In a public health emergency, we must protect the vulnerable. That extends to the vulnerable whom society deems unsympathetic or undesirable, including those whom we lock up in jails while they await trial.

Two-thirds of people in jail are there despite not having been convicted of any criminal offence. They are locked up because they have not obtained bail.

These people are presumed innocent. Yet, our system permits them to spend days, months, sometimes years in squalor, often on lockdown for extended periods of time, and without access to loved ones or educational or rehabilitative programming.

That this is our normal is deeply problematic even in the best of times. But add COVID-19 to the mix and it is downright cruel.

Jails are fertile breeding grounds for infectious disease. We know that COVID-19 spread rapidly on cruise ships. Jails are similar to cruise ships in that a large number of people are confined in a relatively small space, but jails are less hygienic and have worse access to healthcare.

The government has announced that jail visits shall be limited to legal counsel, but this measure — in addition to being punitive to those locked up — is unlikely to contain the spread of the virus through the jails. Given COVID-19’s long incubation period, it’s likely the virus is already there. And even if it wasn’t, there are hundreds of staff going in and out every day. Before long, COVID-19 will spread like wildfire.

Here is what we ought to do to ease the suffering of pre-trial detainees: Let them out before it’s too late. Perhaps not each and every detainee, but the vast majority of pre-trial detainees should be released on bail.

This may sound like a drastic solution, but it is not. Most pre-trial detainees — many of whom are charged with non-violent offences — could be released without any discernible effect on public safety. And releasing them may be necessary to avoid a further public health catastrophe.

Not every person locked up pending trial is dangerous to the public. Most are not. This is a common misunderstanding for those unfamiliar with the criminal justice system.

Whether someone is in the community on bail awaiting trial or locked up in custody pending trial often has more to do with their socio-economic status than with whether their detention is necessary to protect the public. Ontario’s bail system relies overwhelmingly on a system of sureties. The surety is your jailer outside of the jail. The surety is usually a loved one who pledges money to the court, agrees to supervise you and makes sure you attend court.

Those with access to acceptable sureties tend to be those who come from middle-class backgrounds. If your surety has a home with equity in it, a respectable job, and no criminal record, you have a decent chance of getting bail. If you live on the fringes of society and are disconnected from family or friends, or have family and friend who have problems of their own, you’re less likely to be able to find a surety who will be suitable to the courts.

While the appellate courts have recently cautioned against the over-reliance of sureties in our system, Crown prosecutors running bail hearings continue to insist on them in all but the most minor cases.

The bottom line is that many people are locked up pending trial not because they’re dangerous but because they’re poor. This is a miserable state of affairs in the best of times, but in times of health crisis, the unfairness is exponentially worse.

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The courts’ resources in this critical time should be directed towards emergency bail hearings and bail reviews for everyone in remand custody. With or without a surety, anyone who is not an imminent threat to public safety should be released. Done right, this plan should reduce overcrowding in jails to reasonable numbers and hopefully help avoid an uncontrollable outbreak.

Let’s unlock the cell doors and stem the suffering before it’s too late. Being presumed innocent but poor should not be a death sentence.

Nader R. Hasan is a criminal and constitutional lawyer and a partner at Stockwoods LLP.