A young suspect was told in bail court he could be thrown in jail for refusing to make his bed at home — one example of how unnecessary bail conditions are helping to clog up the provincial jail system with legally innocent people, the Canadian Civil Liberties Association says.

“We’re not supposed to be imposing unnecessary conditions,” said Abby Deshman, public safety director of the CCLA, who co-authored the just released report Set Up to Fail: Bail and the Revolving Door of Pretrial Detention. “The law sets out a presumption of unconditional release. These people have the right to be presumed innocent. They have not been convicted of any crime and they shouldn’t have their liberty restricted."

The report argues that it's taking far too long for people to have their bail decided. As well, the bail conditions imposed on individuals are much too restrictive, almost impossible to adhere to and criminalize a wide range of otherwise non-criminal behaviour by imposing curfews, restrictions on activities such as drinking or barring contact with certain people.

“We know that failure to comply with your bail conditions is the No. 1 reason for people to be brought into pretrial detention," Deshman said.

"For one youth, the justice of the peace said you have to follow the rules of the household. If your mother tells you to make the bed and you do not make the bed, that is a crime and you will be brought back before this court."

Majority not convicted of any crime

On a typical day, the majority of people in provincial jails have not been convicted of any crime, but are legally innocent and waiting for their trial or a determination of their bail, the report says.

"[There] are appropriate times to place conditions on people or to detain people outright," Deshman said. "Unfortunately, what we’re seeing in our bail courts, two-thirds of people who are appearing are charged with non-violent offences."

Anthony Doob, professor emeritus of criminology at the University of Toronto, said the results of the report aren’t surprising, and reveal society’s reluctance to let people out of jail while they’re awaiting trial.

There are two major grounds for holding people in jail —  if there’s serious concern they won’t show up for trial or that they will commit a serious offence if released, he said.

“And if you look at what a substantial number of these people have committed in the first instance, you know we’re not terribly worried they’re going to commit a serious offence, because most people don’t do them and most of the people who are there are not there for very serious offences.”

"If you let 10,000 people out, some number of them greater than zero is going to do something. But we don’t lock up people for what they might do in the future and what they might have done."

Martin Friedland, a University of Toronto law professor whose study in 1965 helped bring in the Bail Reform Act of 1972, said there isn’t the required leadership, federally or provincially, to address this problem, which is costing taxpayers vast amounts of money.

“I think it requires each province, each police force, each Crown attorney branch, each attorney general branch to recognize this problem and try to co-ordinate the system so there’s discretion and restraint exercised."

Could be your family, friends

“It’s important, because it could be one of your relatives, it could be one of your friends, it could be you that gets caught up in this system."

Friedland said that many thought the Bail Reform Act would solve some of the problems of the bail system, but new issues cropped up that still persist today, he said.

For example, in the mid-'70s, reverse onus cases began to be introduced, where the burden rested on the accused to convince a bail court why they should be released, making their release more difficult, he said.

One of the main changes in the bail system as a result of his study was to give police more power to release individuals, Friedland said, but police have been hesitant to use those powers.

"The public wants people that commit crimes to be punished and they don’t care whether they’re punished in advance of a determination of guilt," he said.

Doob said he is sympathetic with the young police officer who has detained someone for being involved in a fight and is considering whether or not to release him.

“What’s going through [his] mind is, ‘If I release him and he commits a serious assault, then I'm going to wear it.’ So what you have to do is to have some kind of training or guidelines."

“It’s just easier for all your decision makers from the original arresting police officer, right to the justice of the peace, to detain people, because then they never have to, in effect, wear the mistake. Nobody is going to complain."

But Mike McCormack, president of the Toronto Police Association, said that each case in which an individual is released or held is evaluated on its own merit. 

He said those decisions are based on a reasonable and honest belief that if a person needs to be held or released, they have met those grounds for release or detention.

“There is not an acute sense of paranoia among police officers, 'If I release this guy, I’m going to get dumped on,'" he said.