CLA Response to Recent Provincial and Federal calls for “Tough on Crime” Policies.

Recent calls from politicians at both the federal and provincial levels to “get tough on crime” are misguided. Proposals such as automatically denying bail, imposing American-style “three-strikes” laws, and resurrecting unconstitutional mandatory minimums strip judges of discretion and undermines fairness in our courts. 

These measures are not solutions to the problems Canada faces today — they are failed policies from the past or from south of the border, repackaged as solutions to current problems.

Our justice and bail systems are not the source of societal problems that lead to crime. The purpose of these systems are to ensure fair outcomes in individual cases, based on the unique circumstances of the person before the court. Justice system reform cannot solve the myriad of complex social issues Canada faces.  Warehousing more innocent people destroys families and careers which logically will lead to more crime in the long term.

A hallmark of any functioning western democracy is the presumption of innocence.  That means protecting against the unjust imprisonment or loss of liberty for innocent people. There is no way to fairly compensate unjust time spent in jail or prison – for the jobs lost, housing disrupted, and for the separation of children from their parents.  Money is a poor substitute for liberty.  Unjust detention is a moral wrong, perpetrated by the state against the individual. We have to balance the protection of society against the risk of wrongful imprisonment.

Overly simplistic “tough on crime” rhetoric may make for good political theatre, but it does little to make communities safer and risks driving us backward with regressive, ill-conceived policies. These policies erode the fairness, compassion, and respect for human dignity that define us as Canadians.  That define our highly regarded justice system.

The proposal by Ontario’s Solicitor General and Attorney General to deny bail for people charged with certain offences runs directly against the principles of fundamental justice. Premier Ford recently declared it was “completely unacceptable” that Umar Zameer—accused of murdering a Toronto police officer—was granted bail. But Premier Ford was proven wrong: in that case, police evidence was unreliable, the case was weak, and Mr. Zameer, a family man, was ultimately acquitted, his innocence indisputable. Had bail been automatically denied, he would have been needlessly separated from his wife and two young children for years while awaiting trial.  

There are countless other, less visible cases where people are charged, denied liberty, and later found not guilty. These are not “high-profile” stories. They are the ordinary criminal cases of our fellow citizens—cases where fairness, due process, and the presumption of innocence must be protected.

The proposal to blanket deny bail for “intimate partner violence” betrays a lack of practical experience with our justice system and a disconnect from reality.  Domestic violence is a serious societal issue and a problem that plagues our society.  But when bail is denied, families suffer a myriad of problems, including devastating income loss for women and children.  Including missed opportunities for counselling and other supports to heal broken families. A charge is not proof beyond a reasonable doubt. 

“Three-strikes” rules may sound catchy, but rigid laws without nuance inevitably produce harmful consequences. The notion that an addict committing minor offences could end up permanently denied bail—costing taxpayers six figures a year to keep them in jail rather than providing treatment—is both wasteful and nonsensical.

Bail is denied where there is a substantial likelihood an accused will commit further offences or interfere with the administration of justice.  Bail can also be denied to maintain public confidence in the administration of justice.  These legal tests balance the presumption of innocence with the need to protect society.   Most of the current proposals would not pass Constitutional scrutiny nor would they be desirable in a free and democratic society.

The proposed sentencing reforms focus on mandatory minimums and legislated, lengthy prison terms. This approach is overly simplistic. Sentencing requires judges to weigh many factors—the offender, the victim, the impact on society, and the goals of sentencing. Judges are experts in the courtroom, tasked with tailoring the most appropriate outcome for each case. Mandatory minimums and rigid sentencing rules strip away that nuance, and they do not work. Imagine a government legislating that doctors must prescribe the same medication for every cancer patient. No one benefits from an approach that ignores individual circumstances and leads to poor outcomes for both offenders and society.

The Criminal Lawyers’ Association is made up of defence lawyers across Ontario, and Canada who are committed to justice and the presumption of innocence.

Boris Bytensky
President
Criminal Lawyers’ Association

Along with the CLA Executive:
Secretary – Michael Davies
Assistant Treasurer – Stephanie DiGiuseppe
Treasurer – Jessyca Greenwood
Vice President – Michelle Johal
Vice President – Jill Makepeace
Assistant Secretary – Chris Sewrattan
Vice President – Adam Weisberg

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