Thank you, Mr. Patry.
Good morning, and thank you for the opportunity to appear before you as you deliberate on BillC-35. Looking around the room, I know that I've appeared before some of you, but for those I haven't, my background informs what I say, and I'll tell you a tiny bit about it.
I just wrapped up a 30-year career in law enforcement last year at the Toronto Police Service. My last posting was as a detective sergeant in the homicide squad, where I managed the retroactive DNA team in the major case management section. During my career I worked in both plain clothes and uniform, including stints in the drug squad in the early 1980s, and at the first-of-its-kind street crime unit in the early 1990s. It was a community-based education enforcement hybrid that partnered with local high schools for the purpose of tackling youth violence and gang crime in schools and communities. The original model that I participated in the development of has been copied in whole or in part in many communities across the country.
The last six out of seven of my years at the police service I spent on secondment to the Ontario Office for Victims of Crime, an advisory agency to the provincial government. We provided advice on public safety, support for crime victims, and criminal justice reform to several attorneys general and other justice sector ministries in two governments.
I'm going to touch on some of the points that the Canadian Centre for Abuse Awareness believes are pertinent in relation to Bill C-35.
Are the proposed amendments appropriate? The Criminal Code currently provides for reverse onus to switch the onus or burden of proof from the Crown to the accused when bail is being considered. It includes a variety of offences, and I think you know all of them, including certain offences perpetrated against the state as set out in section 469, an indictable offence committed while the accused was already on bail, certain organized crime and terrorism offences, offences committed by an accused who lives outside of the country, murder, and certain drug trafficking offences. It should be noted that this onus with respect to both the Crown and the defence is decided based on a balance of probabilities.
Despite the pronouncements in sections 7 and 11 of the charter, the Supreme Court has supported these provisions, as set out in two cases, one called Morales, and one called Pearson. Morales in particular determined a number of points, including that the right to be presumed innocent, as set out in section 11 of the charter, was not a relevant factor at bail hearings. In other words, guilt or innocence was not being considered, and punishment or sentence was not being imposed. Rather, the hearing was about granting preventive detention or not. The court ruled that public safety was an appropriate ground for denying bail. The court also ruled that the reverse onus provisions continued to be valid.
The court determined that the so-called public interest portion of the section was too vague and, as a result, unconstitutional. After that ruling, Parliament amended that section and it stated the following--and I think it's important:
on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
This was added to the original clauses. Pearson made some of the same kinds of decisions.
As you know, in the sections currently contemplated in this bill are offences that involve carrying and using guns in the commission of serious firearm offences and that carry a minimum sentence of three years and up, some more than three years. As a result, they should fit in section 515 in relation to reverse onus.
Is violent crime on the rise in Canada? When it comes to statistics about crime rates, a whole lot of cherry-picking goes on. Criminologists, lawyers, law professors, and other academics are quick to remind you about sticking to the facts and getting it right. I certainly agree with them, but sometimes they're guilty of relying on short-term or year-to-year increases or decreases to make their cases. This can be misleading and inappropriate.
A check of the violent crime rate, calculated on the basis of 100,000 population and dating back to 1962, shows the rate for violent crime of 221 per 100,000 in 1962 increasing to 1,084 in 1992, and levelling off since then to slightly under 1,000 for the past nine years. This is an extraordinary increase by any measure, and the levelling off that has taken place over the last dozen years still has us light years away from the good old days. When one considers the new vocabulary of crime that exists today—and more on that in a moment—this extraordinary rise since 1962 is significant, and I don't think we can go to sleep.
Although the CCAA does not have access to corresponding long-term tables for firearms offences, we are confident that, if available, they would mirror or exceed the general violent crime rate, where similar offences are tracked. The CCAA strongly encourages the committee to obtain from department officials the same long-term tables in relation to firearm-related offences.
Law enforcement officers and other professionals working on the front lines of the criminal justice system know intuitively that there are a small number of offenders who commit a disproportionately large number of serious and violent crimes. They also know that a large number of serious violent crimes are committed by offenders out on bail or other forms of conditional or judicial release.
The LEGISinfo discussion paper prepared for this bill commented as follows:
According to statistics cited by the Government of Canada, of almost 1,000 crimes involving firearms or restricted weapons committed in Toronto in 2006, “nearly 40 per cent ... were committed by someone who was on bail, parole, temporary absence or probation.” According to the Toronto Police, 70% of people charged in a homicide in 2006 were under a court order at the time of the slaying.
The CCAA is confident that if these numbers were parsed, many offenders responsible for the commission of serious violent crimes would be found to have been out on bail or another form of conditional release at the time of the offence, including out on bail where firearms were used in the predicate offence. Again, the CCAA recommends that this committee obtain from department officials any information available in relation to these issues.
What about gun play in Toronto in the past 30 years? We want to provide an anecdotal sense of the history of firearm crime in Toronto. We suspect that the same things were occurring in other urban jurisdictions across the country.
I had a unique perspective as a law enforcement officer in the Toronto Police Service from 1976 until 2006. In those early years it was exceedingly rare, even in the busiest downtown divisions, that offenders were arrested in possession of illegal handguns or semi-automatic weapons. Even the most organized narcotics and drug traffickers did not carry or possess these kinds of firearms. I know; I worked in the drug squad. Uniformed, plainclothes, and undercover officers rarely confronted these kinds of weapons.
That changed in the late 1980s and coincided with the crack--that is, freebase cocaine--trade. It continued in the early 1990s and onward with the proliferation of American-style street gangs, usually arranged along ethnic lines, which now commit crime in support of territory and profit.
The results are in full view, often in areas where socially assisted housing predominates and from time to time on our crowded downtown streets: drive-by shootings, shots fired because of a perceived disrespect, brutal and often random home invasions, no self-respecting crack dealer who will leave home without his trusty Glock pistol or 9mm handgun, and whole communities marginalized and living in fear. We have a new vocabulary of violent and brutal crime, and the violent crime statistics I gave you earlier reflect that reality.
Most Canadian citizens neither witness nor experience the gun and gang play that exists in certain urban settings. They often see it only when they tune in to the nightly news. But for a large minority struggling in the lower social strata, the gun and gang play is all too real, wreaking havoc on communities and those who reside in them. It is not hyperbole to suggest that for some, guns and gangs have reduced their communities to virtual urban warfare danger zones, where if you don't join the bad guys, you keep your head down, hope for the best, and pray that you or one of your family members doesn't get shot.
What about stitches for snitches? Against the backdrop described above is the tremendously powerful credo that you don't rat or snitch to the police, ever. This notion has been alive and well for a long time. Started by prison inmates and organized crime groups, it is a particularly powerful social dynamic that has enveloped the communities described above. Urban law enforcement agencies have tremendous difficulty getting witness support where guns and gangs are involved. It is likely the single greatest reason why these offenders are not being brought to justice in the most serious of cases, particularly for homicide.
Allowing offenders who use firearms to get out on bail when they shouldn't contributes to further undermining the administration of justice. And it drives witnesses and victims, if they're still alive, further underground. This problem is not going away anytime soon.
In conclusion, this proposed amendment has received a significant degree of support from a wide variety of stakeholders. Those who possess and use firearms, as set out in this bill, have made very specific choices about how they choose to lead their lives, more so, at least from a public safety perspective, than any nickel-and-dime pot dealer. When you decide to pick up a firearm to use in a crime or as a tool that forms part of your criminal arsenal, you may not know how long you're going to jail for, but you certainly know the consequences if you fire that weapon, and you have made a clear choice. You have to know that serious violence and catastrophic victimization might occur.
The CCAA hasn't and wouldn't support any recommendation that attacks one of the fundamental principles of our justice system: the presumption of innocence. It is a cornerstore of the Canadian criminal justice system. The question we pose is, where do you draw the line? We would suggest that reversing the onus for a small number of similar offences involving firearms that all carry a significant minimum mandatory sentence is an appropriate place.
We would suggest that this is a legislative tweak rather than a dramatic shift in how the law is applied when it comes to bail. At the end of the day, it will still fall to our courts to decide on a balance of probabilities whether the accused should be held pending trial or not. Let us provide those same courts with this small tool to help in making decisions in support of enhanced public safety.
We encourage all members of this committee and all parliamentarians to work together to pass the legislation.
I've left copies of my brief with the clerk, and also a copy of the table with respect to the rise in violent crime.
Thank you.