Front Burner - Crime is up, is bail reform the solution?

Episode Date: May 23, 2023

Violent crime is up in Canada. The country’s homicide rate jumped 42 per cent from 2013 to 2021, and attacks have increased on public transit. With crime in the headlines, public safety has become a real concern for many Canadians. Last week, federal Justice Minister David Lametti introduced new bail-reform legislation to address that anxiety. If passed, Bill C-48 would make it more difficult for some repeat violent offenders to get released from prison on bail. But reviews for the plan are mixed. Today, CBC parliamentary bureau reporter JP Tasker and Vancouver-based criminal defence lawyer Kyla Lee take us through the Liberals’ bail reform legislation and the political pressure campaign that preceded it. For transcripts of this series, please visit: https://www.cbc.ca/radio/frontburner/transcripts

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Alex Bonetta. Last month, at a stop in Edmonton, Conservative leader Pierre Poiliev lamented the state of the country,

as he often does. What's happening to our cities? After eight years of Trudeau and his crazy coalition with the NDP, I'll tell you what's happening. Tuesday morning, Calgary, a victim shot dead on a bus, now in critical condition, two people taken into custody, another suspect at large. Tuesday afternoon, Calgary, police discover a corpse in a suitcase. Crime. It's been generating a lot in a suitcase. Crime. It's been generating a lot of attention lately. And there are two ways to interpret recent trends.

One way sounds kind of scary. Canada's homicide rate jumped 42% within the last decade. Attacks have increased on public transit. But there's another way to look at this, where the numbers seem less frightening. Nationally, the violent crime rate is actually lower than it was every year from 1998 to 2008. That streak is even longer for major cities like Toronto, Vancouver, and Winnipeg. Non-violent crime is even trending down. Globally, Canada has one of the lowest homicide rates. Plus, most violence is still committed by people who knew the victim, not by a random stranger.

But you wouldn't know it to hear the Conservatives tell that story. Trudeau and the NDP have caused this crime wave with policies that allow the same repeat violent offenders loose on our streets to terrorize innocent people. violent offenders loose on our streets to terrorize innocent people. Trudeau and the NDP have given us crime, chaos, drugs, and disorder. However, public safety has become a real concern, with nearly 6 in 10 Canadians saying they feel less safe when commuting. So a week ago today, Federal Justice Minister David Lamedi introduced new bail reform legislation to address that anxiety. If passed, Bill C-48 would make it more difficult for some repeat violent offenders to get released from

prison on bail. My first guest is my colleague J.P. Tasker, who works with the CBC's Parliamentary Bureau. He's here to explain the Liberals' bail reform legislation and the political pressure campaign that preceded it. Then we'll talk to a criminal defense lawyer who thinks this is all misguided. Hi, J.P. Hey, JP. Hey, Alex. Thanks for having me. Okay, so just to back up a little bit, the opposition isn't alone in calling for changes to Canada's bail system. This legislation, Bill C-48, comes after the premiers from the provinces and territories publicly raised concerns about repeat offenders. raised concerns about repeat offenders. We're seeing too many innocent people lose their lives at the hands of dangerous criminals and repeat offenders who should have been behind bars. We need to ensure that there's bail reform with the federal government and so we're still calling

on that. He needs to change the rules so the assumption is if someone is a repeat violent offender that they're kept behind bars and not released back in the community. It's very straightforward. What were they concerned about? The concern from a lot of provinces is they aren't able to really keep a lot of people who've been convicted of crimes in the past, you know, in the system when they've been accused again of another crime. Let's really enter the public consciousness over the Christmas holidays with the tragic death of an OPP officer in southwestern Ontario. Constable Greg Prashala was allegedly gunned down by a man awaiting trial for assault and weapons charges. He responded to a call about a vehicle stuck in a ditch near Hagersville.

When he got there, police say the officer was shot and that a man and a woman were witnessed leaving the scene. And that prompted the provinces to say unanimously, they were all in agreement on this, there was nobody sitting on the sidelines, they all said, we need the feds to step up with bail reform. And so they wrote the prime minister in January saying, we need more power to deny bail to repeat offenders. We need to hold more alleged criminals in jail. And so you referred to this one tragic case. Was anything else happening at the time that kind of changed the politics on this?

Well, there was all of those violent incidents in Toronto, you know, often on transit. Toronto transit has seen growing violence over the past year and not just stabbings. People have been pushed onto subway tracks, beaten, swarmed and assaulted. A number of those folks who were alleged to have committed those violent crimes were people who had been released. And there was concern that maybe some of these violent folks should not be out on the streets, that they should still be in jail or they shouldn't have been released on probation. So it prompted kind of a national conversation about how our justice system is structured and if there needs to be, you know, if it needs to be harder for people to get pretrial release. You suggested that a large percentage of these crimes are committed by people out on bail. Do we have any stats, any data on that phenomenon? Well, we know it's hard to pinpoint exactly, but we know, for example, in most provincial jails, 60 percent of the people who are actually in provincial jails are people who have been denied bail.

And the reason most people are denied bail is because they have a criminal history. You know, generally in our system under the Constitution, people are presumed innocent until proven guilty and they are allowed access to bail as their case moves through the justice system. And really the only time that bail is denied, if there's a good reason for public safety not to do so. Okay, so if so many people are being denied bail already, what does C-48 actually do? Yeah, so essentially it makes it even harder and it establishes what is called in the justice world reverse onus bail for certain crimes and so with these new reverse onus bail incidents essentially it's up to the alleged criminal to prove why they should not remain behind bars normally it's the crown prosecutor who would make that call they would be the ones having to go before a judge or

the justice of the peace and saying look this is why you shouldn't let this guy out. With the reverse onus case, it's up to the alleged criminal to take on that. And it's a harder bar to meet, right? And if they don't meet that bar, then they will have to be detained until trial. So with C-48, it essentially expands the reverse onus part of all this to include people who have been accused of certain firearms offenses. If they have a previous conviction for a firearms offense, it's going to be harder to get that bail. And it also expands it to people who have a history of spousal abuse. So they're expanding the current, what they call intimate partner violence reverse onus to capture more

people in an effort to have fewer of these alleged criminals out on the street. We hear Chair Poiliev saying that violent crime has increased since the Liberals have been in power. They've been blaming rising crime on another piece of legislation the Trudeau government passed in 2019, Bill C-75. And there is some context there to go through. So, OK, what did that specific bill do? Well, the tough on crime approach is making a comeback. The tough on crime approach is making a comeback. But don't forget, you know, just a few years ago, there was this push to change how justice is administered in this country. And so the government introduced Bill C-75 and it really gave judges more leeway over bail and instructed judges to consider someone's indigenous identity before deciding bail.

indigenous identity before deciding bail. And it really instructed the whole justice system to be more sensitive to vulnerable folks who come from, you know, overrepresented backgrounds in the criminal justice system. It really instructed them to kind of consider that before making a bail decision. And it also legislated what's called the principle of restraint for police and courts to really ensure that people are released on bail and that they're released on bail, you know, at the earliest opportunity as opposed to just pushing them into detention as opposed to just remanding them into jail. Where there are some statistics to show that recidivism rates are higher. People are more likely to commit crimes after they've had to go through the harrowing experience of being in jail. And so the push was on with C-75 to kind of change things. And now we're definitely kind of taking a step back and we're going in the other direction. Yeah. And to be clear, C-75 wasn't just pulled out of thin air.

It came from a Supreme Court case, right? That's right. Yeah. So what was that all about? Yeah. I mean, because the courts have repeatedly upheld the right to reasonable bail. Court case, right? So trying to show that they were responsive to what the top court was saying. But that doesn't mean there hasn't been political backlash to it. So Pierre Poiliev has called C-75 Justin Trudeau's catch and release bill. They have not reversed catch and release. They want to continue with the same Trudeau policies supported by the NDP that have done catch and release and caused a massive crime wave across this country. Catch and release is a term I often hear in the United States in other contexts referring to other issues. So, you know, he's not a fan of that

bill. Now, with this legislation, this latest one, C-48, what's he proposing instead? Yeah. So as I mentioned, C-48 really deals with firearms offenses and weapons and people who are involved with intimate partner violence. So it is a targeted approach the government is taking here. You know, it's a bit selective in terms of who they are trying to capture with these new reverse onus bail conditions. And what Polyev wants to do is have even more sweeping approach. He essentially wants to deny bail to all violent repeat offenders. A common sense conservative government will reverse Trudeau's catch and release. We will bring in laws that require repeat violent offenders who are newly

arrested for violence to stay behind bars with jail, not bail, jail, not bail, until their trial is done and their sentence is complete. And he has, you know, lampooned the government legislation saying it just doesn't go nearly far enough. Too many criminals will still be released. So he really, you know, he wants to lock up more people for longer. That's essentially what his plan is. Okay. You know, the right to bail is written into the Charter of Rights and Freedoms, right? So are you getting the sense that the conservatives are proposing anything that would, A, make it stricter and harder to receive bail and also be constitutional. Yeah, so it's very questionable. You know, a number of constitutional experts that we've spoken to say there's no way this plan to essentially deny bail to all repeat offenders would pass constitutional muster.

Let's talk about the broader political context here. This is not the only crime-focused policy we're seeing from the Liberals right now. They've made amendments to their controversial gun control legislation. Earlier this month, Public Safety Minister Marco Mendocino announced $390 million in spending over five years to crack down on gang violence. Is this a new priority for them? What's going on? Why is all this crime talk happening right now? And what's the politics for the liberal government? Well, there has been a crime search, right? And they don't want to seem tone deaf. You know, where is a lot of this crime centered? Well, suburban ridings in Toronto, Toronto itself, the lower mainland in British Columbia, in some of the population centers in Quebec. And those three areas are very important to the liberal government and their possible reelection chances.

Right. So it ultimately is a political decision. There are a lot more voters, I suspect, that want to tackle crime than want to defund the police. So they're trying to seem attentive to these issues, I think. They're, as you mentioned, cracking down on firearms. They're going forward with this bail reform. They've kind of dropped all of the talk that came about after the murder of George Floyd, right, in the United States and some of the push there then to change things, right? They're kind of backing away from all that in response to Polyam, in response to the provinces, in response to all the various groups in our society who are

worried about crime. So yeah, I don't think this is going to go away. I think that they will push ahead. And, you know, it's not necessarily something that could damage them politically. There aren't too many politicians out there right now who want to say how we're approaching crime may be a little too heavy handed. Okay. Well, hey, JP, thanks for joining us. I really appreciate it. Thanks so much, Alex. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections.

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In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. The Liberals' plan to reform bail has received some positive response. B.C. Premier David Eby says he supports the bill. Police organizations across the country, they've also endorsed the plan. But not everyone is convinced. For more on the criticism, I'm joined now by Kyla Lee.

She's a criminal defense lawyer based in Vancouver. Hi, Kyla. Thanks for having me. criminal defense lawyer based in Vancouver. Hi, Kyla. Thanks for having me. So before we get into the pushback on Bill C-48, I want to touch on some of the high profile cases that brought bail under the microscope in the first place. So we heard earlier about the death of OPP officer Constable Greg Prashala. Can you briefly take me through the circumstances that led to the accused being released from prison? Yes. He was originally charged with offenses related to an assault on his child's mother and her boyfriend, as well as weapons offenses. And because it was considered intimate partner

violence, he faced a reverse onus bail at the time. And originally he was denied bail, but because of some Supreme Court of Canada rulings over the last couple of years, after 90 days, you have a bail review in superior court. So at the bail review, he was released on bail with a very strict bail plan. And the judge in particular took into consideration the fact that there was a plan available where he could be released, there were sureties available, and his Indigenous heritage in making the determination that release was appropriate and that he had met his burden of proving that he could be released. Polyev was quick to point out that Randall McKenzie, the accused, actually, you know, had this reverse onus condition required as released to something. I mean, the bill wouldn't have changed the outcome, according to Polyev. What do you make of that criticism?

I think that's a fair criticism. You know, I view the bill and I view this sort of adding more reverse onus provisions as more doing lip service to people's concerns than actually doing anything that's going to effectively change the problem that people perceive that we have with an increase in violent crime. And so this national conversation, I mean, some of the things that people worried about crime will point out is violent crime index up, increase in the rate of sexual assault cases reported to police, an increase in hate crimes. The conservatives, premiers, police organizations have said that a large percentage of this latest increase in crime we're seeing is coming from people who are out on bail. I mean, is that even that just that specific narrow point that bail is connected to some of the things I just mentioned?

Is that true? Well, I mean, it might be that people are out on bail and they are the people that are involved in these increases in crime. But bail is not the culprit. And I think, you know, pointing to the commonality of bail is drawing an inference that's not really appropriate to draw from bail. People are out on bail because they're in situations where they've committed criminal offenses in the past, but not all of those people who are on bail and then commit a violent offense are on bail for a violent offense. They may be on bail for something related to their driving or for petty thefts or property damage, not violence against another person. So,

you know, the distinction has to be drawn there. And then a lot of the reason that the people that are out on bail are the people that are then committing these additional offenses is because we don't have the proper supports in both our bail system and our social system generally to give people what they need to avoid being involved in crime. adequate housing, addictions treatment, a clean, safe supply of drugs. We don't have these structured supports in place for people. So people end up in cycles of crime. And it's not, you know, well, it is to some extent some people's fault. It's not their fault that the system is failing them. And then they become overrepresented when they're facing all of these external challenges that have nothing to do with them being on bail. Well, I'm happy you brought that up because that's exactly what I want to

ask you next. I'm thinking of 16-year-old Gabriel Magalases was one of four homicide victims on the TTC in less than a year. His mother, Andrea, actually called for better social services. More needs to be done to help people in crisis. More needs to be done so people don't get to the point where they are in crisis. We need more social services. We need more investment into physical and mental health. We need more support for housing. I feel like if things go the way they are going right now,

so many people are going to be suffering the horrible pain that I'm going through right now. So honestly, I wanted to just hide in my bed and never get up again. But I'm taking like every ounce of strength I have left just to get his story out there. So hopefully something will be done and beautiful lives will not be wasted. These incidents of violence we're seeing, can you give me some examples of how housing inequality, lack of mental health support, poverty,

what effect do these things have on crime? Well, if every day you are worried about where you're going to sleep at night, how you're going to feed yourself, whether or not you're going to die if you take your next dose of drugs. You're living your life at a 10 out of 10 on stress. I mean, think about how short-tempered you or I get, you know, where we have food security and housing security, and we don't have these stressors. And yet, just our daily lives are stressful enough that sometimes we'll

snap at people that we know, we get frustrated, you can feel yourself getting angry from stress. Multiply that by 10,000 for people who are facing like existential stress at all days, all moments, all times in their life. And it's not surprising that people are on a short fuse. And add into that for a lot of people, untreated or unsupported mental health issues. And you have people who just don't have the coping skills and don't have the structural supports in place to develop coping skills to deal with their stress, their anxiety, and their anger, and it ends up directed externally. It's a terrible situation, but we could provide these supports. We choose not to. We choose to focus on the boogeyman of letting people out of jail until their cases are resolved.

Let's talk about bail now. Something that's up statistically in this country is the use of pre-trial detention. People are kept in jail while they're awaiting trial. From what I understand, there's been like a 400% increase in the number of suspects in custody since the late 70s. Can you give me an idea of what the consequences are of being jailed while you're awaiting your trial? Well, I mean, first of all, if you're jailed while you're awaiting trial, whatever connections and supports you did have in the community are cut off. Whether you were seeing a counselor, whether you had some level of employment, or even just your access to your friends and family and community supports that you rely on for your mental health. All of that

is cut off. Because pretrial detention is up to such a significant degree, our pretrial detention centers are usually overpopulated, meaning that instead of a cell that's meant to bunk one or two people, you now have two, four, six people all in this small space. So people are living without any dignity in these spaces. They're not fed properly. And because they're overpopulated, there's no access to resources. Pretrial detention, unlike post-trial detention, if you're convicted and sentenced to a jail sentence, has far less access to the limited resources that are already available in detention centers for programming like addictions and mental health support, even religious or cultural programming.

It's all really cut off from people who are serving these periods of pretrial detention. And the consequence of those effectively inhumane conditions is that people are more likely to plead guilty to criminal offenses, even if they have a legitimate defense, or even if they maintain that they're innocent. They will plead guilty because it's so horrendous. They just want to get out. And there's an advantage to pleading guilty because you get two days credit for every one day you served in pretrial detention. So if you were going to face a 30-day jail sentence, you're only going to get 15 days of pretrial detention and you'll have served your entire

sentence. So it also, you know, if you're waiting six months for your trial, you're going to spend longer in jail than you would if you were found guilty. So it ends up extorting guilty pleas out of people, which then gives people criminal records, which then turns people into these so-called repeat offenders when they get released from this system, cut off from their supports, having had no support in inhumane conditions, obviously struggling as a result of that, and end up re-offending. The premiers, when they first asked for changes to bail, Justin Trudeau said any move to make the bail system more effective also needs to be fair. Any time you make a change to the bail systems, there's challenges around impacts, particularly on Indigenous or minority groups,

that we have to make sure we're taking into account. We all want a system that ensures that Canadians are safe in their homes, in their communities. So you touched on this earlier, but what over-representation issues are we seeing in Canadian jails? I mean, it's an unfortunate statistic, but Indigenous people and Black people are over-represented in Canadian jails to a huge degree, way more than they represent a proportion of Canada's population. They are in jail. And studies that have been done over the last 30 years have consistently tracked that people who are Indigenous or people who are Black are more likely to be detained prior to their trial taking place. They're more likely to be given longer sentences once they are sentenced. They're more likely to

spend a longer period in time in pre-trial detention and to have less time to contact their lawyers and less amount of contact with their lawyers than people who are not from those communities. Okay, so we talked about the accused and the death of Constable Prashala, Randall McKenzie. He was under stricter than usual bail conditions. He had to wear a GPS monitor. He was supposed to report to police twice a week. He wasn't allowed to have any weapons. But when he violated those conditions and missed a court date, even though there was a warrant out for his arrest, neither Six Nations police nor the OPP were actively searching for him. So I guess my question for you is if bail isn't as big a challenge to public safety in Canada as the opposition are saying it is, why have police and provincial leadership pushed so hard for these reforms? I think that it's a situation of not wanting to be held accountable for their own failures, whether it's failures in taking an approach that is rooted in systemic racism, whether it's failures

in not doing law enforcement properly and actually allowing a lot of people who are responsible for violent offenses to continue to be out knowing that they have arrest warrants and knowing usually where the people are likely to be. You know, nobody wants to be out knowing that they have arrest warrants and knowing usually where the people are likely to be, you know, nobody wants to be the person who is responsible for the public outcry. And it's easy to pass the responsibility to the provincial government or to the federal government and say this is as a result of failed bail policy, because then you don't have to scrutinize your own failures and the public doesn't look to you and says, well, here's all the things that you as police are doing

that are contributing to this situation. On to C-48, the premiers all wanted this reverse onus condition. And if C-48 passes, they're going to get it. But in your view, what are the downsides of taking this approach? people who are held in pretrial detention, and that's only going to lead to worsening conditions, which is only going to lead to worsening outcomes when people are released from pretrial detention. It's also going to be really taxing on our court system. Because we have this 90-day bail review law, where people are entitled to go to Supreme Court after 90 days and have their denial of bail reviewed. We're going to see more time taken away in superior court from judges who are deciding the big important cases. They're dealing with the murder cases. They're dealing with the violent offenders. They're dealing with the major drug trafficking cases. The things that we as society are most concerned about

are being put on the back burner because we're detaining more people and having these hearings that have to take place within a certain amount of time. And then see the corresponding effect of that is that more charges end up being stayed or thrown out of court because of the delay getting things to trial. So, you know, ultimately increasing the number of people in pretrial detention is only going ultimately increasing the number of people in pretrial detention is only going to increase the number of people who are released because their cases weren't brought before court in a reasonable amount of time. Clearly, there are enough people who've pointed to some indicators that have people worried, enough so that the federal government

has decided to introduce this bill. Public Safety Minister Marco Mendocino said this new legislation will make communities safer. You know, what do you think? If it's not really addressing the underlying issues with bail that you've identified, what are the liberals really trying to accomplish with this legislation? I view this legislation as paying lip service to the concerns that the public is raising. It is a way for the federal liberals to be seen as doing something. You know, most people have such a limited understanding of how criminal law works and how your constitutional right to bail works that if they hear, you know, we're strengthening bail laws when it comes to violent offenses, offenses involving weapons,

intimate partner violence, people are going to think that the bill is doing something. They're going to perceive the federal government is doing something, but they're not really doing much. They're not changing much. It is allowing the federal government to say, look, we responded to these criticisms. It's essentially, I view it as a move to keep them in power. Because if they did nothing, if they continued to say this isn't a real issue, this is being overblown by conservative politicians, they would not be reelected. They had to do something. And this, to me, seems like the bare minimum they could do to get away with it constitutionally. It may not even pass constitutional muster, but this is the bare minimum that they could do and still be probably on side with the constitution.

Kyla, thanks so much for taking the time to walk us through this today. Thanks for having me. That's all for today. I'm Alex Panetta. Thank you for listening to FrontBurner. For more CBC Podcasts, go to cbc.ca slash podcasts.