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| John L. Hill |
“I challenge the court system to hold offenders accountable at every stage of the process,” VandeGraaf said in a statement issued by Cobourg police. VandeGraaf has been a critic of what many have called a “catch and release” system, where it is alleged that bail courts are far too lenient in releasing dangerous offenders on bail after police have done their job of bringing them into custody. In taking this stance, the chief is in lockstep with Ontario’s provincial administration.
The Canadian Press has reported that Ontario is requesting a series of specific measures from the federal government to tighten bail and sentencing rules, as Ottawa approaches tabling legislation to reform those aspects of the justice system.
Ontario Solicitor General Michael Kerzner and Attorney General Doug Downey issued a joint statement urging the federal government to implement reforms. They stated, “We are writing to convey Ontarians’ expectation for comprehensive and wholesale solutions, rather than tinkering around the edges.” They added, “It is critical that federal legislation meets the standard Canadians expect: cracking down on crime and keeping violent, repeat offenders behind bars where they belong.”
The Ontario government specifically suggests removing the possibility of bail for people charged with crimes such as murder, intimate partner violence and some firearms offences; reintroducing mandatory minimum sentences for “serious” crimes; and implementing a “three strikes” rule that denies bail to repeat offenders and makes more crimes, such as violent home invasions, carjackings and human trafficking, reverse onus offences.
Are these statements “good faith” proposals to enhance public safety, or are we witnessing yet another episode of “the blame game”? One of the main reasons bail is granted more freely is that conditions in Ontario jails are poor. The province’s detention centres are facing an overcrowding crisis, with some facilities operating at over 150 per cent of their intended capacity. This overcrowding creates serious safety and security risks for inmates and correctional officers working in the jails.
In July, CBC reported on Kerzner’s announcement that three jails would be expanded. Both the Niagara Detention Centre and the Vanier Centre for Women in Milton, Ont., would add 50 spaces. At the same time, the Cecil Facer Youth Centre in Sudbury, Ont., would be converted into an adult facility. However, the announcement was not an admission that Ontario’s jails are overcrowded, but rather it signalled the Ontario government’s view that, in Kerzner’s words, “If you commit a violent crime in Ontario, you will be caught, you will be prosecuted, and you will be locked up.”
Canada’s Justice Minister Sean Fraser has indicated that legislation on bail and sentencing reform will be introduced in the House of Commons shortly. It will be interesting to watch if the federal government takes the bait and includes a “three strikes” provision in its amendments to existing legislation. The likelihood is that it will not.
The Supreme Court has struck down or limited mandatory minimum and reverse onus or presumption provisions in criminal law that could be components of a “three strikes” law. For example, in R. v. Nur, 2015 SCC 15, the court held that certain mandatory minimum sentences for firearm possession contravened s. 12 of the Charter (cruel and unusual punishment) and could not be justified. The court has generally been skeptical of overly rigid mandatory minimums and reverse onus provisions that shift too much burden away from the Crown. This suggests that a draconian “three strikes” law would likely face serious constitutional challenges.
Such laws could also face significant Charter challenges for infringing on rights generally accepted, such as the presumption of innocence. The reverse onus violates the principle that the Crown must prove aggravating factors beyond a reasonable doubt during sentencing. Additionally, such legislation might be seen as arbitrary; it could establish unfair distinctions, like treating offenders with three offences differently from those with fewer and may include non-dangerous offenders. This kind of regime could be accused of cruel and unusual punishment. The law’s broad scope risks disproportionate consequences, especially for offenders who may not meet the high threshold of dangerousness.
The federal government has already stated that there will be reforms, but these reforms will be in accordance with the Charter and Constitution of Canada.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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