Handgun bans. Anti-gang crackdowns. Easy bail. In Toronto, as the number of people killed or injured in shootings continues to surge, such terms are often used by municipal leaders, politicians, police. But what do we really know about guns, gangs, and possible solutions to a growing violence problem? This is the last article in a series that has aimed to find answers … and to find out when we don’t know the answers … to some life-and-death questions.

In October 2018 police responded to a call about a loud fight between a man and a seven-and-a-half-month pregnant woman at a Toronto apartment.

The 20-year-old woman answered the door crying, according to a summary of the allegations read in bail court by the Crown. A loaded handgun was allegedly found on the man during a search, and some drugs and ammunition were found in the apartment.

Both the man and woman were charged with gun and drug offences including possessing a loaded, prohibited firearm. It was alleged the woman was aware the gun was in the home.

After four days in custody the woman, who had no criminal record, had a bail hearing where the Crown argued she should be denied bail because she could commit further offences and her detention was necessary to maintain the confidence in the administration of justice given the serious gun violence problem in the GTA.

It’s standard for Crown attorneys to take a hard line at bail hearings for those accused of firearm-related crimes.

At the time of the woman’s arrest, there had been a yearly increase in shootings in the city. According police, there were 236 people killed or injured in Toronto shootings in 2018. The trend has continued into 2019, with the city on track for a record high in shootings and shooting-related injuries.

Over the past few months, Toronto police Chief Mark Saunders and politicians have placed some of the blame for the rise in gun violence on the bail system, suggesting it operates like a revolving door for accused criminals.

Saunders has called on judges to “focus a keener eye on community safety” and for changes in the law to make it tougher to get bail, especially for repeat gun offenders.

This has been echoed by Premier Doug Ford who recently said “once we catch these criminals, we have to lock them up and throw the key away,” and Mayor John Tory who said in a news conference in early October: “I don’t know what it’s going to take to get the message across to all of those involved, the lawmakers and, I say respectfully, the judges.”

Last month city council passed a motion that expressed support to the federal government for increased bail restrictions.

Critics have responded that it is already very difficult to get bail on gun charges, especially with a prior history of violent or gun-related offences, and say the statistics cited by the police about defendants reoffending while on bail are misleading or lack crucial context.

In the case of the woman arrested in October 2018, Ontario Court Justice Richard Blouin released her on a house arrest bail, with her mother as a surety, because of the “presumption of innocence, and the fact that at trial, she may be found not guilty of any of these offences.”

Over the next eight months the woman returned to court to obtain bail variations to allow her to leave the house unaccompanied by a surety to be at the hospital to give birth and for baby-related tasks.

Eight months later the Crown dropped all charges during the preliminary hearing, noting there was no reasonable prospect of conviction.

“It was a very troubling situation,” her lawyer Emily Dixon said, adding that she argued the arrest should never have happened in the first place, particularly in a case where there were concerns about domestic violence.

The woman’s case, she said, shows the complexity that underlies the rhetoric about who is released on bail on firearm charges and why. Meanwhile, experts say the limited data we have isn’t enough to know whether community safety is being affected by accused people getting bail on firearm charges.

Here is what we know — and what we don’t — about how much of the city’s gun violence problem can be linked to people out on bail for firearms charges.

What is the process for seeking bail on a firearms charge?

It is difficult to get bail on gun charges, according to long-time defence lawyer Reid Rusonik. Rather than simply being heard in bail court, a special bail hearing must be scheduled sometimes several days after the charge is laid, with a specialized Crown attorney who will argue the person should be detained.

In order to get bail on a gun charge, you have first to satisfy the court you’ll attend your court dates and are not a flight risk, he said. Then you have to show, through a release plan involving one or more sureties, that you can be supervised in a way that would make obtaining or using a gun impossible, and that there won’t be a risk to public safety. Then you have to satisfy the court there is a real chance you won’t be convicted of the offence. If it’s a strong Crown case and you are facing significant jail time, you are going to be detained.

“The only people who are getting bail on gun offences have shown there is a viable defence to the charge,” he said.

Rusonik said the picture Chief Saunders has presented is “wildly different” to the experience of the criminal lawyers at his firm and others who have law offices in the same space. In a news conference at the end of September as part of an anti-street-gang initiative, Saunders said that two people on bail on firearms charges were rearrested on new gun-related charges and released on bail again. In a 30-year career, Rusonik said he has never had a client on bail on a gun charge who was rearrested on a new firearm charge and then released on bail a second time, nor has he ever heard of it happening.

How are prosecutors told to handle a bail hearing involving a firearm offence?

The guidelines for Crown attorneys tell them they must seek detention at a bail hearing for an individual charged with a firearm offence unless there are exceptional circumstances — and even then they must first seek approval from a superior before recommending to the court, or consenting to, any form of release.

The Ontario government has also rolled out intensive bail teams at courthouses in Toronto and recently announced one for Peel Region to specifically handle bail hearings for firearm-related offences, with the goal of ensuring that bail is denied for people charged with violent offences, according to a government news release last year.

“Those who commit violent gun offences belong behind bars, and not on bail,” said Caroline Mulroney, then Ontario attorney general, in the release.

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Attorney general Doug Downey, who succeeded Mulroney in June’s cabinet shuffle, said the purpose of the bail teams is to ensure that the “absolute best evidence” is put forward at the bail hearing about the alleged offence and the accused person so that the judge or justice of the peace can make a fully informed decision about whether they should be released.

Who tracks statistics relating to people reoffending while out on bail?

The Ministry of the Attorney General, which is responsible for managing Ontario’s court system, maintains some basic statistics relating to bail, but the data is not specific enough to determine whether many individuals are reoffending while out on bail.

For example, the ministry does not track statistics relating to the number of people who are granted bail for firearm offences that went on to be charged with a new offence, or the number of people charged with a firearm offence while released on bail.

The province does track the number of people who are granted or denied bail for firearm-related offences. Province-wide statistics for 2018 provided to the Star by the ministry show that 39 per cent of cases resulted in the person being detained; 30 per cent of cases led to the person being released at the bail stage; and 31 per cent of cases involved individuals who were released at the police station after their arrest.

The Toronto Police Service has provided some numbers since August when it launched Project Community Space — its crackdown on the spike in shootings that Saunders recently extended.

According to police, there were 399 individuals in Toronto who were on bail for firearm-related offences as of Oct. 31. Police have also said that between August and September — the early phase of Project Community Space — police arrested 53 individuals who were on bail for firearm-related offences. The bulk of those individuals were arrested for a new offence other than a firearm offence. Of the 53 who were arrested, 29 were kept in custody while the other 24 were bailed a second time. Two of the 24 were bailed after being charged with a new firearm-related offence, but police did not provide specifics about the nature of the offence.

Police said the new charges laid against the 53 included assault, assault with a weapon, break and enter, possession of a firearm, drug offences, robbery with violence, failing to comply with a recognizance and sexual assault. A spokesperson said police could not provide a full breakdown of the charges each individual faced.

Do the numbers tell us if there’s a problem with people reoffending while on bail for gun charges?

The data indicates how many people have been granted or denied bail for firearm-related offences, but there isn’t enough evidence to determine whether a significant number of people are reoffending while on bail. Experts say better data is needed in order to conclude whether or not the bail system actually needs to be revamped.

“To make that connection without evidence creates a dangerous situation where persons might think that the court system is more lenient than it is, it might undermine people’s confidence in the justice system more generally and it creates a prejudicial environment for a person charged with a crime but not convicted of a crime. They have a right to due process and the presumption of innocence,” said University of Toronto criminologist Julius Haag.

Haag pointed out that some individuals can face multiple charges, and so the information from police doesn’t provide a full picture of the situation. He also highlighted that failure to comply with bail conditions — which can range from anything from a curfew to abstaining from alcohol to staying away from a certain area — is a fairly common criminal charge.

“There are a lot of situations where people unintentionally and intentionally violate their conditions,” he said. “It’s also been documented and seen that the police have the practice of laying multiple charges in a situation and following review by the Crown it could be that a number of those charges don’t go forward. We’d have to consider the strength of these charges when considering these situations.”

Will the government commit to collecting more comprehensive statistics when it comes to bail and firearm offences?

In a recent interview with the Star, Downey, the attorney general, left the door open to the collection of more comprehensive statistics but wouldn’t commit to it.

“I like measuring things, I like making decisions based on facts,” Downey said. “We have to make sure that we’re doing any kind of collection properly, we’re well aware of what happens when we don’t. I wouldn’t categorically say we’re not interested in collecting them, we would have to have a proper discussion.”

Based on what we know, what impact could “tougher” bail restrictions have on gun violence?

University of Ottawa criminology professor Irvin Waller said it’s “disappointing that there is no real data to see the extent to which the police chief is correct and the extent to which the defence lawyers are correct” when it comes to bail.

“There may be some cases in which a person living a street gang lifestyle has been released on bail and got re-involved, but this does not account for the level of homicides that we’re seeing in Toronto for the last three or four years, and for the shootings that are continuing,” Waller said. “The answer is we have a lot of knowledge, a lot of science about what leads to street gangs and gun violence and what are the solutions …. Police catching somebody plays a role, but the most important factors that could lead to a 50 per cent or better reduction have to do with tackling the risk factors that lead to this sort of violence.”

The Criminal Lawyers’ Association has pointed out that there is already an incarceration problem in Ontario, with a whopping two-thirds of the jail population comprising people who are awaiting trial or sentencing, according to Statistics Canada figures for 2017/2018.

“Our bail laws disproportionately impact particular segments of the Canadian population unfairly including racialized and marginalized defendants. Chief Saunders’ views on bail are not founded in statistics or law and perpetuate dishonest myths about our bail system,” said association vice-president Daniel Brown. “The key to curbing gang activity is to stop young people from turning to gangs in the first place. Investing in social and educational programs as well as employment opportunities is a must. At-risk youth need a meaningful alternative to the corrosive, violent existence of the gang lifestyle.”

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