bad practices can ruin lives. They are compounded by strict enforcement by “bail squads,” police units entirely devoted to checking up on people who are on bail.

The way the system works now is counter-productive. Rather than simply ensuring that you attend all of the court proceedings you are required to, it can subject you to arbitrary surveillance. Rather than setting conditions where you might straighten out your life path, it pushes you deeper and deeper into trouble. Rather than ensuring public safety, it creates the conditions to offend.

In recent years, another problematic aspect of our criminal justice system has been undergoing reform: the practice of police street checks or “carding.” Earlier this year, the province announced a new, rights-based framework for police-public interactions. This change followed a period of intense and sustained public attention and discussion about the injustice of street checks. Bail and remand is not an easy or comfortable subject for public discussion. But like carding, it is an issue of equity and justice. When we look for changes to bail and remand, we would do well to look at how calling public attention – vociferously and relentlessly – to an issue can be a catalyst for change.

Certainly, the provincial government has recognized that something must be done. Indeed, in Premier Wynne’s mandate letters to ministers in 2014, no fewer than four ministers were tasked with reforming various aspects of our criminal justice system. And while it was absent from the throne speech, we are encouraged to see that new mandate letters issued on September 23, 2016, include clear directions for ministers to improve the bail and remand system. These letters are a statement – a quiet one, but a statement nonetheless – of the government’s priorities, and that matters.

But we must see action now. Training for Crown attorneys, judges and justices of the peace on the appropriate use of bail conditions is one avenue for action. Another is to stop the use of predatory bail squads. Perhaps the most significant impact would come from pre-charge diversion programs. These programs can keep people who are suspected of minor infractions from spiralling into the criminal system in the first place and instead direct them into appropriate community services.

Ontario Attorney General Yasir Naqvi has said that he will announce an “action plan” by the end of the year. Further, the government has launched a pilot project in Ottawa that brings together Crown attorneys and police to ensure appropriate charges are laid, and to work to speed up processing of bail and remand when they are. We look forward to seeing the action plan and more concrete steps towards reform. While it is easy to get caught up looking ahead to the next election, this government has more than a year remaining in its mandate – time enough to make good on its promises and move us further towards justice and equity for everyone in our province.