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A public feeding frenzy created by politicians, police, media

|Written By Shannon Kari - Law Times

Recentcomments by politicians and police that the courts are not treating gun crimesseriously, especially in Toronto,are simply not accurate, say many defence lawyers in the city.

Defence lawyers say judges and Crowns already treat crimes involving guns more seriously, and the presumption of innocence must remain strong.
Defence lawyers say judges and Crowns already treat crimes involving guns more seriously, and the presumption of innocence must remain strong.
Suggestions that sentences are too light and defendants too frequently granted bail followed widespread media coverage of a wave of shootings in Toronto this summer, including one in which a four-year-old boy was wounded.

Ontario Attorney General Michael Bryant responded with a "four-point plan." It included "blitz" inspections of gun shops, a weapons amnesty program, improving the witness protection program, and a stated intention to use "community-impact statements" at sentencing hearings.

Toronto police Chief Bill Blair placed the blame on justices of the peace in highlighting the case of Damian McBean, a 23-year-old man who was granted bail on weapon possession charges in May, only to be arrested with a similar offence last month.

"This is a good example of what is going on with the system," said Blair to local media, as he described McBean's bail conditions as "absurd."

The criticisms were echoed by Toronto Mayor David Miller, who said the McBean case was "not acceptable" and appeared to suggest that bail should never be granted in a gun possession case.

"I thought David Miller had more common sense than that," responded defence lawyer David Bayliss, who represents McBean. "Why don't we just throw out the Charter of Rights in Toronto?"

McBean was granted bail because he had no criminal record or outstanding charges, said Bayliss. The terms of the bail included virtual house arrest, with the accused allowed to leave home only with his surety. The Crown did not seek a review of the bail, and McBean was already arrested and in a police car when three co-defendants are alleged to have shot at police.

"There is no context to any of this. The treatment of gun offences in Toronto has always been treated seriously by Crowns and judges," said Bayliss, who suggested that police, politicians, and the media are all feeding off each other to "whip the public into a frenzy."

"If a [gun] crime deserves a significant sentence, the Crown will get it," said Katrina Mulligan, a director of the Ontario Criminal Lawyers Association.

It is already understandably difficult for a defendant to be released on bail after being charged with a gun offence, said Mulligan.

"The court is automatically nervous," she added.

Miller, who was a civil litigation lawyer before entering municipal politics, said he was not

calling for a denial of bail in every gun-related crime.

"Of course there is a presumption of innocence. But it should be very rare to get bail," Miller told Law Times.

As of Sept. 8, there were 51 homicides in Toronto this year. In each of the past five years there were 60 to 62 murders. So far, there have been 33 shooting deaths, up significantly from last year. Both totals, however, are lower than 1991, when there were a record 86 murders and 38 shooting deaths.

An alarming difference this year is an increase in random shootings that occurred, "only because someone had a gun," said Miller.

"There is no reason for anyone to have a gun in Toronto," said the Mayor, who suggested the "entire" justice system must treat "possession of a handgun the same way you would as if someone had used it."

He also called on Crown attorneys to proceed "by way of indictment, instead of summary conviction" for gun offences.

The Ministry of the Attorney General is now preparing "a sentencing package of leading cases that will include compelling evidence of the impact of gun crimes in the community," said ministry spokesman Brendan Crawley. He said the plan to develop community-impact statements was sparked in part, by comments made by the Court of Appeal recently in R v. Danvers.

Vincenzo Rondinelli, a Toronto defence lawyer who also teaches at Osgoode Hall Law School, said this strategy has been used frequently in the United States in federal gang and drug prosecutions.

"Community-impact statements may very well provide communities with a sense of satisfaction in playing a role in the administration of criminal justice. My fear, however, is that they may introduce raw emotion into the process, a judicial process with rules and principles specifically established to guard against partially emotional decisions," said Rondinelli.

He also noted that in Danvers, the Court of Appeal reduced the period of parole ineligibility for a defendant convicted of a gun murder.

"I think Danvers reaffirms the general principle of sentencing that the interests of the state must be balanced with those of the accused. Danvers confirms that the ministry's proposed sentencing package cannot be used as a just-add-water solution to sentencing," said Rondinelli.

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