Black people awaiting trial in Ontario jails spend longer in custody than white people

Black people in Canada's most populous province spent longer behind bars awaiting trial than white people charged with many of the same categories of crimes in each of the past five years, according to data obtained by Reuters.

Between April 2015 and April 2016 — the most recent period in which data is available — black people awaiting trial in Ontario jails were there longer, on average, than white people charged with the same crime in 11 of 16 offence categories Reuters examined. There were approximately 6,000 black people and nearly 26,000 white people remanded to pre-trial detention during the period.

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The data showed similar patterns in the four prior years.

Among the categories examined, black people spent almost twice as long in remand in 2015-2016 for weapons offences, equivalent to an additional 38 days. They also spent 46 per cent longer for serious violent offences and 36 per cent longer on charges of obstructing justice.

In three categories, white people awaiting trial were held longer in remand during the same period. Those included drug possession, theft and traffic offences. In two categories, the difference was 1 per cent or less.

The data also showed black people arrested and held in custody between 2011 and 2016 were more likely than white people to spend more than a year in pre-trial detention.

Reuters obtained the previously unreported data through access-to-information requests from Ontario, which asks inmates to indicate their race when they enter jail. Other provinces either do not collect this data or categorize it differently.

A spokesperson for Ontario Attorney General Yasir Naqvi said the province "takes systemic racism seriously and is working to address racial inequities," but declined to comment on the data. The Ontario Crown Attorneys' Association, which represents the province's prosecutors, and the Association of Justices of the Peace, which represents the people who decide most of Ontario's bail cases, declined to comment.

More than a dozen defence lawyers as well as prosecutors, criminologists, and a judge interviewed by Reuters said shortcomings in Canada's bail system appeared to play a role in the racial disparities shown in the data.

Unlike the United States, Canada virtually eliminated cash bail almost half a century ago. Instead, courts often require prisoners awaiting trial to secure a surety, meaning a relative or close friend who can appear in court and subsequently monitor them.

A surety needs assets to pledge, a crime-free record and, often, a home where the accused person can live until the case is complete. A surety cannot represent more than one defendant at a time.

Current and former prosecutors interviewed for this story said securing a surety can be onerous and the requirement is perhaps relied upon too often; but some said sureties remain the best way to protect the public and ensure defendants show up for trial.

Harder on the poor

Critics of the system say the poor are less likely than middle-class or wealthy people to have connections to provide the assets to pledge or housing to act as a surety. They add that this has an outsized impact on minorities, who are over-represented among Canada's poor.

"Surety is a huge issue in Ontario," said Nicole Myers, a criminologist at Simon Fraser University in British Columbia. "If you are from a marginalized community or a criminalized community, it can be very difficult to find a surety the court deems appropriate."

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The data did not take into account specifics of each case, the person's criminal record, the frequency of plea deals, whether the person had a bail hearing and why bail may have been denied.

Reuters focused on offences with the largest pre-trial populations when comparing the average periods in remand, to minimize the impact of outliers. Inmates charged in multiple offence categories were counted in only the more serious one; multiple charges could affect someone's chances of getting bail.

Studies, including one published last year by the Ottawa police, have found Ontario's black communities are more heavily policed than white ones.

This makes black people more likely to be caught breaching bail and makes it harder to find a surety without a criminal record who is not serving as surety for someone else, said Chris Sewrattan, a defence lawyer who represents many young black men from eastern Toronto.

In a ruling this year, Canada's Supreme Court called sureties "one of the most onerous forms of release," not to be used unless other options have been considered, such as programs that assign a case worker and require the accused to check in regularly with the courts.

The court did not address race in its ruling.

At least six provincial governments in Canada, including those of Alberta, British Columbia and Manitoba, have said they are reviewing bail practices. An earlier Reuters investigation found inmates awaiting trial are more likely to die behind bars than their sentenced counterparts.