- M. Jede (law student)
Knocking Out Gang Violence: Is Imposing Tougher Penalties the Answer?
November 7th, 2018 marked a productive day for the human race. President Trump “became irritated while taking questions from the media”;1 a GoFundMe page raised over $140,000 for a high school teacher who had attacked and beaten a disrespectful student in class the week before;2 and the FDA approved a drug “to make cow poo less smelly.”3 Meanwhile, in the House of Commons in Ottawa, Conservative Leader Andrew Scheer presented a plan to crack down on gang violence that experts are saying “ignore[s] the kind of measures shown to be effective in dealing with gang-related crime.”4
The strategy features five key proposals:5
1) End automatic bail for gang members.
2) Identify gangs in the Criminal Code.
3) Revoke parole for gang members.
4) Impose tougher sentences for ordering gang crime.
5) Create new sentences for committing and ordering violent gang crime.
According to Public Safety Canada, gang-related homicides in Canadian cities have almost doubled since 2013.6 The Conservative party’s plan is a reaction to this sad reality. Unfortunately, such a reaction may be inconsistent with the goal of creating a safer country. Kate Puddister, an assistant professor of political science at the University of Guelph, has stated that “it seems to be written by someone who has… little knowledge of the criminal process.”7
Puddister’s observation seems especially true when considering the demographic gangs are known to target. In Winnipeg, certain gangs are known by police to specifically prey on immigrant children and teenagers who are desperate to feel at home in a new city where they often find themselves pushed to the margins.8 This is a horrifying situation that “has continually evolved and has grown to be more violent.”9 There is no doubt that it needs to be addressed. But imposing harsher punishments that restrict (and even eradicate) judicial discretion is merely a knee-jerk reaction that ignores the root of the problem.
Aspects of the plan may even be unconstitutional. Neil Boyd, a professor of criminology at Simon Fraser University, observed that the plan exhibits a “fundamental ignorance of existing law.”10 In particular, the first proposal (ending automatic bail for gang members) seems markedly problematic in this respect. Forcing this component of the plan into action would directly contravene section 11(e) of the Canadian Charter of Rights and Freedoms: “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”11
Section 515(1) of the Criminal Code establishes that an accused person is entitled to interim release on terms ordered by the justice unless the prosecutor “shows cause, in respect of that offence, why the detention of the accused in custody is justified.”12 The exception to this principle is if the accused has been charged with an offence under section 515(6) of the Code; in such a situation, the accused is entitled to a chance to justify their release.13 Based on the language of the proposed plan, it can be assumed that known gang members would have this reverse onus placed on them even if the crime they committed was not categorized under section 515(6) of the Code. Considering the fact that gang members are often driven into their situation out of desperation for acceptance and protection, it is possible that the best way to reduce gang violence is not to further strip them of the protections available to everyone else in society.
The state of the law which is seemingly ignored by the proposed plan has been neatly summarized in the case of R v Antic:14
 A provision may not deny bail without “just cause”. The right not to be denied bail without just cause imposes a constitutional standard that must be met for the denial of bail to be valid. Lamer C.J. held that there is just cause to deny bail only if the denial (1) occurs in a “narrow set of circumstances” and (2) the denial of bail “is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system”.
Regardless of whether it could be successfully argued that ripping up and stomping on the Charter rights of gang members falls within the definition of a “narrow set of circumstances,”15 this aspect of the plan would fail on the second stage of the two-part test laid out in Antic; it is indisputable that such a denial would be imposed for a “purpose extraneous to the bail system.”16
It seems more likely that gang membership could simply be used as a factor weighing against the accused’s release under section 515(10)(c) of the Criminal Code. This section lays out a non-exhaustive list of factors the court may consider when evaluating whether to deny bail with the goal of maintaining confidence in the administration of justice.17 These factors are: (i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.18 There is already case law demonstrating that it may be reasonable for a court to consider an accused’s gang membership at a bail hearing. In the Ontario case of R v A. (A.), the Court stated: “it is relevant… as to whether or not A. A. has possible membership in the Ottawa area gang membership structure, as it speaks to both his character and to the surety’s ability to supervise him if released.”19
That being said, consideration of gang membership during a bail hearing does not rise to the level of ending “automatic” bail for all gang members in all situations. The effect of the Conservative government’s plan would be to severely limit the judicial discretion currently afforded in these matters. This would risk crippling section 11(e) of the Charter, a provision which is meant to “protect accused persons from conditions and forms of release that are unreasonable.”20