In support of prisoners and prison justice activism in Canada
Bail System 'Cruel', Judges Say

by Tracey Tyler,
21 Dec 2003
Toronto Star

12-Day Wait Average In Ontario
Some Sleep On Floor By Toilet
It Was No Ordinary Mother-Daughter Outing.

Betty Vu, 23, and her mother, Muoi Thi Vu, 47, were thrown in jail after being arrested in connection with a marijuana growing operation in Vaughan. The law says they were entitled to come before a court within 24 hours and to have a bail hearing without unreasonable delay, ideally within that same time period.

But for nearly two weeks, there was no hearing. The Vus were shuffled from cell to courthouse and back again, sleeping on metal bunks without blankets and enduring strip-searches each time they returned to jail, a court was told earlier this year.

Finally, after 12 days in captivity, Betty Vu appeared before a justice of the peace and was released on $10,000 bail. Her mother's bail hearing was delayed another day. Their lawyer, Peter Zaduk, called their experience "Kafkaesque."

But it's no longer unusual in Ontario, where record numbers of people are packed into jails awaiting their day in court.

They are presumed innocent, but often housed in "cruel" conditions, creating an "intolerable" situation, said Mr. Justice Ted Matlow of the Ontario Superior Court, citing the Toronto ( Don ) Jail as one example.

" To subject someone who is innocent to conditions like those at the Don Jail is reprehensible and hardly anyone in government gives a damn about it," Matlow told the Star in an interview.

He is one of a growing number of judges calling for an inquiry into the problems, which include:

*Bail hearing delays. People charged with criminal offences in Ontario must wait an average of 12 days for a bail hearing after being arrested, according to the latest figures from the ministry of public safety and security, which is responsible for policing and jails.

" The system is broken," Zaduk told a justice of the peace in Newmarket. "I'm ashamed of this."

*Jail conditions. The correctional system makes no distinction between people who are presumed innocent and those who have been convicted and sentenced.

" They are all treated the same way and that, I think, is fundamentally wrong," Matlow said.

He recently heard testimony from Don Jail security manager Jim Aspiotis, who said as many as three people are routinely crammed into 1.8 x 2.7 metre cells, with inmates deciding themselves who gets a bunk. Invariably, the stronger and "more menacing" win out while the weaker ones sleep on a mattress on the floor, frequently with their heads next to a toilet.

The mattresses often get soaked when toilets back up and flood the cells. Opportunities for fresh air and exercise are limited.

And inmates are sometimes only given a change of clothes every two weeks, the manager said.

The problems aren't just in Toronto. A pregnant inmate was recently forced to sleep on the floor of a Milton jail cell.

*A soaring remand population. As incredible as it seems, the number of people held in Ontario jails awaiting trial has surpassed the number serving sentences.

About 63 per cent of Ontario jail inmates, or 52,179 people, were awaiting trial in 2000-01, according to Statistics Canada. Since then the numbers are virtually unchanged, correctional officials say.

It's impossible to tell from looking at the numbers whether too many people are being held in pre-trial custody, said Gary Trotter, a Queen's University law professor and a leading authority on bail. But there are definitely "serious problems with the system," he said, including unacceptably long delays for bail hearings.

In some areas, delays may stem from justices of the peace using valuable court time for administrative tasks, such as interviewing sureties, which can be done elsewhere, but the system also needs more JPs and prosecutors, he added.

Trotter said the conditions of confinement are also an issue.

The problem is more acute for people awaiting trial than those who have been tried, convicted and sentenced, said Matlow. "That may be obvious, but I don't think it is obvious to people in government."

A member of the public, however, might appreciate how they or a member of their family could end up in that situation, he said.

" Anyone could be picked out in error as having committed a crime and it could take many months to unravel the problem. In the meantime, we could be the ones forced to sit in a cell at the Don Jail, sleeping on the floor with our head next to the toilet, with little opportunity to get out and get exercise or fresh air."

" If that happened to one of us, we would scream outrage," Matlow added. "But it goes on all the time."

" I think that one of the very fundamental problems is that there is no political will - at least there has not been any political will - to really address these particular problems in the case of people who are detained while they are awaiting trial."

Monte Kwinter, Ontario's new minister of public safety and security, agrees there is a problem and says it's "compounded by the fact we now have some really serious fiscal restraints."

The Don Jail, for example, should be closed yet the province just extended its lease for another year because a place is needed for inmates in Toronto, he said.

While housing inmates is his responsibility, Kwinter said he has no control over how many people are sent to jail. He suggested an existing government committee with officials from his ministry and other parts of the justice system must look for ways to minimize pre-trial delays.

In the meantime, although the Don Jail "is not the greatest jail in the world" it is "certainly a clean facility," he said, noting inmates themselves do the cleaning.

But last September, after hearing Aspiotis describe life inside in graphic detail, Matlow said he "cannot simply close my eyes, and even my nose, and continue to send, without protest, human beings to a place where their Charter rights are violated with impunity while they await their trial."

" We talk about justice systems in parts of the world that are much crueller than we are, but ours is every bit as bad," he added.

" We should not be so proud of our system. It's just as bad as any of those countries."

Matlow isn't alone in his views. Recently, Mr. Justice Casey Hill, his Superior Court colleague, said a pregnant inmate's treatment at the Vanier Centre for Women, part of the Maplehurst complex in Milton, fell short of standards for jailing prisoners of war under the Geneva Convention.

She was forced to share a one-person cell with another inmate and sleep on a thin mattress on the floor in a "shocking deprivation of her human rights," Hill said in a ruling released last week, which overturned a lower court decision denying her bail.

In an interview last month, Hill called for a "multi-partner study" into why so many people are in pre-trial custody.

Just a week earlier, Mr. Justice Marc Rosenberg of the Ontario Court of Appeal said the number of people held in arguably "inhumane" pre-trial conditions is putting the integrity of the justice system at risk.

He urged Attorney General Michael Bryant to "take ownership" of the problem, saying it's also inconsistent with Canada's obligations as a signatory to the International Covenant on Civil and Political Rights.

The treaty says prisoners in pre-trial custody should be separated from convicted persons in a manner appropriate to their status.

When approached by the Star, Bryant refused to discuss the issue personally, referring the queries to a ministry spokesperson.

The spokesperson said jail conditions are the responsibility of Kwinter's ministry and bail hearing delays are often caused by defence lawyers being unavailable for court - but the ministry continues to look for solutions.

Matlow said someone must examine all the issues and come up with some comprehensive answers. One option is independent public inquiry, headed by a judge with testimony from experts.

Former premier Ernie Eves suggested jails were never intended to be luxury hotels, Matlow noted.

" I guess I agree with that," he said.

" In a perfect world, I suppose, we would take over the Sheraton Hotel and detain those people there. But that, even I admit, is unrealistic."

Yet, at minimum, inmates considered innocent in the eyes of the law should have an opportunity for privacy, visits from family members, access to telephones and their own clothing and "a comfortable, clean place to sleep," he said.

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