In January 2023, the Ontario Chief Coroner’s Expert Panel on Deaths in Provincial Custody released a report entitled ‘An Obligation to Prevent: Report from the Ontario Chief Coroner’s Expert Panel on Deaths in Custody.’ The report—which has received significant media attention since its release—examines a recent increase in deaths among individuals incarcerated in Ontario’s custodial facilities and identifies several factors that have contributed to decreased safety for these individuals. These factors include isolation and de facto segregation resulting from lockdowns caused by staff shortages, an extreme reduction in supportive programming, gaps in CO training in areas such as mental health and trauma-informed practices, and a lack of social and familial connection for inmates.
Unfortunately, the report’s disturbing content comes as no surprise to those who work in criminal law. The conditions at Ontario’s detention centres are well-known among justice system participants and have been the subject of judicial condemnation for many years. At the heart of the issue is a capacity problem—simply put, there are too many people being held in Ontario’s remand centres with not enough staff or supports to properly care for them. Chronic staffing issues at the institutions result in frequent lockdowns, during which incarcerated individuals are lucky if they are allowed out of their cells for twenty minutes to shower and use the phone. The expert panel’s report notes that lockdowns interfere with or prevent access to programing, health care, spiritual support, and visitations. The resulting boredom and monotony experienced by individuals subjected to these conditions contributes to substance use, isolation, and suicide.
So, what can be done to address the problem? Lawsuits and class actions may provide compensation to some of the individuals who have been treated inhumanely in Ontario’s correctional facilities, however, many of these individuals lack the resources, knowledge, or stability to participate in such processes. Activists, community organizations, and formerly incarcerated individuals continue to advocate for decarceration, community support, funding, and oversight. Since the criminal law brought these individuals into the institutions, it seems intuitive that the answer would also lie within the criminal law, however there are difficulties with criminal law approaches and no easy solution.
Pre-Trial Release
One of the most obvious and likely effective approaches to improving the conditions at Ontario’s detention centres is to simply depopulate the jails. Since approximately 70% of people in provincial detention centres are awaiting trial, this can be accomplished by releasing more individuals on bail. The right to reasonable bail is one of the most fundamental Charter rights and yet bail is routinely opposed and denied for individuals with relatively minor and non-violent charges. Oftentimes the reason is that these individuals do not have family members or friends who are able to able or willing to act as their surety. Ontario’s courts have recognized that there is an overreliance on surety bails in the province. The difficultly with this approach is that it requires the Crown’s cooperation in releasing a much larger number of individuals who have been charged with offences on bail. Systemic change to Crown policy is required to overcome a deeply entrenched culture of risk aversion in the province.
Duncan Credit
Typically, when an accused person is convicted of an offence and sentenced, they are credited for any time they have served in pre-trial custody (PTC) at a rate of 1.5:1. This means that every day the person spent in custody waiting for their trial is counted as 1.5 days against their sentence. Judges have the discretion to grant additional reductions in sentence where an accused person was subjected to particularly harsh conditions during their PTC. This is called Duncan credit, and although it is sometimes referred to as “2 for 1”, it is not awarded at a fixed rate. Instead, sentencing judges consider the individual circumstances of the person being sentenced and reduce what would otherwise be the appropriate sentence to account for the impact of the harsh conditions on that person.
Judges awarding Duncan credit often send strong messages regarding the conditions at the provincial institutes and the government’s failure to address them. In the 2020 case, R v Persad, Justice Shrekh of the Ontario Superior Court of Justice awarded Duncan credit to an individual who was lockdown 47% of the time he was in custody at the Toronto South Detention Centre (TSDC), which amounted to a total of approximately 475 days. In granting a Duncan credit of 712.5 days, Justice Schreck commented that “we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct.” In another example from the Ontario Court of Justice, R v Spicher, Justice Green referred to the conditions at the Central East Correctional Centre as “deplorable” and stated that “[t[he disgraceful treatment of these inmates has to be addressed by the authorities. The repetitive judicial outcry about these conditions continues to fall on deaf ears. The only remedy is to persist with consistently reducing the overall sentences for those who are found guilty to account for these unduly punitive conditions.” She ultimately awarded a Duncan credit of 86 days to account for 57 days of lockdown.
While Duncan credit provides some reparation to those who are ultimately convicted of an offence and sentenced, unfortunately, as noted by Justice Green in Sphicer, Duncan credit does nothing for individuals who are ultimately acquitted of any wrongdoing. Its efficacy in spurring change at a policy level is also questionable—despite repeated awards of Duncan credit spanning multiple years, the government has failed to address the conditions at the jails and has allowed the situation to worsen.
- 7 and S. 12 Charter Applications
The Charter guarantees every Canadian the right to life, liberty, and security of the person, as well as the right not to be subjected to cruel and unusual punishments. These fundamental protections, contained within section 7 and section 12 of the Charter, apply equally to all Canadian citizens, permanent residents, and foreign nationals detained in Ontario’s correctional institutions. At trial, it is open for defence counsel to argue that the conditions their client was subjected to during their pre-trial detention violated their Charter rights, and that the only appropriate remedy for such a violation is a stay of the proceedings against them. The difficulty with this approach is that a Judicial stay of proceedings is a very rare remedy and is granted only in exceptional cases. To succeed with such an application, the accused person will need to demonstrate not only that their own rights were violated, but that the correctional institutions are routinely violating the rights of other individuals as well. This approach requires significant time and resources and is extremely cost-prohibitive. If successful, however, it is also the most likely to get the government’s attention and motivate action.
