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BAIL SYSTEM 'CRUEL', JUDGES SAY
by Tracey Tyler,
21 Dec 2003
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
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
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,
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,
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
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
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,"
Related articles on prisonjustice.ca:
Holding Remand Prisoners Longer Leads to Overcrowded Prisons in Ontario