Creating Criminality: The Intensification of Institutional Risk Aversion Strategies and the Decline of the Bail Process

• Main Author: Myers, Nicole
• Other Authors: Doob, Anthony N.
• Language: en_ca
• Published: 2013
• Subjects: institutional risk; organizational culture; workgroup; efficiency; bail; judicial interim release; remand; adjournment; surety; conditions of release; youth; Youth Criminal Justice Act; 0627
• Online Access: http://hdl.handle.net/1807/35915

The question of whether or not to release an accused on bail pending case resolution involves an evaluation of the risk the accused poses to the community. In addition to this evaluation, the risk posed to the reputation of the criminal justice system should the accused re-offend while on bail has come to influence the timeliness of the bail decision as well as the conditions of the release order. It appears that questions of institutional risk have intensified strategies of process, whereby the bail decision making process has come to take considerably longer as court actors postpone making the release decision. This organizational culture of risk aversion is evidenced in the growing remand population, the dominance of adjournment requests, the presumption of surety supervision, as well as the imposition of numerous restrictive conditions of release that are questionably related to the grounds for detention and allegations of the offence. Due to the additional protections contained in the Youth Criminal Justice Act (YCJA), the expectation is bail should be more liberally used for youths. However, despite the additional legislated protections, bail practices for both adults and youths are operating in remarkably similar ways. Indeed, it appears that routine bail practices for both adults and youths are inconsistent with the essential principles of the bail process. In Canada there is a presumption in favour of release on bail and a presumption of release on the least restrictive form of release appropriate in the circumstances. Despite these principles there has been a relatively steady increase in the size of the remand population in Canada. Focusing on the situation in Ontario, this dissertation examines the bail process in an effort to understand how the remand population has come to exceed the population of sentenced prisoners in provincial prisons for both adults and youths.