Jaime Burnet and Martha Paynter advocate for ending the practice of pre-trial imprisonment of pregnant people, primary caregivers of young children, and primary caregivers of people with disabilities

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In the past two years, Alyssa Bennett, Bianca Mercer, Stephanie Albert and Julie Arseneau all experienced miscarriages or stillbirths during or shortly following being remanded to jail. Julie Bilotta’s harrowing experience giving birth alone inside a segregation cell while on remand in Ottawa in 2012 resulted in a protracted civil suit, which settled last year. Despite these incidents, Canada has not established protections for pregnant people facing remand.

Women comprise an increasing proportion of Canada’s prison population. Most of these prisoners are mothers, and a shocking percentage are Indigenous. Indigenous women make up roughly 40% of all incarcerated women in Canada despite comprising less than 5% of the total population of women in the country.

Photo credit: Peter de Klerk. Image description: An old unlocked lock hanging upside down on a prison cell door.

Several countries have taken measures to keep pregnant women out of prisons. Some countries have also established protections for parents with primary care of young children. These include Russia, Algeria, China, Iceland, Italy, Kazakhstan, Norway, and Sweden. Canada is not among them.

Some countries specifically recognize that pregnant women and parents who are primary caregivers of young children or of people with disabilities should not be remanded – that is, held in prison before they have been convicted of a crime or received a sentence. Many people who are remanded do not go on to be convicted or are convicted but not given prison sentences. In fact, most people in Canada are sentenced to non-custodial sentences served in the community.

Canada is a United Nations Member State. The UN voted unanimously to adopt the 2010 Bangkok Rules governing the rights of women prisoners internationally. In adopting the Rules, the UN General Assembly emphasized 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”.

The Canadian Criminal Code justifies the pre-trial detention of a person if one or more of a list of conditions is true, including that detention is necessary to ensure the accused person comes to court, to ensure public safety, and to maintain confidence in the administration of justice. The Code does not specifically provide alternatives to remand for pregnant people and primary caregivers of young children or of people with disabilities. However, in a few cases, such as R. v. Grewal (2008) ABPC 202, Canadian judges have taken pregnancy into account and found pre-trial detention unjustified. In the case of R. v. D. (A.) (2003) O.J. No. 4934, the accused person was the mother of a young child, pregnant, and sleeping on a mattress on the floor of a one-bed jail cell she shared with another person. The judge wrote, “The prospect of a youthful first offender spending part of her second, as well as her third, trimester in custody, and giving birth while an inmate, does not sit well with a civilized system of pre-trial custody when the applicant is presumptively innocent”.

In Italy, pregnant women and mothers of children six years old and younger may not be kept in pre-trial detention unless it is deemed an “exceptionally relevant precautionary measure.” And last February, Brazil‘s Supreme Court ruled that pregnant women, mothers of children 12 and under, and mothers of people with disabilities who are accused of non-violent crimes are to be placed under house arrest prior to trial rather than remanded to prison.

Canada does not have a presumption in favour of house arrest for pregnant people and primary caregivers of young children or of people with disabilities facing remand. House arrest is drastically less expensive than remand to prison. People on remand now comprise two-thirds of the incarcerated population. It costs Canadian provincial governments approximately $75,000 per year to incarcerate one person. In 2012, the independent parliamentary budget officer reported it would cost the Nova Scotia government $4.98 million that year to keep people in prison whom it would otherwise have spent $276,000 to monitor under house arrest.

House arrest is still a carceral, punitive sentence. Though less harmful than incarceration in prison, it is not without significant harms, particularly for women. House arrest threatens employment, child custody, supportive relationships, and physical and emotional wellbeing. It is one option to address the ever-rising numbers of women among the provincial and territorial remand population. Other options include promises to appear in court and participation in rehabilitative services. 

Incarceration is associated with serious psychological, physical, and social harms for pregnant people and primary caregivers of young children, and for the children themselves. To prevent these harms, pregnant people, primary caregivers of young children, and primary caregivers of people with disabilities should not be sent to prison when they have not yet been, and may never be, convicted of a crime.

The recent experiences of Alyssa Bennett, Bianca Mercer, Stephanie Albert, Julie Arseneau, and Julie Bilotta should be enough to prompt change in Canada.

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Jaime Burnet is an Associate Lawyer at Pink Larkin

Martha Paynter is a Doctoral Candidate at Dalhousie School of Nursing and the Chair of Women’s Wellness Within, an Organization Serving Criminalized Women. @marthpaynter