We will drastically reduce the number of people in Ontario jails – and prevent more crimes in the process.
BY PAULA OSMOK | AUGUST 19, 2020
Paula Osmok is executive director of the John Howard Society of Ontario
Covid-19 has upended the world as we know it. And yet as terrible as the pandemic has been, one upside is how it has transformed the criminal justice system. It turns out that long-standing, entrenched practices can change like the flip of switch when the imperative is big enough. In Ontario, as many as 70 per cent of people in provincial jails are on remand: that is, awaiting bail or trial and legally innocent. Most are remanded for non-violent charges. And incarceration is not used equitably—research has clearly shown that Canada’s racialized and Indigenous populations face disproportionate policing and denial of bail.
In the early months of the pandemic, the government recognized that the overcrowded conditions in our provincial jails represented a major public-health concern. Physical distancing is nearly impossible inside jails: picture two or sometimes three adults sharing cells the size of a bathroom, including a toilet. In response, Ontario’s police and courts released an unprecedented number of individuals on bail instead of detaining them pre-trial. Since March of this year, jail population counts have fallen 31 per cent—from what was typically around 8,000 prisoners on any given day to under 6,000.
And the sky has not fallen. We have not witnessed a drastic uptick of crime. In fact, the pandemic has proven what experts have long argued: that granting more people bail helps, rather than harms, society. The reality is that sending people to jail does not prevent future offending—quite the opposite, in fact. Even better, we’re saving money by keeping more people out of jail: a provincial correctional bed in 2018-19 cost an average of $302 per day. That money could be much more valuably spent on prevention, such as health care, education or housing.
Ontario’s provincial government was decisive in its response to Covid: the ministries of the attorney general and solicitor general quickly adopted new practices to prevent the spread. In order to comply with distancing protocols, they implemented electronic bail hearings and filings, and expedited bail hearing processes. Investments in technology were announced to allow for more remote court hearings. Both the police and courts started releasing more low-risk individuals, considering Covid in their determinations on bail.
Regulatory changes expanded correctional facility superintendents’ powers to grant temporary absence passes and to allow for remote parole hearings. All these efforts eased pressures within correctional institutions, protecting both staff and prisoners’ health. They’ve had the net effect of reducing prison crowding and limiting incarceration unless it’s absolutely necessary—which is exactly what is called for under the law.
To be clear, Covid hasn’t been used as a “get out of jail free” card. Jail is used when it is necessary to protect the public. But it should be a measure of last resort. Even short stays in jail can increase a person’s likelihood to reoffend in the future. In order to build on the lessons learned during Covid, we must release individuals on bail at the earliest opportunity as the ongoing standard. And we can be bolder. Bail should be the default for all non-violent cases, absent exceptional circumstances. Some jurisdictions, such as New York state, recently codified automatic bail for most misdemeanours and non-violent felonies. Early data suggests that this is having the desired effect of lowering correctional counts.
There are, of course, people who will continue to need extra supervision and support in order to satisfy courts of any public safety concerns. For individuals who require additional supervision, the key is to expand proven existing community-based options like bail beds and bail supervision programs. The Bail Verification and Supervision Program, or BVSP, offers community-based bail supervision for a low cost per client, ensuring that accused persons attend court and comply with bail conditions. In a post-Covid world, the province could consider expanded BVSP capacity, with increased referrals from police as soon as charges are laid. If this practice is formalized, it could save the courts and corrections significant dollars in costly short-stay remand admissions and bail hearings.
Bail beds are an additional tool in the community-alternative arsenal. Accused persons who lack a fixed address or have no-contact conditions in their bail orders cost the province significant funds resulting from prolonged pre-trial detention. Finding suitable residences for these people causes expensive delays in our criminal courts. If we expanded the availability of bail beds across the province, we could further ease correctional crowding while offering cost and time savings to the courts.
Finally, we need to stop using jails as social services of last resort. People are often arrested for breaching bail, or for probation conditions that criminalize otherwise legal behaviour, like drinking or breaking curfew. This over-conditioning bogs down courts and fills our jails with people who are generally low risk. Is it a good use of resources to incarcerate people for these offences? A more innovative approach can be found in the new Justice Centres being piloted in four locations across Ontario, with a goal of addressing the root causes of crime—homelessness, unemployment, mental health, education and the like—instead of punishment. This is a far more promising approach to improving community safety.
As Covid has demonstrated, decreasing the remand population in our jails is possible without sacrificing public safety. By allowing low-risk individuals to remain in the community, we buffer against the costly and counterproductive effects of incarceration. It took an international health crisis to advance justice reform. Let’s not forget these lessons. Let’s build on them. Let’s make them the new normal.