Ontario’s new Attorney General Caroline Mulroney is going to face a steep learning curve when it comes to criminal justice issues. And she had better learn quickly because there is indeed a crisis in Ontario’s criminal courts. Cases take too long to complete, current systems and procedures are antiquated and inefficient and the chronic underfunding of the legal aid system has resulted in unprecedented levels of unfairness and injustice.
Mulroney, by all accounts a skilled and intelligent lawyer, has never practised criminal law. In fact, she has never practised law in Ontario at all. It is difficult for a general to know what life is like in the trenches when they have never set foot on the battlefield.
In addition to her inexperience, if Mulroney is to be successful, she will need to overcome the handicap of knee-jerk Conservative ideology. Heavy-handed criminal justice responses to complex social problems was a defining feature of the Stephen Harper government. For a decade, Ottawa ignored evidence-based justice policy in favour of tough-on-crime rhetoric. The results were predicable — unconstitutional laws, clogged courts, ballooning justice costs and a dumbing down of important social policy discussions.
Unfortunately, it did not take long for Mulroney to give in to the siren song of simplistic, political, uninformed and counterproductive approaches to criminal justice.
After a cluster of shootings over the Canada Day weekend, Toronto Mayor John Tory demanded that the provincial government “toughen up bail guidelines” for gun crimes. Tory doubled down on his bail rhetoric, saying, “We can’t have people getting out on bail 20 minutes after they’re arrested for using a gun.”
He demanded that Mulroney instruct her Crown attorneys to deny bail to accused criminals with a prior record of convictions for gun crimes.
Before we get to Mulroney’s response, I’ll let you in on a secret: No one accused of a gun crime is released on bail 20 minutes after their arrest — not unless the accused is a police officer.
Tory presented no evidence that the recent Toronto shootings were committed by suspects who had been released on bail. And he seemed content to ignore the fact that it is judges — not Crown attorneys — who make final decisions about bail. In fact, for years, Ontario’s Crown attorneys have been instructed that they must seek a detention order in all cases involving firearms offences, absent exceptional circumstances.
Mulroney could have responded to Tory’s counterfactual rhetoric with the authority and dignity that should come with her office. She could have told Tory that his “easy answers” are not supported by the criminological evidence. She could have pointed out that there is no evidence that any of the Toronto shootings were committed by someone out on bail for a previous shooting. She could have acknowledged that firearms offences are serious but pushed back on Tory’s strawman 20-minute bail arguments. She could have calmly explained that real solutions to gun violence involve building relationships with communities, tackling the hopelessness and poverty that plague our cities and progressive drug policies including robust addiction treatment.
Instead, Mulroney blamed the federal government, saying that both the city and the province are “dealing with a federal bail system that is letting too many violent criminals back into our streets.
“This absolutely has to change,” she said.
Mulroney then demanded a meeting with federal Justice Minister Jody Wilson-Raybould to discuss bail reform.
Mulroney has not elaborated on what kind of changes she would like to see at the federal level. Serious gun crimes and offences committed while on bail are already subject to reverse-onus bail provisions. This means that, unlike other offences, it is the accused who must satisfy a court that they are safe to release — not the state that must show why they should be detained. It is already the case that serious offenders will be detained if they pose a risk to the public. Heck, federal law also allows serious offenders to be detained even if they don’t pose a risk to the public but if their release would nonetheless undermine confidence in the justice system.
So, what sort of bail reforms does Mulroney want?
My guess is that she has absolutely no idea. My guess is that Mulroney sees a political firestorm and also a political opportunity. Shootings are scary and, despite the fact that crime rates are at historic lows, it is easy for people to give into fear when shots ring out in their neighbourhood. It is easier for politicians to peddle tough-on-crime misinformation to voters than to explain complicated and nuanced long-term solutions. And what better way to satisfy a Conservative base then take disingenuous shots at a federal Liberal government.
It is disappointing that Mulroney’s first act as Ontario’s attorney general was to continue and encourage a troubling trend of cheap, reactionary and ineffective justice balderdash. Ontario’s justice problems are simply too big for the same old political solutions. If Mulroney can’t resist the temptation to fall into Harper-like justice policy, it will be a long four years, and at the end of her term, Ontario will be a more dangerous province.
Originally Published in Canadian Lawyer Magazine
