Law Times

Law Times • sepTember 3, 2018 Page 7 www.lawtimesnews.com Ford wrong on guns and bail BY MATTHEW GOURLAY O ntario's new provincial govern- ment knows who and what is to blame for the recent increase in gun violence in Toronto. On July 6, in one of her first notable pronouncements as attorney general, Caroline Mulroney declared that the "fed- eral bail system" — note the jurisdictional buck passing — is "letting too many violent criminals back into our streets." She asked for a meeting with her federal counterpart, Jody Wilson-Raybould, to discuss reform. Then, on Aug. 9, Ontario Premier Doug Ford announced $7.6 million in funding for "legal SWAT teams" tasked with "ensuring violent gun criminals are denied bail and remain behind bars." Ford did not specify how Crown attorneys can "ensure" that result when it's actually the job of the courts to decide who gets bail and who gets detained. But the clear mes- sage conveyed is twofold: First, that the courts and Crown prosecutors alike are failing in their responsibility to keep dan- gerous criminals off the streets — this is what the legal SWAT teams are supposed to address; and second, that the federal government needs to do something to fix a broken bail system. Both claims are wrong. The first thing should be to get a handle on the scope of the problem. While there is no acceptable level of gun violence, the statistics don't bear out the impression that there has been a dramatic spike. According to the TPS, at the time of writing, there were 262 shoot- ings in Toronto so far in 2018. This is 24 more than at the same point in 2017. And there have been 33 shooting deaths so far, nine more than at this time last year. These increases, though hardly indicative of any defin- itive trend, are certainly cause for concern. Trying to reduce access to handguns — either via illegal importation from the U.S. or abuse of the legal market in Canada — is one obvious goal to pursue. In the longer term, redressing the social and economic disadvantages in which street gangs f lourish must be a priority. According to our provincial govern- ment, however, the real problem is bail — and the solution is punishing more people before they have actually been convicted. In his Aug. 9 news conference, Ford de- clared that our "ineffective paralyzed court system" lets "far too many people convicted of gun crimes out on bail." As- suming that the premier was referring to people with previous gun convictions, the casual slander of the court system is still unsettling. Ineffective compared to what? No statistics to substantiate a link between lax bail and gun violence were offered. At the same news conference, Ford declared: "No more talk, no more grand- standing; it's time for action." But it's dif- ficult to see his proposal as anything but the kind of cheap political posturing he claims to abhor. The Crown Prosecution Manual — a public document that guides the decision- making of all prosecutors in Ontario — already directs that, in all cases involving firearms, the prosecutor must seek detention, unless there are "exceptional circumstanc- es." And even if the prosecutor thinks exceptional circum- stances exist, they must first get approval of the head Crown attorney before consenting to release. As all defence counsel are aware, the circumstances in which the Crown will consent to release in firearms cases are indeed rare. Moreover, many firearms offences trigger the "reverse onus" provi- sion, meaning it is the accused who must show cause for release rather than the other way around. The manual affirms that Crown coun- sel "must act with objectivity, indepen- dence and fairness in each case to ensure early, timely and principled decision making based on the circumstances of the accused and the offence and an ap- propriate use of legal principles without outside pressures or considerations." It also promises that a prosecutor's deci- sions about whether to oppose or consent to release that are "made in the proper ex- ercise of their discretion will be supported by the Attorney General." Ford's recent statements, and the at- torney general's apparent acquiescence to them, appear to betray that promise. They create the impression that prosecutors are being directed by political actors in their exercise of the residual discretion carved out by the policy manual. This, in turn, threatens to encroach upon the constitu- tional principle that the attorney general and her designates must act independent- ly of partisan politics when carrying out their prosecutorial functions. Of course, reasonable bail is itself a constitutional right, not a political com- modity. Despite Mulroney's call for fed- eral "reform," the government's ability to restrict bail is limited by the Charter right "not to be denied reasonable bail without just cause." Just last year, in R. v. Antic, the Supreme Court called for a more lib- eral and consistent approach to this en- titlement in the bail courts. There is no doubt that many people ac- cused of gun crimes should be detained — especially if, in the words of the Code, their detention is "necessary for the pro- tection or safety of the public." But the gov- ernment has offered nothing to substanti- ate the bald claim that courts are failing in this respect. Absent such evidence, the promised $7.6 million is just throwing good money after a bad idea. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. The duty to accommodate and mental illness BY TANYA WALKER A ccording to the Centre for Addiction and Mental Health and the Canadian Mental Health Association, at least 500,000 em- ployees are unable to work due to mental health issues in any given week. This statistic demon- strates the importance of accommodating mental ill- nesses in the workplace. Nevertheless, Ontario lawyers should let clients know of an employer's legal obligation to do so. Federal and provincial laws prohibit discrimination based on a person's disability, sex, race, creed, family status and age. In Gibbs v. Battlefords & District Co- operative Ltd., the Supreme Court of Canada specified that, in the context of human rights and discrimination, the term "disability" includes mental illness. Depending on the situation, the failure to accommodate an employ- ee's mental illness may constitute discrimination and give rise to human rights or employment law claims. As such, employers must ensure that they adequately ad- dress requests for accommodation in the workplace. Unfortunately, employers often do not know how to go about developing and implementing strategies to assist those with mental health issues. Unlike physi- cal disabilities, where the accommodation necessary is generally obvious and straightforward, mental health issues may require complex environmental, social and logistical accommodations. For this reason, it is impor- tant to understand the status of the law with respect to this issue. In general, the duty to accommodate is not meant to unfairly cater to employee preferences or be unduly onerous for the employer. It is intended to remove dis- criminatory barriers up to the point of undue hardship. The question that follows is: What is the point of undue hardship? To the chagrin of employers and their counsel, there is no set formula for determining what constitutes un- due hardship. The court will generally consider the context, health and safety of the employee, the cost to the employer in providing accommodations, collective agreements, workplace policies and procedures, the in- terchangeability of the employer's workforce and facili- ties and the operational requirements of the employer's workplace. A common thread throughout the case law is that policies and procedures must be amenable to those with mental health issues. The court has emphasized that employers need to act with empathy. Mental health issues and the way they manifest themselves varies and, as such, the na- ture of the accommodation will change from person to person. For example, an employer's policy may man- date that employees be assessed by a company-selected psychiatric expert prior to being accommodated. How- ever, should the employee have legitimate reservations about the company's assessment policy, it may be ap- propriate to allow the employee to be assessed by his or her existing psychiatrist. The basic principle is that following internal poli- cies and procedures to the letter may fall shy of the em- ployer's duty to accommodate. In other words, though company policies and procedures may be robust, the need to go beyond them in order to accommodate an employee does not necessarily constitute undue hard- ship. For that reason, each case requires a tailored ap- proach. The other crucial lesson is that employer-provided insurance policies should not treat those with mental disabilities and those with physical disabilities differ- ently. If, under the employer's insurance policy, a person with a physical disability is offered extensive rehabilita- tive services, employees with mental disabilities should be offered a comparable range of services. Similarly, where an insurance policy has a five-year time limit on replacement income for those with physical disabilities, the same time limit should apply to those with mental disabilities. In other words, mental and physical dis- abilities should be treated equally. To summarize, employers' insurance benefits must treat disabilities equally, and their workplace policies and procedures must be f lexible and adaptable to those suffering from a mental disability. The employer must engage in creative problem solving when asked to accommodate a mental health issue. With that being said, the court has offered employers some protections. For starters, the presence of a mental illness must be substantiated by expert medical evidence. When an employee is claiming that they were wrongfully dis- missed due to a mental disability, there must also be a connection between the disability and the employee's poor performance. If there is no connection, the em- ployer's decision to dismiss the employee cannot be barred by an employee's claim of discrimination. Fur- thermore, the presence of a mental disability cannot be used to justify disciplinable conduct where the employ- ee's actions are premeditated. Further, if an employee has a treatment plan and fails to follow it as prescribed, their claim may be dismissed. With respect to the accommodations being of- fered, if it is necessary to provide the employee with a part-time work schedule, the employer is permitted to reduce the employee's salary accordingly. Finally, if a genuine job requirement results in the discriminatory treatment of an employee with a mental illness and the employee's inability to meet the job requirement can- not be reasonably accommodated, the discrimination will be justified and permitted. For example, when at- tendance at the workplace is a critical component of the job, the employer may have an internal policy regard- ing innocent absenteeism. If the employee is chroni- cally absent due to their mental illness and there are no suitable alternative positions or work arrangements within the company, dismissal for excessive absentee- ism arising from a mental disability may be justified. The facts of the case will need to be considered. In conclusion, an employer is entitled to a produc- tive employee and the employee is equally entitled to an empathetic and f lexible employer. LT uTanya Walker is a Toronto litigation lawyer at Walker Law PC and a bencher of the Law Society of Ontario. Jordan Routliff, articling student, contributed to this column. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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