Bill C-35 (Historical)

An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences)

This enactment amends the Criminal Code to provide that the accused will be required to demonstrate, when charged with certain serious offences involving firearms or other regulated weapons, that pre-trial detention is not justified in their case and to introduce additional factors relating to firearm offences that the courts must take into account in deciding whether an accused should be released or detained pending trial.

[Réal Ménard, Bloc, Hochelaga, QC]

I imagine the government didn't think we'd finish with Bill C-27 before the summer recess. I officially move that we meet in the same time slot once the study of Bill C-35 is completed.

[The Chair, Liberal, Bernard Patry]

On May 29, consideration of Bill C-35 should be completed.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm pleased you said that because it seems to me we should try as far as possible to start our proceedings on this bill once we've completed the study of Bill C-35. We were a bit scared. On the opposition side, they're the same people, with a few exceptions. As for the rest, we have three committees that are sitting twice a week. That's starting to be a lot.

Do we agree on how things will operate? We can keep the same slot, Tuesday and Wednesday afternoons, following question period. We would start consideration of Bill C-27 once Bill C-35 is complete. Are you telling us we're going to the end of May?

[The Chair, Liberal, Bernard Patry]

The meetings are scheduled right now. Next week they will be Tuesday, May 15, and Wednesday, May 16. We're finishing Bill C-35, and on Tuesday, May 29, we'll be doing clause-by-clause consideration of Bill C-35. If everything is fine, on Wednesday, May 30, we could have the Minister of Justice for Bill C-27, if we want to keep the same schedule—

The clerk tells me that on May 30, the Minister of Justice is in front of the justice committee.

Go ahead, Monsieur Ménard.

[The Chair, Liberal, Bernard Patry]

It worked very well during the study of Bill C-35. As Mr. Ménard mentioned, the member may be alone, or say that his or her colleague does not wish to speak. It's the political party that chooses its critic. We usually try to give all members the opportunity to ask questions. That's what I've always said.

Criminal Code

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, it is a pleasure to speak at the report stage on Bill C-22, An Act to amend the Criminal Code (age of protection).

I would like to say, for those who are listening, that the Liberal Party of Canada supports this legislation.

Before I begin discussing the bill in detail, I wish to briefly address several remarks made by the Parliamentary Secretary to the Minister of Justice in his speech several minutes ago. He said that there were delays with the bill and that the government was happy that the bill was finally at this stage.

I wish to inform people that the Minister of Justice tabled Bill C-22 in the House of Commons on June 22, 2006. The House then adjourned for the summer. It came back at the end of September.

It is the government's prerogative to determine when it wants to move second reading and debate of its own legislation. The government moved debate at second reading on October 30, 2006. This was after the Liberal justice strategy was announced, after Liberals and the then Liberal justice critic offered to fast-track Bill C-22 and a number of other justice bills that the Conservative government had tabled.

Debate at second reading ended on October 30, 2006, which meant that there was an agreement by all parties not to delay debate in the House and to get the bill into committee as quickly as possible. It was referred to the justice and human rights committee, which was already conducting hearings on a series of other government bills and private members' bills.

The justice and human rights committee held hearings on Bill C-22, the age of protection bill, on March 21, March 22, March 27 and March 29, 2007. Members will remember that there was a two week adjournment for the Easter period.

The House returned on April 16 and the justice and human rights committee, which is scheduled to meet on Tuesdays and Thursdays, met on Tuesday, April 17 and on Thursday, April 19. The committee concluded its clause by clause and reported the bill back to the House on April 23.

The government decides when to move debate at report stage and it only decided to move Bill C-22 at report stage this week. It was in a line of bills for which the government determines the order.

If any member of that government is dissatisfied with the length of time it has taken for Bill C-22 to pass through second reading debate, committee stage and reported back, and now be at report stage debate, they need only to look at themselves in the mirror.

As the House knows, the bill has returned to the House from the Standing Committee on Justice and Human Rights. It has been reported with an amendment, as was mentioned by the Parliamentary Secretary to the Minister of Justice.

The amendment added marriage as a defence where an accused is charged with: sexual interference, which is section 151 of the Criminal Code; invitation to sexual touching, section 152 of the Criminal Code; indecent acts, section 173.2 of the Criminal Code; and sexual assault, section 271 of the Criminal Code, in cases where the complainant is 14 years or older but under the age of 16. We Liberals worked alongside the other parties to bring this amendment through.

We are happy to see it included in the committee's report on the bill. We are also happy that, notwithstanding the fact that the Conservative members on the justice and human rights committee, including the Parliamentary Secretary to the Minister of Justice, opposed the amendment in committee, those members have not brought forth a motion to amend the report stage bill and remove that defence.

I had proposed an amendment to the bill. The amendment would have repealed section 159 of the Criminal Code. This section sets out anal intercourse as a criminal offence. This outdated section of the Criminal Code is a relic of Canada's past and in fact has been found contrary to Canada's Charter of Rights and Freedoms. Two appellate courts, one in Quebec and the other in Ontario, reached this conclusion.

When the government drafted Bill C-22, it could have acted then to remove this archaic section of the Criminal Code or, having failed to do that, perhaps through inadvertence--I gave them the benefit of the doubt that it was by inadvertence--the government at that point could have supported my amendment in committee, because even if an amendment is beyond the scope of the bill, if the government agrees to the amendment it is then admissible and can be debated, voted on and adopted.

The government, however, decided on two occasions, when it was forced to take on the issue with this outmoded, archaic section of the Criminal Code, which is clearly a violation of the Charter of Rights and Freedoms, that it would instead champion discrimination and homophobia. I think this speaks volumes to that Conservative government's values and the members of that government.

Be that as it may, the bill did pass through the committee without other changes. The committee hearings on Bill C-22 proceeded smoothly and brought forth the views of many Canadian individuals and organizations who have a stake in this issue. Most stakeholders spoke in favour of the bill, while some did speak against it.

Among all parties there was a strong desire to support the bill and to see it clear the committee process quickly and efficiently. I believe the dates that I mentioned show that this is exactly what we achieved.

I would like to repeat that our party supports Bill C-22. Since October 2006, we have repeatedly offered to fast-track a number of justice bills. Surprisingly, the minority Conservative government has refused our offer. It would seem that the government addresses justice issues only when it thinks it can manipulate them for political gain. This is a government that would have Canadians believe it is taking action, but that is not delivering the goods. This is a government that is far more interested in grabbing headlines than getting results that will make Canadians and Canadian communities safer. This is a pattern that has been repeated a number of times already, as in the case of Bill C-22.

In October 2006, my colleague, the member for London West, who was then our party's justice critic, offered the government the chance to fast-track a series of six justice bills that the government had tabled in this House, including Bill C-22. The government turned us down flat. With my colleague, the member for Wascana, who is the Liberal House leader, I made the same offer again in mid-March, and again the government turned a deaf ear.

Towards the end of March, the Leader of the Opposition also made the same offer. The government again did not listen and completely ignored this last offer. To top it off, the government even had the audacity to oppose a motion I tabled to immediately move to third reading of four bills that the government itself had tabled, that is Bills C-18, C-23, C-35, and of course C-22.

Bill C-18 deals with DNA identification. Bill C-23, which is presently before the Standing Committee on Justice and Human Rights, is an omnibus bill that makes corrections and technical amendments to the Criminal Code with respect to various procedures. Bill C-35 deals with the reverse onus of proof in bail hearings. This government has stated that this bill is all-important to its agenda and to its justice policy but has flatly refused to accelerate the process in the House. The last bill is Bill C-22, which we are currently debating. This is the first time, in my almost 10 years as a member of Parliament, that I have seen a federal government impede the progress of its own legislation. Who would have thought it possible? Anything is possible, its seems, for this minority Conservative government.

In conclusion, I simply wish to say that, from the time Bill C-22 was tabled in this House, in June 2006, the Liberal Party of Canada, the official opposition, has shown its support for this bill and has attempted to convince this government to fast-track it. However, it was the government that blocked any attempt by the official opposition to quickly adopt Bill C-22. We are very pleased that, finally, this bill is in the House at the report and third reading stage. We intend to vigorously support this bill.

[Tony Cannavino]

This bill, Bill C-35, expresses it very well because it addresses violent crimes and violent criminals, the ones who commit those violent crimes. So it is targeted.

Also, I think Mr. Wilson expressed the impact of this legislation very well, the fact that there's fear in the communities. When the onus is reversed, it's up to the criminal to prove he's not dangerous. It has a huge impact. Although we understand the judge has discretion to release him, I could give you.... We said the impact would be.... As an example, we witnessed a week ago what happened to one of our colleagues who was shot and killed. That person should have stayed in jail. If we had that, it would have been easier for the crown attorney to prove. When the person tries to prove he's not dangerous, if he's a drug trafficker, has a full load of guns, and kills a police officer, how can he find bail? How could he be released? If we had Bill C-35, he would still be in jail.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

First, I would like to thank you, Mr. Francoeur, for your testimony. It touched me deeply. This is why we have a deep respect not only for police officers, but also for police chiefs. As a former mayor, I know there is a difference between both positions, as they involve different functions.

Also, the evidence we have heard on Bill C-35—a bill that we support—has been generally supportive, but there has been a different view of how it will play out. The Criminal Lawyers' Association, and others, suggest that the effect of Bill C-35 is to basically codify what is happening on very serious crimes.

With serious recidivists, bail is hard to get. That all goes to our first discussions on justice issues; it's the discretion of a good magistrate or good judge. I think Bill C-35 is just that. With the reverse onus--which sometimes puts somebody's liberty at risk, so it's an important issue—I'm confident that a properly funded legal aid system will give the accused representation, and a properly appointed and instructed practising judge will make the right decision on the three grounds of bail or interim release. So I'm totally in favour of Bill C-35.

What gives me a little inquiétude is that some of the witness statements perhaps suggested that the reverse onus is a sure thing, that in every case the person is going to be out on a judicial interim release. I don't think we should lead the public to think that's the case. It shifts the likelihood that the person will be kept; it makes it more likely. I think we might all agree on that, rather than giving the public the idea that it's pretty much automatic that they're going to stay—It still depends on the discretion of the judge, and I have confidence in that.

We've had this discussion before, and we've been in Toronto to hear the police chief speak. I think the big thing that comes up—and Mr. Cannavino and Mr. Griffin are almost veterans, and they should get a badge of attendance here—is that it's really about guns. That's really where we should turn our focus. Many of you have talked about guns, but how are we going to get to the issue? There's the gun registry.

We have the current Minister of Justice saying in the Commons that he doesn't want to target duck hunters; he wants to target criminals. Well, I am a duck hunter and I have registered shotguns. I grew up interfacing with the outdoors and learning the responsible use of guns. I don't need the Minister of Justice to protect me. I don't think he has ever owned a gun. That kind of hyperbole bothers me.

As some of the witnesses have said, the issue really is whether you are going to use a gun if you have it. I think Mr. Wilson said that. There's legal use of guns. There are people who believe that handguns can be used for other things than shooting human beings.

I didn't grow up in that culture, but I think we have to have a cultural debate. I think there's a difference between rural and urban Canada. In some cases I think there may be a difference between western and other parts of Canada. Mr. Bagnell said that about the north, as well. I think it's a cultural thing.

Are there effective models for gun control, which if properly resourced—that means detection, prevention, education, etc.—could work?

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

All right.

I have a question for Mr. Francoeur. First, I would like to thank you for your testimony. Since I come from the Montreal area, the dramatic events which took place at the École Polytechnique also left me—

In your presentation, you talked about how guns moved around freely, how it was possible to get them. You also talked about Châteauguay and Kanawake, which are municipalities located in my riding. It seems that it is easy to get weapons there. Since we are talking about crimes committed with a firearm, can you tell us more about the problem of the free flow of firearms? This is all relevant to our study of Bill C-35. It makes sense. We have to be logical and consistent. When you want to pass this type of legislation but ignore the firearms registry, in my mind that just does not make sense. Now we are talking about the free flow of weapons. Can you tell me a bit more about what goes on?

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I would first like to thank you all for appearing today. This is all very interesting.

Since we began studying Bill C-35, only one witness has expressed reservations; that was this morning. Everyone, except for one person, was in favour of the bill. One of the reasons why he was more or less in favour of enforcing the bill was that, in his view, most people who commit firearm offences are already incarcerated de facto.

I would like to know whether you have any statistics to that effect. You have some concerning Toronto and Montreal. I would like to know the proportion of criminals who are incarcerated under existing laws. We are studying this bill and we understand, on a philosophical level, the scope of your arguments, but do you have any figures to provide to us?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Yes, indeed.

My question is for you, Mr. Cannavino.

When Bill C-35 was tabled, I asked myself a number of questions. As you indicated earlier, currently, when an individual is arrested by the police, that person appears with his lawyer, and the Crown has to determine that the accused is dangerous in order for him not to be released. Of course, in the case of an individual without a criminal record, even if you do have information, the information cannot be used to detain the individual. You have no right to do so, and neither the Crown nor the judge would allow it.

I want to make sure I am properly understood. Bill C-35 adds a dozen serious offences. These are not minor offences, where reversing the burden of proof could create problems. I understand that the question I will be asking you, Mr. Cannavino, might be philosophical in nature, but it is important.

Many people, including senior citizens, watch television programs on TVA, Radio-Canada, TQS and other channels where stories of people shot in the streets are shown every night. For having worked in this field, I know that the problem is not security, but the sense of security. That is not only true for senior citizens. There are 50-year-olds who are scared, and there are 20-year-olds who are already scared.

Bill C-35 will ensure that people are brought before a judge, and as Ms. Jennings indicated earlier, will have to prove that they are fit to be released. Will the fact that an individual is not immediately released have an effect on people's sense of security? The Crown may postpone the trial by three days, as is currently done, and an arrangement can be made with the Crown on fairness issues to release the individual.

Could the fact that an individual is not immediately released, pursuant to Bill C-35—that does not mean he is guilty—create a sense of security? I call that philosophy, something you spoke about earlier. I do not want to speak about the case you alluded to where one of your police officers was killed, but I did see it on television. We all were shocked. I myself, as a defence lawyer, was surprised. I would like to know whether Bill C-35 addresses the issue of safety. The law is one thing; safety is another.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Mr. Chair.

I'd like to thank you very much for your presentations.

I have to admit that I like Bill C-35, despite the fact that I don't think it will really do much to make Canadians safer in their communities. In fact, based on the information we received, as a general rule if someone is accused of committing a firearms-related offence, the judge considers this as an aggravating factor. In such cases, the accused may be held in prison while awaiting his trial.

What I like about this bill is that when an accused person meets with his legal counsellor or attorney, his representative will not tell him that the onus is on the Crown to prove beyond all reasonable doubt in a bail hearing that the accused constitutes a threat and therefore must be detained until he goes to trial. The lawyer is going to have to tell his client that it is up to him to prove that he should be released. That's a major change in philosophy. And that will probably have a bigger effect on the accused person than the process itself. Currently, the accused can simply off-load the burden of proof, which is actually quite substantial.

I read the Canadian Police Association's brief. There was something that really struck me on page 10 of the section entitled “The Canadian Judicial System Needs a Major Overhaul”. You stated the following:

We contend that the time is long overdue to reform our criminal justice system. An independent review of Canada's sentencing, corrections and parole systems remains a top priority for the Canadian Police Association.

I'd like to know if you feel frustrated at all by the fact that rather than carrying out such an overhaul and making sure an in-depth public inquiry is held on the sentencing, correctional, and parole systems, that a piecemeal approach is being adopted.

[The Chair, Liberal, Bernard Patry]

Mr. Cannavino, if you would, please answer the questions about Bill C-35.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Mr. Cannavino, Mr. Francoeur, good afternoon. I have a few comments to make. Mr. Francoeur, thank you for your testimony and, in particular, for pointing out the contradiction between the fact that the government wants to have stiffer sentences, but is not concerned about the easy availability of weapons. You will not have to work very hard to convince a number of us.

It seems to me that there are two types of measures that are really needed to fight crime. First, there is the firearms registry. If I were appointed Minister of Justice or Public Security, the first thing I would do would be to look at parole. I do not think that this bill will have a big effect on the problems you are describing.

Mr. Cannavino, you will be pleased to know that the Defence Lawyers' Association supports this bill. They told us—see how all is right with the world!—that in practice, magistrates, justices of the peace and judges did not release people on bail who had committed firearms offences. Obviously, not everyone might agree. I introduced a motion on street gangs, and I hope that my colleagues on the government side in a great gesture of friendship such as we have seen all too rarely over the past few years in this committee, will pass it on Thursday morning.

Mr. Cannavino, you were there when parliamentarians considered Bills C-84, C-24 and C-36. You know how concerned the Bloc Québécois and others are about gangsters and street gangs. People in Montreal and Toronto, especially your colleague Mr. Robinette from Montreal, have told us that drive-by shootings are not covered by the definition of criminal organization in the Criminal Code. Should we not include that immediately? When people are intercepted, a drive-by shooting is not enough to prove that they belong to a street gang and can therefore be charged. They can obviously be charged with homicide and other offences, but it would be better to have a charge of gangsterism, since that delays parole and results in longer sentences.

If we have to choose between a bill like C-35, which seems to us to entrench a practice which already exists, and not being more vigilant with the firearms registry and not changing the definition of criminal organization in the Criminal Code, I would opt for the latter approaches.

I would like to hear from your colleague, Mr. Francoeur, yourself or any of the other witnesses who might like to comment, but I would first say that I find the current system, which allows people to serve only one-sixth of their sentences, totally unacceptable. One-third would be understandable. But the revolving door scenario that you have described does not seem to me to have too much to do with Bill C-35; it stems more from the fact that people can serve just six months of a sentence—Some crimes that allow perpetrators to be eligible for release after one-sixth of the sentence are much more serious than these. Gun smuggling is a real concern. There are people eligible to serve no more than one-sixth of their sentences who pose a much greater danger to society, in my view.

I would have liked us to review this issue of serving one-sixth of sentences and of amending the Criminal Code to change the definition of criminal organization, which seem to me to be much greater priorities than bail for firearms offences, which is basically a non-issue in practice, if we are to believe the people who work on the frontlines.

[Yves Francoeur, President, Fraternité des policiers et policières de la Communauté urbaine de Montréal Inc., Canadian Police Association]

I did not bring any statistics on Montreal because they do not indicate the number of people out on bail pending trial. However, Montreal probably has the best statistics in Canada. People told me last week that only Montreal and Toronto had detailed statistics. One thing I do know is that, on Saint-Laurent Street in Montreal, 28 handguns have been seized since January 1^st, 2005, including 11 that were directly related to street gangs, with the rest connected to organized crime.

If Bill C-35 had been in force, Basil Parasiris, who murdered Laval police officer Daniel Tessier, would never have been on bail while awaiting trial. It was Basil Parasiris in this case, but in Montreal we are often dealing with street gangs. We might, for example, arrest three of them with handguns in a car. If a street gang member happens not to have a criminal record because he has never been caught before, he will receive a bail hearing in court and be released.

This legislation needs to be passed in its entirety. But we also need to look at firearms more broadly. Bill C-10 and the firearms registry will probably be back in the spotlight soon.

I am particularly sensitive on firearms issues. On December 6, 1989, at 4:40 in the afternoon, I was patrolling on Décarie Boulevard in Montreal, when I received a call to go to the École Polytechnique. Unfortunately, we arrived too late; there were 14 victims. For 12 hours, I guarded a crime scene a little larger than this room, where 6 female students had been killed and were lying on the ground. Against the back wall stood a metal ladder leading up to a small window. Those young women had tried to escape, and there were bits of flesh everywhere.

In Montreal and other major cities, we have seen a trend toward greater use of firearms. I was a patrol officer in Montreal from 1987 to 1998. During that period, we very rarely seized any handguns. We seized sawed-off weapons, prohibited weapons, because handguns were not available. These days, anyone can get hold of a handgun. I work for the police in Montreal and I could bring you to an Indian reserve in Châteauguay and find you a 357 or 9 mm handgun to buy.

Bill C-35 is a first step in the right direction, but it is up to you, as our current decision-makers, to ensure that future generations, our children and grandchildren, will be able to live in a society without firearms. So please, it is important to begin by passing this bill.

Thank you.