In July, Ottawa passed a new bail law that makes it harder for some people to be released as they await trial.
The law shifts the onus onto individuals with prior convictions, or those accused of certain serious offences, to prove they should be granted bail.
Canada’s provincial jail population already consists predominantly of people awaiting trial. Experts say the new law could worsen this imbalance.
The law represents “a retreat from the principle of restraint,” said Nicole Myers, a sociology professor at Queen’s University.
“If I had to speculate, I would say … more people are going to be detained rather than released. The result then being our pre-trial detention institutions … will become even more overcrowded and more dangerous places for people that are legally innocent.”
The Canadian anomaly
Canada’s federal prisons hold inmates serving sentences of two years or more. Provincial prisons hold inmates serving shorter sentences as well as people awaiting trial.
In 2024, the average pre-trial population in provincial and territorial jails outnumbered the sentenced population three to one, with 19,335 people on remand and 5,895 people actually sentenced.
Even counting federal prisons, about 50 per cent of all people behind bars in Canada are awaiting trial, not serving a sentence.
In the United States, by contrast, the comparable figure is 26 per cent; in England, it is 18 per cent.
Canada’s pre-trial prison population has also been growing over time.
Between 2015 and 2024, the provincial remand population rose more than 40 per cent, while the sentenced population fell 43 per cent. The federal prison population also declined over this period.
“What we’re seeing now is an intensification of a very old and longstanding pattern,” said Justin Piché, a criminology professor at the University of Ottawa.
Piché attributes the growth partly to a “culture of adjournment” and partly to risk aversion.
If a bail decision is not made quickly, the accused will generally be transferred to a provincial jail.
“We describe these people as being in limbo,” Myers said. “They’re in detention, but we haven’t formally denied them their bail.”
Police can avoid responsibility for releasing someone by sending the case to bail court. And judges may fear the public consequences of a released, accused person committing another offence.
“ There is a culture of risk aversion that has emerged over the decades in the system,” said Piché. ”The justices of the peace, the courts, the judges themselves … have become increasingly risk averse over time.”
Part of that risk aversion may stem from growing public safety concerns. In July, various municipal and community leaders told Canadian Affairs the new bail law is needed to prevent certain repeat offenders from being released.
An absence of national bail data makes it difficult to know if these concerns are well-supported. But Public Safety Canada data paint a picture.
According to the agency, more than half of the suspects identified or charged in RCMP homicide investigations between 2019 and 2022 were in custody or under community supervision — such as remand or probation — at the time of the offence.
In British Columbia, the province has a program that aims to reduce the risk of high-risk repeat violent offenders re-offending when they are released.
The program, which monitors nearly 450 people, connects individuals with supports such as housing and health care, and also ensures close community and police supervision.
The province says this program has helped ensure people considered public safety risks are remanded before trial.
Program data show it has also reduced crime. Police interactions for all offences involving individuals in the program dropped by nearly 1,500 incidents — or 50 per cent — in the 18 months after they were added to the program.
‘Better data needed’
The federal Department of Justice has acknowledged that better data are needed to provide a national picture of how the bail system is operating. It has offered each province and territory up to $250,000 to standardize bail reporting.
Asked whether it had estimated the likely impact of its new bail law on remand numbers, jail capacity or provincial costs, Justice Canada did not provide a projection.
Justice Canada says a separate new law, the Protecting Victims Act, should reduce court delays by encouraging diversion and restorative justice for cases that do not pose a public safety risk.
Myers, for her part, cautions that detaining more people may ultimately create its own public safety risks.
“Any time spent in custody, even short periods of time … makes people more likely to commit offences in the future, not less likely,” she said.
“We’re trading our long-term public safety for short-term public safety,” she added.. “We get a bit of protection in the short term, but it’s coming at the cost of increasing the risks in the long term.”
