Local justice system insiders call for bail reform
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Everyone seems to agree Canada’s bail system is “broken” and in need of critical change.
Police Chief Rob Davis said last week there’s a “desperate need for bail reform” and linked the problem to specific criminals in Brantford.
MP Larry Brock says the chance to make changes to a “broken” bail system is one of the primary reasons he ran for political office.
Defence lawyer Ian McCuaig argues there are better ways of fixing the system than just keeping those accused of crimes in jail until their trials.
Six Nations Police Chief Darren Montour told a parliamentary hearing recently: “This has to change. Something has to be fixed.”
And Justice Minister David Lametti told a hearing the federal government is going to get busy on targeted reforms that will update the bail system.
“We’re at a unique point in history,” said Davis in a recent Expositor interview, “where premiers from every province, police associations, the RCMP, police chiefs from across the country are all in alignment, calling for bail reform.”
Davis spoke to the Standing Committee on Justice March 6 at the behest of Brock, sharing the story of how his officers were called to Lynden Road in February to deal with a man passed out in a taxi. When the man was identified and found to be on a form of house arrest, he was arrested and searched.
Davis told the hearing the man had a fully loaded firearm in his pocket with more ammunition at the ready.
“What sent chills up my spine,” said the police chief, “was this was literally 35 kilometres from where Greg Pierzchala was killed (and) 47 days after his death.”
The young Ontario Provincial Police constable’s death near Hagerville in December has been a catalyst, uniting many people and organizations in calls for immediate changes to the system.
Davis said the man in the taxi, who now faces 11 new charges, had a lengthy criminal history involving firearm offences and violence with “eerie similarities” to Randall McKenzie, the man now charged with Pierzchala’s death.
Last week, Davis said police dealt with another offender with a long history of violence and firearm prohibitions who continually gets released on bail.
Police allege a man who was out on bail got into a Brantford home. The incident sparked the closure of a city street for several hours because it was reported he had a firearm.
“It’s another example of an offender with a long history of violence and firearm prohibitions and has been before the courts numerous times and continually gets released on bail,” said Davis.
“It’s dangerous. These aren’t low-level crimes these people are getting released on – they’re violent.”
Davis said as more offenders are granted bail with an electronic ankle bracelet, the responsibility for checking on them and monitoring alarms from the system has been downloaded onto already-overwhelmed police services.
“Maybe it’s time for the the province to deal with this with a separate entity,” Davis said, noting the U.S. has a marshals system for tracking down those who have eluded bail restrictions.
It’s an idea Toronto defence lawyer Ian McCuaig, who works extensively in Brantford, would embrace.
He said there’s little attention paid to those who ghost the judicial system and he once had a client with a warrant out for his arrest who went to court repeatedly without being arrested.
“He said he would wave at police officers from his front porch and they would wave back. Nobody’s proactively enforcing warrants enough.”
McCuaig said the man accused of shooting Pierzchala had allegedly breached his bail five months before the fateful incident.
“He might have been under deep cover – I don’t know – but was anybody looking for him?”
Brock said Randall McKenzie was released under a series of strict bail conditions with his mother as his surety.
“But he was on the lam for months. Why were police not actively looking for him?”
Brock said during his early years as an assistant Crown attorney, he and others thought there were more accused being detained than necessary.
“The overall pendulum of justice was more slanted toward community safety without due consideration of the constitutional rights of anyone – so there was push-back.”
But, he said, in an effort to swing the pendulum back to the middle, the Supreme Court and Parliament codified less restraint for the last six or seven years.
“It pushed it too far left instead of hitting the middle and now we’re releasing, releasing, releasing without consideration for community safety. It’s resulted in the problems we’re seeing across the country today.”
We’ve reached a point, said Brock, where, in Toronto, 44 per cent of those accused of homicide have already been on bail for other serious violent offences. In Vancouver, a group of mayors said 40 people were responsible for 6,300 incidents.
“So, what does it take to get a detention order? This is making people feel less safe, creating mistrust in the system, causing police services to struggle to maintain recruits and making people think about vigilantism.”
Brock agrees that those flouting bail conditions must be sought and re-arrested.
Like others, he suggests that since police are already overburdened, a separate entity doing compliance checks and monitoring accused could preclude many problems.
The surety system should be tightened to eliminate the “professional sureties” who don’t even know the accused but sometimes slip past the court’s scrutiny and to push sureties to pay the funds they pledge when they bear responsibility in repeat offences.
Brock also says changes are needed to improve provincial jails to offer programming and services for those struggling with mental health or addiction issues.
“If the province took this seriously and reformed our detention centres, it would give more confidence to the court that a detention order could be beneficial to the accused.”
Six Nations Police Chief Darren Montour joined Chief Davis in speaking to Brock and the justice committee earlier in the month.
Montour said Pierzchala’s death hit very close to home for his officers and he addressed the issue of Gladue factors, which legally force judges to consider all alternatives other than jail for Indigenous offenders, who are over-represented in the system.
“If Randall McKenzie was not Indigenous, would he have been released?” asked Montour.
The Gladue process works, he added, but for some offenders seeking bail, Gladue is currently outweighing public safety.
“Race should not play a factor in the bail conditions of repeat violent offenders.”
Justice minister Lametti said the bail system is “sound” but open to improvement.
He committed to making changes in recognition that “bail is a constitutional right” but not an absolute right.
The provincial counterpart to the Standing Committee on Justice tendered a report this week calling for both levels of government to tighten bail conditions for repeat or violent offenders.
The report also asks for a ‘reverse onus’ system that puts responsibility on an accused chronic offender to demonstrate why he or she should get bail rather than on the Crown to prove why they should not.
Other suggestions are that hearings for serious charges be heard before a judge rather than a Justice of the Peace, and increased training for all.
The most recent statistics from 2021, show that three-quarters of adults in Ontario jails are waiting for their trials and technically innocent.
SGamble@postmedia.com
@EXPSGamble
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