Eroding the Presumption of Innocence: Shifting Penal Boundaries and the Management of Risk Pending Trial

• In Event: Oppressive Criminal Justice Practices

Abstract

In Canada, there are currently more people being held in pre-trial detention in provincial/territorial jails awaiting the determination of their bail or trial than there are serving custodial sentences after a finding of guilt. Contrary to the presumption of innocence and presumption of release on unconditional bail, numerous restrictive conditions of release are routinely imposed which suggests a shift in legal practices. These conditions of release are almost identical to probation conditions imposed after a finding of guilt; however they are being imposed at a time when the accused is to be presumed innocent. Indeed, current bail practices suggest shifting locations of punishment as liberty restrictions are imposed prior to the Crown securing a conviction. A number of conditions that are routinely imposed are inherently problematic, including the overly broad condition of being amenable to the rules of the home, abstain conditions being imposed on admitted alcoholics or therapeutic conditions such as counseling or treatment for mental health or substance related issues. What is more, if an accused fails to comply with any of the conditions of their release they can be charged with a new criminal offence.

Author

• Nicole Myers, University of Ontario Institute of Technology