The National Council of Welfare has long been concerned about the treatment of poor Canadians under our justice system. This led us to engage actively in debates over the provision of legal aid for the poor through the publication of a 1971 report, The Legal Services Controversy and a 1995 report, Legal Aid and the Poor. The conclusion of the 1995 report was that "Legal aid plans do a very poor job of meeting the legal needs of low-income people."²

Another troubling finding of the 1995 report was that thousands of low-income Canadians are imprisoned routinely because they are unable to pay fines. Also disturbing were indications that many poor young people who cannot get legal representation for minor offences end up with criminal records that bar them from jobs and thus condemn them to a lifetime of poverty. When we examined these issues further, we found that the different stages of the criminal justice process are so closely interconnected that their effects cannot be separated. We therefore extended our analysis to three main stages: relations with the police, bail decisions and sentencing.

The National Council of Welfare is not alone in worrying about the way the criminal justice system treats low-income Canadians. In every survey of Canadian attitudes on criminal justice carried out in the past 30 years, two-thirds of the respondents said they found our justice system unfair because it gave preferential treatment to the wealthy and was too harsh toward the poor.³ These biases are perceived to exist throughout the criminal justice process. The groups most sceptical of fairness in the system are the young, the poor, and those who have had most personal experience with the system.

Research findings confirm this widespread impression of bias. The evidence points to a staggering degree of discrimination against the poor at all levels of the criminal justice system. The reality, in Canada as in the United States and probably all other countries of the world, is that:

For the same criminal behaviour, the poor are more likely to be arrested; if arrested, they are more likely to be charged; if charged, more likely to be convicted; if convicted more likely to be sentenced to prison; and if sentenced, more likely to be given longer prison terms than members of the middle and upperclasses. In other words, the image of the criminal population one sees in our nation's jails and prisons is an image distorted by the shape of the criminal justice system itself. It is the face of evil reflected in a carnival mirror, but it is no laughing matter.⁴

Very few of these negative effects are produced by evil people doing evil things. Yes, there are bigoted police officers, bigoted judges and bigoted parole officers, but they are a small minority and the harm they cause is almost insignificant compared to the tremendous damage inflicted by law enforcement policies that appear to be impartial and fair, but have a disproportionately harsh impact on the poor, especially on poor young men.

The practices that have most impact in criminalizing the poor concern police deployment and the exercise of police discretion. People from all levels of society commit crimes, but crime enforcement resources are heavily concentrated on the close surveillance of young men in low-income neighbourhoods. Not surprisingly, the resulting crop of suspects picked up and charged by the police do not reflect the distribution of crime so much as the distribution of poverty in our society.

Once poor people have been brought into the criminal justice system, the strikes against them continue to accumulate. Low-income suspects are less likely to be freed on bail, so a greater proportion is sent to jail until trial. Being imprisoned often bars poor people from alternative measures, through which other suspects who commit minor offences are diverted out of the formal criminal justice system. A large proportion of poor defendants, perhaps as many as half, appear before the courts without legal representation. By the sentencing stage, almost all those who remain before the courts are from low-income backgrounds.

Many Canadians believe that our criminal justice system is too soft on criminals, and that indulgent treatment has been a main cause of increasing crime rates, especially for crimes of violence. In fact:

Canada has a lower rate of violent crime than most other industrialized nations.

⁵

Canada is extremely harsh toward criminals and has one of the highest rates of imprisonment of young people in the world, twice that of the United States.⁶
The much-maligned Young Offenders Act did not make judges softer on youth crime as often thought, but on the contrary led to a steep increase in the proportion of young people sent to correctional institutions.⁷

The conclusion of those who have studied our criminal justice system is that it discriminates against the poor and harms as many people as it helps. Instead of developing effective ways of dealing with conflicts within our families, our schools and our communities, we dump all our disadvantaged social misfits into the criminal justice system, where they are repeatedly warehoused and then thrown back into the street. Instead of dealing wisely with the near-universal tendency of adolescents (especially boys) to commit minor criminal offences, we arrest thousands of low-income young men and lock them up with experienced criminals who give them advanced lessons in crime.

The Canadian criminal justice system is not only unjust but also an abysmal failure that pushes young people into crime instead of helping them to stay out of it.

TOP

I. THE POLICE AND THE POOR

Crime and delinquency are "found" among the poor because that is where they are sought.

W.K. Greenaway ¹

Police services are the most important element of the criminal justice system. In financial terms, they account for 60 percent of all government spending on justice, while expenses on correctional services account for 25 percent, followed by courts at 9 percent, and legal aid at 6 percent.² The police are the most crucial component of the system because they are the gatekeepers, the ones whose decisions to arrest and to lay charges draw people into the criminal justice process. When police decisions are biassed in ways that bring too many low-income people before the courts, it is inevitable that those who are tried and convicted and sentenced are also disproportionately poor.

Police actions are also the most vulnerable to bias. This is because police decisions are made most quickly and are least public, and because police officers have enormous discretion in determining who gets stopped, who gets arrested, who gets detained and who gets charged. Consider the range of choices of a police officer who catches some 18-year-olds driving around in a car they broke into. The officer can charge the youths with any of the following: theft over $5,000, possession of stolen property over $5,000, mischief to property over $5,000, taking a motor vehicle without consent, or conspiring to commit any of these. The maximum penalties for these offences range from six months to ten years in prison. The officer can also decide to lay none of these charges, but instead to deliver a stern lecture, escort the young people back to their homes and inform their parents.³ As this shows, whether a person becomes involved in the criminal justice process often hinges on a police officer's attitude.

Is there something wrong with police officers exercising such enormous discretion? Most of us would say no and would agree that police officers should use discretion and common sense in their duties. Our justice system would probably collapse if tickets were issued to everyone who drove a few kilometres above the speed limit and if charges were laid against all teenagers who were caught trying to shoplift in stores. The problem is not police discretion in itself, but the use of discretion in a manner which discriminates against some groups, particularly the poor.

To determine whether law enforcement discriminates against low-income people, Canadian criminologist Thomas Gabor suggests we start by asking who breaks the law.⁴

Who Commits Crimes?
Until the 1960s, it was widely assumed that poverty bred crime and that most crimes were committed by young men with lower-class backgrounds. This assumption was based on statistics showing that the majority of those who were arrested, convicted, and imprisoned were then, as they are now, males under the age of 25 from families in which the parents had little education and low incomes and held inferior jobs or no jobs at all.⁵ To account for this, criminologists developed many explanations. One was the social disorganization theory, which said that specific neighbourhood conditions, such as poverty, high mobility and multi-ethnicity, caused a breakdown of traditional values which led to crime. Another was the opportunity theory, according to which lower-class people were more likely to engage in crime because they were blocked from achieving financial success by legal means.⁶

Everyone was therefore surprised in the 1960s when U.S. researchers discovered that criminal behaviour was not linked exclusively to lower-status people and poor neighbourhoods. Using self-report studies, which asked (mostly young) participants to reveal, in total confidence and without fear of punishment, what illegal actions they had committed, researchers made two shocking discoveries.

First of all, the vast majority of all male adolescent participants reported having committed illegal acts that could have landed them before youth courts. Girls were much less likely to engage in illegal behaviour.⁷ When Canadian criminologist Marc LeBlanc questioned 3,000 young Montrealers, he found that more than 90 percent had committed delinquent acts in the previous year, and that more than 80 percent had contravened the Criminal Code. The most common offences were shoplifting, vandalism, driving a car under the influence of alcohol or taking mild drugs, especially marijuana. Nine percent had committed more serious crimes such as robbery.⁸

The second surprise was that the children of parents with professional jobs were as likely to report having committed illegal acts as the children of poorer parents with low-status jobs. Contrary to the strong link between crime and social class of origin that had been taken for granted until then, it seemed that they were not related at all. This finding caused huge controversies in criminology circles that continue to this day. It also inspired dozens of other self-report studies, which produced contradictory and inconsistent results and therefore failed to establish that young people from low-status or poverty backgrounds were more likely to get involved in crime or to commit more serious crimes.⁹ In Canada, a study of 57 young people in New Brunswick found that boys whose fathers had professional occupations were less likely to commit delinquent acts than the sons of blue-collar workers.¹⁰ But other studies, including the large LeBlanc survey in Montreal, found no relationship between delinquency and the parents' education or occupation.¹¹

Most experts now agree that the social status and income of the parents have little or no direct effect on the likelihood that children will turn to delinquency, although they may in some cases have indirect effects by amplifying life problems that can lead to crime. For example, children with learning difficulties whose parents have little education and whose inner-city schools offer inadequate remedial programs may get less help with their problems than similar children with better-educated parents in more affluent neighbourhoods with better schools. This can result in more children from poor backgrounds doing badly at school, and it has been established that there is a strong association between school failure and the likelihood of becoming a repeat offender, to the point where school performance in adolescence is one of the best predictors of both juvenile delinquency and adult criminality.¹²

Research has found that the children most at risk of becoming delinquents and criminals face the following circumstances:

they receive little love, affection, or warmth, and are physically or emotionally rejected and/or abandoned by their parents; (
they are inadequately supervised by parents who fail to teach them right and wrong, who do not monitor their whereabouts, friends, or activities, and who discipline them erratically and harshly; and
they grow up in homes with considerable conflict, marital discord, and perhaps even violence . . . Families at greatest risk of delinquency are those suffering from limited coping resources, social isolation, and (among parents) poor parenting skills.¹³
Given the lack of resources and greater vulnerability of young people from disadvantaged backgrounds, it is a tribute to their parents that the differences in criminal behaviour between youths from low-income and more affluent families are not evident. Two Ontario studies which looked at the family characteristics of incarcerated adolescents found that money worries played a minor role. Most prominent were physical abuse between the parents and toward the children, family breakdown with estranged fathers, and excessive drinking by the parents and the children.¹⁴
Following the inconclusive findings of self-report studies on the relationship between crime and socioeconomic background, academic interest in this subject greatly diminished. By the early 1990s, criminologists were concentrating instead on other theories, such as the psychological or biological factors that are or may be associated with criminal personalities, the bad influence of delinquent friends, or the effects of policing methods on criminal behaviour.¹⁵
While this research has been useful, criminologist John Hagan of the University of Toronto thinks it would be a serious mistake to assume that socioeconomic status makes no difference and to give up the search for the link between social characteristics and crime. Hagan points out that although the relationship between the social status of the parents and crime is very weak, it has been demonstrated that the personal status of older youths and adults, particularly their own job situation, is clearly related to criminal behaviour. Unemployed men, whatever their family backgrounds, are more likely to be involved in crimes against property, such as theft and breaking and entering.¹⁶ What has not been established is whether unemployment leads to crime or the other way around.
Most likely, crime and unemployment form a vicious circle. A Quebec survey of employers found that having a criminal record can drastically reduce one's chances of finding a job: 58 percent would not hire someone who had just been released from a penitentiary, even if the applicant had all the qualifications for the position. Larger employers were even less likely than small ones to want to hire people with criminal records. Most important, the consequences of past dealings with the criminal justice system are much more severe for people from lower-class backgrounds than for those whose families are better off. This is because lower-class ex-offenders are more stigmatized and are less likely to have family connections to find them jobs that enable them to forget the past and start a new life.¹⁷
"Kin-based job networks" were identified as a crucial factor that distinguished young delinquents who later reformed from those who continued to commit crimes into adulthood.¹⁸Those who had good family connections were able to find jobs and to build new legitimate careers that soon made them forget their youthful errors. Some ex-offenders who cannot find legitimate means of earning a living may feel they have no choice but to pursue criminal careers. This may be difficult to resist if the only connections they have are fellow delinquents or criminals who invite them to join their illegal activities.
Hagan and others also said that while self-report studies are valid as far as they go, the picture of crime they present is incomplete. Because self-report research has focussed on young people still at school, it ignored the dropouts who were at greatest risk of becoming delinquents. When Hagan and Bill McCarthy studied homeless street youths in Toronto, who are estimated to number between 10,000 and 20,000, they found that although young street people were not all criminals, they reported having committed many more crimes on average than their peers who were still in school, especially more serious crimes. Hunger was a major motivation for thefts by street youths. Hunger and lack of shelter were linked to prostitution, especially for girls.¹⁹ When Stephen Baron studied street youth in Edmonton, the young people he questioned reported an average of 1,673 offences in the past year, for a total of 334,636 offences by 200 youths.²⁰
Do these studies of street youth confirm the old theory that poverty breeds crimes? Yes, in the sense that immediate and extreme poverty leads people to do anything to meet their basic needs. On the other hand, the Toronto studies found no evidence that most young street criminals come from low-income families. There was some overrepresentation of street youths from families with unemployed heads: seven percent of the homeless kids, compared to two percent of school kids, had at least one unemployed parent. But the other 93 percent of street youths had parents whose occupations were similar to those of the parents of children still at school.²¹
In the Prairie provinces, the studies showed that many Aboriginal people live in conditions of extreme poverty. They make up a large majority of adult skid row residents (including many released ex-offenders) and a majority of the runaways and street youth.²²However, Aboriginal street youths were arrested mostly for small thefts and for trivial or technical offences, such as failure to report to their probation officers. This is consistent with reports that in spite of their extremely high arrest rates, Aboriginal people show little criminal intent and commit mostly petty offences while under the influence of alcohol or to obtain alcohol.²³ (Note: "Aboriginal" includes registered Indians on and off reserve, accounting for 69 percent, Métis who make up 26 percent, and Inuit 5 percent.²⁴)
In Edmonton, Baron reported that the small number of street youths who were from higher-status family backgrounds - and therefore probably not Aboriginal - were "most likely to commit violent crimes, sell more drugs, and generally be more involved in criminal activity than their peers who came from more humble origins."²⁵ Similarly, Bernard Schissel's study of street youth in Saskatoon found that for the more serious and aggressive crimes such as assault and break and enter, street youths from higher-income families were arrested more often than youths with moderate and lower family incomes.²⁶
These findings are not completely unexpected, because several U.S. studies concluded that young people from middle-class families who fail school are more likely to engage in delinquent behaviour than lower-class youths who fail school. According to Australian criminologist John Braithwaite, the problem is not so much failure itself as the discrepancy between aspirations and expectations. Also, middle-class youths who fail school are under greater pressure to succeed and have further to fall through downward occupational mobility.²⁷
As street life and street culture are themselves conducive to committing crimes,²⁸ it is important to ask why young people end up on the streets. According to the Canadian studies, most street youths come from broken families and have histories of abuse by their parents or foster parents. In the Saskatoon study, 46 percent of the male street youths and 67 percent of the female youths reported having suffered multiple abuse, defined as more than one of physical or mental or sexual abuse.²⁹ In Toronto, "physical abuse has a strong positive effect on homelessness; homelessness has a strong positive effect on delinquent behavior; and both homelessness and delinquent behavior have strong positive effects on police sanctions."³⁰ Overall, Hagan concludes, many children abused and neglected by their families are forced out on the streets where they are then abused by our legal system.
Far away from life on the street, there has been an increasing awareness in the last few decades that official crime statistics immensely underestimate white-collar and corporate crimes. These include a huge range of offences, including tax fraud and bank embezzlement at the simpler end, and enormously complex corporate stock and securities fraud and antitrust violations at the other end, as well as numerous types of criminal negligence causing occupational injury or death. In her book about corporate crime in Canada, Laureen Snider writes that:

Although corporate crime receives much less publicity than the assaults, thefts, and rapes most people think of when they hear the word "crime," it actually does more harm, costs more money, and ruins more lives than any of these. Corporate crime is a major killer, causing more deaths in a month than all the mass murderers combined do in a decade. Canadians are killed on the job by unsafe (and illegal) working conditions; injured by dangerous products offered for sale before their safety is demonstrated; incapacitated by industrial wastes released into the air or dumped into lakes and rivers; and robbed by illegal conspiracies that raise prices and eliminate consumer choice . . . Canadians are twenty-eight times more likely to be injured at work than by assault . . . People are 10 times more likely to be killed by conditions at their workplace than to be victims of homicide . . .
Corporate crime . . . also causes staggering losses in financial terms . . . While the average robber in the United States nets $338, the average federally convicted white-collar criminal takes $300,000 . . . In a reverse Robin Hood process, antitrust offences and tax evasion transfer billions of dollars from the poor to the rich . . . All the street crime in a given year in the United States costs an estimated $4 billion, less than 5 percent of the average yield of corporate criminals.³¹

Who commits these crimes? Certainly not the poor, or extremely few of them. The most common motive is not need, but greed. The more complex the crime, the more powerful and socially prominent the perpetrators tend to be. As they say, "The best way to rob a bank is to own one."³² A national review of fraud suggested that the profile of a typical white-collar offender "was a male aged 26-40, with some managerial responsibility, and earning $50,000 per annum or less - that is, middle-class persons with position and ambition." ³³ U.S. studies of tax fraud find that while many ordinary people cheat on their tax returns, it is corporate taxpayers who are responsible for the overwhelming majority of underpaid tax.³⁴ Only a small proportion of white-collar crimes are committed by people with relatively low status, such as bank tellers, and the only white-collar crime in which women are represented almost as much as men is low-level bank embezzlement.³⁵ Snider writes that corporate offenders:

...are well-educated people with good jobs, strong ties to community institutions, and memberships in all the organizations that symbolize conformity, such as churches, service clubs, and political parties. Unlike traditional offenders, white-collar criminals tend to be married, with stable histories of employment, and years of involvement in the community. Their incomes are above average, and their belief systems are traditional and conservative. They most certainly do not think of themselves or their peers as criminals.³⁶
What are we to conclude from all this about the people who commit crimes in Canada? The answer appears to be that almost all Canadians break the law at some point in their lives, but that most of these illegal acts are not serious and are usually committed in adolescence. Among older youths and adults, those who commit most criminal offences are men who are at the extremes of the social spectrum. At one end are criminals who were not necessarily from poor families, but who are now without legitimate employment and sometimes destitute. They are most feared by the public and are responsible for a large share of common or street crimes. At the other end are higher-class, white-collar criminals, who are responsible for more deaths and steal much more money than the poor, but are seldom called criminals and are seldom condemned by a society in which many people believe that "greed is good."³⁷
Who Do the Police Arrest and Charge for Crimes?
If it is so doubtful that most juvenile delinquents come from low-income families, why is it that studies throughout the world find that young people from poor families are massively overrepresented among those who are arrested, convicted or imprisoned for breaking criminal laws?³⁸ And if higher-class criminals do considerably more harm to our society than poor criminals, why is it that prisons are so full of poor people that they could be called - to borrow an appropriate expression from a U.S. critic - our national poorhouses?³⁹
Part of the answer is that the illegal acts of more affluent youths and adults are much less likely to come to the attention of the authorities. In the relatively rare instances when well-off people are caught and charged, they are dealt with less harshly than poorer people who commit similar acts. These problems are aggravated by public attitudes and law enforcement policies and practices that directly or indirectly discriminate against the poor.
According to criminologist Maurice Cusson, the main reason delinquent boys from well-off families are much less likely to be arrested and found guilty of criminal acts is that affluent families can draw on many more resources than their poor counterparts. Cusson cites the example of Jean-Sébastien, the son of a rich businessman, who showed serious behaviour problems from birth. Sent to an exclusive school where he did badly, he stole money from classmates and was expelled with no charges laid. Back home, he stole large sums from both parents. In another private school for difficult children, he set fire to the building, which was totally destroyed. His parents reimbursed the school for the damages and no charges were laid, and they paid again when he stole the cashbox at his next school. And so on for many years until, as a last resort, Jean-Sébastien was finally sent to work on a cattle ranch owned by his uncle in South America, where he settled down and did all right.⁴⁰
The most striking aspect of this abbreviated story is that in spite of having committed dozens of illegal acts, including a very serious one - arson - Jean-Sébastien did not once appear before a judge. His family was always able to solve the problems by paying the victims and dissuading them from laying charges and by finding other private solutions for their son. If Jean-Sébastien had been born to poor parents in a poor neighbourhood, there is little doubt that he would have faced many judges and seen the inside of many detention houses. Jean-Sébastien's story stands in sharp contrast to the experiences criminologist Anthony Doob witnessed in the youth bureau of a southern Ontario town, where several helpless parents who could not handle their children reported their illegal activities to the police. According to Doob, the fact that it was the parents who complained increased the likelihood that the youths would be charged.⁴¹
Low-income people, especially in neighbourhoods with a high proportion of single-parent mothers, are also heavy users of police services for situations not connected to crime. The poor are more likely to call the police for assistance with neighbourhood and family problems, medical emergencies and other types of crises, leading an expert to say, "Poor, uneducated people appear to use the police in the way that middle-class people use family doctors and clergymen - that is, as the first port of call in time of trouble."⁴² According to the semi-autonomous Quebec Amerindian Police, about a third of all calls to the police on reserves were requests for services, and 45 percent of all service calls ended up with police making referrals to other agencies, such as social and health services, probation officers or psychiatric specialists.⁴³
When surveys of satisfaction with police services are done in poor neighbourhoods, they often find that residents feel both underpoliced and overpoliced. Complaints of too little policing are made by fearful citizens and victims of crime who feel that the police do not do enough, or react quickly enough to protect them from criminal acts. Witnesses who appeared before the Canadian Panel on Violence Against Women felt that calls for help about domestic violence which originate in public housing complexes are answered much more slowly than those originating from middle-class neighbourhoods.⁴⁴ Women, and especially low-income older women, are most fearful about the possibility of becoming victims of crime and therefore most likely to want greater protection by the police.⁴⁵
One result of the greater dependence of poor people on the police is that low-income neighbourhoods produce a much greater volume of calls to the police than more affluent areas. Because of this, and because low-income neighbourhoods also produce higher arrest rates and higher official crime rates, it was assumed until quite recently that most crime victims were poor and that most crimes take place in urban, low-income, densely populated areas with transient populations and many single-parent families.⁴⁶ Police authorities use these figures to make decisions about the deployment of police officers and resources to different parts of towns and cities, with the result that a disproportionate number of police patrols are assigned to poor areas.⁴⁷
Starting in the 1980s, these long-standing assumptions about poor neighbourhoods and crime were challenged by research findings demonstrating that calls to the police and official crime rates show only a tip of the crime iceberg. Victimization surveys done by Statistics Canada in 1982, 1988 and 1993 revealed that 24 percent of all Canadians over the age of 15 had been victims of at least one crime in the year before the surveys. The 1993 survey found that "90 percent of sexual assaults, 68 percent of assaults, 53 percent of robberies, 54 percent of vandalism, 48 percent of motor vehicle theft or attempted theft, and 32 percent of break-and-enters were not reported to the police."⁴⁸ For wife assaults, it was estimated that less than seven percent were ever brought to the attention of the justice system. These rates of reporting crimes to the police are similar to those found in international surveys that included several European countries along with Canada and the United States.⁴⁹
Surveys of victims showed that the link between poverty and victimization is far from clear. They found that the victims of crime, like the offenders, tend to be young. Young single men aged 15 to 24 - especially students with active social lives - and young separated or divorced women who live alone have the highest rates of violent victimization. In the case of the women, violence by former partners is believed to be the most common explanation. The risk for property crimes goes up as income increases. Least at risk are people over age 65, with rates too low to be reliably calculated in 1993, though other studies found that elder abuse and neglect by family members is often unreported.⁵⁰
When victims were asked why they had not reported these crimes, the main reason they mentioned (cited by 34 percent) was that they had dealt with the matter in another way. Other reasons included that the incidents were too minor or personal matters (most victims knew their assailants), that they feared revenge if they complained, or that they felt the police could not do anything.⁵¹ Students were least likely to report crimes, while homemakers and seniors were most likely to call the police. Not surprisingly, other studies revealed that so-called "victimless" crimes, such as prostitution, drug offences and gambling, are almost never reported to the authorities unless they are committed in public in ways that offend third parties such as local residents.⁵²
All these findings about the pervasiveness of crime make it clear that figures such as the number of calls to the police and official crime rates are extremely imperfect measures of the reality of crime in our society. They are nevertheless crucial for policing practices, because they are the main reasons for the greater police presence in low-income neighbourhoods. High police presence leads to complaints of too much policing, or police harassment, from poor young men who feel they are too often stopped, questioned, frisked and arrested on the street for trivial offences or nothing at all.⁵³ Contrary to what most people would expect, many studies carried out in the U.S. and Canada found that while a greater police presence sometimes makes local residents feel less fearful, it does not reduce crime significantly:

...the presence of more patrol officers didn't lower the crime rates. This led to the mayonnaise theory of police patrol, which states that the quantity of police patrols is similar to the amount of mayonnaise required to make a sandwich. Just as a small amount of mayonnaise goes a long way . . . so too does a little police patrol go a long way. If an area has no patrol, starting one there will reduce the crime rate, but adding more patrols to an area that already has some appears to have little, if any, impact on crime . . .

First, patrol officers are so spread out across a beat that the visibility of a patrol vehicle may be a chance encounter rather than a daily occurrence. Second, many crimes are not deterrable by police patrols. Crimes that occur in residences . . . are not going to stop because more police are patrolling the streets. And third, some people are not deterred by increasing numbers of police. Robbers, for example, will change their approach to committing an offence rather than stop their criminal behaviour altogether.⁵⁴
According to Daniel Koenig, a sociologist at the University of Victoria, increasing the number of police officers can have the perverse effect of increasing the official crime rate.⁵⁵ He points out that in Canada between 1962 and 1988, the rates of reported offences in many categories rose much faster than the increases in real offences as reported by victims, and that these increases in reported crimes followed increases in per-capita police strength. This suggests that increases in official crime rates mostly reflect changes in police activity, with additional police officers doing more investigations and generating more arrests for less serious offences.
Similarly, it was argued that the higher per-capita number of police officers in the North and in Saskatchewan is one of the causes of the disproportionate incarceration of Aboriginal people. This was demonstrated when some Aboriginal people who felt underpoliced requested that police detachments be established in their communities. The result was an almost instant "crime wave," with the police making arrests and laying charges for problems that were until then dealt with in other ways.⁵⁶ This experience led analysts to conclude that the original problem was not so much underpolicing as under-servicing, and that what these communities really needed were alcohol and family violence workers, traditional healers, mental health workers, sexual abuse counsellors and the like instead of more police and more residents being sent to jail.
The equivalent happened to adolescents in the cities when police forces, reacting to public fears about youth crime, established youth gang units to concentrate even more on young people's activities:

It does not stretch the imagination too far to deduce that the creation of special gang units will increase the amount of youth crime detected, and hence recorded, in the official statistics. Similarly, in a climate of concern about youth crime, the police will be more inclined to arrest than discharge the juveniles that they encounter on the street.⁵⁷
Overpolicing is exacerbated by the fact that poor people, and particularly young men, are much more likely to be unemployed and therefore to have a lot of leisure time. As their homes are often too small or uncomfortable, and as they cannot afford much in the way of entertainment, they often "hang out" on street corners or in other public places and frequently come into contact with the police. In his studies of policing in Ontario, Richard Ericson found that patrol officers spend a substantial portion of their time "patrolling parks, fast-food establishments, and shopping malls in the hope of discovering youths violating liquor and drug laws."⁵⁸
In addition, studies in Canada and elsewhere found that police officers on patrol often feel the need to act aggressively and to do frequent so-called "proactive" stops (which are initiated by the police, contrary to "reactive" stops, which occur after a complaint) and computerized checks of people from targeted groups "to demonstrate to themselves, to people they stop, and to local residents and business people that the police control public spaces."⁵⁹ According to Ericson, "Constant proactive stops are a not-so-subtle way of reminding marginal people of the «order of things.»"⁶⁰
The most frequent targets of these "stop and frisk" operations are people who are considered menacing by local merchants and residents. This includes young people who look different or low-class (for example, with shaved heads or Mohawk hairdos, tattoos, torn jeans, eyebrow rings, leather and chains) or who visibly belong to groups that are perceived to be poor and to have higher official crime rates, such as Blacks and Aboriginal people. Given such intense police scrutiny, it is inevitable that the risk of being caught with a "joint" is considerably greater for an unemployed young "punk" from a low-income neighbourhood or for a Black or Aboriginal youth than for a white middle-class student who uses the same drug in the basement or backyard of his suburban home. Police officers admit that they harass young people who hang out without doing anything wrong because "We get calls to go break it up."⁶¹
The problem was well illustrated in a large study which looked at the probability that marijuana users aged 18 and older would be arrested in three metropolitan areas of the United States. When participants were asked if they used the drug, students were far and away the most likely to say yes, followed by white-collar workers and then, very far behind, by blue-collar workers. Comparing this against arrest records in which possession of marijuana was the only charge, the researchers found that blue-collar users had by far the highest arrest rates, followed by student users and, far behind, by white-collar users. In addition, within each of the three categories, young users, Black users of all ages, and users with a prior arrest record were greatly overrepresented.⁶²
The circumstances of these arrests indicated that most were spontaneous and involved patrol officers doing "proactive" searches that found less than one ounce of marijuana. Most liable to arrest were "those groups with least access to privacy and whose arrests most frequently involved discovery in a public context."⁶³ Those most often arrested - blue-collar young males, often Black, known to the police - were more often stopped and searched because they were perceived to be "suspect." Students were least likely to have been the targets of planned investigations and were more often caught in routine police contacts such as car stops. An Edmonton study confirmed that high-school dropouts are much more likely to come into contact with the police than their counterparts who are still at school.⁶⁴
Street people such as bums, beggars, chronic drunks, squeegee kids, street prostitutes and the homeless are under the greatest scrutiny of all. Life on the street is a "glass bubble," and street people are prime targets for the police because of their higher crime rate.⁶⁵ As more people get forced out on the street by government policies such as decreased welfare rates and fewer supports for ex-offenders and the mentally ill, the public has become increasingly intolerant of even mildly antisocial behaviour. Business people say that street people are "bad for business" and clamour for city bylaws to "round up" the poor who sleep on park benches and who beg on main shopping streets. Local residents also call for strict enforcement and prosecution of laws and bylaws against panhandling, soliciting for purposes of prostitution, loitering, trespassing, public drinking and disturbing the peace.⁶⁶ Criminologist Thomas O'Reilly-Fleming wrote that:

Many city dwellers find the homeless frightening, particularly those who are dishevelled. "They're a nuisance" said one young woman I interviewed on the street in Vancouver. "They stink and they get on your nerves, always asking for money." The homeless remind us of the potential for failure in our own lives . . .
There is a sense in which people feel that the homeless will somehow drag them literally away from their lives, that perhaps it will, as one homeless woman expressed it, "rub off."⁶⁷
O'Reilly-Fleming found that homeless women seem to engender even more wrath than homeless men in the public, perhaps because they are seen as bearing a double stigma, as general life failures and failures in their traditional female roles.⁶⁸ Many residents want street people out of sight and out of mind and pressure the police to take them away. Most often arrested are the mentally ill. A Calgary study of individuals held in detention while awaiting trial found that 62 percent had a mental illness in the month before their arrest.⁶⁹ In the United States, it was reported that between one-third and one-half of all psychiatric patients had been arrested at some point, primarily for minor offences.⁷⁰
Do more frequent routine stops and checks of people in certain low-income groups by the police constitute unfair police harassment, or are they justified by the fact that these groups have higher official crime rates? This issue was addressed by the Supreme Court of the United States in the case of Edward Lawson, a law-abiding Black man who wore his hair in dreadlocks and who liked to stroll through White neighbourhoods. He was arrested or detained 15 times under a California statute requiring "suspicious" persons to identify themselves to the satisfaction of police officers.
The U.S. Supreme Court struck down the statute because it gave powers to the police that were so broad and so vague that they practically invited the use of discriminatory discretion against more vulnerable groups. To stop and frisk a person, the Court ruled, the police had to have reasonable grounds to believe that a crime had been or would be committed.⁷¹ The main reasoning of the Court was that people should only be stopped or arrested or charged by the police for something they had done, not for what they were. In the United Kingdom, the Code of Practice governing the police also specifies, "Reasonable suspicion cannot be supported on the basis simply of a higher than average chance that the person has committed or is committing an offence, for example, because he belongs to a group within which offenders of a certain kind are relatively common."⁷²
The Supreme Court of Canada has not yet ruled on this specific point, but Canadian legal experts say that in this country there are

...few remedies for the innocent driver or pedestrian who faced the intimidating and degrading experience of being stopped and hassled by the police for no reason except perhaps the colour of his or her skin [or any other personal characteristic]. Such a person might bring a civil action, but this was costly and, even if successful, might only result in something like $500 in damages. Another option was to make a complaint against the police, but in most cases such complaints were investigated by the police themselves.⁷³
On the question of whether a Canadian resident can resist an unlawful arrest ("being arrested" meaning being taken into custody or detention), experts answer:

In theory, yes. In practice, however, it's not a good idea. Police officers may arrest a person if the officers have reasonable grounds to believe that the person has committed, or is about to commit, an offence, even if the person is innocent.⁷⁴
Related issues have arisen here in connection with city bylaws adopted in Winnipeg, Vancouver, Calgary, Ottawa, Quebec City, Charlottetown and elsewhere that limit the activities of panhandlers by prescribing where, how and when they can ask for money. A legal action against the Winnipeg bylaw, undertaken by the Public Interest Law Centre on behalf of the National Anti-Poverty Organization on the basis of the Canadian Charter of Rights and Freedoms, is slated to be heard in court in September 2000.⁷⁵ According to the Centre's Director, Arne Peltz, the basis of its challenge is that "people have the right to be on the street and express themselves, as long as they don't obstruct or interfere with other people."⁷⁶ The B.C. Civil Liberties Association condemned the Vancouver bylaw because it is so broad that the police could choose to enforce it against any downtown panhandler, on any grounds: "For example, the police could charge those whose appearance or clothing offends them, those who make use of signs which seem particularly pathetic or discomforting, or those whose race or sexual orientation they personally dislike."⁷⁷
An Ottawa bylaw that contained a blanket prohibition on begging in public places was recently repealed. One of the reasons the authorities gave for the repeal was that the bylaw was no longer needed since the recent coming into force of the provincial Safe Streets Act of Ontario. As well as prohibiting panhandling in many public places, the new Act prohibits squeegeeing by making it illegal to offer merchandise or services to people in motor vehicles (except for towing and other emergency services). The law also empowers the police to arrest without a warrant squeegee people who continue their activities after being warned, and people suspected by the police who will not or cannot provide proof of their identities. A first conviction is punishable by a fine of a maximum of $500; subsequent convictions carry sentences of a maximum of $1,000 or imprisonment for a maximum of six months or both. Many lawyers have said that the law violates the Charter of Rights and some have offered to provide free legal services to anyone charged under the Act.⁷⁸
Social class and race can also make a difference in the treatment of female suspects by the police. Studies revealed that some police officers gave women the "chivalrous treatment," meaning that they were more lenient with women than men in similar circumstances. The main problem is that this benefited some female suspects more than others, in particular those who were middle- or upper-class, White, well groomed and apparently submissive, and who reacted by "crying, pleading for release for the sake of their children, claiming men have led them astray.⁷⁹" Women who did not fit this stereotype, who were not White, or who were drunk, unkempt, hostile or selling sex, were treated as harshly as men.
Attitude also affects police decisions on whether to arrest male suspects and charge them. Numerous studies in the U.S. and Canada found that in situations involving similar illegal acts and similar criminal records, disrespectful suspects were more likely to be arrested and charged than suspects with good social skills who showed deference toward police officers and contrition for their actions.⁸⁰ When the police assess suspects' attitudes and manners, they are assessing them in a way that is prejudicial toward lower-class, immigrant and minority groups.⁸¹ The result is that White middle-class suspects, who are better educated and better informed, who are more likely to hire a lawyer and to initiate false arrest cases and libel suits against the police, are treated with greater care and tolerance and are almost never subjected to police violence. It was no coincidence that 52 of the 85 people who were bitten by unleashed police patrol dogs in Regina in 1981-82 turned out to be Aboriginal.⁸²
Police officers are notoriously intolerant of insolence and lack of respect, especially by young people. For them, disrespect means:

...not only physical aggression and other overtly hostile acts that threaten officers' safety, but also resistance in the form of actions or statements that merely challenge officers' authority or legitimacy (e.g., denying an officer's accusation or questioning an officer's judgment) and even passive acts of noncompliance (e.g., failing to respond to an officer's questions or requests) that imply that officers are "not taken seriously."⁸³
In a 1997 national survey, Canadian police officers deplored what they felt was an overall decline in the respect young people have for authority. As an example, they mentioned their frustration that "many of the young people they had come into contact with were aware of their rights and willing to flaunt this fact in the face of the police."⁸⁴ Police experts write that some working-class people also have learned hostile or suspicious attitudes toward the police, which can lead to violent encounters when the police label them and treat them as "troublemakers" or "assholes" or "scum."⁸⁵ In such situations, the underlying factor seems to be an expectation of trouble on both sides that turns into a self-fulfilling prophecy.
When such intolerant police attitudes are combined with racial or other stereotyping or anti-immigrant feelings - which are as common among police officers as among the working-class and lower-middle-class population from which most of them are drawn⁸⁶ - the results can be explosive. This problem is most severe for Blacks and Aboriginal people, who combine being members of visible minorities, being among Canada's poorest groups, and having suffered centuries of injustice by authorities that have left them with feelings of fear, suspicion and hostility toward the police ("Black" refers to Canadians of African ancestry, 42 percent of whom were born in Canada.)⁸⁷
The plight of Blacks and Aboriginal people is evident in Graphs A and B on the next page, which compare their income and employment situation to the general population and to people of British ancestry in Toronto in 1990. According to Graph A on the next page, adult male Torontonians of British ancestry had average personal incomes of $39,500, and the average income for all adult men was $33,800. Far behind were the incomes of Aboriginal and Black men, at $27,000 and $22,800 respectively. The employment situation for young males (aged 15 to 24) revealed by Graph B shows a similar pattern, with unemployment rates of 14.8 percent for young men of British ancestry, 16.5 percent for the whole young male population of Toronto, and then 18.3 percent for young Aboriginal people and a whopping 26.1 percent for young Black men.⁸⁸

These figures are probably representative of the situation of Canadian Blacks, close to half of whom live in Toronto, but they greatly underestimate the poverty of Aboriginal people because very few of them live in cities in Eastern Canada. Aboriginal people are much younger on average than other Canadians.⁸⁹ In 1996, about 40 percent of them were under the age of 18, compared with 24 percent of non-Aboriginals. Almost one-third of all Aboriginal children under 15 live in single-parent families, twice the rate for the general population. In western cities like Winnipeg, Regina and Saskatoon, half of all Aboriginal children live with only one parent.⁹⁰

As shown in Graph C, Aboriginal people have very high unemployment rates. In 1996, 32 percent of Aboriginal youths aged 15 to 24 were unemployed, almost twice the already-high rate of 17 percent for their non-Aboriginal counterparts. The figures for Aboriginal people aged 15 to 64 were not much better, indicating an unemployment rate of 24 percent, compared to 10 percent for non-Aboriginals. The Aboriginal population is also very disadvantaged in terms of education: 54 percent of those aged 15 and older do not have a high school diploma, compared to 35 percent of the non-Aboriginal population. Only 4.5 percent of the Aboriginal population have university degrees, compared to 16 percent of non-Aboriginals. The Canadian Human Rights Commission wrote that "In fact, an Indian youngster in Canada has a better chance of being sent to prison than of completing university."⁹¹
The location of an illegal act also makes a difference in the police decision to charge, with a greater likelihood of charges being laid for the same offences when they are committed in low-income urban areas and, probably, on Aboriginal reserves. A study done in St. John's, Newfoundland, found that police officers had specific mental images of different sections of the city which influenced the way in which they carried out their tasks. They perceived as "trouble areas" parts of the city which had high rates of service calls and known or suspected criminals. When police officers went into "trouble areas," they were more suspicious and more concerned about their safety because they expected to meet people who presented problems for the police.⁹²
Police expectations can provoke problems, according to Ottawa sociologist Dennis Forcese. "For example, in subsidized housing communities, with their concentration of . . . working-class tenants, the police generally expect trouble to occur, and often precipitate difficulties in a self-fulfilling way by a heavy-handed presence."⁹³ Police attitudes can lead to very different exercises of police discretion. Depending on a police officer's expectations, a group of young people shouting in the street in the middle of the night can appear to be either normal kids on a night out who should indulgently be told to hush up, or dangerous members of an adolescent gang who should be taken to the station and charged with disturbing the peace.
One of the most crucial factors in the police decision on whether to charge suspects is whether they have police or court records. In research on juveniles in Ontario, this factor was even more important than the seriousness of the illegal acts committed, so that young people with a record who had committed a trivial offence were more likely to be charged than youths without a record who had committed a more serious act.⁹⁴ As youths from low-income neighbourhoods are much more likely to come into contact with the police to start with, and are more likely to be charged with an offence than middle-class youths caught for the same behaviour, this additional damning effect of having a record is the last straw, ensuring that most official recidivists will be from low-income backgrounds. And as recidivists are often unemployable and are under the greatest possible police surveillance, it is not surprising that many destitute ex-offenders become permanently caught in the criminal justice system in what has been called the "revolving door of despair."⁹⁵
Finally, in addition to these police practices, there are at least two questionable government policies that increase the criminalization of the poor. The first is in the area of domestic abuse and concerns "mandatory charge" rules requiring police officers to make an arrest when there is some physical evidence that an assault has taken place, even if the victim does not want them to do so. These rules were adopted following research findings which suggested that arrest was the most effective way of deterring violence in these situations. Much discussion has taken place on many aspects of this policy, including criticisms that mandatory charges reduce women's options and increase their danger by driving family abuse underground because wives no longer dare to call the police.⁹⁶ One wife expressed her ambivalence as follows:

I've thought so many times about calling the police. If truth be known, I've thought about it for years - to teach him a lesson, to make him see what he's doing. But I always figured it would do more harm than good. . . I call the police, and bang, he's out of a job, and jobs aren't so easy to come by here. Then where are we at? Things'll just get worse. We'll have no money. He'll start drinking more. He'll be even more angry at me and he'll hit me more. So where's the sense calling the police?⁹⁷
The most recent research on the subject supports the view that for poor women at least, mandatory charging rules may do more harm than good. When all the studies are put together, the consensus among researchers is now as follows:
1. Arrest reduces domestic violence in some cities, but increases it in others;
2. Arrest reduces domestic violence among employed people, but increases it among the unemployed;
3. Arrest reduces domestic violence in the short run, but can increase it in the longer run.⁹⁸
Lawrence Sherman, the author of the original research that inspired mandatory charge rules, now recommends that these rules be repealed, and that police officers be allowed discretion in domestic disputes while being guided by carefully framed policies. He also encourages experimentation with other options for handling domestic assaults, with careful evaluation of the results.⁹⁹

The other government policy that contributes in a major way to the criminalization of the poor is the U.S-inspired "war on drugs," in which intensive street-level police operations and vigorous prosecutions aim at imprisoning offenders no matter how small the amount of drugs involved. These campaigns have been condemned as "cynical fear-mongering" orchestrated by governments in order to gain public support with promises of restoring law and order, and to distract people from economic problems by scapegoating unpopular groups. The fears this produces in the population are further exploited by police forces seeking bigger budgets and by mass media that thrive on sensational stories about drugs and crime.¹⁰⁰

Since the mid-1980s, Canada has imitated the United States in making law enforcement its main strategy to control drug use. Experts agree that this "war on drugs" is futile in controlling drug use, as shown by the fact that the price of cocaine, the war's signature drug, which should have risen if dealing was becoming riskier and drugs less available, has instead continued to drop¹⁰¹. In Canada, because marijuana is no longer imported but is now grown locally, its price has not changed in 20 years, leading some to note that a cannabis "high" now costs half the price of its equivalent in beer or wine.¹⁰² The only real impact of the drug war has been to imprison large numbers of low-income small suppliers and users, a disproportionate number of whom are Black. The biggest increase in imprisonment was at the Vanier Centre for Women in Ontario, which in 1992-93 admitted 5,200 percent more Black women convicted of trafficking or importing drugs than in 1986-87.¹⁰³

The strangest aspect of the North American war on drugs is that drug use declined steeply in the 1980s and the early 1990s. The decline had nothing to do with law enforcement, but reflected a broadly-based long-term change in North American attitudes toward all drugs, including legal ones such as tobacco and alcohol.¹⁰⁴ The clearest indication that our drug laws are not working was a recent recommendation by the Canadian Association of Chiefs of Police that the possession of small amounts of marijuana and other cannabis products be decriminalized (not legalized), so that this act would henceforth be dealt with by issuing a ticket.¹⁰⁵ Addiction experts believe that "If the resources currently devoted to criminal law responses were redirected into prevention, primary care and rehabilitation, a better return on investment in health and public safety would likely be an immediate benefit."¹⁰⁶

Compared to all the law enforcement policies and practices for common crimes we have just seen, the law enforcement efforts directed toward uncovering and punishing white-collar and corporate offences are minuscule. Laureen Snider reports that in the 1980s, when government regulation was seen as an onerous burden which crippled free enterprise, agencies entrusted with controlling businesses were savaged in the United Kingdom, the United States and Canada.¹⁰⁷ The result was a virtually risk-free atmosphere in which white-collar criminals thrived and business ethics plummeted. In Canada, the discrepancy in enforcement between common and white-collar crimes has become so obvious that even police officers have complained of it to police expert Dennis Forcese.¹⁰⁸

The other enforcement difference is that white-collar and corporate offences are much less likely to be reported to the authorities than common crimes such as thefts, burglaries and assaults. Common crimes are usually reported to the police by victims, witnesses, neighbours and businesses, while others are discovered in routine police patrols. Many, if not most white-collar crimes never come to light at all because many of their victims, including the general public, consumers and the corporation's employees, often do not know they were victimized, do not have the resources to unravel complex conspiracies, or blame themselves for having been taken in by clever scams.¹⁰⁹

When corporate crimes are uncovered, they are most likely to be hushed up and handled internally. Employers are often reluctant to lay charges against employees who embezzled their funds or defrauded them. They are afraid it will make them look bad, or think it is not worth the time and expense involved in testifying and participating in criminal investigations.¹¹⁰ For obvious reasons, corporate crimes that benefit companies are seldom reported. On the contrary, in the last few decades an increasing number of managers "complained of superiors' pressure to support incorrect viewpoints, sign false documents, overlook superiors' wrongdoing, and do business with superiors' friends."¹¹¹ While increasing the pressure from the top, company executives also learn to look the other way so that when a long-standing consumer fraud is uncovered or an unsafe mine finally collapses and kills workers, they can avoid criminal responsibility by truthfully saying they did not know what was going on.

In the very small proportion of cases where white-collar crimes are detected, authorities often have the choice of proceeding under the Criminal Code or through "quasi-criminal" administrative procedures under statutes such as provincial securities legislation, occupational safety regulations, the Income Tax Act, or laws that prohibit the sale of dangerous products or the dumping of poisonous residues into the water or air. The choice is almost always to proceed administratively, which has the effect of whitewashing the behaviours involved so that they are not clearly and officially defined as crimes.¹¹² Most, if not all administrative enforcement agencies also have policies favouring informal settlements in which offenders are let off in exchange for paying a fine and promising to mend their ways. For example, federal tax authorities have a long-standing policy of not prosecuting tax evaders if they pay up when they are caught. (Note: tax avoidance is legal, tax evasion is not.) As a result, "only impecunious or recalcitrant tax evaders show up in the statistics."¹¹³

This gentle treatment is totally different from the treatment common criminals receive at the hands of the justice system. No policy exists to say that pickpockets will not be charged if they hand over the wallets they stole and promise to reform. And although executives who foster life-threatening working conditions are not so different from bank robbers who panic and kill someone, and rich men who cheat on their income tax are just as dishonest (or more) as poor mothers who cheat the welfare department, we all know which ones are going to be exposed as criminals in the front pages of indignant tabloids.

The enormous class biases of our laws and law enforcement methods were best summed up by Roland Penner, former Attorney General of Manitoba:

Let's suppose I became philosopher-king and I could make any changes I wanted. Suppose I decided that minor social control offences and crimes without victims were to be eliminated from the Criminal Code. Also suppose that minor property offenders were to be dealt with in the community rather than in jails. At the same time suppose that I made tax evasion, knowingly polluted the environment, false advertising, fraudulent bankruptcy, and price-fixing crimes which carried automatic jail terms. Now, let"s introduce the proverbial "man from Mars" who always gets into stories like this one. He arrives and I take him on a tour of (the provincial jail near Winnipeg). What would he say? "You sure have a problem with your middle-class White people, don't you?"¹¹⁴

II. BAIL OR JAIL

My first arrest happened when I was 16. It was for possession - a gram of hashish oil . . . About 10 days later . . . I was with a friend. She sold to an undercover cop and he handed me the money. I claimed the drugs because I was 16 and had never had a trafficking charge before. I spent four months in jail. It was my first time. I learned more crimes in there than I did on the streets . Sure you hate jail, but then it is sort of like a vacation.

Mariah, 20-year-old inmate of a Toronto halfway house ¹

What is bail, and how does it work? Bail comes into play after someone has been arrested and charged with a criminal offence. After people have been arrested and brought to the police station and the formalities are completed, sometimes including fingerprinting, they must immediately be released unless there is a good reason to keep them in jail until their trial. Release at this stage is called "police bail," and it is denied when the offence is very serious, when the accused are considered dangerous or likely to commit more offences before their trial, or when there is reason to believe they will not show up for trial.

People who are kept in jail by the police must be brought before a judge within 24 hours, or as soon as a judge becomes available on weekends or in special circumstances. At this first hearing, the accused plead guilty or not guilty and can ask the judge to grant them bail, which is also called "judicial interim release," until the time of the trial (for those who plead not guilty) or until sentencing if the sentence is not handed down on the spot (for those who plead guilty). If bail is refused, the untried accused, many of whom are later found innocent of all charges, are kept in prison until trial for periods ranging from a few days to six months or more.² For an overview of all the stages of typical criminal cases, see the Appendix at the end of this report (before the footnotes).

What, if anything, is wrong with the bail process, and how does this affect the poor? Most critics agree that the laws that regulate bail are reasonable, but so general and subject to so little monitoring in practice that they give enormous uncontrolled discretionary powers to the police and judges. One result is that the system imprisons many more people than it should, making a mockery of the principle that "detention [should] be used as a last resort."³ One example, given in a 1996 report by federal, provincial and territorial Ministers responsible for youth justice, is that many youths are kept in jail before trial for reasons such as homelessness and dysfunctional families, which have nothing to do with the legal grounds for detention.⁴ As in the case of neighbourhood policing, discretion in bail decisions almost always works to the detriment of the poor.

The fact that too many untried accused are imprisoned is obvious in the correctional statistics. In 1997-98, among the adults (over 18) admitted to provincial and territorial prisons during the year, there were more people "on remand" (105,705), as prisoners waiting for their bail hearing or denied bail are called, than prisoners who had been convicted and sentenced (98,646). (Admissions figures can count the same people more than once if they were admitted to prison more than once during the year.) This represented a huge increase since 1990-91 in the proportion of all inmates who are admitted on remand. In that year, admissions were 92,102 prisoners on remand and 114,869 prisoners who had been sentenced.⁵

A similar picture emerges from the number of adults actually in provincial and territorial prisons on a given day in 1997. This measure, which is roughly similar to a census figure, produces a much smaller proportion of prisoners on remand, mostly because they are imprisoned for shorter periods than sentenced prisoners. Prisoners on remand accounted for 32 percent of adults actually in provincial-territorial prisons on a given day in 1997, up from 26 percent in 1991.⁶ This is particularly noteworthy since new police bail rules were adopted in 1995 to reduce the number of remand prisoners in jail.

Most striking in demonstrating the arbitrariness of bail decisions is the enormous disparity from province to province. Among young people under age 18 actually in provincial custody in 1997, prisoners on remand made up 9 to 15 percent of inmates in eastern provinces (Newfoundland to Quebec), while they accounted for 25 to 31 percent of inmates in Manitoba, Alberta and British Columbia.⁷ This is consistent with a survey of police opinions which found that officers from the Prairies and B.C. are much more inclined to jail young people than their Quebec counterparts. Overall, 13 percent of the Canadian police officers surveyed thought that jail was an appropriate option for first-time serious property offences - such as car thefts - by juveniles.⁸

Another indication of the lack of thoughtful deliberation in bail decisions is found in a 1996 one-day snapshot of adults in all provincial and territorial prisons. It showed that the proportion of all female inmates who were on remand after being refused bail (24 percent of all female prisoners) was almost the same as the proportion of all male inmates who were on remand (25 percent).⁹ When criminologist Pierre Landreville noticed the same thing in Quebec prisons, he pointed out that something must be wrong with a system that produces such results, since the offences women are charged with are less serious than men's and less likely to involve violence, so a much smaller proportion of women than of men should be jailed until their trials in order to prevent danger to society.¹⁰

The Effects of Pretrial Detention
Being sent to jail until trial can have extremely harmful consequences. The most disturbing is that it can affect the outcome of the trial. Many studies in Canada, the United Kingdom and the United States showed that compared to accused people who are left free, people who are detained until trial are more likely to be found guilty and more likely to get a sentence of imprisonment.¹¹ This is true even when other factors which might influence these decisions, such as the type of offence, previous criminal record and race are taken into account.

One likely explanation is that the status of "pretrial detainee" puts a negative label on an accused person, because people who have not been tried are only supposed to be detained as a last resort. This is the opposite of the "halo" effect described by psychologists, which predisposes us favourably toward someone who has been described in positive terms. According to this theory, judges and others involved in the criminal justice process unconsciously assume that people who were denied bail must be "bad" people, otherwise they would have been released. This creates an atmosphere that can tip the balance toward a guilty verdict.¹²

Another explanation may be that accused people who are detained in jail are prevented in many ways from helping their own cause. They have more difficulty finding lawyers and communicating with them and are hampered in their search for evidence and witnesses who could give them alibis or vouch for their good character. They are also unable to take many steps that would give a good impression to the court, such as finding a job, or reimbursing the money they stole or engaging in volunteer activities. In a manual written for lawyers who handle bail hearings, an expert suggests asking for a postponement of bail hearings to allow unemployed accused people to find themselves a job - any job - because judges are reluctant to interrupt employment.¹³ This is the kind of situation where having good family connections, such as an uncle with his own business who comes forward to offer the accused person a regular position, can make a tremendous difference.

Detention can also negatively affect the outcome of a case because an accused who is held in jail until trial is under much greater pressure to plead guilty. Faced with the possibility of spending weeks or months in jail until their trials, people accused of minor first offences that normally bring a lenient sentence without imprisonment might decide to plead guilty even if they are innocent. Those who have jobs might do it in order to avoid losing income or getting fired while they are in jail.

Others accused of more serious offences against which they have a valid defence, upon learning that time spent in pretrial detention is usually (depending on the judge) taken into account in the eventual sentence, might calculate after a month or two of pretrial detention that they would get out of jail faster if they pleaded guilty. A study of legal aid found that young Aboriginal Canadians in particular sometimes pleaded guilty when they had a defence "to get it over with."¹⁴ They probably did not realize that the resulting criminal record could ruin their lives by preventing them from finding employment, making them perennial suspects for the police or ensuring more severe treatment before the courts in the future.

Pretrial detention can also have adverse personal consequences. Young men in their late teens and early twenties who were awaiting trial in an Ontario detention centre told a researcher about their parents who were distressed at their being in jail, the jobs and apartments they were afraid of losing, and their wives and children who had to go on welfare.¹⁵ Some got into fights, and some were victimized by other inmates. Many had trouble sleeping and had to be given tranquilizers or sleeping pills. Again and again, they complained of being bored. Most of their time was spent watching television, playing cards or doing nothing. Because of this inactivity, pretrial detention is known in prison circles as "dead time."¹⁶ It is considered the worst detention of all, because remand prisoners are usually kept in dismal, overcrowded short-term maximum security facilities without recreational or rehabilitation programs.

There are many other ways pretrial detention can disrupt people's lives. This is particularly true for young people, whose life courses are still largely undetermined. If detention takes them out of school for weeks or months, for example, there is a great likelihood they will never go back. The most extreme disruptions relate to young Aboriginal people from the North. The Manitoba Aboriginal Justice Inquiry described how the lack of detention facilities and judges in Aboriginal communities resulted in young suspects, most of whom had been charged with property offences, being removed from their communities and sent to jail in Winnipeg. In some cases, parents did not even know where their children were and there was no one around to discuss the cases with them. The Inquiry found that more than 90 percent of the young women and half of the young men held on remand in Manitoba were Aboriginal. Many of these Aboriginal women were mothers whose removal from their communities forced them to abandon their children.¹⁷

Finally, one of the main problems with going to jail before trial is the other people who are behind bars. Many studies found that one of the most important predictors of whether young people are going to become criminals is the company they keep, and it is not for nothing that prisons have been called "schools of crime."¹⁸ Putting people in prison - and let us always remember that some of the prisoners have never been found guilty of any offence and will later be acquitted of the charges against them - greatly increases the risk that they will become career criminals. The Canadian Committee on Corrections warned of the dangers of imprisoning untried first offenders except when absolutely necessary:

The period following his first arrest is a crucial one for the first offender. If he is unwisely dealt with, he may come to see society as an enemy and to assume that his future lies with the criminal element. If he is released while awaiting trial, he may continue his positive family and social relationships; if he is held in jail, he will more readily identify himself with the criminal element.¹⁹

To minimize the problem, it has been recommended that greater care be taken to keep remand prisoners and sentenced prisoners apart, so that inexperienced offenders do not mix with hardened criminals.²⁰ This rule is often broken due to overcrowding in many correctional facilities. Correctional officers agreed that separating inexperienced and hardened prisoners was a worthy goal, but disagreed that separating remand and sentenced prisoners would be an effective way to achieve it. They pointed out that prisoners serving their sentences in short-term jails or detention centres are usually there on relatively minor charges, while the remand population is a very mixed bag that includes many first-timers but also some of the most serious criminals who were denied bail because they are dangerous to the community. As a result, the officers said, it is the sentenced prisoners who may be more at risk in contacts between the two groups.²¹

Bail in Practice
The best way to understand why and how low-income people are disadvantaged in the bail process would be to follow thousands of typical accused people from the moment of their arrest by the police until the end of their trials, noting all the details of the proceedings. This has never been done in Canada, but the impressive study of the files of 1,653 adult men charged with criminal offences in Toronto in 1989-90 performed by the Commission on Systemic Racism in the Ontario Criminal Justice System comes close enough to provide a useful basis for analysing bail practices.²²

This study was particularly useful for our purposes because the Commission was very aware of the ongoing U.S. debate in which one side argues that the main reason so many Black Americans are in jails and prisons is racial discrimination, while the other side maintains that Blacks are jailed in disproportionate numbers because they are poorer than Whites, and because poor people of all races are more likely to be charged and convicted for the same offences.²³ As a result, the Commission was careful to take poverty factors into account. It obtained information from the 1991 census confirming that Blacks are much poorer than Whites in Toronto, it recorded all the available information on the poverty status of its subjects, and it carefully distinguished in its analyses between the effects that could be attributed to racism and those which were due to being unemployed or homeless. (The files did not contain consistent information about income.)

As might be expected from the review of police policies and practices in Chapter I, the vast majority of all the adult men with criminal charges whose files were drawn by the Commission on Racism turned out to be poor or of very modest means. Among the Whites, 7 percent were professionals, 21 percent had skilled jobs, 21 percent had unskilled jobs, 44 percent were unemployed, and the rest were retired, students, etc. Seventeen percent did not have a fixed address and 5 percent were on welfare. Among the Blacks, 4 percent were professionals, 15 percent had skilled occupations, 21 percent had unskilled jobs and 54 percent were unemployed. Twenty percent did not have a fixed address and 3 percent were on welfare.²⁴ As a point of comparison, the unemployment rate in Toronto in 1990 was 8.7 percent for men aged 15 to 24 and 5.1 percent for those aged 25 to 44.²⁵

The Commission's study concentrated on five types of atypical offences which all raise important bail issues. Three of them - sexual assaults, serious non-sexual assaults and robbery - are violent offences that automatically raise the question of whether the accused is dangerous to the community. The other two types of offences - drug charges and bail violations - are specifically singled out in bail laws as justifying stricter treatment. These five offences are relatively rare, together making up only about ten percent of all criminal charges. The most typical criminal charges are for property offences, especially small thefts less than $1,000 and, for adults, impaired driving and other criminal driving offences.²⁶

To simplify matters as much as possible, we will limit our analysis of the Commission's information to the cases in which the accused had no previous criminal convictions, for a total of 613 accused. The decisions made by the police and judges in these cases are shown in Table 1.

TABLE 1 DECISIONS TAKEN BY POLICE AND JUDGES, ACCUSED WITH NO PREVIOUS CRIMINAL CONVICTIONS²⁷
	Charged and Released by the Police Until Court Appearance	Charged and Jailed by the Police Until Bail Hearing before a Judge	Granted Bail by a Judge and Released Until Next Court Appearance	Denied Bail by a Judge and Jailed Until Next Court Appearance	Convicted of the Offence(s)
Total=100% (N* = 613)	34% (N = 208)	66% (N = 405)	54% (N = 331)	12% (N = 74)	44% (N = 271)
White Accused (N* = 288)	45% (N = 130)	55% (N = 158)	47% (N = 135)	8% (N = 23)	48% (N = 138)
Black Accused (N* = 325)	24% (N = 78)	76% (N = 247)	61% (N = 198)	15% (N = 49)	41% (N = 133)
*N = Number of accused. These numbers greatly overrepresent the actual proportion of Blacks, because the study deliberately included roughly equal numbers from both races, and a greater proportion of the Blacks had no previous criminal records.

The first two columns of the first row of the table show that out of the 613 men who were charged with criminal offences (100 percent), 34 percent were immediately set free while 66 percent were detained in jail overnight or over the weekend by the police. The next two columns of the same row indicate that in the subsequent bail hearings before judges for the 66 percent who had been kept in jail by the police, 54 percent were granted bail and were released while 12 percent were denied bail and were sent back to jail until their next court appearance. The last column of the first row shows that of the 613 original accused, only 44 percent were eventually convicted, meaning that they pleaded guilty or were found guilty after a trial. The accused who were convicted were not necessarily among those who were detained after being denied bail.

By far the most striking aspect of the figures in Table 1 is the enormous difference between the proportion of accused who were jailed by the police (66 percent of all accused) and the proportion who remained in jail after a bail hearing before a judge (12 percent of all accused). There is actually a logical reason for the difference, because police officers have no authority to release people charged with serious offences punishable by a maximum of more than five years of imprisonment, which is the case for several of the offences involved here. The Law Reform Commission of Canada criticized this restriction on police powers to release accused people, saying that it is unnecessary and the cause of many Aboriginal suspects having to be transported from the North to southern prisons.²⁸

This restriction can only serve as a partial explanation, however, because it does not justify the large difference in the proportion of Blacks jailed by the police (76 percent) compared to the proportion of Whites who were jailed (55 percent). As the accused of both races were in similar circumstances with similar accusations and no previous convictions, it is clear that other factors were involved. One possible reason, which is compatible with the police practices we saw in Chapter I, is that suspects who are deemed to be uncooperative or hostile toward the police are more likely to be denied bail than other, more accommodating people arrested in similar circumstances.²⁹ Because of long-standing animosities, this probably happens more frequently when the suspects are Blacks or Aboriginal people.

Other disturbing practices came to light when it was found that at least some police officers engage in so-called "bail bargaining," in which threats of detention or of police opposing bail in forthcoming bail hearings were used to extract confessions or information from suspects.³⁰ Such techniques, which completely violate the spirit of our criminal laws, are more likely to be used with vulnerable suspects from disadvantaged groups who have fewer means of defending their rights.

Whatever the reasons for the racial difference in police detentions, Table 1 makes it crystal clear that the police jail far too many accused people. A large proportion of the people they detained were eventually found not guilty at their trials: 66 percent of the accused were jailed until a bail hearing, while only 44 percent were eventually convicted. Even more inexcusably, the gap between the proportion of people jailed and people eventually convicted is much larger for Blacks than for Whites. Although proportionately more Blacks were jailed by the police, a larger proportion of the Whites were eventually found guilty or pleaded guilty of the offences with which they were charged: 48 percent of the Whites were convicted, compared with 41 percent of the Blacks. This suggests that Black people are charged and jailed on the basis of flimsier evidence.

To find out the reasons for the differences in police and judicial bail decisions, the Commission on Racism performed statistical analyses taking into account race, any past criminal and imprisonment history, type of offence, employment status and type of job, having or not having a fixed address, and marital and welfare status. The results indicated that for all five offences taken together, and for four of the offences looked at separately, the main reason Blacks were denied bail in disproportionate numbers was that more Blacks were unemployed or homeless than their White counterparts. Racial discrimination was also a factor, but a minor one compared to the others. The only exception was drug cases, where the negative effect of racism was even stronger than the negative effect due to being homeless or unemployed.³¹ All these effects were found to be strongest at the level of the decisions made by the police.

In answer to criticism that they were keeping too many people in custody, the police used to say that they did it to ensure that the courts would impose enforceable conditions on the accused.³² Police officers could impose financial guarantees (with no cash deposits required except for non-residents) that the accused would appear in court, but they could not impose conduct restrictions such as requiring the accused to stay away from their alleged victims. Because these arguments seemed reasonable, the law was changed as of April 1, 1995, to empower the police at their discretion to release accused persons who undertook to respect specific conditions. These releases will be examined later in this chapter along with conditional releases granted by judges at bail hearings.

No evaluation was done of these new police powers in Canada, but in the United Kingdom, where the police were given almost identical powers, also in April 1995 and with the same rationale, the Home Office commissioned a study of their effects six months after implementation. The study showed a very small and perhaps temporary reduction in police detentions, along with a huge decrease in unconditional releases. In other words, the police did not use their new powers to release more people, but to exercise new controls over people who were not thought to need them before. In criminology, this is called a "net widening" effect.³³

It is difficult to overestimate the role of the police in determining who is sent to prison on remand. Without an initial police charge, followed by a police decision to jail overnight or over the weekend, there is no need to make a bail application to a judge to get released. Because of policing methods, most of the people who are brought to that stage are low-income people. The police are also responsible for preparing the reports which brief Crown prosecutors for bail hearings. In theory, these reports are supposed to be factual summaries about the offences, the accused's previous contacts with the criminal justice system and the accused's family background. They also include the police's own recommendations on each case. In practice, these reports often contain irrelevant damaging comments such as that the accused was uncooperative and had a "bad attitude," and stereotypical judgments about "irresponsible" single-parent mothers and transient "losers."³⁴

Legal Representation at Bail Hearings
Bail hearings are often the most important court appearances accused people who are being detained must face. As we saw earlier, suspects who are denied bail and kept in jail until trial are more likely to be found guilty and to receive a prison sentence. Bail rules are very complex. To give only one example, it is up to the Crown prosecutor to demonstrate why an accused person should not be released, but the rule is reversed for very serious offences such as murder, for offences committed while on bail and for some charges of trafficking and importing drugs, including marijuana. Bail is much more difficult to obtain in these "reverse onus" cases, because it is the accused who must present convincing arguments why he or she should not be denied bail. It is easy to imagine that a street kid accused of selling a "joint" to an undercover police officer would not know what such arguments might be, let alone have the capacity to present them coherently to a judge in an intimidating court environment.³⁵

First appearances in court are also crucial because that is when accused people enter their pleas of guilty or not guilty. This is a fundamental decision requiring considerable legal expertise to establish whether the accused has a valid legal defence, and the wrong choice can have grave consequences. Pleading guilty when you do have a defence produces an unnecessary criminal record that can ruin a person's life. Guilty pleas often bring immediate sentencing, where the accused or their representatives are given an opportunity to describe extenuating circumstances and ask the court for leniency. Victims can also address the court at this time if they want.

Pleading not guilty when you do not have a valid defence can also be disastrous. It can lead to more severe sentences by antagonizing judges who resent unnecessary trials or by exposing the accused at trial in the worst possible light, with witnesses testifying to what bad people they are. It prevents the accused from expressing regret and remorse. A wrong decision to plead not guilty can result in being convicted of a more serious offence because it precludes plea bargaining, in which lawyers typically arrange for their clients who are charged with more than one offence to plead guilty to minor ones on condition that more serious ones be dropped.

In Canada, legal representation for most bail hearings is handled by so-called "duty counsel" who work in criminal courts. Duty counsel are lawyers who are paid by legal aid plans, but who represent free of charge all accused people who make a first appearance in court without their own lawyers. In Toronto's provincial courts, for example, duty counsel act for the accused in about 90 percent of bail hearings and also handle a large proportion of guilty pleas.³⁶ Depending on the policies of each provincial or territorial legal aid plan, some duty counsel are employees of the legal aid plan while others are private-sector lawyers hired by legal aid on a part-time basis for a specified, usually per diem fee.

Although no comprehensive study of duty counsel services has been done in Canada, many observers have expressed grave concerns.³⁷ The main problem is that most people have no opportunity to prepare their bail applications until they see duty counsel for a short time in bail court on the morning of their hearings. In the United Kingdom and the United States, the criminal justice systems include extensive networks of paralegal personnel ("bail verification officers") who visit suspects soon after their arrival in the detention centre to gather the information needed for their bail applications.³⁸ The officers also seek independent confirmation of residence and employment and contact people who might be willing to act as sureties. (Sureties guarantee to pay a specific sum if the accused do not appear for trial.)

In Canada, private organizations such as local branches of the John Howard Society offer this type of assistance, but these services are rare and often disappear because of lack of funding. As a result, most accused who are detained by the police arrive in court the next morning to a scene of panic and chaos:

Duty counsel have no control over the rate at which prisoners are transported to courts. If large numbers of unprepared prisoners arrive at the same time, duty counsel may be unable even to interview them properly, still less to provide full advice or verify information about sureties, employment or residence. One consequence may be postponement of the bail hearing to obtain further information. Another is that bail conditions may be imposed that are beyond the financial means of the accused. In either event, the accused must be held in custody until a subsequent court appearance. In this way accused persons continue to be deprived of their liberty, and both the courts and prison systems incur unnecessary costs.³⁹

Another concern about legal representation at bail hearings has to do with the poor qualifications of many part-time duty counsel. The Commission on Racism described the problem in its report:

Even before the recent crisis in legal aid funding, legal aid fees for bail hearings were low and declining. That meant much of this work has been done by young and inexperienced lawyers, either in the traditional role of privately retained defence counsel or more likely as duty counsel hired per diem. Unlike the salaried duty counsel, . . . who quickly acquire the necessary skills and confidence for competent representation, per diem duty counsel receive no systematic training and may work without any assistance or supervision from senior counsel. Though bail court may well be a good venue for qualified lawyers to learn their trade, hone their skills, and develop confidence, over-reliance on such lawyers is unfair to them and unjust for accused persons.⁴⁰

In the worst-case scenario, accused people can find themselves represented at their bail hearings by young and inexperienced lawyers who know and care little about criminal law, but who take criminal legal aid cases simply because they do not have enough clients in their own fields of interest and need additional work to make a living. A criminal lawyer from British Columbia commented that he cringed when he heard lawyers say they had general practices which included a little bit of criminal law, because it was akin to doctors who were general practitioners saying they do a little bit of neurosurgery. Another problem with part-time duty counsel in some jurisdictions is legal aid tariffs that pay more to private lawyers for appearing twice, leading them to request unnecessary adjournments of bail hearings that keep accused people in jail for three days or more instead of one.⁴¹

As mentioned above, salaried duty counsel are generally very competent, but even their expertise can be undermined by legal aid plan administrators who do not take bail hearings seriously. In January 1999, for example, the Ontario Legal Aid Plan decided not to renew the contracts of the 12 duty counsel working in Toronto courthouses who had more than four years of experience. The idea was to save a modest amount of money for the plan by keeping only the more junior duty counsel who had slightly lower salaries. This was denounced by a judge, who said that many of her fellow judges are up in arms over the disappearance of the very lawyers they feel are best equipped to work the levers of the often-Byzantine justice system. She added:

My concern, as a judge, is that everybody be treated as fairly as possible. Duty counsel represent the homeless, the jobless and those with mental health problems. These people perform an invaluable service . . . The purpose of our system is not just to process bodies and criminalize them . . . The responsibilities of duty counsel have expanded incredibly. It isn't just a job anybody can do. To have the blind leading the blind doesn't seem to me to be very responsible.⁴²

Role of Crown Prosecutors at Bail Hearings
Crown attorneys play the most important role in bail hearings. They are the ones who present arguments to judges as to why accused people who were detained by the police should not be set free, or should be set free only under certain specific conditions. No recent Canadian research has been done on the impact of these representations, but studies of British courts, which work in very similar ways, concluded that judges go along with the Crown's recommendations in the vast majority of cases.⁴³

The role of Crown attorneys is often misunderstood, and with good reason. Contrary to the impression given in movies and television shows, the duties of the Crown consist not only of presenting the case against the accused, but also of presenting all the relevant facts that can assist judges in making their decisions, whether these facts are damning or favourable to the accused. Historically, Crown attorneys were intended to act as a check on the power of the police, as protectors of rights as well as prosecutors.⁴⁴

The problem with applying the principles of objectivity and fair-mindedness in bail hearings is that the only facts Crown prosecutors possess about the accused, which they hurriedly acquire minutes before the hearings start, are those contained in the police reports. The usual result, according to critics, is that instead of acting as a control on the power of the police, prosecutors are simply an extension of the police apparatus.⁴⁵

Faced with Crown prosecutors who recite damning facts about the accused from police reports, and unprepared duty counsel who have little to say in response, judges understandably almost always side with the Crown. Bail hearings are typically disposed of in a few minutes - so fast that most accused people cannot follow what is going on. When the Commission on Racism surveyed criminal justice staff to ask whether racism might be a factor in their work decisions, several Crown prosecutors commented that "sometimes it is so busy in court that we hardly notice the accused."⁴⁶ This echoes observers who described the court process as "less of a search for justice than a battle against the clock."⁴⁷

Criteria Used in Judicial Decision-Making on Bail
Because accused people are presumed innocent until they are found guilty, our criminal law provides that they must be set free until their trial unless there is a serious reason not to do so. These serious reasons come under two main headings: when imprisonment is necessary to ensure that the accused will show up for trial, and when imprisonment is necessary to protect the public from further crimes or to prevent the accused from interfering with the administration of justice - for example, by harming witnesses who would testify against them. Unlike the police, judges can grant pretrial release whatever the nature of the offence. It is not unusual for people who are accused of murder to be released until trial, especially in situations involving so-called "crimes of passion."⁴⁸

The second reason, which usually involves predicting whether a particular accused person is likely to commit other offences while on bail, has generated a great deal of heated public and professional debates that have shed little light on the criteria that could be used to identify future offenders.⁴⁹ Most of the controversies have been about the fear of violent behaviour, with sensational media coverage urging judges to deny bail at the slightest doubt. Judges are very sensitive to these issues, and their most common way of assessing future violent behaviour is by examining the accused's criminal record.⁵⁰

Looking at the analyses of the Ontario Commission on Racism, however, we find that records of previous violent convictions were not generally very useful in making bail decisions for the simple reason that close to three-quarters of the accused did not have any.⁵¹ Also, many of the accused in the study, and probably the majority of the accused who appear before Canadian bail courts, were not charged with violent offences. The bail issue in these cases is therefore not the risk of future violent offenses, but the risk that the accused would commit less serious criminal acts while out on bail.

On the question of what acts are considered "serious," legal experts say that detention is not appropriate when the alleged offence is trivial.⁵² The Manitoba Inquiry on Aboriginal Justice found that the majority of Aboriginal youths in remand centres in the province had been charged with property offences.⁵³ One may wonder how much sense it makes to keep tens of thousands of untried accused people locked up for weeks and months, at an estimated cost to taxpayers of around $275 a day for juveniles and $130 a day for adults - which is around $100,000 a year for juveniles and $50,000 for adults - in order to prevent them from possibly committing another minor theft.⁵⁴

In cases where there is no past conviction for violent acts or no previous charge for a violent act, how do judges decide whether the accused are likely to commit other crimes if released on bail? According to U.S. experts who examined bail decisions in youth courts, judges' predictions often resemble "hunches" or "guesses."

Because judges must focus on the short-term danger posed by the defendant, they must rely on information about unproven prior acts and anticipated future conduct, as well as on subjective information of the personal restraints and social controls that will regulate the defendant's behavior if released. For this reason, juvenile court judges in Schall commonly considered such factors as the presence of family members at the detention hearing as an indication of the availability of familial controls during the pretrial period.⁵⁵

Judges' professional opinions were also based on elements that reflected a general consensus among criminal justice decision-makers. These included "judgments about the defendants' demeanor, dress, and perceptions of the quality of supervision from parents or caretakers."⁵⁶ These are all highly subjective criteria reflecting cultural norms that vary by social class and race. The risk of applying negative stereotypes to non-white, non-middle-class accused is further increased by the fact that the judgments are made in a matter of minutes and frequently on the basis of unverified or inadequate information.

Criminal histories are also taken into account in assessing whether suspects are likely to show up for trial. This is obviously relevant in some situations, for example if an accused failed to show up for trial in the past. In addition, judges have developed over the years a concept called "ties to the community." The assumption is that the more ties to the community accused people have, and the stronger the ties, the less likely they are to disappear before their trials. The specifics of these "ties to the community" generally consist of having a fixed residence, a job, a spouse, close friends and relatives nearby, and acquaintances who can appear as character witnesses. Some of these criteria, especially employment and residence (owning one's home is considered most desirable), clearly discriminate against poor people.

As mentioned earlier, the effect of these criteria was apparent in the analyses of the Ontario Commission on Racism. When factors such as race, criminal record, previous bail skipping and others were held equal, having a job was the single most important characteristic that distinguished the accused who were freed on bail from those who were jailed.⁵⁷ The next most important consideration was whether the accused had been on bail for another charge when he was arrested. Other influential factors, in order of importance, were having a fixed address, whether the accused's job was high status or low status, race, previous prison term and marital status. Overall, the accused most likely to be detained until trial were spouseless Blacks who were either unemployed or working in unskilled jobs, who did not have a fixed address, who had already been to prison, and who had been charged with committing an offence while out on bail.

The profile does not suggest that people whose bail applications were rejected were dangerous or violent people. On the contrary, when all other factors were controlled, the fact of having a previous record for violent offences, or any previous record other than for drug offences, did not make a significant difference to the bail decisions.⁵⁸ This leads us to conclude that in most cases the reason accused Canadians are kept in prison for weeks and months before their trial is not because they are dangerous and poor, but mostly because they are poor.

Considering the enormous negative impact of the decision to deny bail, one would think that the practice of using employment or a fixed address as criteria is based on solid research demonstrating conclusively that unemployed people or people without a fixed address are unlikely to show up for trial. It is therefore amazing to find that no such studies have ever been done in Canada.

A substantial body of research in the United States questions the value of basing bail decisions on personal information about an accused. These studies suggest that residential stability, employment and nearby family contacts are generally unreliable indicators of whether an accused person will appear for trial.⁵⁹

Also disturbing are court records indicating that the employment criterion may be used in deciding whether an accused person is likely to commit another offense while on bail.⁶⁰ In some cases, Crown prosecutors who did not tell the judges that there was a danger that the accused would not appear at trial still mention unemployment as a relevant fact in support of their argument that the accused should be detained in order to protect the public from further crimes. It would appear that in borderline situations where prosecutors and judges are uncertain about people's likelihood of committing another offense, they tend to give the benefit of the doubt to the accused who have jobs and release them and to detain the ones who do not have jobs.

There are ways of avoiding this type of discrimination. In the United Kingdom, for example, the lack of a fixed address is seldom an issue since there are "probation hostels" where homeless accused people - and people on probation, of course - can stay until they find other residences.⁶¹ Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and Yukon had bail supervision programs in the early 1990s to monitor untried accused persons on a regular basis, to suggest other services that could meet their needs, and to make sure they knew when and where to show up in court.⁶² Failure to appear is one of the most common criminal charges laid against young Aboriginal people in Canada.⁶³

Like the bail verification services we saw above, most bail supervision programs are run by private non-profit organizations. One example is the bail supervision program of the Ma Mawi Chi Itata Centre for Aboriginal youths in Winnipeg, which was praised in the 1991 report of the Manitoba Aboriginal Justice Inquiry for its excellent work.⁶⁴ The Inquiry recommended that these services be expanded and better financed and that similar initiatives be established throughout the province. Instead, the bail supervision program of the Ma Mawi Chi Itata Centre was terminated due to lack of funds.⁶⁵

Ontario, which accounts for more than 40 percent of all youth court cases in Canada,⁶⁶ abruptly terminated the funding of its 12 bail supervision programs in 1997 for budgetary reasons. The decision made no sense, since it was estimated that saving $1 million on the budget of the bail programs would cost Ontario $25 million in new jail expenses. A defence lawyer speculated that "this was a way of extorting guilty pleas from people who would otherwise have to spend weeks or months in jail awaiting a chance to argue their innocence."⁶⁷ Following intense pressure, the government reinstated some of the programs and ordered a review by an independent consultant.

Conditional Releases
When accused people are released at bail hearings, judges can specify different types of releases:

with an unconditional promise to appear at trial (This is what is usually meant by being "released on your own recognizance.");
with a promise to appear at trial and to obey whatever conditions the judge orders;
with an agreement to appear at trial and to pay a specific amount in case of failure to appear, with no deposit or surety being required;
with an agreement to appear at trial and to pay a specific amount in case of failure to appear, with provision of a surety. (A surety is another person who guarantees the accused's appearance and who may have to pay if the accused does not show up.);
with an agreement to appear at trial and to pay a specific amount in case of failure to appear, with a deposit of cash or other valuable security; or
with any combination of the above.

It is interesting to note that the law considers the order of these release methods as a "ladder of severity," with option one being the least severe and option five the most onerous. In presenting their arguments, Crown prosecutors who recommend a supposedly more severe option have to demonstrate why they did not recommend a less severe one. The reality is that for people with plenty of money, none of the financial conditions impose much or any hardship at all. But for someone who has no money, the imposition of a cash or security deposit, even of a modest amount, or the requirement of providing a surety they could not reimburse, can cause immense difficulties and act as a barrier to freedom.

Keeping people in jail before trial because they cannot provide financial guarantees is against the law. The Canadian Charter of Rights provides that "Any person charged with an offence has the right . . . (e) not to be denied reasonable bail without just cause." Judges can only release detained accused persons with financial guarantees after they have determined that there is no just cause to keep them in detention. Experts agree that "to impose a condition which is known to be impossible to comply with from the outset would amount to a wrongful refusal of bail."⁶⁸ The Law Reform Commission of Canada agreed. It recommended that cash deposits be abolished or greatly restricted, and that when people must stay in jail because they cannot find sureties, a quick reassessment be done to prevent their being detained just because they are poor.⁶⁹

When the staff of the Ontario Commission on Racism visited prisons in the mid-1990s, they found that many prisoners, especially youths who were members of minority groups, had been granted bail but were waiting for sureties to be confirmed or other bail guarantees to be met. Employees of many detention centres, as well as defence lawyers, duty counsel and organizations involved with prisoners and ex-prisoners, confirmed that many accused who are granted bail "spend days, weeks or even months, in prison because they cannot meet the bail court's conditions for release."⁷⁰ A 1992 study by the Ontario Ministry of Correctional Services found that "35 percent of the 212 adults and youths aged 16 and 17 who had been granted bail by the first day of the study were still in prison seven days later."⁷¹ And a 1994 survey of prisoners who had been granted bail but were still in jail found that two-thirds were still there because they were unable to meet cash bail or to provide the required sureties.⁷²

Conditional Releases With Non-Financial Conditions
There are two main types of conditional releases with non-financial conditions. The first, provided for in the Young Offenders Act, applies only to youths and allows conditional releases after it has been determined under the criteria we saw above that a youth should be detained. The conditions are that the young person is released in the care of a "responsible person" who is judged to be able to take care of the youth and to exercise control over him or her. The youth must agree to the proposed arrangement. The determination of who constitutes a "responsible person" is bound to favour young people with well-heeled fathers and to work to the disadvantage of youths from poor single-parent families. Aboriginal youths with parents thousands of miles away on the reserve don't stand a chance.

The second type of conditional releases with non-financial conditions applies to accused adults and youths after the judges decide they should not be detained. We saw earlier that the police were given the right in 1995 to release accused people who promise to obey specific conditions. These conditions include remaining within a specified area, notifying the police of changes of address and employment, not communicating with named people or not going to specified addresses, leaving a passport with the police, reporting to the police at specified times, staying away from firearms, and abstaining from alcohol or non-prescription drugs. Judges who release accused people at bail hearings can impose any or all of these conditions, as well as any other conditions they consider reasonable.

Many of these non-financial conditions seem very reasonable, such as keeping the authorities informed of one's whereabouts and employment, surrendering one's passport, and staying away from people who have allegedly been victimized by the accused. The condition about firearms makes sense in most cases, but the Law Reform