BarTalk October 2001
Volume 13, Number 5

by The Honourable Judge Ted Matlow

Ted Matlow is a judge of the Superior Court of Justice of Ontario. He is also editor of The Advocates’ Quarterly. This article was first published in the Globe and Mail.

Almost everyone would agree, at least in principle, that no person accused of committing a crime should be required to start serving a jail sentence until he or she has been found guilty after a trial.

Yet, in Canada, thousands of people still awaiting trial and presumed innocent are detained in custody every day, often for very substantial periods of time, and are forced to endure the same hardship and punishment as criminals who have been tried, convicted and sentenced.

This occurs because, despite the lip service that is given to the presumption of innocence, there is a commonly held belief that most persons charged with an offence have actually committed it and that no serious injustice occurs when some of them are made to start serving their sentences even before they are tried.

This belief, however, invariably disappears when people actually experience pre-trial detention or learn about its realities from someone close to them.

The very real violation of principle that results is not unique to Canada. I know of no country in the world where the same kind of violation does not also exist. The inclination to ignore this violation of principle is universal.

The Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right “to be presumed innocent until proven guilty according to law...” and “not to be denied reasonable bail without just cause”. The Criminal Code gives effect to these rights by encouraging the release on bail of persons charged while awaiting trial subject to certain exceptional circumstances. The most common of these is when detention is necessary to make sure that an accused person will show up for his trial or to secure the protection or safety of the public.

However, some people are detained only because they are unable to find a surety who is financially able to post bail.

When a person is wrongfully convicted and sent to jail, there is usually a widespread concern expressed in the media if the conviction is ultimately set aside and the person is released. Yet, inexplicably, no one seems to be unduly concerned when, as occurs on a daily basis in Canada, large numbers of accused persons who have spent time in jail awaiting trial are ultimately acquitted and released. When this occurs it is usually without any expression at all of regret from those engaged in the administration of the criminal justice system. It is seen as “just one of those things”. Financial compensation for the time spent in detention is given in only the rarest of cases.

Each time I personally witness such an event it bothers me enormously.

To understand fully my concern, one must be able to catch a glimpse of life inside a typical jail where accused persons, still theoretically clothed in the constitutional presumption of innocence, are converted to “prisoners” and “inmates” and often made to live in sub-human conditions of overcrowding, squalor, violence, regimentation and deprivation.

In Toronto, it is common knowledge in legal circles that persons detained while awaiting trial are now usually forced to live in cells designed to be occupied by two persons but actually occupied by three or four. That means that many inmates, including persons awaiting trial, are required to sleep on the floor of an over-crowded and smelly cell within inches of an open toilet. They have virtually no privacy. Everything they do, including their use of the toilet, is open to the view of guards and other inmates alike. They are required to appease inmates who seek to intimidate them to establish power for their own benefit or they risk physical harm.

There is no doubt that this kind of detention is harsh and tantamount to punishment before trial. Even the Ontario Court of Appeal has stated that “to pretend that pre-sentence imprisonment does not occasion a severe deprivation and that it is not punitive would result in a triumph of form over substance”.

There is at least one reasonable solution to the problem that I describe.

Without question, there are some accused persons who must be detained while they await trial. Not every accused person can reasonably be released on bail. However, there is no good reason why accused persons awaiting trial must be treated exactly like convicted criminals while they remain in custody.

Jails that are used as detention centres should be altered to create special segregated areas designed specifically to accommodate accused persons awaiting trial in a humane environment that both respects their integrity as innocent persons and, at the same time, maintains the level of security that is reasonably required. The benefit that our community would gain from this recognition of principle and decency would far outweigh the modest cost of making this kind of change.

In these new accommodation areas, accused persons awaiting trial should be given more comfortable living accommodations than those given to convicted criminals. They should not be required to live in overcrowded cells. They should be given tastier food, freer telephone access and more liberal visitation rights so that they can maintain close contact with those close to them and to their lawyers.

As well, they should be permitted to follow a daily routine that is as close as possible to the routine that they would choose to follow. It should include an opportunity to enjoy fresh air and exercise.

And, when they are transported to court from time to time when required, they should be taken in reasonably clean and comfortable vehicles unlike the police vehicles that are commonly used. They should not be jammed into cages like animals.

Above all, accused persons awaiting trial should be treated with appropriate respect and dignity by everyone involved in their detention including those responsible for accommodating them in our courthouses. They are, after all, still innocent persons.

The way we apply our laws is every bit as important as the way we develop just and effective laws. Expediency and fiscal limitations do not justify governmental violations of principle. It is no excuse for the way we treat accused persons awaiting trial that it would be too difficult or too expensive to treat them differently.

Nor is it an excuse that we have committed the same injustice for many years.

A truly just society is one that protects the rights of the most vulnerable of its members. If we violate basic principles with respect to those people, none of us can feel secure.

This article was published in the October 2001 issue of BarTalk.