Justice Committee on March 6th, 2023

[The Chair, Liberal, Randeep Sarai]

Thank you, Chief Superintendent Lecky.

We'll go to Chief Robert Davis for five minutes.

[Chief Robert A. Davis, Chief of Police, Brantford Police Service]

Thank you very much for the opportunity to be here today on the very important topic of bail reform.

My name is Rob Davis. I'm the chief of police for the Brantford Police Service. I am very proud to be a Mohawk from the Six Nations of the Grand River. That's where I was raised.

Throughout my policing career, I have had the opportunity to serve in several police organizations across Ontario, in the far northwest, in the isolated communities of Nishnawbe Aski Nation. As well, my career has taken me to Alberta, where I served in the Lethbridge regional police service before I returned to Ontario. I was also seconded to the RCMP for five years. That took me across the country to train police leaders. Throughout my career, I have had a unique lens on how the justice system has rolled out in different provinces.

I have also consciously, in every move I have made, gone to positions where I could stay very involved with indigenous policing, whether it be on reserve or in an urban setting. I bring that experience here because, as we talk about bail reform, I have witnessed first-hand how Gladue considerations, which were initially to be used for sentencing, are now impacting the bail system and, I would say, to be quite candid, are being exploited. It's far too easy for an accused to claim that they have indigenous heritage and thereby be given consideration. I have also observed that in the bail system there is a lack of scrutiny on the sureties that are put forward, quite often, which has become problematic.

The events of Constable Greg Pierzchala's death are very tragic. In the earlier session, Mr. Caputo asked what the officers on the street were saying. I'm going to provide you with an example of what's happening. You can hear it from this officer.

On February 12 in Brantford, Ontario, the community I serve, our officers were sent to an innocuous call—somebody was passed out in a taxicab—at 4:45 in the morning. When they arrived, they woke up the individual. They identified the individual and found out that they were on a release order from January 12, 2023. The individual was to be in the residence at all times, with their surety, and they were blatantly violating it. When they were searched subsequent to the arrest, a loaded firearm was located in their pocket. It was fully loaded, with extra ammunition readily available. The person was held for bail. The latest update I have is that he has since been released.

What really sent chills up my spine was that this location was literally 35 kilometres from where Greg Pierzchala was killed. It would be a 20-minute drive—a 10-minute drive, with lights and sirens, if we were lucky. It's disgusting that this event happened 47 days after his death.

Commissioner Carrique has said that Greg's death was preventable, and here, 47 days later, my officers were responding to the call at 4:45 in the morning in a city that is a commuter town to the GTA. There are a lot of people up and mobile at that time of day, and here was somebody, whom the justice system allowed to be out on bail, carrying a firearm fully loaded. Let's not lose sight of the fact that their lengthy criminal history included numerous firearms offences, violence and a lifetime prohibition. The circumstances of this individual are eerily similar to the circumstances of McKenzie and Constable Pierzchala.

Mr. Caputo, you asked earlier what the police officers are saying: The system's broken. People like this are getting out on the street and are being released when being held for bail. As the police, we are doing our job—trying to do our job—and then, when we have them put before the courts for bail, to be held in custody, they are being repeatedly released.

What is also concerning is that the people see this. The citizens see this. The taxpayers of this country see this. They are losing faith in the system. I hear from citizens all the time that they are losing faith in the justice system. My biggest fear is that this may eventually lead to vigilantism, where people take measures into their own hands to feel safe.

I look forward to your questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Chief Davis.

Next we will go to Chief Darren Montour for five minutes.

[Chief Darren Montour, Chief of Police, Six Nations Police Service]

Thank you for the invitation to appear before this committee.

I echo a lot of what Chief Davis said, wholeheartedly. Chief Davis and I police together on the Six Nations territory. I grew up there. My whole career has been spent on Six Nations of the Grand River. I am Mohawk. I am of the wolf clan. I am very passionate about keeping my community safe. As Chief Davis and Mr. Caputo said, the system is broken.

I look at December 27, 2022, and the death of Greg Pierzchala. I didn't know that young man, but he policed with my junior officers. One of the officers working that day was my nephew. He had just started policing on the Six Nations of the Grand River territory. He worked his way up to become a police officer, from his teenage years. The son of our acting deputy chief was also working that day. It could have very easily been a Six Nations officer who lost his life that day in such tragic circumstances.

I'll go to the Gladue factors, as well. Don't get me wrong. Looking at the history of Gladue, it does work in certain circumstances. However, I'm going to quote here. For repeat violent offenders seeking bail, and in light of everything going on—speaking with Chief Davis about the latest individual released—Gladue factors are outweighing public safety. Going forward.... I hear that from my community and elected council members. They look at Gladue as the “get out of jail free” card.

I've said this to the media on a few occasions. In my opinion, race should not play a factor in the bail conditions of repeat violent offenders. I'll pose a question: If Randall McKenzie were not indigenous, would he have been released that day? I don't know. I cannot answer for the justices involved, but in my opinion and seeing his criminal record.... He was to reside on Six Nations of the Grand River territory. His surety wasn't the utmost choice I would have made. Again, those decisions were beyond my control. My officers responded to calls when he tampered with his ankle bracelet, then was gone into the wind. The response time was 25 minutes. By the time we got there, he was gone.

Jump ahead to October, when he was again wanted by the Hamilton Police Service for other serious offences involving a firearm and a domestic. We checked and knocked on the door again at his surety's place in Ohsweken, on the territory. His mother advised us that she had not seen him since he cut his bracelet off in July 2022.

Jump ahead to December 27, and we have the shooting of Constable Pierzchala. To me, that really hit home, based on what I told you earlier about who was involved. I was on the ground that evening, geared up in my uniform and with my firearm. My fellow officers helped the OPP effect the arrest of this individual. It is heartfelt for me. It is close to home. I hope something changes.

As I said, Chief Davis and I are friends. I know a lot of members of the OPP and Haldimand County detachment are having a very emotional time right now. To me, that is totally warranted, because this has to change. Something has to be fixed.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Chief.

We'll now go to our first round of questions, beginning with Mr. Brock for six minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, Chief Davis, Chief Montour and Superintendent Lecky for your attendance today. This is an extremely important topic. We are trying to produce a report, so the House of Commons can effect change. It's near and dear to my heart, given my previous career.

I'm going to try to split my time as equitably as possible. I will start my time with you, Chief Davis.

We've heard from the Minister of Justice—also known as the Attorney General, or Canada's chief lawyer and prosecutor—who made, in my opinion, some pretty inflammatory comments that could only come from an academic. That's his background—academia. He taught law. He did not practise law in the trenches. We have a couple of prosecutors on this Conservative team right now. I want to separate theory and academia from reality.

Some topics, or some lines the minister has used, are as follows. He said that our bail system is sound and strong; that there's a law that already tells us that, if the accused is a threat to public safety, they should not be released on bail; that it's erroneous to attribute recent events such as the killing of the OPP officer to Bill C-75; that Bill C-75 made it harder to receive bail; and that individuals are not supposed to get bail if they fall within the enumerated classes under section 515 of a flight risk, a danger to the community and where the administration of justice will be brought into disrepute, known as the tertiary grounds.

That's theory. Let's talk about reality. What do you say?

[Chief Robert A. Davis]

Thank you, Mr. Brock.

The example I gave, I think, speaks volumes. Greg Pierzchala was killed on December 27. The individual in the example I gave had committed an offence, was held for bail on January 12, was released, violated his bail when the officers in Brantford dealt with him on February 12, had a lengthy record for violence and firearms and a conviction for manslaughter, but was out on bail. The reality is that it's not working.

The focus is on police officers now because of the death, and I get that. However, in this situation, this was a person passed out in a cab, so what about that poor cab driver who was out there trying to make a living and the risk to their safety and the average citizen's safety in this country?

[Larry Brock, Conservative, Brantford—Brant, ON]

I'll say quickly that, in my previous career, I often heard it said that the accused know how to game the bail system. Can you elaborate on that in the context of the application of Gladue?

[Chief Robert A. Davis]

Quite candidly, people through their lawyers will shop for a justice of the peace who's going to be very lenient with respect to the Gladue considerations, and the minute someone identifies as indigenous, there's a very high likelihood they're going to be released with minimal conditions. You see this shopping quite regularly.

[Larry Brock, Conservative, Brantford—Brant, ON]

I'll go over to you, Chief Montour. I don't know if this was attributable to you or to Chief Davis, but Gladue is being exploited. Please expand upon that from the perspective of the accused but more importantly from the perspective of the community.

[Chief Darren Montour]

From the perspective of the accused, as Chief Davis said in his opening statement, there's no requirement for these offenders to prove they are indigenous. They're taken at their word, and there are individuals—

[Larry Brock, Conservative, Brantford—Brant, ON]

Can you elaborate on that, please? What does that mean, that they are just taken at their word?

[Chief Darren Montour]

They provide no proof that they are indigenous. They could have great-grandparents who are indigenous, and that factors into whether or not they receive bail based on the Gladue considerations. I have to ask how many generations after residential school factors into those people undergoing intergenerational trauma. Some people are using this as a crutch, and to me that hits home because of the people we deal with on the territory. We know our community. We know who grew up there. I know practically all of the people my age. If I don't know someone, the younger generation does, yet we hear of these people explaining to justices of the peace, through their lawyers, of course, that they are indigenous.

I scratch my head and wonder why we are not asking for proof or asking them to provide some sort of background information on their ancestry.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you.

I'll turn it over to you for my time remaining, Superintendent Lecky. I was quite interested in your commentary with respect to the number of breached charges—undertaking, recognizance, breach of probation, failing to appear—key grounds that will allow any justice or judge to detain an individual. You cited that in one particular city 50% of those charges were being stayed, withdrawn or dismissed. What does that say? What kind of communicative piece is that giving to offenders across this country, but particularly in your jurisdiction?

[C/Supt Sydney Lecky]

Thank you for the question.

One of the frustrations that police officers have expressed in my time with the Association of Chiefs of Police, as have many other colleagues we work with, is that quite often the charges that are proposed, such as for failing to appear or for many breaches are either dealt away or stayed. It's very frustrating, because those are the very charges that are used to support holding and detaining a client in custody. It becomes that much more difficult to be able to proceed if you can't use some of the very grounds that we would use when all the other tools have been reduced and/or taken away. That's just another tool that's been made less effective, which means that offenders will not have that on their criminal records when judges or JPs look at those for consideration and bail. It exacerbates the problem of what we would consider the repeat offenders being released and rearrested.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

Next we'll go over to Madame Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

I will ask my questions in French. Do you have the translation?

Okay.

Dear witnesses, I would like to start by extending my deepest sympathies following the loss of your colleagues. It must be difficult to work under such circumstances, and I thank you for all that you do.

Mr. Lecky, in your opening statement, you provided some statistics about one of the 11 divisions that are involved in frontline police services. Do you have any statistics concerning the other divisions?

[C/Supt Sydney Lecky]

Thank you for the question.

The short answer is that the RCMP is in the process of collecting and collating information as we speak. That information will be supplied to our public safety minister to assist him and the justice minister as they move forward in the bail reform process.

I don't have any others at this time.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Alright, thank you.

Earlier, the minister stated that it was necessary to not only make legislative changes, but also to improve mental health supports and addiction programs.

Mr. Davis, can you talk about the effects of being held on remand on people who are suffering from mental illness or addiction?

[Chief Robert A. Davis]

Can you clarify the question? Is it the impact on the offender or for...? Can you clarify that, please?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

My question is about the person being held on remand.

Can you talk about the effects of remand on a person who is suffering from mental health or addiction issues?

[Chief Robert A. Davis]

A comment was made earlier that there is a lack of services available while people are being held in pretrial custody, and I would suggest that this is accurate. That's an accurate statement. It's also been my observation that, even if a person is convicted, there's still a shortage of services in the institutions. The impact on the offender is that they're still in crisis, if you will, having to deal with the addiction issue or the mental health issue.

Incarceration is not necessarily the answer. It has to be done on a case-by-case basis. We have to do the analysis on a case-by-case basis. That's where we have to always put public safety and the risk to the community.... That has to be paramount.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

Chief Montour, do you have anything to add?

[Chief Darren Montour]

I echo Chief Davis's comments.

We look at the mental health stability of a person upon arrest, if that's the case. If it's more stringent that they seek professional medical help for their mental health status, we ensure that they go for a mental health assessment first.

As far as the addiction issue goes, we arrest and we charge. I know first-hand from dealing with certain individuals that the addiction is still there. To me, this becomes a community initiative where agencies—I'm speaking specifically for Six Nations of the Grand River—have to work together.

Enforcement is one spoke in the wheel. We enforce the laws, charge accordingly and ensure the safety of the community, whereas social services, health, Six Nations mental health come into play here, having a community-type process where we can actually help those individuals. Obviously, they are in a crisis at the time we deal with them, and we want to ensure that the public is safe, for one thing, as well as those individuals.

As Chief Davis said, every situation is unique.