As Canada’s major cities grapple with a surge in gang violence, the bail system has come under fire by police as being too quick to allow accused criminals back onto the streets.
With more than 530 people shot in his city so far this year, Toronto Police Chief Mark Saunders has been particularly vocal about his frustration with what he sees as the revolving door of the bail system when it comes to gun offences. His officers are arresting the bad guys, he argues – it’s the courts that are letting them back out to reoffend.
Chief Saunders has taken to social media recently to highlight, anecdotally, cases that reflect his concerns. An increasing number of police chiefs have echoed his concerns, and Conservative Party Leader Andrew Scheer has said that if his party wins this month’s federal election, he would “end automatic bail” for gang members awaiting trial.
It’s a proposal defence lawyers see as impractical and unconstitutional. No one gets automatic bail. The presumption of innocence and the right to reasonable bail are Charter rights, they argue.
“It’s pure nonsense,” Toronto lawyer Daniel Brown said. “[Mr. Scheer] is saying something that there is no possible way the courts would ever uphold.”
But it adds fuel to a divisive conversation about law and order when the city is under the microscope for its lethal violence. In the past two months, Chief Saunders told reporters last Thursday, 53 people who had been released on bail after being charged with firearms offences had gone on to reoffend.
“This is about public safety. I want to stay in my lane – the judicial system … is a great system. But I do want to have a look at the system overall to say: Is it satisfying public safety when we’re talking about firearms occurrences?” Chief Saunders said.
Without context, Michael Lacy, president of the Criminal Lawyers’ Association, said the chief’s statistic is meaningless. Chief Saunders would not say how many people facing similar charges were denied bail in that time frame nor how many were granted bail and abided by their conditions. He also would not say what new charges those 53 people are facing – whether they are also gun-related. Mr. Lacy has called on the chief to provide the full data “so that we can all look at it and assess the situation.”
He does not deny that there are outliers, but disputes the idea that there is an epidemic within the bail system.
“I want to be safe in my community just like everyone else does. Gun violence is insidious,” Mr. Lacy said. “But do not make the claim that bail is the problem, or that judges are acting irresponsibly or improperly and releasing people. It’s creating a false hysteria that seeks to blame the judiciary.”
The bail debate is difficult to quantify because, like many public policy areas in Canada, there is limited data available.
Ontario’s Ministry of the Attorney General says the number of firearm-related cases has increased roughly 50 per cent over the past four years, from 4,284 in 2014 to 6,394 last year. In the same period, the number of people who were denied bail in firearms cases rose to 39 per cent last year from 34 per cent in 2014.
However, the province does not track the percentage of people who were granted bail in firearms cases and then went on to reoffend. The province also can’t say what percentage of people charged with firearms offences were on bail at the time.
Joe Couto, spokesperson for the Ontario Association of Chiefs of Police, said there is a need for more data, but in the meantime, the concerns of police chiefs stem from the “feedback or ‘lived experiences’ they hear from front-line officers.”
Tens of millions of dollars have been allocated by all levels of government to crack down on gun violence over the past few years, with much of that money going toward policing and bail initiatives.
Toronto now has two prosecution teams dedicated to gun cases. The first, the Integrated Gun and Gang Task Force, handles elaborate court cases involving major gun and gang busts. A second unit, the Intensive Firearms Bail team was established last year in response to the rising gun violence and deals exclusively with bail hearings in firearms cases, gang-related or not.
In its first 10 months, that team – which is now being replicated across the Greater Toronto Area – conducted more than 378 bail hearings. Whenever a bail decision is challenged, by either side, a bail review (like an appeal) is requested. The team held more than 43 reviews in that time, and in 64 per cent of those, the Ministry of the Attorney General said, detention was either ordered or upheld.
Asked how these figures compare with the bail landscape before the team was established, the ministry said that wasn’t previously tracked.
This month, Toronto police will conclude a $4.5-million project that aimed to crack down on gangs through increased police presence and bail compliance monitoring.
Defence Lawyer Hubert Gonzalez says bail decisions are supposed to be about public safety, not politics. He acknowledges that firearm-related crimes are severe, but says that should be reflected in a sentence if there is a finding of guilt – not at the bail stage.
“Bail is not a choice between absolute freedom and detention,” he said. The entire purpose of the hearing is to come up with a plan that allows people to be adequately supervised in the community before they are tried.
“You’re always going to have outliers. There’s always examples of people who are released on bail and the bail system fails,” he said.
But he points out that we have examples of wrongful conviction in Canada as well. The system cannot be built on those outlier examples.
As the focus continues to be on bail and law enforcement, some argue the social elements and root causes of gun and gang violence continue to be ignored.
“It’s throwing money at fear, but it is not actually going to improve our communities one iota,” said Michael Bryant, executive director and general counsel for the Canadian Civil Liberties Association.
While he criticizes Chief Saunders for “fear mongering,” Mr. Bryant acknowledges that in his previous role as attorney-general of Ontario, he was guilty “of all the same things.
“[The chief] is in a long line of people in the justice system who are part of the problem,” he said.
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