After being arrested and charged with failure to comply with a court order, the court releases him on a $500 bail with a new set of conditions he must abide by while he waits for his court date. On his list: live with his aunt and abide by the rules of her home; keep the peace and be on good behavior; not to go back to the mall, attend each class at school every day; and honour an overnight curfew between 9:00 p.m. and 6:00 a.m. If he breaks any of these rules, he would be guilty of a new crime: failing to comply with a court order. Doing so could land him in a youth detention centre.

A young Aboriginal man has a schizophrenia diagnosis. At the local park where he spends time, a woman calls the police on him, accusing him of having harassed her when she was out walking her dog. 

After being arrested by the police and processed by the courts, he is released on a bail order with a condition that he stay away from the park where the woman walks her dog. But he continues to hang out in the park. Accordingly, the number of charges for violating his court order grows. As the violations stack up, it isn’t long before the court refuses to release him from jail, and he is now guilty, several times over, of failing to comply with a court order.

A woman in dire financial straights starts stealing the things she needs but can’t afford. The police finally catch her shoplifting and charge her with the crime for the first time in her life. During the wait for her court date, she leaves Vancouver several times to visit her boyfriend, who lives elsewhere in British Columbia. Those visits result in 16 separate administration-of-justice offences. That’s 16 separate offences on top of a shoplifting charge that hasn’t even seen its day in court.

Ask a lawyer in B.C. about administration of justice offences, and it’s likely you’ll hear more stories like these.

Administration-of-justice offences are cases where a person accused of a crime gets into legal trouble for failing to follow the conditions of bail or a probation order.

Marginalized citizens—people already facing a host of intersecting social, educational, and economic barriers related to poverty, mental health, disability—are often at the centre of such offences. These offences are technical violations that lead to criminal penalties.

While these conditions can keep people safe and encourage people to change problematic behaviours, they can also lead to a spiraling of charges, often for conduct that wasn’t even considered criminal to begin with.

Criminal justice experts worry about these smaller, cumulative technical offences. Critics say these rules can criminalize everyday behaviour and unfairly send Canada’s most vulnerable citizens to jail.

A growing chorus of legal professionals, provincial justice reform initiatives, and academics are concerned that some conditions of bail and probation can unfairly set up the young, the vulnerable, and the mentally ill to fail in the criminal justice system. 

The most common failures

Failure to comply with a court order and breach of probation are the two most common criminal offences in Canada. They make up 20 per cent of all criminal matters in the country.

In B.C, these crimes are even more common. Administration of justice offences (primarily breaches of bail and probation) represented almost half— over 40 per cent—of all B.C.’s criminal court case matters for 2012, according to a report from the B.C Justice Reform Initiative.

So the number of administration- of-justice offences is growing, despite overall dropping crime rates. The rate at which police charged people for bail violations increased by 127 per cent between 2000 and 2012. And yet the overall charging rate decreased by 1.4 per cent, according to Statistics Canada.

Many experts, judges, and legal professionals deem it necessary to reconsider what counts as a reasonable condition of release. They call for more restraint in the use of abstinence conditions, curfews, area restrictions, and other restrictive conditions. Others emphasize the success of the community court model, which seeks to address the root causes of crime. At sentencing, community courts provide judges with more comprehensive information about the accused than regular courts, plus suggested tools to deal with their situations.

Community courts provide essential links to services like housing, health interventions, and addictions counseling. In so doing, they can help people stay out of the prison system.

Dropping crime rates, swelling provincial investments

The crime rate in B.C. is at its lowest point in four decades. But that hasn’t stopped the provincial government from investing significantly to increase our correctional capacity. A new 216-cell wing of the expanded, re-designed Surrey Pretrial Services Centre opened its doors last month, marking the final phase of a $185-million project.

The Surrey Pretrial Centre, now B.C.’s largest correctional facility, is intended to house prisoners being held in remand, or temporary detention awaiting trial.

Remand is a temporary form of imprisonment for people accused of a crime. They are held in remand when judges believe the accused pose too great a risk to both society and themselves to be released.

While remand is intended to be a temporary measure for holding people as they await trial, the average length of stay in remand was 38 days—over a month—in 2011 and 2012, according to data from the B.C Justice Reform Initiative.

It's well-established in research literature that a stay in remand can lead to a loss of employment and housing. Remand prisoners re-entering the community are prone to relapsing into drug and alcohol addiction, so they are often in need of temporary assistance. A representative from the Ministry of Justice told Megaphone that BC Corrections provides people in remand with information on accessing community supports like drug and alcohol services and mental health services, in addition to services provided through the Ministry of Social Development and Housing. Every person entering remand is subject to a medical and mental health assessment, and remand centres staff drug and alcohol counsellors, a mental health coordinator, a psychologist, and a psychiatrist.

However, the Ministry of Justice representative also noted that it can be a challenge to plan for what happens when remand offenders are discharged. “Since the decision to release a remanded offender is an independent decision made by the judiciary,” the representative said, “correctional officers are not provided with these discharge dates in advance, making it challenging to comprehensively plan for the discharge of remanded offenders.”

Studies by Statistics Canada and the B.C. Justice Reform Initiative have shown that administration-of-justice offences, particularly breaches of bail and probation, are the top contributors to growth in the number of people being preventatively detained in facilities like Surrey’s—not big-ticket criminal events, like surges in gang activity.

The Ministry of Justice admitted to Megaphone that the increase of administration-of-justice offences in the province is not well understood.

“A number of justice partners—courts, police, prosecution and corrections—all have a role to play,” the representative said. “The ministry remains committed to studying the resource implications
of this trend and its impact on court volumes. 

The number of preventative detainees in B.C’s prison system has jumped from comprising one-third of the province’s prison population in 2000/2001 to more than half in 2011/2012. Anthony Doob says the growth in this population is expensive and also preventable, says. The University of Toronto criminology professor was part of a research project investigating the causes behind the growing numbers of people held in remand across Canada.

“Studies have shown that there are no good reasons for this increase in remand,” Doob told Megaphone.

“There is nothing in our society that would suggest that since 1990 or so, we need to detain more people prior to trial, but it is unfortunately something that is happening in a lot of provinces.”

Crime has been falling in urban areas throughout North America since the 1990s. In the U.S, prison populations have started to decline, but in Canada the rising numbers of people in remand has kept the overall prison population stable.

For Doob and many others, the growth in remand is a troubling moment that signals a problem with how Canada’s justice system operates.

“You are innocent until proven guilty. It is a very simple principle,” Doob notes. “But in the provincial and territorial prisons today, we have more people held awaiting trial than are being punished.”

Inside the Alouette Women's Correctional Facility. Photo courtesy BC Government flickr pool.

Conditions for release fail people on the margins

While B.C. has seen some of the steepest drops in crime of any Canadian province over the last 20 years, the number of people in remand has grown significantly. Some people held in remand will eventually have their charges dropped or be found not guilty. This means that many people accused of a crime will spend time in prison without ever being found guilty or afforded the protections that come with a trial.

Doob points out that even in cases where an accused is found guilty, time spent in remand can be out of proportion to the severity of the offense. 

The good news, according to Doob, is that many provinces are beginning to realize that growing remand numbers are a problem, and are starting to do something about it.

Many of these inquiries have looked to the use of conditions of release as an area for reform.

Conditions of release, also known as bail decisions, “are very often the most critical decision the court is going to make,” says David Griffiths, a veteran of the Canadian defence bar and current manager of B.C’s Legal Services Society. From the defence perspective, Griffiths says, “if your client is detained while you wait for the trial, you’ve already lost the case.”

The decision to detain someone is often the result of a record of a person failing to comply with the conditions of their release, or reoffending, like the people in the examples cited at the beginning of this story.

But for some, especially those for whom mental health, addictions, or socio-economic life circumstances could stand in the way of their successfully complying with the conditions of their release, a record of violating conditions of release does not necessarily reflect a pattern of serious reoffending.

For example, a woman can be charged with a petty offense and released on a bail order. She has conditions to keep the peace and to reappear at a trial date. But when the trial date arrives, she doesn’t show up. For failing to both appear in court and to comply to a court order, she has two new administration-of-justice offences. If she gets back into court before a warrant is put out for her arrest, she may be detained or possibly re-released with more conditions.

Under the current system, the underlying problems for her failing to show up in the first place—whether they’re poverty, addiction, or socio-economic concerns that stack the odds against her complying to court orders— have not been addressed.

A “compounding cycle” that keeps people in remand

It’s easy to see how a relatively minor offence can lead to a series of administrative offences. It’s what Griffiths calls a “compounding cycle” that can ultimately lead to a stay in remand.

Regardless of a person’s guilt or innocence, his ability to meet the expectations of the court and to keep his appointments can be crucial. And his inability to do so can have little to do with the crime for which he’s been charged. Understanding court documents and keeping appointments are much harder for those with unstable housing, unmet mental health concerns, and concurring addictions issues.

A defence attorney, Griffiths says, can be instrumental in helping a vulnerable client navigate the system. Many defence attorneys work with the court to arrive at bail terms and sentences that will help their clients, sometimes through rehabilitation and, in other cases, through more restrictive conditions of release.

Bob Bellows is a defence attorney who has been practicing for 40 years in Vancouver. To him, there needs to be more collaboration between legal actors, more funding for legal aid, and more housing.

Bellows notes that many people going through bail court do not have telephone numbers, fixed addresses, and other things that make it easy to keep appointments and stay in touch with their defence council.

Even though legal aid funding recently increased by $2 million in B.C., Bellows says the funding is still inadequate. It “does not allow for defence attorneys the proper expenditure of time in assisting clients.”

Chronic underfunding have lead to a lack of legal aid representation in civil and family law as well as representation for ‘low risk’ criminal charges that would not lead to a jail sentence.

Research suggests unrepresented people are more likely to agree to onerous conditions of release and plead guilty to crimes they did not commit. Self-represented accused are more likely to set themselves up for breach. 

“We can no longer do this automatically”

Adequate funding for legal aid is only one part of the puzzle of shrinking the remand population and reducing administration of justice offences.

For Bart Rosborough, a former Chief Crown Prosecutor and a sitting provincial court judge in Alberta, it is a matter of rethinking what we consider to be reasonable conditions of release to begin with. In a precedent-setting 2013 ruling, Rosborough rejected the conditions of bail imposed on two people with a record of alcohol abuse that they abstain from alcohol.

For Rosborough, “ordering an alcoholic not to drink is tantamount to ordering the clinically depressed to ‘just cheer up.' In his ruling Rosborough points out that without other supports, abstinence conditions are counterproductive.

He urges lawyers to rethink the unrealistic practice of imposing drinking bans to those struggling with alcohol addictions while they wait for their court dates.

In an article on the landmark ruling in The Edmonton Journal, Gregg Lepp, Associate Minister of Justice, was quoted as saying that the Alberta government now plans on using Rosborough’s decision as a teaching tool. Lepp says that courts used to apply drinking bans as a matter of routine, but “we can no longer do this automatically.”

To break the practice of doing things by rote is one way forward in shifting the court system so it can better serve the people it is designed for. 

Vancouver's Downtown Community Court. Photo by Neal Jennings

How to reduce reoffending and breaches: outreach and support

Therapeutic approaches at work in Vancouver’s Downtown Community Court have helped reduce re-offending by addressing root causes of crime and providing judges with necessary contextualizing information about the people before them when they make rulings.

In settings like Vancouver’s Downtown Community Court, full-time defence council work closely with probation officers, Crown Council, service providers, and health care professionals to craft conditions of bail tailored to the needs of the accused. The community court also helps connect people with housing. 

A recently published peer-reviewed evaluation of Vancouver’s Downtown Community Court found that its outreach and support programs reduced reoffending significantly, and specifically reduced the likelihood of breach almost by half.

Other criminal justice institutions could do well to model their approaches after the ones at work in the community court if we want to seriously address the two most common criminal offences in Canada. Both failure to comply with a court order and breach of probation are rooted in the socio-economic circumstances facing the accused, which the Downtown Community Court aims to address explicitly by providing access to housing and other supports.

As it stands, however, the community court's holistic approach to its clients is a rare thing in Canada’s larger legal landscape. But there is much to learn from its workers’ acknowledgement of the intersecting roles that housing, mental health and addictions services, and other social supports can play in predicting outcomes for people who become involved with the criminal justice system.

“I see the objectives of the Downtown Community Court as being really worthwhile,” says defence attorney Bob Bellows.

“It is really clear that as soon as individuals are able to be housed in a decent environment, their lives change significantly for the better. That’s where it starts.”

More than B.C.’s expanding correctional facilities, Bellows says, “the housing initiatives that are under way are some of the best things society can do.”