Law360 Canada (October 8, 2026, 11:05 AM EDT) --
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| John L. Hill |
When governments confront crime, a familiar political response is to build more jails, put more people behind bars and keep them there longer. It sounds reassuring, but it also confuses punishment with public safety.
A recent
Toronto Star report raises precisely that concern. The Ontario government has quietly removed from the building code a requirement that adult correctional facilities provide at least 4.7 square metres of sleeping space per person. The change, announced without explanation in an Oct. 2 evening newsletter to building-industry stakeholders, could allow more inmates to be confined in cells that were never designed for them.
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The timing is significant. Ontarios’ correctional system is already overcrowded, with the
Star reporting it operated at about 123 per cent of capacity last year. Triple-bunking, i.e., placing three inmates in a cell designed for two, is already occurring in some institutions. In some cases, the third inmate sleeps on a mattress on the floor beside a toilet.
Judges have repeatedly criticized such conditions as harsh and inhumane. In some cases, these conditions have led to reduced sentences because the offender has effectively received additional punishment simply by being held in an overcrowded institution.
The government says it is investing $3 billion to expand correctional capacity and add more than 2,500 beds over the next decade. Its stated objective is to strengthen the bail system and keep dangerous offenders behind bars.
There is nothing objectionable about protecting the public from people who pose a genuine danger. Some offenders must be imprisoned. The difficulty arises when the number of beds becomes the measure of criminal justice policy success. It should not be.
The
Star reports that about 80 per cent of inmates in Ontario’s provincial correctional institutions are awaiting trial and have not been convicted. That fact alone should prompt policymakers to pause before treating overcrowding as merely an inconvenient consequence of being tougher on crime.
A fundamental distinction exists between incapacitation and rehabilitation.
Keeping a dangerous person away from the public may be necessary. But most prisoners eventually leave prison. The question, therefore, is not simply what happens to an offender while in custody. It is what happens when that person walks out the prison gate.
If imprisonment leaves people more violent, less stable and less able to support themselves than when they entered, society has not necessarily become safer.
Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association, said eliminating minimum standards could mean inmates leave custody with more problems than when they entered, according to the
Star.
That observation goes to the heart of the criminal justice debate. Overcrowding does not occur in a vacuum. When you put large numbers of people together in cramped conditions, reduce personal space and heighten the tensions of confinement, conflict becomes more likely. The
Star reports that violence among inmates and against correctional officers has increased as Ontario’s jails have become more crowded.
There are also clear health consequences. Rahim cited last year’s outbreak of invasive group A streptococcal disease at Maplehurst Correctional Complex, which led to two inmate deaths.
The issue, however, extends beyond what happens inside the institution.
A person released from prison does not return to society with a clean slate. A criminal record can make it considerably harder to find employment and housing. It can damage family relationships and reduce access to ordinary opportunities that help people establish a stable life.
Those consequences matter because employment and housing are not merely social benefits. They are integral to public safety.
A person with a legitimate job, a place to live and a reason to maintain stability has something to lose. A person released from prison who cannot find employment, cannot obtain housing and discovers that society continues to define them by a criminal conviction has far fewer incentives and opportunities to live within the law.
That does not excuse criminal conduct. Nor does it mean a criminal record should disappear. It means policymakers should ask a more important question than whether Ontario’s jails have enough beds.
The answer matters because the government’s approach appears to place considerable emphasis on expanding the correctional system’s capacity. The government describes one component of its plan as “bed optimization,” which includes installing permanent beds and related equipment.
Optimizing beds is not the same as optimizing public safety. An uncomfortable irony lies in a policy that seeks to make more room for prisoners by reducing the space available to each. If overcrowding produces more violence and worsens physical and mental health, the government may ultimately be creating precisely the conditions that make rehabilitation more difficult. Rehabilitation is not a soft alternative to public safety. Properly understood, it is a public-safety measure.
The criminal justice system should not aim to make imprisonment comfortable. Prison is punishment, and the loss of liberty is a serious penalty. But there is a difference between deprivation of liberty and unnecessarily degrading conditions of confinement.
This distinction matters both legally and morally. A correctional system must recognize that prisoners retain legal rights even after conviction and that people held on remand have not been convicted. The government cannot solve the consequences of overcrowding simply by redefining how much space a human being requires.
Ontario's own experience should encourage a more sophisticated approach. A provincial report on institutional violence has recommended minimum standards for conditions of confinement and emphasized the need for housing arrangements that take account of individual circumstances and for the least restrictive measures appropriate in those circumstances.
There is also a broader lesson here for politicians of every stripe.
“Tough on crime” is an attractive political slogan because it suggests a simple equation: more offenders in jail equal less crime on the streets. But criminal justice is not mathematics. Putting someone in prison can prevent that person from committing another offence while incarcerated. It does not necessarily prevent future offending after release. If the prison experience increases instability and reduces prospects for employment and housing, the policy may merely postpone the problem and potentially make it worse.
The goal should therefore be neither “soft on crime” nor “tough on crime.” It should be “smart on crime.” That means imprisoning people who genuinely need to be confined for the protection of the public. It means ensuring that people awaiting trial are not subjected to unnecessarily punitive conditions. It means providing treatment, education, employment preparation and other programs that give offenders a realistic opportunity to change. And it means recognizing that finding a job and a place to live after release are not acts of generosity toward criminals. They are investments in reducing the likelihood that those people will commit another crime.
Ontario can build 2,500 additional beds. It can build another 5,000. But every one of those prisoners will eventually have to go somewhere. The real measure of a criminal justice policy is not how many people it puts behind bars. It is how many people who leave those bars are less likely to return. If the answer is not enough, then adding beds is not a public-safety strategy. It is simply making more room for the problem.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness
(Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book.
Contact him at johnlornehill@hotmail.com.
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