“Broken Bail” in Canada: How We Might Go About Fixing It

4. Where to Go From Here

In thinking about various strategies to ‘fix’ Canada’s ‘broken bail’, it is important to separate the bail problem ‘stricto sensu’ (i.e. those remand prisoners waiting to have their bail status determined) and the ‘remand problem’ (i.e. those remand prisoners who have either voluntarily or formally been detained until trial/resolution of their case). While both are serious concerns, they reflect related, but somewhat, different underlying problems. In other words, fixing the former problem (i.e. delays in the determination of bail) will not adequately address the latter problem (i.e. lengthy case processing more generally). More importantly, these two groups of detainees contribute unevenly to the growing number of accused persons being held in remand. Specifically, the increasing remand population in Canada is not driven primarily by the large numbers of prisoners who are still having their bail status determined. Rather, it is rooted in the much smaller number of accused persons who are in remand for a long time. Table 3 illustrates the difference.

Table 3: Identifying which Prisoners are Responsible for the Growing Remand Population (Ontario. prisoners released from remand in 2007/8)
Time in Remand Number of persons % of all Remand Prisoners % of all Remand Days used by this group
1-7 days 28,490 65.6% 10.1%
8-60 days 11,676 26.9% 33.1%
61 days or more 3,270 7.5% 56.8%
Total 43,436 100% 100%

Using Ontario data as a case in point, 65.6% of all remand prisoners spend only a short time (up to 1 week) in remand, constituting the large group of detainees who are awaiting a determination of bail. This group is contrasted with the much smaller group of prisoners (constituting only 7.5% of remand prisoners) who spend much longer periods of time in remand (2 months or more), likely having forgone or been denied bail. However, while the former group accounts for only 10.1% of all remand days, the latter group is responsible for approximately 57% of the remand days used by the total remand population. Arithmetically, one remand bed for one year can either be used to house 52 different detainees spending 1 week in remand or 1 detainee spending 1 year in remand. Said differently, 1 person in remand for 1 year counts exactly the same as 52 people each in remand for 1 week in terms of their contribution to the overall remand population. (This is not to suggest, however, that the administrative costs for provincial/territorial corrections for these two groups – one prisoner for 52 weeks vs. 52 prisoners for 1-week each – would be the same.)

In my mind, intervention would be directed predominantly in two different – albeit not entirely unrelated - directions: 1) reducing the length of time to resolve the cases of those (formally and informally) detained in remand before trial; 2) reducing the number of accused persons who are detained during the ‘bail’ process or while awaiting trial.

In the first case, solutions would lie largely in improving case processing efficiency – a problem of ‘court delay’ which has plagued Canadian criminal courts for many years and extends well beyond the bail process. Notably though, such a discussion is clearly beyond the scope of the current paper as it would constitute a topic in and of itself as many of its root causes diverge from those related specifically to bail.

In the second case, a singular focus on recommendations to ‘fix’ the ‘bail problem’ – the focus of this paper – will likely have spill-over effects in addressing this direction for change. As an illustration, assuming that the proportion of bail cases which are ultimately detained until trial does not change – a reality found recently in Ontario - the mere fact of reducing the actual number of cases starting their lives in bail court will translate into a smaller number of accused persons who are detained until trial.