Anger and grief over the death of the 28-year-old Ontario Provincial Police officer. Grzegorz Pierczala in late December sparked calls for tougher bail laws.
The accused, Randall McKenzie, 25, and Brandi Crystal Lynn Stewart-Sperry, 30, face a charge of first-degree murder in connection with the death of the young OPP officer.
McKenzie was released on bail with a warrant issued for his arrest for breach of conditions. His past offenses include several firearm offenses and assault on a peace officer.
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As the community mourns Pierchala’s senseless death, some legal experts are warning against listening to the impassioned and impassioned pleas for change. They argue that stricter bail laws could actually make society less safe — and force more legally innocent people to suffer.
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“We don’t want to throw people in jail who are not found guilty. We don’t want to incarcerate innocent people,” said Michael Spratt, a criminal defense lawyer in Ottawa.
In addition to the risk of keeping an innocent person in jail, Spratt said the use of pretrial detention and denying people bail is something that “disproportionately affects people from lower socioeconomic groups.”
In-depth reporting by Reuters supports Spratt’s claims.
Between April 2015 and April 2016, black people awaiting trial in Ontario jails were there on average longer than white people charged with the same crime “in 11 of 16 crime categories examined by Reuters.”
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On top of that, Spratt said, incarceration actually “increases recidivism rates,” meaning the person is “more likely to commit crimes when they are eventually released.”
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Spending time in custody, even for a short period of time, can cause people to lose income, housing, jobs and social connections, according to a 2014 report by the Canadian Civil Liberties Association.
All of these things are “stabilizing factors,” he said, that contribute to “individual success and community safety.”
“The majority of people who are admitted to pretrial detention face non-violent charges,” the report said.
“There is no trade-off between a reasonable, defensible, rights-respecting bail system and public safety: they are mutually reinforcing goals.”
Spratt expressed a similar concern.
“If someone is cut off from the community, cut off from work, cut off from family, exposed to violence, exposed to negative influences while in custody, they’re more likely to reoffend,” he said.
Are tougher bail laws the answer?
According to Statistics Canada data from 2018-19, on average there were 70 per cent more adults in custody on a daily basis — meaning they were denied bail — than adults who were there because they had been convicted of a crime.
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More than 14,700 prisoners in Canada were there because they had been denied bail and were awaiting trial — meaning they were still presumed innocent — while more than 8,700 people were there because they had been convicted of a crime.
“The vast majority of people in prison are legally innocent,” said Jane Sprott, a professor in the department of criminal justice at Toronto Metropolitan University.
“It’s easy, in hindsight, to point at someone and ask why they weren’t caught, but the problem is we can’t know who will do what with any certainty in advance. And the other side of the coin – the vast majority of people who are released, who do nothing criminal while they are free – is often overlooked.
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Being denied bail can have a serious impact on a person’s life — even though that person has not yet been convicted of the crime they’re charged with, Sprott said.
“If we continue to detain more and more people before sentencing, it is unlikely to have any significant impact on crime, but it will result in significant financial and personal costs, especially for those who end up with all changes withdrawn,” she explained.
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Sprott said she had seen older data from Ontario that suggested one in four people held in pretrial detention “had all charges dropped.” However, they were “probably detained long enough to lose their jobs and housing,” she added.
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Does the denial of bail lead to unfair legal outcomes?
For some of these people, the time they are forced to spend in custody forces them to make some difficult decisions.
“The number of times I’ve had to have such tough conversations with clients where they’re innocent,” Spratt said.
“I tell them they can win their case because the evidence is on our side, but they’ve been denied bail … either because of a past record, or because (they don’t) have a stable address, or because they’re marginalized in some way.”
But then, when his client is told their trial is months away and they could be released today if they plead guilty — despite Spratt’s belief they can win their case — many opt for immediate freedom.
“The incentive to plead guilty and take responsibility for something you didn’t do — even though it means you could get a record or lose job opportunities or lose housing opportunities or lose the ability to travel or being a parent to your children – is so huge because the conditions in prison are so Dickensian,” Spratt said.
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What are the politicians and the police calling for?
Conservative leader Pierre Poilievre held a press conference in the days after Pierzchala’s death to demand the Trudeau government “reverse its arrest and bail policy.”
“In this particular case, the defendant was out on bail after … allegedly committing similar violent crimes, including firearms crimes and crimes against police officers,” Poilievre said.
He focused specifically on Bill C-75, a massive piece of legislation that the Liberal government passed into law in 2019. The bill made a number of changes aimed at reducing court delays, modernizing the bail system and reducing racial overrepresentation in prisons.
Poilievre said the government should ensure that people who are arrested for violent crimes “remain in prison until their trial is over” and, if convicted, “remain behind bars until such time as we can all be assured , that they are no longer a danger to society.”
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Read more: Conservative leader calls for tougher release policies after Ontario police officer killed
He was not alone in calling for tougher bail laws. The Canadian Association of Chiefs of Police (CACP) also released a press release last week calling for “legislative reforms, including the bail process involving violent recidivists and violent firearms offenders.”
Toronto Mayor John Tory made a similar call last week.
“We just can’t let people be put out on the street again and again and again before the paperwork is even ready,” he said.
Feds defend changes to bail system
While Poilievre points the finger at Bill C-75 and advocates highlight the troubling impact of holding people in custody, the federal government is defending the existing bail regime.
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Justice Minister David Lametti was “shocked and horrified” by Piertzhala’s fatal shooting, he said in a statement to Global News.
“I want to express my condolences to his family, loved ones and colleagues,” Lametti wrote.
“Our government will always work to ensure that our criminal laws, including bail law, effectively fulfill their purposes, keep all Canadians safe and are consistent with the Charter of Rights and Freedoms.”
However, Lametti rejected Poilievre’s claims that Bill C-75 has led to an overly lenient bail system in Canada.
“The criteria for when accused persons can be released by the police, a judge or a justice of the peace were not changed by Bill C-75,” he said.
“Bill C-75 simply brought the Criminal Code into line with binding Supreme Court decisions.”
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