Inmate perspectives on the remand crisis in Canada.

AuthorWeinrath, Michael

Introduction

Given Canada's declining crime rate, it seems reasonable to assume that the number of people incarcerated will have diminished as well. Sadly, custody numbers have not seen a commensurate drop. Over the past 20-year period, 1986 to 2006, the overall crime rate declined 25% (Statistics Canada 2007a). During that time, the number of people incarcerated on any given day actually increased by 23% (Statistics Canada 2007b). Even more disturbing is a huge increase in the use of pre-trial detention. The traditional proportion of 25% remand to 75% sentenced has shifted radically to the point where, in 2006, remands now outnumber sentenced inmates in provincial custody (Statistics Canada 2007b). Any rise in pre-trial detention is troubling because it is a punishment without a finding of guilt (Manson 2004). In addition, there is evidence that custody remands are sentenced more harshly when they appear in court compared to those who have been released prior to trial (Kellough and Wortley 2002; Koza and Doob 1975; Williams 2003).

The trajectory of this custodial shift was first commented on in the late 1990s; at first glance, it appeared to be only a gradual trend (Gilmour 1999). More recently, the use of remand has accelerated and has been acknowledged as a problem by provincial corrections departments. For example, large, flagship, sentenced facilities such as Fort Saskatchewan in Alberta and Headingley in Manitoba are now 70% to 80% remand (personal communication with Alberta and Manitoba Corrections 2007). In addition to housing, more frequent transporting of accused back and forth to court has given rise to cost concerns for corrections agencies (Beattie 2006; Johnson 2003).

As a general rule, accused do receive some compensation for remand when sentenced, by receiving double-time credit for days spent in pretrial detention, a benefit of particular importance to inmates on long-terra remand. The now common application of a two-for-one tariff is relatively recent, however, and has engendered some debate among legal scholars. While some view the provision of pre-sentence credit (PSC) ata double-time rate as integral to maintaining fairness at the point of sentence (Manson 2004), others feel that judicial discretion should be limited and a more statutory one-for-one exchange be used as a base point (Roberts 2005). Moreover, some justice officials have made claims about the remand problem, trying to focus "blame" on the accused and their inappropriate use of PSC (Schumacher 2003). Policy makers have alleged that the PSC creates an incentive for accused purposely to sit in remand and manoeuvre to get double-time benefits at sentencing. Consequently, provincial governments have lobbied the federal government to change Criminal Code provisions around credit for time served to limit abuses of PSC ("Two for one" 2007).

This paper will first briefly summarize the dramatic escalation, in Canada, in the use of pre-trial detention and identify some of the more plausible explanations for this dire trend. The evolution of the pre-sentence credit into the practice of two-for-one sentencing will be summarized, along with the critical issues that now frame the debate over its use. An important objective of this paper is to allow accused to have some opportunity to respond to claims made with respect to their "abuse" of the two-for-one credit. We will use open-ended responses from an inmate survey to provide a "convict perspective" (Ross and Richards 2003) on the remand increase and present their views on possible solutions to the detention problem. The paper will conclude by assessing what we know and don't know about the over-use of remand and offer directions for future research.

Ascendance of pre-trial detention in Canada and related factors

Over the past decade the Canadian Centre for Justice Statistics (CCJS) has diligently assessed crime rate, court process, and corrections data to chart a striking upward remand trend (Beattie 2006; Gilmour 1999; Johnson 2003). At the end of fiscal 1986-1987, Canada averaged about 3,700 pre-trial detention cases and 12,100 provincial/territorial sentenced offenders (Table 1). By 2005-2006, about 10,700 were on remand and 9,600 were sentenced. This represents an increase of over 190% in remands and a decline of 20% in sentenced offenders. While the 20-year trend is striking, the accelerated growth of remand in the last 10 years is even more remarkable. From 1986 to 1995, pretrial cases jumped by 1,600, but from 1996 to 2005, remands escalated by 5,000. Neither more federal terms (2 years+) nor possibly longer penitentiary sentences are viable explanations for the decline in provincial/ territorial sentenced offenders. The daily number of federal inmates stayed virtually the same from 1996 to 2006, increasing by only +2% over 10 years.

The in-house count data illustrates a crisis across Canada. Despite regional variation by province and territory in the use of custody (Beattie 2006; Sprott and Doob 1998), all have faced an upsurge in remand. Provincial data indicates that, by 2006, Manitoba had 70% of its inmate population on remand, Ontario had 65%, with BC and Quebec at about 50% (Cook 2006). Generally, the trend has been more severe in Ontario and out west: Quebec and the Maritime provinces have seen a slower shift (Johnson 2003).

To understand variation in custodial populations, most researchers first look to differences in the crime rate, police charge patterns, and legislative changes in the criminal law that affect its administration. The crime rate, an intuitive explanation for custody's going up or down, seems unrelated to the rise in remand. The Canadian crime rate declined 24% from 1986 to 2006 (Statistics Canada 2007a). The violent crime rate has increased overall since 1986 (+22%), but it should be noted that it has actually shrunk since 1996, including drops in serious violent crime such as homicide, attempted murder, and aggravated assault (Statistics Canada 2007a).(1)

Charge patterns appear more salient to the detention issue. More crimes against the administration of justice (AJ) are likely contributing to a portion of the remand upswing (Taillon 2006). About 31% of all court cases in 2003-2004 involved at least one AJ charge, up from 22% in 1994-1995. What makes this pattern relevant to pre-trial detention is the nature of AJ offences: they frequently involve charges of fail to appear in court, fail to comply with conditions of undertakings or recognizances, and probation breaches, including violations of court-ordered curfews or for non-contact orders. Invariably, the nature of theses charges make it easier for a Crown prosecutor to hold an accused in custody because that accused already is under a recognizance, is on probation, or has an upcoming court case. Significantly, Taillon found that 73% of these AJ crimes were single-charge cases. Single-charge cases suggest that the accused were not arrested while committing other crimes; police were apparently active in enforcing probation and bail recognizances that require curfews, non-contact orders (for domestic situations), and other conditions.

An even more compelling explanation for the remand increase is that it now takes much longer on average to get to trial in Canada, which then results in more cases with lengthy remands. The average number of days needed to conclude a case increased from 121 to 215 from 1994 to 2004 (+77%). Also during that period the percentage of cases that took more than eight months to dispose of doubled from 13% to 27% (Taillon 2006). Longer trial delays would be expected to result in longer remands, and indeed, the data support this. Most custody remands are still brief (recent figures show 54% serve a week or less). Short remands often result from adjournments pending bail hearings, bail granted but accused cannot meet conditions, or simply an accused's pleading guilty at the first opportunity. The numbers serving more than a month, however, have grown, with an adverse effect on the system (Johnson 2003).

This pointed increase in long-term remands has significant implications for the number of inmates in Canada on any given day. Admissions to custody for short periods have a limited effect on the overall in-house count. It is long-term sentences that end up swelling the daily number of inmates in prison (Sprott and Doob 1998). This, of course, has implications for the success of potential reforms. For example, expanding the use of already existing provincial bail supervision programs will not help if only short-term cases are released. More bail programs will only reduce the remand count if they are accessible to inmates who end up on longer-term remand, which presumably will involve higher-risk cases being released.

A slow court process offers a partial explanation for some of the burgeoning pre-trial population, but one must consider why cases are taking longer. One possibility is that cases consist more frequently than formerly of multiple charges, increasing the complexity of trials. Having to prepare for multiple crimes may tax the resources of both defence counsel and Crown. Furthermore, Charter challenges, disclosure issues, and mega-trials have been alleged to have an impact (Beattie 2006; Taillon 2006). Still, it seems that, with the crime rate and number of adults charged having gone down, the smaller total number of cases could still be processed at a faster pace (i.e., more complex cases take more court time, but where there are fewer charges more court dates and time should be available).

The granting of two-for-one has also been mentioned as a possible mechanism for extending time to trial. The only official data related to this trend is an increase in the number of time-served charges (Johnson 2003). Time served implies that PSC credit may well have been a negotiating point for defence and Crown; that is, "Plead guilty next month and your client will...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT