‘Right-sizing’ remand in jails
New initiative aims to keep only the accused who pose greatest risk in jail
The young man behind the glassedin prisoner’s dock in Regina provincial court awaits the prospect of tethered freedom or cramped constraint.
Making a first appearance on new charges, he’s accused of domestic assault, theft and breach of probation.
His surprise is unmistakable when Crown prosecutor James Fitz-Gerald consents to release if he agrees to a string of conditions — keep the peace and be of good behaviour, reside at a specified address, keep a curfew, come to the door for a curfew check, possess no illicit drugs or alcohol or weapons, have no contact with the complainant and make no references to her on social media.
“Those are a lot of conditions,” Judge Barbara Tomkins comments, asking if he can abide by them.
“I will follow the rules and conditions,” the 31-year-old eagerly replies, freedom a signature away.
It’s a scene played out day after day in Saskatchewan’s courtrooms. Some catch a break. Others face an uphill battle for bail.
The number of innocent until proven guilty remand inmates in Saskatchewan’s jails increasingly rivals the number of sentenced prisoners.
Tomkins knows the situation well. Before becoming a judge, she spent a decade as Saskatchewan’s Ombudsman. Her pivotal 2002 report, Locked Out, examined Saskatchewan’s correctional centres and warned remand numbers were rising, leading to double-bunking and increased risks to safety.
“One would also expect that due to their unconvicted status they would be treated better not worse, but this is seldom true. In fact, they generally have fewer liberties, fewer opportunities for recreation, and fewer or no opportunities for work, education and training,” she wrote.
In December, Provincial Auditor Judy Ferguson reported that jail populations had risen 51 per cent in a decade, mostly because of the 104 per cent hike in adult remand inmates, as opposed to only 25 per cent growth in sentenced prisoners.
Operating over capacity increases risks of violence and illness, property damage, hunger strikes, escape attempts, and in-custody deaths, she wrote, noting the extra hazards for guards as well.
“The system is failing in a way that’s just like watching a train crash — you’re on the track,” says Saskatoon defence lawyer Brian Pfefferle. “You got inmates on the brink of riot all the time.”
Cells built to house one inmate routinely hold two; rooms for rehabilitation become dorms; areas previously closed due to poor conditions are reopened for bed space.
“The present system is driving demands that we not only can’t afford, but we will not be able to keep up to,” says Dale McFee, the Justice Ministry deputy minister responsible for corrections. “Just building space is not going to solve this.”
The province has dedicated $1.4 million in the budget for efforts aimed at reversing the trend. Beds have been allotted at the Salvation Army shelters in Regina and Saskatoon. In a pilot project, police, prosecutors and a defence lawyer meet Sundays in Saskatoon to discuss the new arrests, so plans for release or even pleas are in place for Monday.
McFee says the point is to use remand for the inmates that pose the greatest risk to public safety.
“We’ve got to slow down these intakes, and we’ve got to rightsize … before we’re at 75 per cent remand. And that’s the trajectory that we’re on in the very near future if we don’t change.”
A FACE IN THE CROWD
“It feels like a dog pound,” says Kenny Morrison.
On a day in late April, Morrison is one of 321 remand prisoners at the Regina jail; 359 other inmates are actually serving sentences. It’s been his home since his arrest last August for charges that began with a vehicle theft and ended with a crash in Regina.
“This place is absolutely packed,” says Morrison, who shared his thoughts in a letter and a phone call.
He’s not in the usual remand unit, but an area normally used for highsecurity gang members — which he is not. He’s double-bunked and gets out of his cell for an hour each morning, afternoon and evening. What he’s noticed most is the crowding in the open living spaces. Pack-a-day smokers are plunged into a no-smoking zone 24-7, drug users are in withdrawal.
“Being around so many people with so many personal problems … in such a congested space, the tempers flare and people fight,” he says.
“It doesn’t make sense to treat people that are supposed to be presumed innocent worse than the guilty,” says Morrison. “There (are) no jobs available for remanded inmates, so the people that don’t have money are deprived of any family contact because mail and phone calls cost so much money.” The price of a local call recently rose to $2.50 from $1.35.
Morrison readily admits his problems are largely driven by drug addiction from self-medicating for mental health struggles. He thought he’d put together a solid release plan that included treatment, but failed to get bail.
“This is why this jail is so full,” he says. “Because nobody’s getting the help they need.”
The situation isn’t unique to Saskatchewan.
Justin Piche, an associate professor in criminology at the University of Ottawa, notes that in the 1990s, the focus was on reducing the number of sentenced prisoners in Canada, through conditional sentences and house arrest. By 2005, the percentage of remand prisoners filling provincial jails nationally had jumped to 50 per cent.
“Nationally speaking, at the provincial/territorial level, there are on any given day more people on remand awaiting judicial proceedings than there are people who have been convicted and sentenced,” Piche says.
According to Statistics Canada, in 2000, 27 per cent of the provincial inmate population in Saskatchewan was on remand. In 2015-16, on average about 43 per cent of inmates were on remand.
Anthony Doob, professor emeritus of criminology at the University of Toronto, said no province is immune. “One person in for a week uses a bed for seven days. That bed can be used by 52 people for one year or it can be used by two people for six months each,” Doob notes.
Regina lawyer Barry Nychuk recalls a client with no prior record who recently spent several days in jail before release.
“We have a Charter guaranteed right to reasonable bail. Reasonable bail means any restriction on my liberty must be justified,” he says. “People get frustrated. And what I don’t like seeing are people trying to plead guilty when all they want to do is get bail.”
Doob and Piche say “risk aversion” drives decisions by police, prosecutors and judges to fill remand units.
If an accused on bail commits some high-profile crime, “it’s your name, your office, your institution that’s going to get dragged through the mud,” adds Piche. “There’s impetus there to take less risk.”
Pfefferle also blames a 2015 Supreme Court decision, called St. Cloud, that found release can be denied in order to maintain public confidence in the administration of justice. One thing isn’t driving up the numbers. Crime rates fell or stayed flat at the same time remand inmate numbers grew.
When bail is granted, it usually comes with strings attached. Nychuk says 30 years ago, that list was pretty basic — keep the peace, don’t change your address, report as required.
In Piche’s words, “now people are getting dictionaries thrown at them.” Conditions can include curfews, bans on drugs, alcohol and bars, reporting weekly to police, no sharp knives or other objects unless it’s to eat or work, no cellphones, no Internet use, and submitting to searches without a warrant.
“It gets to the point where there’s so many conditions that you get the breaches. And ... that results in more incarceration,” says Nychuk.
Andrew Mason, president of the Saskatoon Criminal Defence Lawyers Association, says judges and the Crown are just responding to society’s demand for greater control of people on bail. But many who come into custody live a dysfunctional lifestyle and struggle with substance abuse and mental health issues.
“The ability for these people who are not functioning 100 per cent in many cases to comply with those conditions is difficult,” says Mason.
The Harper government’s Truth in Sentencing Act was premised on the notion that inmates lingered on remand to reduce their jail sentences. The old system gave two months credit for every one month on remand. The new law reduced that to one-for-one, then the courts changed it to 1.5 times to one. It didn’t make a dent.
“The case for so-called Truth in Sentencing was based on a myth,” says Piche.
In Saskatchewan’s courts, Mason believes recidivism is one of the biggest forces in remand numbers.
“The solution in my view is to provide adequate mental health, addictions, substance abuse counselling, and a support mechanism.”
From his vantage at the Regina jail, Morrison thinks much the same way. He says trauma he suffered in his early years spurred a lifetime of alcohol and drug abuse, culminating in heroin and meth in recent years.
“This has been a continuous cycle that I have been desperately trying to overcome for at least a decade now.”
Mason recognizes resources and public appetite to spend more on inmates is scarce. But, “can we afford not to?” he asks.