October 30, 2017 – Anna Mehler Paperny, Reuters

Ontario, Canada’s most populous province, gave prosecutors new instructions on Monday to keep people out of jail while they await trial, addressing a system that has put people behind bars for months or years before court dates.

The move to find alternatives to pre-trial detention includes easing onerous bail conditions that disproportionately affect minorities and indigenous people.

A Reuters investigation this month found black people in Ontario spend longer behind bars awaiting trial than white people charged with many of the same crimes.

Black people were also over-represented among those spending more than a year awaiting trial behind bars in every offence category Reuters examined. (Graphic: Racial disparities in pre-trial detention – tmsnrt.rs/2z18vS7)

“People should not be denied bail by the simple virtue of their disadvantage,” Ontario Attorney General Yasir Naqvi said at a news conference. In Ontario, people in custody are usually only released if they have a surety – a relative or close friend who pledges assets and supervises the accused while they await trial.

Lawyers, judges and criminologists have said sureties penalize people who are poor or whose communities are heavily policed. Naqvi said Crown prosecutors must use sureties less often and impose bail conditions more judiciously.

In the past year Ontario has expanded “bail bed” programs, which give people a place to stay, and bail verification programs, which require the person to check in with a case worker regularly.

Ontario’s previous directive to prosecutors was more focused on risk-aversion, citing high-profile cases where people committed murder while on bail. The new one tells prosecutors that under Canada’s Criminal Code an accused person’s unconditional release should be the default.

Toronto civil rights lawyer Anthony Morgan said the new directive should more explicitly address the disadvantages faced by black accused people instead of lumping groups together.

“It doesn’t address the particularities of the longer stays, of the harsher treatment, of the specific stereotypes and biases against African-Canadians that lead to the outcomes that we are seeing,” he said. “Not all…communities are disadvantaged in the same way.” Ontario is one of several Canadian provinces reviewing backlogged criminal justice and bail systems in the wake of multiple Supreme Court rulings that have found them too slow to process cases and too restrictive when it comes to releasing them before trial.

The majority of prisoners in Canada’s jails are people awaiting their day in court. Reuters found that people are more likely to die behind bars if they are awaiting trial than if they are serving sentences.