Canadian jails are overcrowded and lawyers say that our bail system is to blame.

Whistle blowers in Ontario started calling for action last week after learning that inmates have been forced to sleep in shower stalls due to overcrowding in their provincial jails.

The issue was raised after the Ontario Corrections Workers’ union president toured a jail and noticed that some inmates were sleeping on mattresses in the shower-room floors.

Now lawyers are speaking out. They say that this is nothing new. Their clients have been recounting stories of being forced to sleep on shower floors of years. Some say that this practice was enforced as form of punishment for misconduct, but more often than not, it has been used as a last resort due to overcrowding issues.

There have even been reports of "double-bunking" in shower stalls, meaning that two inmates would be forced to sleep together, side by side, in the confined, ill-purposed space. 

Before that, inmates were reporting that they have been required to "triple-bunk" in a cell only meant to accommodate two. This meant that one inmate would have to sleep on the floor without a mattress, while the other two slept in their regular bunks.

This practice is appalling and unacceptable. Ontario Community Safety and Correctional Services Minister Yasir Naqvi went on record saying so. He has promised to put an immediate and permanent end to it.

But criminal lawyers in Ontario say that the only way to end jail overcrowding is to repair what they describe as a "broken" bail system. This, they say, is the main source of the problem. 

According to a 2014 Canadian Civil Liberties Association study, more than half of the 25,000 people in provincial jails were being held in pretrial custody. This means that half of the inmates were either waiting a trial date or a bail hearing. In other words , they were legally innocent and had not been convicted of the criminal offence for which they were being detained. 

But it gets worse. According to the same report, the remand rate in this country has actually tripled over the last three decades. Unable to properly accommodate the rising number of inmates, our jails have become overpopulated and conditions have deteriorated. 

This is all in spite of the fact that reasonable bail is a constitutionally guaranteed right in this country. But a right that seems to be becoming increasingly inaccessible. 

In Ontario, lawyers say that the problem has to do with an increasing expectation of sureties as a condition of bail. A surety is a person who attends court to vouch for the individual seeking bail. They must be able to guarantee that individual’s release by committing to supervising them in the community and putting a monetary fee forward in confidence.

For many incarcerated people, producing a surety is simply out of the question. While there is no strict legal requirement for a surety in order to achieve release from jail, it seems that in Ontario, they are becoming par for the course. This inevitably results in drawn-out bail hearings and an increased detention rate. 

And although Ontario is on the chopping block, the problem is not isolated to that province. 

Lawyers in Nova Scotia have been complaining about irregularly slow court proceedings and overcrowded jail conditions since 2013. There, the expectation of a surety is not the issue. Instead, a study conducted the province pointed to a number of factors—including inefficient use of court time and lack of coordination between Crown and defence lawyers—which served to further clog an already clogged system. 

While these factors may all play a role in the systemic backlog, we can also rest assured that our former prime minister’s “tough on crime” mandate has left a lingering legacy. Because of his federally mandated mandatory minimum sentences—which apply even in cases of nonviolent crime—our jails and prisons have become increasing populous. 

As these factors compound and our population continues to grow, this is likely to become a national issue. Policy reform is necessary and concerns in the bail system must be addressed. 

And while some people argue that the expansion and construction of new jails will help solve our issues, perhaps we should instead focus on alternatives to prison sentences, as well as ways to ensure that the promise of reasonable bail is one that is within the grasp of accused individuals in this country—regardless of which province they happen to be in.