I have being successfully representing people against criminal charges in Toronto, the G.T.A. and throughout Ontario for almost 25 years. 

I am not a judge. A criminal defence lawyer's role is not to judge the people he represents. It is to defend them against the judgments and allegations of others.

I believe pleading guilty to be one of the poorest options to offer a client charged with criminal offences in the vast majority of cases.

I focus on defences based on breaches of an individual's rights as protected by the Canadian Charter of Rights and Freedoms, especially in relation to drug, weapon and property offences. 

I have won acquittals for many dozens of people against unfounded charges of Domestic Assault and secured the withdrawal of many hundreds more of these type of charges.

Being known as a defence lawyer who believes in going to trial has, in fact, led to thousands of different charges being withdrawn against my clients.

I am a veteran of almost a hundred jury trials involving charges ranging from Murder to Manslaughter and from Sexual Assault to Dangerous Driving Causing Death.

Winning for a client is a defence lawyer's sworn duty and I take this duty very seriously.

I was the managing partner of Pinkofskys, then Canada's largest criminal defence firm, for over 15 years prior to amalgamating the bulk of the firm into the new entity that bears my and my partners' names.

I graduated from Osgoode Hall Law School in 1987 and was called to the Bar in Ontario in 1989. I articled with Pinkofskys, was rehired as an associate in 1989, and became a partner in 1992.

I practice throughout Ontario and am particularly fond of defending clients against improper police conduct in jurisdictions where such conduct is rarely challenged. My clients range from the very rich to the most disadvantaged members of our society, and I am extremely proud to receive referrals from most of the varied ethnic communities in the Greater Toronto Area.

Reproduced below are excerpts from recent press coverage I or my cases have received:

Who is Justice Elliot Allen?

 

June 29, 2011

Betsy Powell and Peter Small, Toronto Star Court Bureau

The Ontario court judge who slammed the police culture at downtown Toronto’s 51 Division while sentencing two officers for assaulting a disabled man isn’t afraid of controversy.

In 2008, Justice Elliott Allen challenged a prosecutor’s argument that a jail term was necessary to discourage people from getting involved in the drug trade.

He was referring to a case involving Zeyu Song, who pleaded guilty to producing marijuana. Allen sentenced him to 12 months’ house arrest, saying that a jail term was not necessary because “nobody has been deterred” from being involved in drugs by going to jail.

“People have been going to jail for drug offences for — for a couple of generations now and the drug — the drug plague is worse than it ever was.” Isn’t that “a form of insanity?” he asked.

But a year later, the Ontario Court of Appeal censured Allen for fashioning a sentence “based on his personal views of national drug policy.”

Defence lawyers, however, praise Allen, who was called to the bar in 1979 and practiced law in Toronto and Guelph.

“He’s very much a judge who understands what happens at the street level. I have a great deal of respect for him,” said defence lawyer James Lockyer.

Reid Rusonik, also a defence lawyer, said there is no judge “braver” than Allen when “when it comes to calling fabricated grounds for a detention or search exactly what they are. He refuses to pretend the emperor is wearing clothes.”

Peel’s ‘hard-line’ police abuse the law: critics

KIRK MAKIN — JUSTICE REPORTER

From the Globe and Mail, Monday, June 27, 2011

 

 

For the second time in less than a month, a judge has set free someone charged by Peel Regional Police, and ruled that officers lied and intimidated suspects.

 

The double blow from the judiciary has done little to shake the police service that patrols the fast-growing cities of Brampton and Mississauga to the west of Toronto: It has no plans to investigate or discipline the rogue officers.

 

Defence lawyers who regularly try cases in the area call it the latest example of a troubling and cozy relationship between the police service and the local prosecutor's office, which has yet to wipe away the decades-old stain of a high-profile wrongful conviction.

 

With 1,855 officers, the Peel force ranks behind only those of Toronto, Montreal and Calgary. It watches over a sprawling melting pot of new immigrants.

 

“Peel is a petri dish of massive growth and bad planning,” said defence counsel Robert Rotenberg. “They are playing catch up, going from being a small town to being a big city.”

 

In the latest ruling, a judge found that Peel Regional police officers stripped a suspect naked to show him who was boss, and provided false testimony to conceal their misconduct.

 

Earlier this month, a judge found that Peel officers had misled the courts into believing that a suspected pimp, Courtney Salmon, was caught with fake documentation to identify a 17-year-old stripper as over 18.

 

Peel has a reputation for such hard-line law enforcement. But many officers who are criticized by judges avoid criminal charges or internal discipline because the force tends not to review their conduct unless the local Crown office requests it, which it does not always do.

 

“While there is no formal process, where there are issues relating to a witness officer’s testimony, the Crown may bring it to the attention of police,” said Brendan Crawley, a spokesman for the Ministry of the Attorney-General. “It is done on a case by case basis, and we do not track this.”

 

Attempts to contact almost a dozen senior police and police services board officials in recent days were not successful.

 

Peel is not the only force that lacks such a mechanism. The Edmonton Police Service, for example, relies largely on prosecutors to notify it of judicial criticism of its officers. Unlike Peel, however, the Edmonton force is not content with the status quo.

 

“We have been alerted to some of these after the fact, so we need to go back to the Crown and talk about that process,” said Mark Neufeld, inspector in charge of professional standards for the EPS.

 

Defence lawyers roll their eyes at the mention of Peel and its attitude toward law enforcement.

 

“I hate doing cases out in Peel,” said defence lawyer Susan Von Achten. “By and large, I wouldn’t trust the majority of Peel cops as far as I could throw them. I tell my clients to move away from Peel. Once they have been arrested, they are harassed and harassed and harassed.”

 

Defence counsel Reid Rusonik said Peel police officers are rarely held accountable.

 

“For years, judges have been finding on a regular basis that police witnesses have lied,” Mr. Rusonik said. “This false testimony has been given in one building and on the watch of one Crown office. None of these dozens and dozens of officers have been charged.”

 

Terrence Edgar, director of Mississauga Community Legal Services, calls the region a conglomeration of fiefdoms where bureaucrats work through private channels and back rooms. Like the Toronto Maple Leafs hockey team, he said, “they have different coaches and players year after year, but somehow they maintain the same culture.”

 

In the strip search case, David McPhail, 25, said he felt helpless as a routine, impaired-driving charge escalated into a frightening confrontation. “I’m not a big guy – and I was in a closed room with two officers and no surveillance camera,” he said. “You are obligated to comply. To this day, I outright fear the police.”

 

He said that youth are used to being questioned or searched. “It’s like an annual occurrence for me,” he said. “You get pulled over and lose an hour out of your life because they decide they want to search you or your car. In Peel region, that’s just how they operate.”

 

The local Crown’s office is equally well known for playing hardball – an attitude engendered in the 1970s by its revered leader, Leo McGuigan, who taught prosecutors to eschew plea bargaining, giving birth to the nickname No Deal Peel.

 

Mr. McGuigan gained the conviction of Guy Paul Morin in the 1984 rape and murder of a nine-year-old girl after a gruelling, nine-month trial. Mr. Morin was later exonerated, and a public inquiry found that prosecutors were devoid of objectivity, and displayed “staggering” tunnel vision.

 

The Crown office’s close relationship with the Peel police creates a potential problem when it comes to officers who have been disparaged by a judge – the McPhail incident being a case in point.

 

“We aren’t investigating those officers because, quite frankly, we haven’t had any complaint from the Crown’s office of a criminal nature,” said Peel Regional police Sergeant Zahir Shah.

 

In regard to the Salmon case, Sgt. Shah said that no consideration will be given to an internal review of the officers until a possible Crown appeal is completed.

 

Sgt. Shah said his force does not go looking for cases where an officer’s credibility has been called into question. “We don’t have officers monitoring and going into each and every court each and every day,” he said.

 

This lax attitude causes officers to believe they can get away with abusing the law, said Ian Collins, Mr. McPhail’s lawyer.

 

“The case merits a full investigation from authorities independent of the Peel Regional Police,” said Mr. Collins, of Burrows Firm Traffic Lawyers Professional Corporation. “These police lost the conviction they sought, but there have been no other consequences. Without accountability for police misconduct, there is impunity.”

 

In an apparent plan to change Peel culture, the Brampton judiciary was stocked in recent years with street-savvy judges who do not shrink from throwing out evidence and criticizing authorities.

 

But Mr. Rusonik said their efforts are often futile. “It's a shame,” he said. “Two or three such prosecutions of lying police officers could scare the rest out of doing it with such abandon. But not prosecuting licenses it.”

 

In other recent cases involving Peel police, former officer Sheldon Cook was sentenced to almost six years in prison in 2010 for stealing 15 packages of what he believed to be cocaine; and 24 Peel officers who attended a raucous, after-hours drinking party in 2007 were found to have chased and hauled down two young men who had videotaped their antics.

 

Judge gives reasons for firearms acquittal — two years later

Sunday, June 5, 2011

Betsy Powell, The Toronto Star Courts Bureau

When an Ontario Superior Court judge acquitted two men of firearms offences two years ago after finding police had violated their Charter rights, she promised to email her full reasons that afternoon.

On Wednesday, the Crown will ask the province’s highest court to order a new trial because, as it turned out, those written reasons never came.

“The trial judge not only fell short in her obligation to explain to the public why these gun-toting individuals were acquitted and put back into circulation on our streets, she abdicated her responsibility entirely,” the Crown argues in its factum filed with the Ontario Court of Appeal.

But there’s a wrinkle.

Last month, Ontario Superior Court Justice Susanne Goodman released a thorough, 42-page strongly worded decision detailing why she had concluded — two years earlier — that Toronto police officers violated the Charter by making an “arbitrary and unreasonable” decision to pull over Kamar Cunningham and Troy Matthews on March 6, 2008.

She also found officers “outright lied” in court and fabricated evidence. Goodman, for instance, wrote she did not accept officers’ testimony that they pulled over the men, both black, because they weren’t wearing seat belts.

“I was satisfied that the police flagrantly and intentionally violated the defendants’ rights under both sections 8 and 9 of the Charter. They then egregiously supported their actions by providing a false account of the events leading up to it.”

She based her decision after hearing from eight witnesses — including the arresting officers — over nine days of pre-trial motions. She also considered other legal issues and written arguments.

“Whether late or not, the judgment has now come and it clearly finds the police officers shamelessly lied,” says defence lawyer Reid Rusonik, who brought the Charter application forward.

“I worry that the pursuit of appeals like this creates the perception that the Crown considers blatant disregard for Charter rights as insignificant compared to almost everything else.”

The Crown’s factum, prepared last December, noted the Supreme Court of Canada has reiterated a judge’s reasons are important “to inform the parties (especially the losing party) of the result,” as well as for public accountability.

They’re also essential to allow the Crown the ability “to assess what legal errors may have been committed by the trial judge.”

It states the Crown made “repeated attempts” to obtain the reasons for the ruling. But even if the reasons were provided “at this late date,” they “could not reasonably be seen to be representative of the actual thought process that led to the ruling given on April 8, 2009.”

The defence doesn’t agree.

In his factum, Mark Halfyard, the defence lawyer handling the appeal, wrote that the delay in releasing the reasons for judgment in this case was “unfortunate,” but noted there could be a number of perfectly valid reasons.

“The trial judge could have been ill, been assigned a number of lengthy trials and (be) severely overworked or suffered a family crisis, etc.”

While the Supreme Court has said the appellant must show the tardy ruling was written by a trial judge who “engaged in after-the-fact reasoning,” there is no evidence of that in this case.

“She expressed no uncertainty in her views right from the outset that the police had engaged in serious misconduct,” Halfyard wrote.

In an interview with a Toronto newspaper nine years ago, Goodman, then a newly appointed judge, was quoted saying she felt compelled to set down her rulings in writing and a backlog developed.

“I wouldn’t have even thought of doing an oral (ruling) in my first year,” she said at the time. “It’s just too easy to misspeak yourself.”

 

An Ontario Court judge says she finds it “shocking” a Toronto police sergeant who has trained other officers doesn't appear to understand proper investigative techniques.

The officer, Sgt. Jay McCall, was the only witness who testified at the trial of Michael Dabreo, 25, after charging him in March with numerous offences including possessing a loaded .25 calibre handgun.

But Justice Mavin Wong threw out the charges this week after finding McCall “unable to properly articulate the grounds for detaining an individual.”

Wong said she found it reasonable to assume “his lack of knowledge affects the way he conducts other routine police investigations.” It is even more alarming when one considers McCall “teaches other officers-in-training what ought to be proper police investigative techniques that are inconsistent with the Charter,” the judge wrote.

McCall was driving a marked police cruiser when he pulled up behind a taxi and saw the driver reaching back toward his passenger.

There appeared to be some disagreement over the fare. McCall pulled up beside the cab and the driver told him the passenger, Dabreo, wanted to pay only $29 when the fare was $33. However, Dabreo then paid the full amount and got out of the cab.

As he did, McCall summoned him to his cruiser.

He testified in court that he did so to investigate the Criminal Code offence of “fraud transportation.”

McCall ran a police check and found Dabreo was under a weapons prohibition and had a history of violence. He testified his continued detention was based on the possibility the accused might be breaching his prohibition order and his “experience” that people subject to court orders sometimes reoffend.

McCall conducted a pat-down search and discovered a firearm. Dabreo attempted to flee and was Tasered twice before he was subdued. He was charged with various gun offences, resisting arrest and breaching court orders.

At the trial, defence lawyer Reid Rusonik argued the court should exclude the gun as evidence because Dabreo was arbitrarily detained and McCall lacked reasonable grounds to search him.

Crown counsel Beverley Olesko argued the detention was momentary and the seriousness of the offence and importance of the evidence ought to persuade the court to admit the gun.

But Wong concluded McCall “was mistaken relating to virtually every aspect” of what he believed was his lawful authority to detain, investigate and search Dabreo.

The “multiple” Charter breaches were so serious Wong said she was excluding the evidence. The charges were dismissed as a result.

Brendan Crawley, a spokesman for the Ministry of the Attorney General, said the decision would be reviewed carefully. The Crown has 30 days from the date of the decision in which to pursue an appeal.

Criminal firm changes approach, ID
Former Pinkofskys aims to seek private clients with revised incentives

By Michael McKiernan | Publication Date: Monday, 25 October 2010 The former managing partner of Pinkofskys in Toronto has reinvented the firm with a new name and approach that emphasize the importance of privately retained clients. According to Reid Rusonik, problems with legal aid have made the criminal defence firm’s old model of business “unsustainable.” Rusonik has retained the bulk of his colleagues at Pinkofskys, including Jack Pinkofsky in the role of senior counsel, in forming the new firm: Rusonik O’Connor Ross Gorham & Angelini LLP. With 22 trial lawyers and two practising appellate counsel, Rusonik claims his new firm inherits Pinkofskys’ title as Canada’s largest specialized criminal defence firm. But he says the state of legal aid has forced lawyers to market themselves to clients who can afford to retain the firm privately. In the past, Rusonik says Pinkofskys gave little thought to the type of client who came through the door, which resulted in legal aid accounting for about 75 per cent of cases. The figure for the new firm stands at about 50 per cent. The private portion of the client base generates about 75 per cent of the firm’s revenue. The ultimate aim, Rusonik says, is to ensure the firm can continue to provide quality representation to people who can only retain counsel through legal aid. Private clients, in effect, subsidize the legal aid work. “We need to increase funding ourselves by doing enough privately attained work that it’s still affordable to do the legal aid work,” Rusonik tells Law Times. A new remuneration model at the firm provides incentives for lawyers to augment their earnings with privately retained clients. “If they need to do better to cope with their debt, they can do that,” Rusonik says. “If they’re carefree in that respect and want to concentrate on social issues, they can do that as well. In a purely salaried environment, we didn’t necessarily have that incentive.” The firm has moved into new premises on Lombard Street in downtown Toronto that are part of an image change designed to attract private clients. “They want a different level of comfort, a different level of service, and a different level of decor,” Rusonik says. The shift, he notes, was a controversial one in the Pinkofskys boardroom. One senior partner, Edward Royle, declined to join the new firm and instead stayed behind at the old offices on University Avenue. For Rusonik’s part, he wrestled with the changing reality for years as legal aid budgets dwindled. “There hasn’t been a meaningful increase for services rendered for about 20 years,” he says. “It’s just not viable.” But he didn’t want to join the growing ranks of criminal lawyers who give up on legal aid altogether. Still, he now feels an affinity with James Woods’ lawyer character in the film True Believer in which he’s accused of taking money from marijuana dealers. “He says, ‘No, I take money from coke dealers, and they pay for the defence of the marijuana dealers,’” Rusonik says. “That’s our strategy right now.” Andras Schreck, a vice president of the Criminal Lawyers’ Association, says it has become increasingly difficult for lawyers to make a living from legal aid cases. “The problem isn’t just the lower hourly rate; it’s also the fact your hours are capped. Then there’s unbillable time spent with all sorts of administrative dealings with legal aid, which you don’t deal with otherwise.” Many criminal lawyers have to make sacrifices early on in their careers, Schreck notes. “They have generally made a choice that they’re not going to draw the same kind of income as people who practise in other areas. That’s the choice you make because you like the kind of work you’re going into.” Christopher Hicks, a partner at Hicks Block Adams LLP, says he wishes Rusonik and his partners well. “It’s good for people like them to have this fresh start because they can start their own culture,” says Hicks, whose firm is another major player in Toronto’s criminal defence scene. His firm had its own problems with Legal Aid Ontario earlier this year when payment delays pushed it to the brink of bankruptcy. It then had to take out an emergency loan to cover the $500,000 shortfall in payments. Hicks hopes Rusonik can find a model that allows criminal defence firms to level the playing field in the competition for the best young lawyers. “Those who want to do criminal law virtually always go to the Crown side,” Hicks says. “There’s a real imbalance, and we can’t offer a starting lawyer anywhere near the same kind of salary.” Rusonik is very familiar with the dilemma faced by promising lawyers with an interest in criminal law who instead look elsewhere for the lucrative practice they feel they need in order to pay off huge debts from their studies. He almost became one of those early casualties himself after his graduation from Osgoode Hall Law School in 1987. During his years at Osgoode, he saw criminal law as his calling. But as graduation neared, he felt a pressing need to help his family financially. As a result, he sought an articling position at a Bay Street firm, which apparently ended his criminal defence career before it began. But one of Rusonik’s first assignments that dealt with an old woman struggling to pay her rent quickly convinced him he had taken a wrong turn in his career. “I thought they wanted me to help her work out a way to manage it but it turns out they wanted her evicted,” he says. “I lasted there two days.” After a tip from an old classmate, he headed over to Pinkofskys to ask about an articling position. A mix-up between some of the senior partners meant he was interviewed on the spot by Pinkofsky himself for a position the firm had already filled. The meeting gave him a clue about the workload he could expect in his new career. “He grilled me for about an hour and a half without ever stopping work on the factum he was preparing for trial the next day,” Rusonik says. The firm hired Rusonik, and for a while it operated with an extra articling student. Soon after, one of them ran himself into the ground and had to take time off, while the other decided he wasn’t cut out for criminal law, which left Rusonik the last one standing. “After a short sojourn in civil, it was the best conceivable training experience a person in criminal law could ever have,” he says. After his call to the bar in 1989, he became a partner at Pinkofskys three years later. For the last 15 years, he was its managing partner. Rusonik has gained a reputation for Charter of Rights and Freedoms defences seeking to have evidence excluded or charges stayed for breaches, often by police. Those cases are the ones that give him the most pleasure. “If I could do that every day, I would,” he says. “Upholding a Charter right a day keeps the Nazis away. That’s my motto. So many times . . . the most likely people to be violated are those who couldn’t afford to retain us privately. If you’re going to have good criminal lawyers to defend Charter rights, which are everybody’s Charter rights, you have to be able to do legal aid cases.” Despite his attempts to make criminal law more lucrative, Rusonik still warns young lawyers that not everyone is cut out to practise in that area as the demands of court appearances and preparation can be physically exhausting. “You have to love what you do because the financial rewards are simply not as high at the outset and for many years after,” he says. “The people I work with don’t see it as work. It’s a passion, and they couldn’t help themselves. That makes it a fun place to work because we all love what we do.”

GT2  * Toronto Star * Saturday, March 13, 2010

­

Police breached rights, judge finds

Man acquitted of gun charge after officers ‘created a volatile, dangerous situation’ in arresting him

 

BETSY POWELL

COURTS BUREAU

 

A man has been acquitted of police assault and weapons charges after a judge found officers created a “potentially dangerous situation” during a violent clash with the man in a Jane-Finch area housing complex. The officers were on routine patrol on Nov. 6, 2008, as part of the much –touted police TAVIS (Toronto Anti-Violence Intervention Strategy) program when they unlawfully detained and arrested Marlon Davidson, Superior Court Justice Janet Wilson wrote in a 20-page ruling released Friday.

 

She was critical of the officers for needlessly punching and kicking Davidson and said the decision by one of them to “pull out his gun and use it to control a crowd of people” is “very troubling and illustrates a frightening lack of judgment.”

 

“The objective of TAVIS is laudable and necessary to control crime in hot spots in our city,” Wilson wrote. “However, instead of rendering the Grassways a safer community… the police conduct in this case crossed the line and created a volatile, dangerous situation.”

 

After finding Davidson’s constitutional rights had been breached, Wilson agreed to defence lawyer Reid Rusonik’s request to exclude evidence Davidson was carrying a loaded semi-automatic handgun.

 

“To admit the gun into evidence would do more long-term damage and would more likely bring the administration of justice into disrepute than would its exclusion from the evidence,“ Wilson wrote.

 

Davidson, 26, was acquitted of charges of assaulting a police officer and various weapons offences and was released from custody.

 

TAVIS supporters credit the initiative with lowering crime in some troubled areas. Detractors say the approach alienates young black men who are disproportionately stopped and questioned.

 

The officers testified that when they approached Davidson and his two friends they weren’t doing anything wrong while standing at the entrance to the Grassways complex.

 

After running a search and finding none were breaching bail conditions, had criminal records or were trespassing, “the police should have moved on,” Wilson wrote.

 

Instead, one officer asked Davidson about previous charges that were withdrawn. When told police would conduct a pat-down search, Davidson tried to walk away, prompting the officers to grab him.

 

The three officers punched and kicked him in the head.

 

While Davidson was on the ground, a gun skidded out. He testified he carried it for protection.

 

The judge expressed concern that a rookie officer was “inadequately informed about the limits of police powers to detain and question individuals.” She also did not accept the officers’ evidence, which seemed like a “convenient embellishment to justify what happened.”

 

The judge’s decision “is a recognition that the Toronto Police Service is not equipping its officers with the ability to conduct themselves constitutionally,” Rusonik said.

 

“We take comments by judge very seriously  and will look at them very closely,”said police spokes man Mark Pugash.

                                                                        ***********

Defence, prosecution alike reject PC attack on bail system

kirk makin

From Saturday's Globe and Mail

Published Saturday, Oct. 06, 2007 9:19AM EDT

A campaign assault on the bail system by Ontario Conservative Leader John Tory has accomplished the rare feat of uniting both the prosecution and defence bar against his claims.

Even hard-line police advocates are having trouble defending Mr. Tory's claims as well as the targets he has identified in a series of recent commercials and speeches.

Mr. Tory has accused Ontario prosecutors of practising a "catch-and-release" policy when it comes to bail. He has also implied that soft provincial government policies are at fault for seven of 10 murder suspects in Toronto in 2006 having been out on bail, on probation or "subject to another court order."

While the seven of 10 figure is mostly agreed upon, Mr. Tory's use of the phrase "catch and release" is what has drawn the most fire.

"Unfortunately, these things are out of the control of the province," said Bruce Miller, chief administrative officer of the Police Association of Ontario. "From our perspective, there is a catch-and-release policy - but it is at the federal end. These issues need to be addressed federally."

Lawyers for both the Crown and defence accuse Mr. Tory of clouding the fact that bail decisions are made by judges or justices of the peace - not government prosecutors - and that obtaining bail is far from being a pushover.

James Chaffe, president of the Ontario Crown Attorneys' Association, alleged that Mr. Tory has misled the public and is "badly misinformed."

"What he [Mr. Tory] is saying is completely unfair," agreed Gary Clewley, a lawyer who has represented the Toronto Police Association. "Bail is hard and complicated. The only risk-free situation is to detain everybody. To say the Crowns practise catch-and-release is unfair."

In an interview yesterday, Mr. Tory acknowledged that JPs, judges and federal parole officials make the release decisions, but he insisted that the origin of the problem lies in provincial Crown attorneys who negotiate soft plea bargains in the first place, and who fail to take bail violations seriously.

"I'm not blaming the Crown attorneys," he said. "I think they are doing what they think is best. I won't call into question how they exercise their discretion because, frankly, I don't know. But I think the Attorney-General should give them, in some of these instances, less discretion. I think we're being too lax in these deals and, in many cases, because of pressure that's on Crown attorneys to just get rid of these cases."

Statistics compiled by the Ministry of Community Safety and Correctional Services suggest that the system is anything but soft on bail. The number of inmates in jail awaiting trial has seen "a dramatic increase" in the past 10 years, said Stuart McGetrick, a ministry spokesman.

Two-thirds of the 8,588 inmates in provincial jails at any given time last year were on pretrial remand - a stark contrast to the situation a decade ago, when only one-third of the 7,789 inmates in provincial jails were on remand.

And a Canadian Association of Police Boards paper in 2004 found that the average remand count had risen 85 per cent since 1990/1991, causing immense stress on police lock-ups and detention centres. Over the same period, the sentenced population had decreased by 22 per cent.

Reid Rusonik, a Toronto criminal lawyer, said it's important to know what offence a person on bail or parole was charged with before suggesting that a murder might have been prevented if they were behind bars.

"On bail and probation for what?" he said. "Shoplifting? Marijuana possession? Writing a bad cheque? Not to worry, though: We can deny everyone bail to be safe - and keep them in indefinitely if they are found guilty."

Defence lawyers say bail is increasingly more difficult to obtain because prosecutors have become very hard-line. "Crowns consent to far, far fewer releases now than 10, 15 or 25 years ago," Mr. Rusonik said.

Defence lawyers add that justices of the peace - who lack the legal qualifications and courtroom savvy of judges - tend to opt for the safe route of simply denying bail.

"I think most criminal lawyers would say that there is more of a culture of detention with JPs than with judges," Toronto defence lawyer Peter Zaduk said.

 

Charges stayed in homegrown terror case

Aug 01, 2007 

"It's finally done," said one of the teens at the Brampton courthouse after signing the bond, which imposes various restrictions on him for up to one year.

"I can't describe in words how (the past year) was," said the 18-year-old, who's been under house arrest for nearly a year and says he has suffered from anxiety, depression and insomnia.

Although he's whiled away much of that time sleeping, playing video games and watching his big-screen TV – pastimes some may envy – all he's wanted is his freedom and the chance to step beyond his driveway without a parental escort.

"But what counts is (the Crown) realized their mistake. They arrested too many people at the same time," he said, shaking his head. "This shows they cared. They looked into the case properly."

The stay in proceedings against the youths – the other is now 19 – marks another setback in the government's landmark case. Earlier this year, charges were stayed against another youth.

Yesterday, prosecutors declined to speak with reporters about the case as they left the courtroom.

At stake is the reputation of Canada's spy service and federal police force, particularly since news of the alleged homegrown terrorism cell garnered international headlines last summer, when 14 adults and four youths were charged. The alleged cell was accused of plotting to bomb various targets in Ontario.

Even though charges have now been stayed against three suspects, that does "not at all" indicate the government's case is weak against the other accused, said Dan Brien, a spokesperson for Public Prosecution Service of Canada, the federal government department that prosecutes all federal offences on behalf of the Attorney General. However, he refused to elaborate, saying the matter is before the courts and covered by a publication ban.

"The view of the PPSC is that bringing these two individuals to trial right now would not have been in the public interest," he said, adding there was no political input into the department's decision.

The youths were charged with participating in a terrorist group for the purpose of carrying out terrorist acts. Yesterday marks the first time anyone has signed a peace bond for a terrorist-related offence in Canada, Brien said.

A peace bond allows the court to impose strict conditions on an individual if it deems there are reasonable grounds to believe a terror-related offence will be committed. It has been lauded by some as a necessary tool in fighting terrorism and lambasted by others who argue it restrains civil liberties on mere suspicion.

Peace bonds are routinely agreed to by people accused of a crime who wish to convince the Crown to withdraw or stay charges.

"(My client) wishes to make it absolutely clear that he has never knowingly participated in any group contemplating an act of terrorism or any other criminal act," defence lawyer Reid Rusonik told Justice Kathryn Hawk yesterday. "Nor has he ever contemplated any such acts himself."

Later, Rusonik told the Star his client described the past year as "like a nightmare and extremely stressful," and that it left his family feeling "isolated and vulnerable." But, he said, the teen and his parents know "police had to cast a wide net here to be safe rather than sorry."

In February, that net began to unravel when another teen's charges were stayed after a preliminary inquiry into the youths' charges. Unlike his two co-accused, that teen did not enter a peace bond.

By law, none of the youths can be identified, and there is a publication ban on evidence heard at that inquiry. The trial for the fourth teen is to begin on March 23.

The two teens now face various restrictions for one year. They cannot associate with co-accused, must regularly check in with police, live with their parents, surrender their passports, and attend counselling with someone recommended by their physician as well as an Imam.

These conditions replace much harsher bail conditions each has been under for nearly a year.

"If the Crown were confident its case could pass muster beyond a reasonable doubt, they would've proceeded with the criminal charges," said Craig Forcese, who teaches national security law at the University of Ottawa.

"And, to then impose a peace bond with fairly banal conditions suggests that perhaps these two individuals weren't the threat they were originally painted out to be."

The preliminary inquiry for the adults is ongoing in Brampton; it is also covered by a publication ban.