“Is Mr. Henderson in the building yet?” the Crown asks.

A shake of the head from a court officer on duty is met with resigned smiles from Justice of the Peace Lynette Stethem and the lawyers present in courtroom 101 at Old City Hall in Toronto. This kind of delay happens all the time.

On this morning, there is another hearing ready to proceed, the case of a nervous, red-eyed man in a black jacket. He faces several charges related to forging cheques and criminal harassment that the Crown alleges amounts to basically stalking a woman.

He is in custody because he allegedly breached his previous bail conditions by texting the woman again, somehow obtaining her new cellphone number.

Stethem is the same justice of the peace who granted him bail last year, with his father as a surety. His proposed surety this time is his mother, now retired and willing to supervise her son 24-7.

This is his last chance, Stethem says, before ordering the man to be released on house arrest despite her serious concerns about the alleged stalking behaviour. She notes that he has no history of violence and that there are no threats in the text messages, though the complainant is fearful of him.

“I don’t know why, but my toes are curled,” Stethem says to the man’s mother, stressing the importance of ensuring that her son abides by his no-contact order and other conditions.

She suggests that he have the reasons for his behaviour examined by a mental health professional.

It is the sort of balancing act that is done in bail court every day.

But the results, researchers have found, tend to land on the risk-averse side, contributing to a bail system where processing times are too long, unfair conditions are imposed, and 62 per cent of the provincial jail population are people presumed innocent and awaiting trial, not actually serving sentences.

The troubled state of the bail system in Ontario, and in Canada, was raised recently by a justice of the peace in Ottawa, in a highly unusual op-ed piece.

“Unfortunately, Ottawa’s main bailout court, and others, have devolved into dysfunctional and punitive bodies, devoid of the rule of law,” Julie Lauzon wrote.

Lauzon’s focus was on release conditions being imposed that are not reasonable or lawful, but rather intended to punish or change behaviour unrelated to the alleged offence — a problem that has been raised in previous reports by the Canadian Civil Liberties Association, the John Howard Society and the Ministry of the Attorney General.

People will often agree to these conditions, which may be unrelated to the offence, to avoid spending any further time in custody — even if it means waiting to have a bail hearing, says defence lawyer Daniel Brown.

“In an attempt to manage risk, we’ve gone too far,” says Brown. “The most common reason people are detained is a substantial likelihood they will reoffend. What sometimes happens in bail courts is they want to minimize any and all risk to reoffend by imposing such heavy conditions that a person could not possibly reoffend while on bail.”

People are being “set up to fail,” says CCLA’s executive director, Sukanya Pillay.

“There are a whole host of unnecessary and frankly ridiculous conditions that are frequently imposed on people who are released on bail,” she says.

Unnecessary curfews may prevent employment opportunities. Abstinence conditions for people with addictions may result in new criminal charges for failing to comply with bail conditions.

In a 2015 report submitted to the federal government, criminologist Cheryl Webster describes “a vicious circle” in which the criminal justice system effectively manufactures its own crime.

Webster’s report suggests an overhaul of the entire system, but also policies to counteract the risk-averse mentality she identifies as being pervasive in the court system — such as reducing the use of sureties and treating failure to comply with bail conditions not as a new criminal charge, but like a parole violation, where bail can be revoked or the conditions changed as a result.

As recommended by the ministry’s report in 2012, the province is having domestic violence experts take a closer look at how bail works in those cases, a spokesperson for the Ministry of the Attorney General said.

Pillay is “cautiously optimistic” that meaningful changes will be made at both the federal and provincial level, noting that bail reform was specifically mentioned in the justice minister’s mandate letter.

The province will be ready soon to announce a comprehensive bail strategy that includes a focus on mental health, a spokesperson said.

“Everyone agrees this is a problem, but now the real work begins,” Pillay said. “We have to push to a solution.”

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Four problems with bail

Delays

Lawyer Daniel Brown says there is a disproportionate impact on people with low incomes when bail hearings are delayed. Putting the hearing off for even a day means having to pay for a lawyer again or having sureties take more time off work to come to court — in addition to lost income or potential job loss for the accused. It puts people in a position where they are more likely to consent to unreasonable bail conditions to get released, he says.

“One of the things that can be improved is ensuring prisoners are brought to court on time,” he says. That means speeding up processing times at the police station. “What we see on a daily basis is somebody who is arrested in the middle of the night who isn’t brought to court until the middle of the afternoon for a bail hearing.”

By then, the hearing might need to be adjourned to the following day.

Overburdened courts

There are often too many cases to get through in a day, or not enough time to speak with the prosecutor about a release plan. That has been addressed in some places with additional resources, Brown says, such as running another bail court when needed and adding a senior Crown, known as a bail vettor, who can review and triage cases for the most effective use of time.

Cost of remand

The CCLA report on the bail system found the average cost of keeping someone in provincial jail for one day is $183, while it costs $5 to supervise someone in the community. The median stay in remand in Ontario, based on data from 2009 to 2011, was seven days.

The significant expense to the province does not lead to an increase in public safety, the report states, noting that a 2009 survey found that the most common offences for which adults are remanded are administration of justice offences, such as failing to comply with a bail order — and that 68 per cent of admissions to remand were for non-violent offences.

Unneeded bail hearings

This stems from a risk-averse culture, researchers say. Police officers “pass the buck” to the courts to determine release conditions in cases where an undertaking to return for court appearances would be sufficient. This slows the court system and can result in the imposition of unnecessary conditions, which in turn may lead to the court being clogged by charges of failure to comply with bail conditions.

More from the ‘Justice Denied’ series:

Huge legal bills push many to self-represent in court

Challenges to high legal bills delayed by short-staffed office

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