On behalf of Edelson Clifford D'Angelo Friedman LLP posted in Criminal Defense on July 22, 2016.
It is no secret the Canadian prisons are overcrowded. In fact, some prisons, such as the Ottawa-Carleton Detention Centre, had been using shower stalls to hold inmates due to lack of space. The Canadian Charter of Rights and Freedoms states that every person should be free from having their life, liberty and security (of person) infringed upon (s. 7), that every person has the right to be presumed innocent until proven guilty (s. 11(d)), and that no one should be denied reasonable bail without justice cause (s. 11(e)). The Criminal Code also states that there is an initial presumption that a justice should order the accused to be released unless the Crown can prove that detention is warranted. Yet despite these rights and presumptions, research has shown that half of the prison population is made up of innocent accused remanded to pre-trial custody.
Pre-trial custody has a substantial impact on both the accused person and the outcome of a trial. This has been recognised by the Supreme Court of Canada in a number of cases (such as R. v. Hall and R. v. Summers). Accused in pre-trial custody are isolated from their friends and family, yet these inmates do not get access to the same benefits that offenders who have been sentenced to a term of imprisonment get. For example, inmates in pre-trial custody do not get access to rehabilitative programs, nor do they have the ability to have the time they have served in prison count towards parole eligibility, if they were to be convicted. Pre-trial custody also prevents accused persons from working, making it difficult for them to fund their legal defence.  This means that those who were denied bail will spend more time in prison then those who were not. Additionally, the Court acknowledged that accused who were remanded into custody were more likely to plead guilty or be convicted.
In addition to overcrowding, a lack of skills training programs, and unsafe conditions, there have been recent reports of inmates dying while in prison. So far in 2016, three inmates in the Ottawa-Carleton Detention Centre have been reported dead. Most notably, in April of this year, Yousef Mohammed Hussein, an inmate who had been awaiting trial for the past two years, hung himself with his bedsheets from the solitary confinement cell that he was in. Mr. Hussein’s trial date was set for three years after his arrest. Imagine that, spending three years in jail in a system where you are presumed to be innocent. This is a reality that many accused people in our justice system have to face, and if they are found not guilty, they are unable to get back the time that they spent in jail awaiting trial.
However, despite the public acknowledgment of overcrowding and the unsafe conditions of Canadian prisons, in the past 30 years the amount of inmates in pre-trial custody has tripled. The prisoners who are innocent, awaiting their trial, now outnumber the amount of inmates who have been found guilty. Unfortunately, the prevalence of pre-trial custody is likely to rise due to decisions like R. v. St. Cloud. In this case, the Supreme Court stated that an accused person can be detained if it is “necessary to maintain confidence in the administration of justice”, even if there is evidence to show that the accused’s detention is not necessary to ensure his or her attendance in court, and the accused’s detention is not necessary for the safety of the public. This is a big shift from how courts have been applying the law in pre-trial custody matters, and the effects of this case will likely result in more accused people being denied bail.
With the availability of pre-trial custody becoming scarcer, and the problem of overcrowding in prisons likely to become much worst then it already is, it is crucial that all levels of government take a closer look at this issues. As a country, we must figure out how to make our prison system safer, especially for those inmates who haven’t yet been convicted.
 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
 Criminal Code, RSC 1985, c C-46 ss 515 (1),(2).
 Canadian Civil Liberties Association, “Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention,” (July 2014) Canadian Civil Liberties Association, online: https://ccla.org/dev/v5/_doc/CCLA_set_up_to_fail.pdf [CCLA].
 Gary Trotter, Understanding Bail in Canada (Toronto: Irwin Law, 2000) at 9.
 R v Hall, 2002 SCC 64,  3 SCR 309; R v Summers, 2014 SCC 26,  1 SCR 575 at para 2.
 CCLA, supra note 3.
 R v St-Cloud, 2015 SCC 27,  2 SCR 328 at para 26.