Position Paper: Judicial Interim Release

POSITION: Amend the provisions of the Criminal Code regarding Judicial Interim Release

Women’s Wellness Within: An Organization Serving Criminalized Women asks that the Members of Parliament in Nova Scotia put forward a private member's bill in the House of Commons to amend the provisions of the Criminal Code regarding Judicial Interim Release. The Code should provide that pregnant people and parents caring for young children, who would otherwise be remanded to prison pending trial, be placed under house arrest. While remanding pregnant people and parents caring for young children is an issue across Canada, it is especially dire in Nova Scotia, where the percentage of incarcerated people on remand is particularly high.[1]

Remand is harmful to the mental and physical health and social wellbeing of pregnant people, parents, and children. House arrest is preferable to remand with regard to health and social outcomes for parents and children. A U.S. study found that women aged 30 to 39 who have spent time in jail during their pregnancies were more likely to have a low birth weight infant and had a higher risk of preterm birth.[2]

House arrest, as opposed to pretrial detention, could improve birth outcomes by reducing the stress experienced by pregnant people. Other studies have found that the incarceration of pregnant people and parents with young children causes serious detrimental psychological, physical, and social impacts on them and their children.[3] Authors of such studies have proposed that, to improve outcomes for parents and children, pregnant people and parents caring for young children be kept out of prison whenever possible.[4]

Other countries recognize pregnant people and parents with young children should not be incarcerated. In several countries, legislation or rulings from the bench have restricted or precluded incarceration pending trial, and in some cases, incarceration following conviction of pregnant people and parents of young children.

In Italy, the Code of Criminal Procedure has been amended to provide alternatives to incarceration, including house arrest, for parents with young children. The Code has also been amended to provide that pregnant women and mothers of children six years old and younger, and fathers of children six years old and younger where the mother is deceased or unable to care for the children, may not be kept in pretrial detention unless “exceptional precautionary measures are needed.”[5]

Brazil's Supreme Court has ruled that pregnant women, mothers of children aged 12 and under, and mothers of people with disabilities, who are accused of non-violent crimes, are to be placed under house arrest pending trial rather than remanded to prison.[6]

In Russia, a bill was passed authorizing courts to set aside prison sentences for pregnant women and new parents.[7] In Algeria, Iceland, Kazakhstan, Norway, and Sweden, prison terms can be deferred for pregnant women and women with young children.[8] And in China, carceral sentences may be temporarily served outside of prison while a woman is pregnant or breastfeeding her baby.[9]

The UN General Assembly has stated that non-custodial pretrial measures for pregnant women or a child’s sole or primary caretaker should be preferred where possible and appropriate. The UN General Assembly adopted the “United Nations Rules for the Treatment of Women Prisoners and Noncustodial Measures for Women Offenders,” also know as the “Bangkok Rules,” in 2010. 193 UN Member States, including Canada, voted unanimously to adopt the Bangkok Rules.[10] The text of the Resolution adopting the Bangkok Rules includes the following:

The General Assembly ...

9.         Emphasizes that, when sentencing or deciding on pretrial measures for a pregnant woman or a child’s sole or primary caretaker, non-custodial measures should be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent;

As a UN Member State, Canada should aspire to comply with the Bangkok Rules.

House arrest is more cost effective. In 2012, the Independent Parliamentary Budget Officer released a report that concluded the reduction in the use of house arrest and concomitant increase in incarceration due to changes made to sentencing laws by the Conservative government would cost $140 million nationally each year, borne by provincial and territorial governments. In Nova Scotia, this meant that the provincial government would be required to pay $4.98 million a year to keep people in prison whom it would otherwise have spent $276,000 to monitor under house arrest.[11] The huge discrepancy between the cost of house arrest and incarceration in prison is particularly relevant to the treatment of accused persons awaiting trial in Nova Scotia, as in 2014–2015, 68 percent of incarcerated people in Nova Scotia were on remand.[12]

In order to improve the mental and physical health and social wellbeing of pregnant people, parents of young children, and children themselves, and reduce the costs to Nova Scotian taxpayers for unnecessary and harmful incarceration, we ask that the Members use their voices in the House of Commons to propose an amendment to the provisions of the Criminal Code regarding Judicial Interim Release.

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[1] Woodbury, R. (2017, January 12). Nova Scotia records 192% jump in inmates presumed innocent and awaiting trial. CBC News. Retrieved from http://www.cbc.ca/news/canada/nova-scotia/nova-scotia-inmates-statistics-canada-report-remand-1.3931582

[2] Bell et al., “Jail Incarceration and Birth Outcomes” (Journal of Urban Health: Bulletin of the New York Academy of Medicine (2004), 81(4), 630-644.

[3] Mukherjee et al., “Mental Health Issues Among Pregnant Women in Correctional Facilities: A Systematic Review” (Women & Health  (2014), 54(8), 816-842; Sharp and Marcus-Mendoza, “It’s a family affair: Incarcerated women and their families,” Women and Criminal Justice (2001), 12(4), 21-49.

[4] Shaw et al., “Systematic mixed-methods review of interventions, outcomes and experiences for imprisoned pregnant women” Journal of Advanced Nursing  (2015), 71(7), 1451-1463, p. 1461.

[5] Laws on Children Residing with Parents in Prison. Retrieved from https://www.loc.gov/law/help/children-residing-with-parents-in-prison/foreign.php#_ftnref411

[6] Carvalho, A. (2018, February 23). Pregnant Women Will No Longer Await Trial in Brazilian Jails. Human Rights Watch. Retrieved from https://www.hrw.org/news/2018/02/23/pregnant-women-will-no-longer-await-trial-brazilian-jails

[7] “Putin signs bill on deferral of sentence for pregnant women into law” (2017, March 7). Russian Legal Information Agency. Retrieved from http://www.rapsinews.com/legislation_news/20170307/277950505.html

[8] Laws on Children Residing with Parents in Prison. Retrieved from https://www.loc.gov/law/help/children-residing-with-parents-in-prison/foreign.php#_ftnref411

[9] Ibid.

[10] Gender Responsive Corrections for Women in Canada: The Road to Successful Reintegration. Retrieved from http://www.csc-scc.gc.ca/women/002002-0005-en.shtml

[11] “Budget officer limiting house arrest.” CBC News. Retrieved from http://thechronicleherald.ca/canada/68381-budget-officer-limiting-house-arrest-will-cost-more-convict-fewer

[12] Woodbury, R. (2017, January 12). Nova Scotia records 192% jump in inmates presumed innocent and awaiting trial. CBC News. Retrieved from http://www.cbc.ca/news/canada/nova-scotia/nova-scotia-inmates-statistics-canada-report-remand-1.3931582

Grace Szucs