Winnipeg Free Press - PRINT EDITION

Presumption of innocence shackled

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A report that shows provincial jails are primarily used to hold people who have been denied bail should be a wake-up call for justice departments across Canada.

There are legitimate reasons for denying bail to some offenders, but the huge numbers of un-convicted people sitting in provincial jails is evidence of a denial of fundamental justice, particularly the bedrock principle that accused persons are innocent until proven guilty.

Manitoba's record is the worst in Canada, a fact that has been well-known for at least 15 years, yet the province has ignored the problem as it continued to fester and expand.

In fact, the Selinger government has made it worse through a policy of zero tolerance for breaches of bail conditions. It means one minor transgression, such as a drinking binge, which isn't a crime, or failure to report to a probation officer, can result in the offender going back to jail.

The Canadian Civil Liberties Association reports nearly 55 per cent of people in jail on an average day across Canada were in pretrial custody. Manitoba had the highest rate -- 66 per cent, or two out of every three people in custody. The province also has the highest rate of adult incarceration, nearly 1,000 per 100,000 people, Statistics Canada says.

The phenomenon has been growing across Canada over the last 30 years, despite the fact the crime rate has been falling. Tough-on-crime agendas combined with poverty and social problems have helped fuel the trend.

The civil liberties association said geography also plays a role.

People from remote communities who get into trouble while visiting places such as Winnipeg or Brandon, for example, have greater difficulty meeting bail conditions. Even if these offenders are flown to a provincial detention centre near their home pending a bail application, contacting family members can be difficult. Arranging for someone to take responsibility for the offender can be even more difficult, particularly if it involves a cash surety or transportation from an isolated community to a rural courtroom.

Most provinces have a lot of geography, but the problem is particularly acute in Manitoba, where 90 per cent of the population lives in the south. Many northern communities don't have roads, while those that do can be hundreds of kilometres from a judicial centre.

These circumstances create an un-level playing field, particularly for minor offenders who often face longer periods of pretrial custody merely because of where they live.

Many of these "offenders" are aboriginal people who are disproportionately represented in the justice system. The courts have been told to consider their unique circumstances and history during sentencing, but the question of bail fairness has obviously not been part of the equation.

The province shouldn't wait for a legal challenge before considering how to address this fundamental injustice.

The government's zero-tolerance policy for bail infractions is also needlessly strict and harmful, another example of governments abusing their authority to appear tough on crime.

Among other things, it makes the justice system more arbitrary by removing the ability of professionals to make decisions based on the facts, instead of rubber-stamping provincial regulations.

The province has complained its courts are clogged, but its own policies have contributed to the problem.

People arrested by police should be given a trial date and set free, unless there is powerful evidence they will not attend court or that they will commit a serious crime if released.

This is basic justice, which Manitoba and other provinces have ignored because the victims are powerless and without a champion.

The state should not be holding large numbers of un-convicted people merely because they are poor, isolated or suffering from addictions.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition July 25, 2014 A10

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