Justice Committee on Nov. 23rd, 2006

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Very quickly, Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

First of all, there is now a reverse onus, a change in release today. Some of you spoke about the changes in or challenges with bill breaches. On the 68% figure you mentioned, Bill C-35 hopefully will alleviate that for the work you and your force do.

On the education of the offender, there has been some contention that this won't actually register if you have minimum penalties for those who commit crimes. What is your assessment of the criminal population? Does this deterrence effect work? Is there a level of sophistication among criminals about the potential consequences?

[Chief William Blair]

I would think there is. I've been dealing with such people all of my adult life, and they're not fools. They make choices, real choices, and I think do so provided with the right information about the consequences of their action. We have to create an impression that we really mean it.

One of the things we did this year.... Let me give you an example of deterrence. Every year we have a Caribana Festival in Toronto. Historically, in the downtown core on that weekend we have experienced significant violence. Last year, in 2005, we put close to 600 police officers in the downtown core, but it was not well publicized. We had 22 violent events that weekend, and one person was killed. The person who was killed was killed within a proximity of about 30 feet of 50 police officers. The guy just took out his gun and shot another guy to death right in front of the police, and he was apprehended within seconds. I'm not sure that individual could ever be deterred. He was mad.

But this year we took a different approach. We publicized very extensively that we would be there in vast numbers, precisely the same numbers as the year before. We put up video cameras in that location and we put up signs everywhere saying there were video cameras in those locations. We weren't sneaking up on anybody; we let them know that the likelihood of getting caught was significantly increased, and that there were a lot of police officers there, and that we would be enforcing the laws vigorously in that location.

We had that event this year. Whereas in 2005 there were 22 violent events, in 2006 there were none.

[Patrick Brown, Conservative, Barrie, ON]

Chief, there are two new offences listed in this legislation—one, robbery where firearms are stolen, and another, break and entry and then stealing or intending to steal a firearm—and a separate offence of using a firearm or an imitation firearm in the commission of other offences.

Could you offer some opinion to the committee on the merits of creating those new offences?

[Chief William Blair]

The theft of firearms has had some devastating consequences in my community. In 2003, there was a break and enter at 31 Gilder Drive in Toronto. It was an apartment. A gang broke into that apartment and stole 30 handguns from it.

Nine of those handguns were subsequently used in murders in the city, from a single break and enter. Those guns went into the criminal element, into a certain gang. It tipped the balance of power between gangs, and a war broke out. By the time we were done, there were a dozen killed, and several dozen people had been shot.

So we need to have consequences for individuals who do not store their firearms securely. But I think there have to be greater consequences.... This is not merely a theft; this is a crime that results in death and destruction and incredible consequences and trauma for our neighbourhoods. So I believe there should be serious consequences for those actions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown.

I'd like to ask one question before you leave, Chief. You spoke of arresting people with charges of firearms offences against them and their being out on the street. Do the police have power to arrest without warrant for any parole violation, or probation order, or bail restriction?

[Chief William Blair]

No, sir.

For a parole violation, it really requires intervention of the parole authority. We bring that information to their attention. It sometimes requires us to go back a second time. If we catch somebody in violation of parole conditions, we notify the parole authority, who then may take out a warrant for that individual. Then we go back and find him again. There are some real limitations on what we can do.

We have proven very effective, by the way, in enforcing conditional release conditions: curfews, non-associations, residency requirements. Those things have been very effective tools for us in maintaining some control over offenders in the community. Our ability to control people who are on probation and parole is somewhat more limited. But it requires us to form better partnerships with the parole and probation authorities, and we're trying to do that.

[The Chair, Conservative, Art Hanger]

But if the police were given that authority, it would be a much more effective tool.

[Chief William Blair]

I think it could be valuable, yes.

[The Chair, Conservative, Art Hanger]

Okay. Thank you very much, Chief. Your presence here was very much appreciated.

Also Mr. Clarke, thank you for testifying. I think you gave us quite a riveting statement on the issue of gun violence in the city—and the region, actually. It's very much appreciated. Thank you.

[Chief William Blair]

I am very grateful for the opportunity to be here today and the opportunity to answer your questions.

I can tell you, on behalf of the members of my service, my communities, my colleagues across the country, that we are grateful for the time all of you are putting into this. It's a very important question for us. It's a very important issue in our communities. It has a huge impact on people's perception of their safety. We are grateful for the thoughtful work that's going on by everyone on this matter.

[The Chair, Conservative, Art Hanger]

We appreciate it. Thank you.

I would like to call the Hon. Michael Bryant, Attorney General for the Province of Ontario, to the table.

Good morning, Minister.

Generally, Minister, we haven't had too many politicians sitting at our table, and we appreciate your persistence in calling. Your testimony will be valuable for us to hear, from a provincial perspective. The committee agreed to have you present, and we appreciate your effort here.

I would ask you to begin your presentation, if you're prepared, and we'll get to the questions immediately after.

[The Hon. Michael Bryant, Attorney General, Ontario Ministry of the Attorney General]

Thank you, Chair. I appreciate the opportunity to address the committee.

I'm sure the justice committee is very aware of the role the provincial Attorney General and his or her agents play in our criminal justice system. But just as confirmation, I guess, for those who torture themselves by reading Hansard for a committee, the provincial Attorney General is responsible for prosecuting the Criminal Code. So that's everything from shoplifting to murder.

As you know, federal crown attorneys are responsible for drug crimes, under the Narcotics Act, and other offences. But within the rubric of organized crime--in guns and gang crime--it is the provinces that are responsible for most of the prosecutions involving guns and gangs, unless there specifically end up being drug crime charges.

In the province of Ontario, unlike in the provinces of Quebec and British Columbia, for example, there is a distinction between who lays the charges and who prosecutes the charges. In B.C. and Quebec, the charges are laid by crown attorneys. Here in Ontario, charges are laid by the police, and then the provincial agents of the Attorney General decide whether to prosecute based on whether there is a reasonable prospect of conviction and if it's in the public interest.

In Ontario, there are 900 crown attorneys--900 prosecutors--who address 500,000 charges every year. As such, the Criminal Law Division in the Province of Ontario has a considerable amount of experience, and I will say that they have developed a considerable amount of expertise. They have had the opportunity to work with officials in the federal Department of Justice under different governments and are obviously more than happy to work with the Department of Justice under this government, and have done so.

There's a role for the province and the municipality and the federal government in the fight against gun crime. It is not solely the job of one level of government. I will quickly go through a few things the province is doing, and then if you'll permit me, Chair, I'll spend the bulk of my time talking about the bill—issues around amendments, issues around why have mandatory, and some examples--and then I'll happily take your questions.

The province's approach to guns and gangs--Ontario's approach, the McGuinty government's approach--is that we have to do everything. It is not simply a matter of crackdowns alone or prevention alone or deterrents alone or denunciation alone. It is the whole package. So for the first time in Ontario, we established a guns and gangs task force that involved both police and prosecutors working together, literally, in the same building and on the same floor.

A few months after I had the honour and opportunity of being sworn in, for the first time, a crown prosecutor, a crown attorney for the Province of Ontario, left his offices and moved into the offices of Chief Blair. The purpose of that, and the purpose of having prosecutors and police working together is this. As you heard from Chief Blair, there are thousands and thousands, sometimes over 100,000, wiretaps, often in many different languages. Usually most of the evidence involved in guns and gangs cases involves electronic surveillance. The disclosure requirements established by the Supreme Court of Canada and pursuant to our charter require timely disclosure. The search and seizure powers and the sophistication of some of the gangs, who understand very well what the laws are, has led to Ontario's approach to what we call organized justice.

We want to be one step ahead of organized crime, not just traditional organized crime, but organized crime in the form of the street gangs we see, literally franchised operations with recruitment practices and a level of sophistication with some of them--as Chief Blair said, not all of them, but a level of sophistication--that allows them to do their best, unfortunately, to try to organize themselves around both the federal-provincial division of responsibilities and also around the Criminal Code and the justice system itself. Thus, we have organized justice. We have a crown attorney working with our police officers from day one of an investigation right through to the end. That assists in terms of timely disclosure. That assists in terms of ensuring all aspects of the investigation, and ultimately the evidence will be usable and positive before the courts, etc.

It's expanded. We now have more than 60 prosecutors in the guns and gangs task force. We've established an operations centre that will be operational in January that puts everybody in the same room, all levels, RCMP, provincial policing and municipal policing, as well as enforcement. There's room for federal prosecutors. Obviously, there will be Ontario crown attorneys and the technology and the wiretapping experts. There's no substitute for being able to walk down the hall and talk to your colleagues, instead of having them across town or in some cases across the province.

Third, we entered into an agreement with other provinces, Quebec and Manitoba--Ontario did so simply because of geographic proximity--to have the provinces collaborate on guns and gangs operations. Obviously, these are international and national efforts for some organized crime. The prosecution effort involves work from literally 10 or more police forces, different municipal police forces, several provinces, sometimes several countries. We have collaboration between provinces now. It has existed over the years, but it has never been formal or formalized. There has never been a real push to collaborate to get one step ahead of organized crime and, for example, to share expert evidence. So if an expert is being used in one province for a gun crime, and we know that person is there and is in Manitoba and we know how that went, we may be able to use that expert in the province of Ontario. There's no reason why that can't expand across the country.

Our government fast-tracked an additional 1,000 police officers, and we also established major crimes courts, courts geared toward these relatively new prosecutions that involve dozens and dozens and sometimes over 100 accused. That involves particular security requirements. As you can imagine, that means we have to keep the witnesses apart from the accused. We have to protect victims' rights, thus the special victims unit within the operations centre. As I said, electronic surveillance dominates these trials, and therefore we have to have courts that can accommodate that, thus the establishment of these major crimes courts.

Next, again, I said we have to do everything. We use our provincial legislation, civil legislation, to seize and in some cases forfeit property that's used for unlawful activities. Yesterday we announced the seizure of a crack house in Hamilton, not the first, but the second crack house we've seized in Hamilton using the provincial civil legislation.

Last is prevention. We have to do it all. So the premier established a challenge fund, an up to $45 million challenge fund to prevent, to reach out to communities, to provide opportunities to communities, so people don't have to choose between a gang and doing nothing, but rather have community activities they can turn to.

Enough of telling you what I do for a living; let me get into your bill. Thanks for your indulgence.

Ontario supports Bill C-10. Ontario, at least since the McGuinty government has been in office, has been calling for increased mandatory minimum sentences. I have written to the previous justice minister and the current justice minister, attended federal-provincial-territorial justice ministers meetings, and attempted to forge a consensus among justice ministers. We achieved that in Whitehorse, which I'll speak about in just a moment.

We support mandatory minimum sentences.

I am encouraged by the federal government's commitment to move the justice system forward.

We view mandatory minimum sentences as part of a larger package, as I've just discussed in terms of what the province's role is. This is not the only change that Parliament ought to address and of course is addressing.

I don't know what time it is, but I think it may be at this very second that the Prime Minister, the premier, and the mayor are making an announcement on bail reform.

As I say, under the McGuinty government, Ontario has been pursuing the fight for zero tolerance on gun crimes. We are very committed to doing that, to doing all we can to fight gun violence.

In November 2005, at the federal-provincial-territorial justice ministers meeting in Whitehorse, Ontario, we worked with the other justice ministers and with the federal minister to establish a national consensus, which was achieved at that time, that sentences for gun-related offences should carry increased mandatory minimums.

At that meeting, Ontario proposed, among other things, two new offences, which we are pleased form part of the proposed bill that we're here to discuss. The creation of the charges of breaking and entering to steal a firearm and robbery to steal a firearm would, if passed, officially recognize two crimes that unfortunately have become all too common in this world of gun and gang culture.

I said I support the bill. I also understand that committees have work to do, and one of the things committees consider is the specifics in the amendments. So I'd like to speak to that for just a moment.

Ontario is concerned about the application of mandatory minimum sentences, about how they are used. It has been upheld by the Supreme Court of Canada that minimum sentences have an inflationary effect, as Madam Justice Arbour upheld in Morrisey. Namely, I would argue that minimum sentences are the floor, they're not the ceiling, but the bill, prima facie, does not reflect that right now. So I would submit that a statement of principle to the effect that mandatory minimum jail sentences are minimums and not maximums would be helpful in ensuring that the courts do not use a mandatory minimum as the tariff, because if it's used as a tariff, then it will not be a minimum; it will be used as a maximum.

A statement of principle to that effect would be helpful in clarifying that for the courts, and obviously if the Department of Justice or this committee wishes Ontario officials to provide some more specific language around that, we would be happy to assist on that front.

The bill ought to address, in my submission, a number of sentencing issues.

First, the bill could better toughen the prohibition period for possession of firearms and ammunition.

Secondly, we would recommend that the bill provide sentencing judges with the power to increase the period of parole ineligibility for any sentence involving a firearm-related offence.

Thirdly, we would recommend that the bill deal with section 92 of the Criminal Code, the possession of a firearm--knowing its possession is unauthorized--to provide for a mandatory minimum jail sentence for a first offence.

Fourthly, we would recommend that the bill provide a mandatory minimum jail sentence under section 94 for those found guilty of illegally possessing a firearm while in a car.

On those two offences, and I understand that they are not entirely without controversy, the idea is this. If you get into a car and you have a firearm, you need to know that if you get pulled over, you're going to go to jail. I can only imagine the danger posed to police officers pulling over somebody who has a firearm in that car. Not having a mandatory minimum sentence, I would argue, does not (a) send the right message and (b) does not denounce that offence to the extent that it ought to be denounced.

The same argument, I would argue, should be applied to the possession of a firearm, knowing that its possession is unauthorized, to provide for a mandatory minimum jail sentence for a first offence. Again, it's if you are in public and you have a firearm and you know it is unauthorized. We are not talking about the hunter here. We're talking about the person in public with a firearm knowing it's an unauthorized firearm. You need to know, when you decide to walk out of your house or apartment, or wherever you were where you got that gun, that if you get caught, you're going to go to a jail.

I think that's entirely consistent with the principles and the spirit behind this bill. It would be a significant denunciation of those gang members who have weapons on them and who know that they are unauthorized.

I also want to speak to the issue of resources, to reiterate what has been said at the federal-provincial-territorial justice ministers meeting. As you know, we already have increased the number of prosecutors in the province of Ontario, entirely funded by the treasury in the province. We have also appointed more justices to the Ontario Court of Justice than in any other three-year period in the history of the province. There have been more than 60 additions to the Ontario Court of Justice in the last three years--60, six zero. We've done that to enhance the ability of the criminal justice system. We've added 1,000 new police officers as well and have established the provincial operations centre. These are part of a $51 million expansion of the criminal justice system announced last January by the premier, Chief Blair, and the commissioner for the OPP. It is the single largest expansion, in one fell swoop, of the criminal justice system the province has ever seen. So I would submit that we're doing our part in the province of Ontario.

Obviously, accused persons, under this bill, will be facing increased penalties. That's going to have an impact on the justice system; it always has. In the past, the federal government has assisted the provinces in funding federal legislative initiatives, especially when the bill carried the type of anticipated pressure that this one carries. The submission was made by all the provincial and territorial justice ministers to the federal justice ministers at the last federal-provincial-territorial meeting last autumn in Newfoundland. I would argue the precedent of the federal government assisting the provinces with federal legislative initiatives that has applied in the past should apply in this case.

Let me get into mandatory minimum sentences and why. In my respectful submission, the debate over mandatory minimum sentences is a false debate. We have mandatory minimum sentences in Canada. We already have them. And we already have them for gun crimes. The question is, which offences? And where there are mandatory minimum sentences already, what should the increases be?

The purpose is to incapacitate persons who have been convicted of gun crimes, persons who have proven themselves to be dangerous. They have the most dangerous weapon imaginable to the public--a firearm, a gun--and they ought to be incapacitated.

Denunciation is, obviously, another purpose.

Deterrence has been spoken to already by the chief, and I would echo his remarks. Deterrence applies to some; it doesn't apply to others. If deterrence was the sole purpose of the mandatory minimum for murder, you could make the argument that some people are not going to be deterred by the sentence. Of course, it applies to some but not to others. The reason we have the sentence we do for murder is, in part, because of denunciation by Parliament. So it should apply with respect to gun crimes.

I want to give a few examples of—

[The Chair, Conservative, Art Hanger]

Excuse me, Minister.

[The Hon. Michael Bryant]

Am I up, Mr. Chair?

[The Chair, Conservative, Art Hanger]

Actually you are. But during the line of questioning that will follow, you will have an opportunity to provide some of those examples.

I'm going to allow the committee to question now, and if you see fit—

[The Hon. Michael Bryant]

I know how it works. Thanks, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Excellent.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much

Welcome to the committee.

I recall that in November of last year the former Minister of Justice came to Toronto. I think you were at that announcement, and you were very supportive of the bill at that time.

Just for those who were not present, breaking and entering with an intent to steal a firearm and robbery with intent to steal a firearm were part of that piece of legislation. Our government certainly was in favour of those bills.

Also, as you said, Minister, there are already 42 mandatory minimums in the Criminal Code, give or take one or two.

I was part of putting some of the evidence surrounding guns. I was part of getting that in during my term in Parliament.

Our police chief, just before he ended his comments, said it was the public's perception of safety. That is where the discussion comes in. The public wants to feel safe. You're talking about 500,000 charges every year in Ontario. If you multiply that by the rest of the country....

What do people read about? They read about the extreme acts of violence in the papers. That skewers their perception of the magnitude of the problem. We know there is a divergence with our criminal justice statistics.

I do want to correct something. The current Minister of Justice, when he was at committee the other day, talked about the Liberals wanting to double the mandatory minimums and misapplied that by saying from four to eight years. What we had in our bill were various other charges, where we were doubling the minimum one year to two years. I don't want that misperception to continue.

There are some mandatory minimums that, with a carefully drafted bill, I think the Liberals would be able to support. The way this thing is drafted has some real problems.

You were present, and you heard about the discrepancy between the long arm and the short gun. Those are ideological differences. There is no evidence to really back those up. We've not been presented with any evidence by the minister, or any documentation. What we're trying to do here is an evidence-based analogy. We are also constrained, quite rightly, by section 718 of the sentencing principles of the Criminal Code. There are six sentencing principles in the code, not just the two that seem to be mentioned all the time.

For the record, we had $50 million for the gun violence and gang prevention funds. It was community-based. There was $1 million just in Toronto, just to top up these violence initiatives. Those were the holistic things we heard the chief talk about and be supportive of. We also know that you were involved in that as part of the government of the day.

I'm going to get to the area that concerns me and that directly affects you. In the prisons, it will be the feds paying for the incarceration, but it does affect you as a provincial Attorney General, as the administrator of the courts of justice. The two areas are really of concern. They have been raised, and are continuing to be raised, even later today.

One is the legal aid problem you're facing. You are already in a $10 million deficit here. When the people come to our committee and talk about this, we hear that only people who are facing incarceration are eligible. Yesterday, I read, as I'm sure others did, about the per person capping in Ontario.

I'll tie that up, Minister, and then leave the rest of the time for the Askov situation. Mandatory minimums at the level we see in these bills are going to have an effect that will start at count one. You will not just see it at the third time, when somebody is facing some really...but all the way through. We're being told that you will have more trials. You have Askov problems already.

It's not just “you”; I'm talking about the administration of justice, not you personally.

I need you to address those, and I want to give you this opportunity to do that. I'd also like you to address the similar problem that you have on the gun registry.

[The Hon. Michael Bryant]

On legal aid, it used to be the case that legal aid funding was 50-50, federal-provincial. We have moved far away from that, and legal aid funding has become about 75% provincial, and in some cases 80% provincial and 20% federal. This was one of the three priorities that all provincial and territorial justice ministers conveyed to the federal government at the meeting last fall. The McGuinty government has increased legal aid funding by $25 million over the last three years, so we're doing our bit. That's a 10% increase. Legal Aid Ontario is a $350 million operation.

We have said before that we need federal assistance. Certainly with the passage of this bill, that applies even more so. The federal justice minister is a former provincial attorney general who I know must be acutely aware that if you increase the pressure on the system, you're going to increase the need for legal aid. I think everybody knows that's not about being nice and fair; it's about fulfilling constitutional responsibilities. There is a minimum right to counsel. That requires a certain level of legal aid funding that must be fulfilled by governments.

On pressures on the courts in Ontario, the Chief Justice of the Superior Court has said that we have an acute shortage of superior court judges in Ontario. During the period in which I've served as Attorney General, we've appointed more than 60 superior court judges to the Ontario Court of Justice. The Ontario Court of Justice and the Ontario Superior Court are about the same size. You haven't seen the same complement being addressed by the current government, and we support the chief justice's call for additional appointments to the Superior Court.

On funding, I've already said it will put increased pressure on the system. I want to be clear that our cases are moving through the system right now at the appropriate speed. That isn't to say we don't need to do everything we can to ensure we don't have inordinate delays.

Finally, you asked me about the gun registry. The McGuinty government does not support what the federal government is doing on the gun registry. As I said, we need to do everything, from prevention through to mandatory minimum sentences and post-incarceration. As Chief Blair said, there is a very positive contribution made to public safety by the registry. That's what the Canadian Association of Chiefs of Police and the Ontario Association of Chiefs of Police say, and the Province of Ontario and the McGuinty government support that.

It is a tool used in the provincial crown attorney's toolbox. Is it the magic solution? Of course not. Nobody ever said that. But when a provincial prosecutor looks at the evidence and the charges and makes an assessment, in some cases it is one more tool that can be used in the fight against gun crime--which isn't to take anything away from what Chief Blair said.

I should stop there.

[The Chair, Conservative, Art Hanger]

Thank you, Minister.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm going to speak French.

[The Hon. Michael Bryant]

Okay, I'm ready.

[Réal Ménard, Bloc, Hochelaga, QC]

I know your province is bilingual.

Thank you for coming.

Your testimony certainly promotes your government and demonstrates your will to see the bill improved. There were times when balance was somewhat questionable, but that has been improved towards the end.

The role of the legislator is to make decisions based on convincing and conclusive information. Since we began consideration of this bill two weeks ago, scientific studies undertaken in the States as well as in Canada have been tabled. The studies prove that there is no connection in terms of deterrent between mandatory minimum sentences and the rate of reoffending. This is the issue we have to decide on. Obviously, this does not mean that there should never be mandatory minimum sentences, and no one wishes to see individuals who have committed crimes with a firearm free to roam the streets.

Before you took a position on the bill, in the brief presented to Cabinet, did you, in your capacity as attorney General have access to scientific data or to studies that contradicted this idea that mandatory minimum sentences are not a deterrent? Did you have access to scientific studies that you could share with us, or are we talking about impressions, rather than scientific evidence?

I would appreciate it if you could give me a brief answer because I have two other questions to ask you.

[The Hon. Michael Bryant]

As I said before, there's more than one purpose, but I'd say that the number one purpose is denunciation of the offence. Perhaps I can best answer your question by giving you the example I wanted to give, if that's all right, and it's from the prosecutor's perspective.

For example, an offender committed multiple firearms offences related to the importation of illegal firearms—23 illegal handguns that could cause an enormous amount of harm—from the U.S. into Canada. The MO to avoid detection was to hide the guns in the wheel of a car. They were brought from the United States and destined for distribution in Canada. That means 23 illegal guns were destined for Canada. The accused was participating in a scheme where they exported and trafficked marijuana into the U.S. and then used the proceeds to purchase guns, which they subsequently smuggled into Canada. The provincial crown attorney for Ontario asked for ten years. The sentence handed down by the court was two years less a day, plus two years probation.

Under this bill, not only would the minimum go up, but I would argue that if we get the particular amendment that I spoke to before, it would have an inflationary effect. We base it upon the offences before us, not solely on the wide sociological evidence.