Justice Committee on March 6th, 2023

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Montour.

Mr. Lecky, do you have any comments on the effects of incarceration, even if it is temporary, on people suffering from addiction or mental health issues?

[C/Supt Sydney Lecky]

I'm sorry but I don't quite understand the question.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

How is a person suffering from mental health issues or addiction impacted by being kept in custody?

[C/Supt Sydney Lecky]

Thank you for the question.

There is no question that the underlying issues that have led to bringing people into the police realm and the justice system have to be addressed. If we don't deal with the social issues, including mental health and whatever other circumstances people find themselves in, then clearly we're not getting to the root of the problem and we can expect that it will continue. Sometimes the advantage of being in custody for those people is that it's the only opportunity for them to get the treatment they deserve.

It's an unfortunate situation, but especially here in the Northwest Territories and the territories throughout the north there is a lack of adequate supports in some rural and isolated communities. While we try to solve some of our issues in the southern parts and in bigger cities, my goal is to make sure we don't forget that what may work in the south may not always work in some of the rural northern parts of provinces or certainly the territories.

[The Chair, Liberal, Randeep Sarai]

Thank you, Madame Brière.

Next we'll go to Monsieur Fortin for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Mr. Davis, Mr. Montour and Mr. Lecky, thank you.

The former Bill C‑5 repealed a certain number of mandatory minimum sentences. In Quebec, people have invoked these changes to question the seriousness of the charges that they are accused of. This issue is front and centre for me as we talk about offenders being released on bail.

Moreover, you spoke about the fact that a number of people will use the Gladue principles to try and influence the sentence that they may receive, but also to be released on bail. Obviously, we are talking here about indigenous persons, but some other people may invoke the Gladue principles.

In your opinion, doesn't the combination of all these factors influence the work of the courts who look at all the evidence provided when a decision must be made concerning possible release on bail?

[Chief Robert A. Davis]

Absolutely. If I'm understanding the question correctly, you're asking whether having a scrutiny system in place, some sort of mechanism to scrutinize one's claim of being indigenous, would impact the courts. Absolutely it would be quite labour intensive, but I agree with Chief Montour's comments that there's nothing in place right now. To my earlier comment, once people identify they will compound that by shopping for a JP with a reputation for releasing people on Gladue considerations.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

During certain trials, it has happened that the judge asks counsel to present their arguments and take into account the fact that legislators have repealed the pre-existing mandatory minimum sentence. During the sentencing hearing, the judge informs the lawyers that legislators have abolished the mandatory minimum sentence and asks for their views.

When we're talking about release on bail, is this still relevant? Aren't we finding ourselves in situations whereby the courts will say that because of a decision made by legislators, the act of discharging a firearm with intent is no longer punishable by a minimum sentence? Isn't there also an impact on the courts when it comes to making a decision regarding release on bail?

[Chief Darren Montour]

I think I understand your question, sir.

Looking at the way the courts work on bail and mandatory minimum sentences, as far as Gladue goes, we go to the bail first and they take into consideration the background of the person specifically if they are indigenous. Previous charges, criminal records and all of that play a role in whether or not release is going to be granted or in conditions where the person remains in custody.

As far as mandatory minimums go, from previous investigations I've been part of with mandatory minimums for firearms trafficking, say, there has to be some sort of deterrent. I know that as of late there have been conditional sentences imposed for firearms offences. I don't agree with that, because then we have a repeat of certain serious crimes involving a firearm, and we've both brought forth examples of individuals who committed crimes with firearms and violence in the past being released to commit the same sorts of offences on bail conditions going forward.

I hope that answers your question, sir.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Montour.

Since you are both indigenous, if I have understood correctly, I will ask you this question.

Earlier, when I spoke about the former Bill C‑5 which repealed minimum sentences, the minister stated that the government had done so because there were too many racialized or indigenous people in prisons.

We are obviously all sensitive to the fact and no one wants to have a discriminatory system. However, the statistics don't lie: it is true that proportionately, there are more indigenous than non‑indigenous people in prison. I find myself asking why this is. Is it because the police are targeting these people too harshly? Is it because the judges are too strict? Is it because of a lack of services in the communities that could help these people?

As I am not indigenous, I've always had trouble understanding why this is so, but we are continuously being fed this argument and I would like to hear your point of view on the issue.

[Chief Darren Montour]

Thank you for the question, sir.

I agree that there is that overincarceration of indigenous and other marginalized peoples in custody, but to me that stems from a societal issue in the case of indigenous people, with the residential school system that was in place for over 100 years. I speak specifically about the Mohawk Institute in Brantford, which opened in 1831 and closed in 1970.

There is that intergenerational trauma that has been passed down. The language was lost. The traditions were lost. People forgot how to say “I love you”. That's coming from survivors I have spoken with who were in the Mohawk Institute. That leads to addiction, poverty and lack of education, and then those affected by that turn to crime. It's sad to see, but we still have a responsibility to ensure the public safety of our communities, because 99% of the time the offender is indigenous and so is the victim.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Thank you, Monsieur Fortin.

Next is Mr. Garrison for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I'd particularly like to thank Chief Davis and Chief Montour for reminding us of the impact of incidents like murder of Constable Pierzchala on serving members and their families. I think it's important for all of us to remember that, while these may seem exceptional, they're not exceptional to those in the policing community. Thank you for that important reminder today.

I think most of us around the table have accepted that there's a need to tighten the bail system for certain people—that certain people get bail who should not. One of the things I've been looking at, certainly, is the question of reverse onus on possessing a loaded firearm, because currently that's not a reverse-onus offence for bail.

Chief Davis, you gave us the example of someone who was found passed out, had a loaded weapon and ended up getting bail after that. If we reverse the onus on section 95, it would make it much more difficult for people like that to get bail. Do you think that's one of the things we could do to help tighten this up?

[Chief Robert A. Davis]

Absolutely, yes. That's absolutely a consideration that needs to be taken seriously and implemented: to have that reverse onus.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Chief Montour, would you agree that this would make a real difference in the field if we made it a reverse onus for loaded firearms?

[Chief Darren Montour]

Yes, it would, because more and more we're seeing mainly those trafficking in illicit drugs possessing handguns. I grew up in a society where hunting was a way of life for indigenous people—long guns, rifles, shotguns. As of late, in the last year, maybe two years, every time our drug officers executed a search warrant under the Controlled Drugs and Substances Act, there was a loaded firearm there, and it was a handgun. They're easily hidden in the waistband of those who are accused.

I agree there should be a reverse onus on that section, because we don't need those individuals walking the streets in our communities with loaded firearms, especially if they're under the influence of drugs or alcohol.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I think a second very important point you raised today is the use of sureties. I don't like to personalize things, but if you'd asked my mother whether I should be out of jail, she'd make sure I didn't do anything wrong and her answer would have been yes.

I think the problem, certainly in my own community, is that we often lack any alternatives, so we don't have good, community-based bail supervision programs where a neutral party who was professionally trained could do bail supervision.

I'll start with Chief Superintendent Lecky. Do those kinds of bail supervision programs exist in the Northwest Territories?

I'll ask each of you to respond to that.

[C/Supt Sydney Lecky]

Thank you for the question.

They do exist, although not as often used as could be. When we talk about sureties, a financial surety, that can be a hardship for some of the folks in our communities. When you have other people who will step up as sureties, that is one area where my colleagues and I have noticed and expressed that there are opportunities to improve and perhaps tighten up some of the rules. Currently there really is very little consequence when people don't comply while out on a surety. There are opportunities there to make that better, and that's certainly one of the areas, as noted in my opening comments, that is available and supported by all of our colleagues.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Chief Montour, in your case are those programs available and used?

[Chief Darren Montour]

In cases involving offenders from the Six Nations of the Grand River community, for those who are brought up for sureties, as the superintendent said, there's hardship. There's no cash deposit made. Some of those folks who are designated as sureties should not be.

There needs to be more consultation, mainly with the police service of jurisdiction.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Is there any kind of community-based bail supervision program available?

[Chief Darren Montour]

No. We don't have the manpower or resources to do that. I'll allude back to the commissioner's statement in the Ontario legislature. I feel, as Chief Davis does, that the onus is on the offender to ensure they're abiding by the conditions. They made that promise prior to being released. Society looks at police.... We're not babysitters.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

However, in terms of public confidence I think we do see the public saying, “Nobody is looking.” Even if the public understands police don't have the resources to do that and they don't have that expectation, I think certainly we're hearing from a lot of people that somebody should be.

Chief Davis.

[Chief Robert A. Davis]

Thank you.

Absolutely. What we've seen with the increased release of people on bail conditions is effectively a downloading to the police services of jurisdiction to become professional babysitters where there's a need.

If we want that true supervision, there needs to be an entity, a body, whether that is community-based or similar to the marshals in the United States. There needs to be some sort of body where that's their full-time job: enforcing compliance, checking on compliance and then, when there are violations to compliance, ensuring that the breach charges are laid.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Do you think that would help with public confidence in the bail system overall?