The Canadian Remand System

The Criminal Justice System of Canada heavily relies on its remand program to achieve its objectives. However, this system challenges the rights and freedoms of individuals who are held before conviction.  The remand system refers to individuals who have been charged with an offense but have not yet received a trial or conviction. Those charged, must meet certain criteria to be held in custody without the prospect of bail. If a defendant is not offered bail at their preliminary bail hearing, the court believes that there a significant risk that they will not be present at their court date. Therefore, they are a risk to the safety of themselves and/or others, or there is a significant risk of re-offending. These criteria outline the provisos under which an individual can/must be kept in custody while awaiting trial for a conviction. The remand system has influence from both the federal and provincial governmental levels and therefore has a complex system of surrounding policies.

There are many aspects of the system which directly contest the rights of defendants and, in turn, create vast damaging effects. These effects can come in the form of protection of innocence, pre-detention conditions and post-detention adjustment issues. These issues directly oppose the rights and freedoms set out in the Charter of Rights and Freedoms. The matter of innocence is of great importance within the justice system. The Universal Declaration of Human Rights states that “The presumption of innocence is a foundational principal of the modern criminal justice system.” This presumption of innocence is essential to the upholding of the rights put forth within the Charter. The Ontario Court Statistic database states that over 91,000 people were arrested by police and held in custody for a bail hearing in Ontario in 2015. Of this population, 38% subsequently had no finding of guilt. This innocence is challenged when defendants are detained and held for unknown and unreasonable amounts of time before and determination of guilt. While there are standards that maintain the presumption of innocence within the trial for conviction and sentence, there is limited criteria for the principals of innocence when determining a pre-trial detention. In the analysis of innocence in the justice system, it is important to recognize the goals of the system as a whole. The security of the public and the preservation of justice all contribute to the remand system and allow for the presumption of innocence to be jeopardized.  Those who are held in pre-trial detentions are exposed to harsh conditions before any conviction is found, and therefore, the presumption of innocence is lost.

The conditions of the jails which house defendants before trial are a violation of the rights set out in the Charter. Pre-trial detention is immensely subpar to the prison complex which houses those who are incarcerated upon sentencing. A key component to these conditions is the assumption of temporary hold. Defendants are required to be held in remand until their conviction or release at trial. Although, this does not account for the slow-moving process of the justice system including; delays of trial and the sheer amount of cases. Those accused are exposed to health risks, limited resources and unsafe living conditions within their detention. In long-term institutions, there is a significant focus on the rehabilitation of prisoners through the use of practical systems such as education and work opportunities. However, this luxury is not granted to those in pre-trial detention. Many jurisdictions use the pre-trial system to encourage guilty pleas and confessions from defendants, often through force and abuse. In doing so, the conviction rate increases in those held in custody before their trial. This is a severe breach of the rights of defendants in the justice system. The conditions of pre-trial detention centers must be advanced and fixed in order to provide adequate support to the justice system as well as provide protection for defendants and their rights.

Upon the release of a suspected person from the remand system, there are significant challenges that are presented. The pre-trial detention can produce a multitude of issues within the lives of defendants once they are granted release following their trial. An example is the economic issues that are faced post-detention. Not only are defendants unable to maintain any income while imprisoned for an indefinite period of time, employment of those in post-remand is challenging and limited. This in turn promotes economic instability, not only for the defendant, but also those who rely upon them for financial support. The financial independence of those incarcerated is extremely valuable for legal fees as well as the protection of those outside of the system effected by the defendant’s incarceration. Additionally, the long and short-term detention of individuals exposed them to a myriad of influences that contribute to their lives post-remand. Issues such as mental and physical health, poor socialization, and criminal influence which are all key aspects to one’s life post-remand. The mental and physical health is challenged by the poor living and hygiene conditions of the detention centers. Along with mental and physical health, the psychological effects of being imprisoned can not only influence the wellbeing of the defendant but also the decision-making process once released. The role of reputation within labelling theory highlights the consequences of pre-trial remand. Once exposed to the inner workings of the justice system as well as the detention center itself, individuals are cast as “criminals” and therefore are liable to be influenced to engage in criminal behavior as they are already designated as such. The life of those released from remand, is greatly influenced and effected by the time spent in custody. In order to decrease these negative influences, work must be done to improve the conditions of the remand system.



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