Innocent Until Proven Guilty

After reading the news article from the Canadian Broadcasting Corporation, The Sunday Edition, by Michael Enright called, “Innocent Until Proven Guilty – Except on Remand,” I felt that I needed to post a reaction post of my own because he brings up some really good points, but he also misses some of the obvious problems that we are faced within Canada today with Remand. Why is remand the way it is today? I like to make two points that Remand is being used as a warehousing/staging mechanism due to clogged Courts, who are consistently backlogged as the (1) “net widening” of various criminal laws that catch more people now who fall into them, and (2) lack of funding, right from policing, through to the Courts, and the prisons themselves, are dealing with reduced budgets and other cost cutting means. As I talk to my peers, they say it continues to get worse.

I was at a deposition hearing in 2012, in Surrey, British Columbia, where the judge asked a lawyer if his client could post bail, noting that the accused had being convicted several times before. I noticed the judge then checking to see if the remand centre had enough room for one more person. I did not think that much about it at the time, as I was more focused on capturing as much as I could on what charges the Crown had, and their list of evidence. My lawyer friend who I was helping out, told me that the situation was bleak as far as backlogs go, and that he had clients who were sitting in remand for up to two months before he could schedule hearing dates for them. He called that exceptionally productive back then, as I hear it has gotten a lot worse today as far as backlogs go.

Net widening, in this aspect, is a term that is used when laws, already in force, are amended to catch more offenders by adding in more rigged attributes to them. In some cases it allows the police to lower the threshold of when certain crimes are committed, and lay charges, and apprehend perpetrators. The result is an increase in charges due to these changes in the Criminal Code. In the last decade, Canada has seen a huge increase of net widening from within the Criminal Code, thus resulting in a corresponding increase of intakes into the criminal justice system.

The people who should be put into remand are generally people who either fall into the category of unable to pay, or cannot meet the terms for bail (so that they will not flee the country and will return for their trial), and people who could pose some form of danger to society, or to themselves. The term “dangerous offender,” is used in the latter point. Add in cutbacks and under funding to the Justice System, such as fewer court facilities, then you are bound to have bottlenecks as prisoners are being put through the system. If someone cannot have their day in court, due to backlogs, then they will spend more time in remand until then when space becomes available for a trial.

Canada had “time served” rules built into the Criminal Code where if you spent time in remand, then you would qualify for “two for one, to partial—time severed,” which meant that when you were sentenced for jail, part of your time would be shortened (taken off of) because of the time served rule in remand. These rules have since being changed and phased out under the Harper Government. Now remand is viewed upon in many circles as the starting point of punishment, and dims the idea of innocent until proven guilty in Canada.

Michael Enright is absolutely correct about these conditions of overcrowding in remand centres. He is also correct in that no politician would ever dare stand up and argue against a crime bill. A government who plays the “crime card” during an election usually believes that they will capture more votes, so this “tough on crime” agenda usually falls amongst all parties in the political spectrum.

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