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Fix the cause of jail’s woes, not the jail

On behalf of Edelson Clifford D'Angelo Friedman LLP posted in Criminal Defense on April 9, 2016.

There is an old Yiddish parable about the notoriously foolish elders of the small town of Chelm.

These “wise men,” the story goes, were confronted with the vexing problem of the town’s dilapidated bridge. The townspeople would come to the elders regularly, with complaints and reports of injuries galore.

The elders, upon hearing these complaints, sat in deep contemplation for hours until finally, they emerged with a plan for the town bridge.

Their solution? “Let us start construction immediately,” the elders announced. “On a hospital, right next to the rickety old bridge!”

While it is easy to scoff at the foolishness of this approach, it is one that we see all too often when it comes to public policy, and specifically criminal justice reform.

Indeed, we have our very own failing bridge, in the form of the Ottawa-Carleton Detention Centre.

The OCDC is overcrowded and understaffed. Inmates are double or triple-bunked and given pitiful access to recreational, educational or rehabilitative activities.

And, to add insult to injury, the majority of inmates at the OCDC are not there serving a sentence — they are on remand, presumed innocent and awaiting trial.

The past few weeks have seen a furor of activity and outcry over the conditions at the OCDC. The practice of “shower bunking” — temporarily housing inmates in shower facilities — came to light, and, after the practice continued despite the explicit order of Minister Yasir Naqvi, it ultimately resulted in the termination of the detention centre’s superintendent.

These revelations have prompted solutions from all corners. Some have called for Minister Naqvi’s resignation. Others have demanded increased funding for the OCDC and the provincial corrections system more broadly.

Unfortunately, each of these suggestions would do little more than establish that proverbial hospital next to the broken-down bridge. Because the issues at the OCDC are symptoms of a much deeper and pervasive malaise.

The root cause is simple. The crisis in provincial corrections can be directly attributed to a decade of federal “tough on crime” legislation — increased mandatory minimum sentences, further restrictions on bail and a plethora of “new and improved” criminal offences.

The irony is that most of these minimum sentences, on their face, would appear to direct offenders to federal institutions, where sentences of more than two years are served. The reality, however is very different.

First of all, the application of a minimum sentences often decreases a person’s chance to get bail. The result? The accused is held in provincial custody awaiting trial.

Moreover, the possibility of a minimum sentence is often a significant incentive for an accused person to forgo his right to a trial, and to plead guilty to a lesser offence – usually followed by incarceration in the provincial system.

And finally, this “tough on crime” approach has generated such a judicial backlog that even where an offender is found guilty and sentenced, once his time-served is accounted for, he will often serve the remainder of the sentence in provincial custody.

Under our Constitution, criminal law is the exclusive domain of the federal government. In most cases, the province is simply tasked with administering it.

Fundamentally, these are federal problems. And federal problems require federal solutions.

The public ire, recently directed at Minister Naqvi, is, in actual fact, woefully misdirected – at the wrong level of government.

It does appear that the minister is taking this problem seriously. First, in condemning and prohibiting the practice of “shower bunking” and then, in taking decisive action when his explicit directive was so flagrantly contravened.

Because if we are to have a truly just and effective correctional system, we need more than a band-aid solution. We must start by repairing the bridge itself – and repeal a decade’s worth of ill-conceived and wrong-headed penal legislation.

This article was originally published at

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