dispelling myths on pre-trial detention in Ontario

Introduction: Setting the Record Straight

While the data may technically support this claim, the headline is highly misleading for several reasons I will explain below. Fundamentally, the headline leaves the reader with the impression that innocent people are held in jail. It is important to point out that anyone charged with a crime is legally innocent of that offence until proven guilty in a criminal court beyond a reasonable doubt. However, that in no way means a person is factually innocent of a crime. These are two entirely different concepts and should not be confused or conflated.

To the reader, the CTV article and headline seem to imply that factually innocent people constitute the majority of those in custody. Factual innocence pertains to whether someone committed the crime; in contrast, legal innocence is merely a legal principle focused on due process to ensure that people are not punished before the state has proven a case against them. Someone who is “presumed innocent in law” does not necessarily mean they did not commit the crime. This holds true both as a matter of fact and as a matter of law.

While the presumption of innocence is essential to a just system and enshrined in our constitution, it is only one factor in deciding suitability for release on bail. It is not the sole determinant of whether someone is granted bail and is only one of many considerations regarding someone’s eligibility for bail or release.

A presumption of innocence is not the legal test for bail

If the presumption of innocence were the legal test (or even a dominant one) for granting bail, then everyone would get bail because everyone is presumed innocent in law. It is not the test, nor should it be. Bail is determined by myriad factors set out in Section 515 of the Criminal Code of Canada.

These include factors such as whether the accused is:

a) a flight risk,

b) at risk to commit further offences or interfere with the process if released,

or c) the circumstances of the allegations warrant detention (seriousness of case, strength of case, etc.).

While many offences allow for a presumption of reasonable bail, this is not the case for individuals charged with certain offences like firearms, repeat alleged offenders, and other specific crimes referred to as “reverse onus.” The Charter states clearly that denying bail is permitted, as long as it is done with just cause, a legal question answered by legal interpretation and precedent. In addition, our courts have provided extensive guidance on how and when bail should be granted or denied.

See: R. Myers, R. v. Antic, R. v. Morrison, R. v. Morales, R. v. St.-Cloud, and R. v. Zora to name only a few that define the proper legal tests and considerations.

Incomplete and Misleading Statistics – Understanding the Reality of Releases

In reading articles and hearing claims of innocent people in jail, one might wrongly conclude that this represents the entirety of people charged. This is entirely false.

The vast majority of people charged with crimes in Ontario are either:

a) released from the police station on a Form 10 / Undertaking to a Peace Officer.

b) granted bail as soon as practicable. (While there may be some delays in appearing before a justice within the required 24 hours, this is rare in my nearly 20 years of experience as a lawyer.)

For those who want bail, are entitled to a hearing, and are ready to proceed, it is a rare occasion that a hearing cannot be held within the proper times.

The issue with this article is that the statistics on releases from the scene, releases from police custody at the station, or bail hearing releases are glossed over unmentioned. However, this unquestionably represents the vast majority of how people charged are released on charges. Most offences the police charge people with are low-level in comparison to those denied bail. These may include petty property crimes, minor assaults, drinking and driving, and so on.

Serious offences where bail is either denied or the burden is reversed include crimes such as armed robbery, firearms trafficking, organized crime, carjacking, aggravated sexual assault, and so on. Even in these cases, bail denial is still granted in many or most instances if the person does not have a criminal history, and there are legal or factual issues to argue at trial.

In short, bail is denied for individuals who, generally speaking, have a long criminal history (often involving violence), are facing serious criminal charges, and pose a threat to the community if released. The ratio of these individuals compared to the overall number of people charged with crimes pales in comparison.

Clarifying the Statistics – A Call for Transparency

A rigorous article or story would break down statistics so that when we hear how many people who are “presumed innocent” are in custody, we would also know how many people charged and also “presumed innocent” are released from the station or granted bail, often with the consent of the prosecutor. If I had to make an informed guess, I would estimate that the ratio of people charged compared to those not granted bail is 100:1. This is something reporters or academics should consider before making claims of injustice that may stoke mistrust or a lack of confidence in the justice system.

Understanding Bail Denials – Legal Considerations

When a person is entitled to and seeks bail, they are detained if, and only if, there is “just cause” to do so, as our constitution requires. As noted in the cases above, judges and justices of the peace are required to provide detailed reasons based on the law and precedents for why someone is denied bail. These decisions are not whimsical, uninformed, or arbitrary. Put another way, a judge or justice of the peace has decided that the person is not entitled to bail. These decisions can be appealed if the accused disagrees or if the justice makes an error.

Some people, presumed innocent, are not automatically entitled to bail under our law

Under Section 469 of our Criminal Code, several enumerated offences do not entitle a person to a bail hearing. These individuals must bring a special application for release in the Superior Court of Justice for bail awaiting their case. This includes murder, terrorism, treason, and seditious offences. Many of the people mentioned in the article would undoubtedly fall into this category. In Toronto alone, there were  195, 119, and 136 homicides in 2020 to 2022 respectively. While this data does not cover all of Ontario, it highlights that many of those charged with murder, presumed innocent, are not granted bail and are in Ontario remand centers.

Provincial detention centres are used incarceration for sentences and remand while awaiting a bail hearing or trial.

Another significant factor lost in articles and claims like this is the mixed purpose of Ontario provincial remand centers, such as the Toronto South Detention Centre, Central North Detention Centre, and others.

These centers serve as remands for people awaiting bail and for those who have been denied bail or are not entitled to it. They also serve as detention centers for anyone sentenced to incarceration for less than two years. Additionally, a small percentage of inmates are on immigration holds, and some await transfer before serving a federal sentence (more than two years). This means there is a mixed population of inmates.

Comparing Institutions – A Closer Look

• Federal institutions are not used as remand centers. Therefore, 100% of people held there are serving sentences (of two years or more) and are legally guilty.
• The percentage of people held at a police station under charges or investigation are 100% “presumed innocent.”
• People at provincial institutions are either:

a) serving sentences of less than two years,

b) awaiting transfer to federal institutions for sentencing,

c) awaiting a bail hearing (as police station stays are short and temporary), or

d) not eligible for a bail hearing until they apply as per Section 469.

Understanding Turnover Rates – The Unmentioned Reality

What also appears to be missing in this article is the turnover rate of people in provincial institutions. There is no doubt that 9,000 people in custody is a significant number. However, if all of those 9,000 people are getting their bail hearings in the proper time, then the statistic becomes irrelevant. The large number of inmates only becomes relevant when those “9,000” people are not afforded their bail hearings as required by law.

Statistics on numbers must be tied to the reasons behind why there are so many and how they are processed. How many bail hearings are held in Ontario in a day? How many people are granted bail each day? How many of those people do not want a bail hearing? These questions are crucial to understanding the full picture.

Incurring Dead-Time – A Common Practice

Not everyone seeks bail. Many people charged with crimes effectively serve their sentences upfront through what we call “dead-time.” For example, a person may be charged with sexual assault and is offered 90 days in custody by the prosecutor. Every day they have served prior to sentencing is credited at a typical rate of 1.5 to 1. This means that a person who has already served 60 days “awaiting trial” or “bail” and is “presumed innocent” will have served their entire 90-day sentence by the time they reach 60 days. In certain circumstances, this ratio may increase further if conditions are particularly adverse. The parole ratio is 1.33:1.

This rate and increased ratio, for various reasons, can actually be more favorable than what a person would serve in total if they pleaded guilty on their first day, as parole is typically at a 1/3 ratio. This practice is extremely common in the provincial remand system, and the statistics do not adequately reflect this reality. An interesting question would be: of those who do not seek or are denied bail, how many plead guilty without having a contested trial once they have maximized their pre-trial custody?

(To be clear, this is nothing inherently wrong in this and serves to minimize stress on the federal institution, but the statistics ignore the many individuals who are “presumed innocent” are serving sentences upfront with the intent of pleading guilty once pre-trial credit has maximized.)

Court delay and R. v. Jordan has changed everything

Some in the article and online claim that there are fewer people who are “legally innocent” in jail now than there were in the past. This is likely true. However, claims of historical differences in fewer legally innocent people in bail (from 20 years ago, for example) fail to take into account the MASSIVE delays in our court system in getting to trial today. In the 80s, a person would likely get to trial within weeks or a few months. Now, the Supreme Court of Canada has ruled that 30 months is an acceptable time frame for a serious crime trial. This obviously leads to more people “awaiting” their trial due to delays alone.

If people were getting to trial as quickly as they were in the 70s/80s, then people would either be legally guilty/sentenced or no longer in custody/acquitted. As an example, a person facing sexual assault charges in 1980 might be found guilty within 3 months of being charged. Even if they are denied bail, they would then be off to either serve a sentence in a federal institution (taking them out of the equation) or they are now “legally guilty” and no longer part of the statistic of “legally innocent” people awaiting trial. Accelerating trial proceedings would significantly affect these statistics for various reasons, including dead-time accrual.

The duty to protect our public