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.

[Tony Cannavino, President, Canadian Police Association]

Mr. Chairman, members of the committee, good afternoon.

I would like to introduce the colleagues who are with me and who are members of the Canadian Police Association's board of directors. They are Yves Francoeur, President of the Fraternité des policiers et policières de Montréal; Dave Wilson, President of the Toronto Police Association; Daryl Tottenham, President of the BC Federation of Police Officers. I am also accompanied by the Executive Director of the Canadian Police Association, David Griffin. I will begin my presentation and then my colleagues will be available to answer your questions.

The Canadian Police Association welcomes the opportunity to present our submissions to the House of Commons Legislative Committee on Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences).

The CPA is the national voice for 56,000 police personnel serving across Canada. Through our 170 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages as well as those working in our largest municipal cities, provincial police services, members of the RCMP, Railway Police, and First Nations Police Associations.

The Canadian Police Association is acknowledged as a national voice for police personnel in the reform of the Canadian criminal justice system. Our goal is to work with elected officials from all parties, to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.

Urban violence has been a significant concern for our association. For over a decade, police associations have been advocating reforms to our justice system in Canada. In particular, we have called for changes to bolster the sentencing, detention, and parole of violent offenders.

Make no mistake about it, repeat offenders are a serious problem. Police understand this intuitively as we deal with these frequent flyers on a routine basis. Statistics released by the Toronto police homicide squad for 2005 demonstrate this point. Among the 32 people facing murder or manslaughter charges for homicide in 2006, 14 were on bail at the time of the offence, 13 were on probation, and 17 were subject to firearms prohibition orders.

In November 2006, statistics provided by Toronto police indicate that of the nearly 1,000 crimes committed so far that year involving firearms or restricted weapons, nearly 40% were committed by persons on bail, parole, temporary absence, or probation. The revolving door justice system is failing to prevent further criminal activity by these repeat violent offenders.

Gun violence requires a non-partisan approach. Stopping the gang violence in Canada's major cities is a concern for police officers across this country. The solution begins with bringing an end to Canada's revolving door justice system.

Canada's police officers have lost confidence in a system that sees violent offenders regularly returned to the streets. We need to restore meaningful consequences and deterrence in our justice system, which begins with stiffer sentences, real jail time, and tougher parole eligibility policies for violent offenders.

We need to protect Canadians from offenders who commit crimes with guns or any type of weapon. We support the introduction of reverse onus legislation for offenders charged with serious offences involving firearms and other regulated weapons.

Support for tougher measures to thwart gun violence transcends party lines. During the last federal election, all three major parties promised tougher legislation for crimes involving firearms. The NDP platform promised to increase the mandatory minimum penalty for possession, sale, and importation of illegal arms such as handguns, assault rifles, and automatic weapons, and to add mandatory minimum sentences to other weapons offences, including a four-year minimum sentence on all weapons offences such as possession of a concealed weapon.

Former Prime Minister Martin promised to introduce reverse onus bail rules and to toughen penalties by reintroducing legislation to crack down on violent crimes and gang violence, by doubling the mandatory minimum sentences for key gun crimes.

On Thursday, November 23, Prime Minister Harper, Ontario's Premier Dalton McGuinty, and Toronto's Mayor David Miller held a joint news conference in Toronto to announce new federal legislation to toughen bail conditions for gun-related crimes.

Premier McGuinty has been a proponent of tougher measures to deal with gun crime. On December 29, 2005, following the Boxing Day shooting death of Toronto student Jane Creba, Premier McGuinty wrote a letter, entitled “An Open Letter from Premier McGuinty to Federal Leaders on Gun Crimes”. In the letter, the premier proposed the following initiatives to address the gun crime concern: impose a ban on handguns; impose a mandatory minimum sentence of four years for illegal possession of a handgun; impose increased mandatory minimum sentences for all gun crimes; create two new Criminal Code offences with mandatory minimum sentences for robbery with the intent to steal a gun and for breaking and entering with the intent to steal a gun; impose a reverse onus on bail for all gun crimes; and set more severe penalties for any breach of bail conditions.

Premier McGuinty supports reverse onus legislation. As he stated, “When you pick up a gun and commit a crime, you lose your right to be free.”

In January 2006, Ontario Attorney General Michael Bryant released the province's anti-gun strategy, which includes a call for reverse onus bail.

Toronto Mayor David Miller stated that he supports the new legislation, because “guns are different than anything else. Witnesses need to know that if they help police in apprehending a criminal using a gun, they'll be able to come forward and speak without fear, because the criminal will remain in jail.”

Liberal leader Stéphane Dion has “pledged that his caucus is prepared to offer the Conservatives the vote they need to pass 'reverse-onus bail hearings' legislation that would make it more difficult for those arrested on firearms offences to be released on bail”. The Liberal crime strategy announced on March 14, 2007, includes a commitment to “continue to support reverse-onus bail hearings for those arrested for a gun crime”.

Canadians are rightly concerned that our criminal justice system does not provide an adequate response to firearms offences. They are looking to Parliament to move swiftly to fulfill these commitments.

Gang violence is a major problem in many of our cities, as we have seen in recent months in the city of Toronto. But make no mistake about it, urban violence is not only a Toronto problem. Statistics Canada confirms that the cities of Regina, Winnipeg, Abbotsford, Edmonton, Saskatoon, and Vancouver have had consistently higher homicide rates than Toronto for the past decade.

The tragedy at Dawson College in Montreal has reinforced the need to strengthen Canada's controls over civilian firearms possession. To our knowledge no new firearms have been added to the restricted or prohibited categories in Canada for over a decade, yet many new firearms are being offered for sale that would arguably meet existing criteria. As a consequence, some weapons are being legally sold in Canada despite the fact that they meet existing criteria for restricted or prohibited status and present significant concerns for public safety.

Retailers understand and exploit those loopholes, as demonstrated by the posting of the website for Wolverine Supplies in Manitoba—you'll find it in your brief. We submit that further steps must be taken to close the loopholes by updating and maintaining the restricted and prohibited firearms classifications.

In conclusion, stopping the gang violence in Canada's cities is a concern for Canadian police officers, and the solution begins with bringing an end to Canada's revolving door justice system. Canada's police officers have lost confidence in a system that regularly releases violent offenders and lets them go free in our streets.

Bill C-35 is a positive step in addressing the pre-trial custody of persons accused of serious crimes involving firearms and regulated weapons.

In addition, we need to restore meaningful consequences and deterrents in our justice system, which begins with stiffer sentences, real jail time, meaningful intervention and rehabilitation, and stronger parole eligibility policies for violent offenders. We need stiffer minimum sentences for offenders who commit crimes with guns or any type of weapon.

Bill C-35 provides a positive component in an integrated strategy to address current shortfalls, specifically pertaining to the concern with gun violence. We urge Parliament to proceed swiftly with passage of Bill C-35.

We thank you for your attention, and we welcome your questions. Thank you.

[The Chair, Liberal, Bernard Patry]

Good afternoon, everyone.

This is meeting no. 6. As the agenda indicates, pursuant to the order of reference of Tuesday, March 27, 2007, the committee is considering Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences).

As witnesses we have, from the Canadian Police Association, Mr. Tony Cannavino, the president; David Griffin, executive officer;

Mr. Yves Francoeur, President of the Fraternité des policiers et policières de la Communauté urbaine de Montréal—I doubt that the community exists anymore, but in any case—

Dave Wilson, the president of the Toronto Police Association; Daryl E. Tottenham, sergeant, Westminster Police Service.

We also have, from the Canadian Police Association,

Mrs. Amanda Connolley.

We're going to have two presentations. The first one is by Mr. Cannavino. Mr. President, the floor is yours.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you to both of you.

One of the things we heard overwhelmingly from witnesses before—and I heard it from you today, Mr. Muise—including the chiefs of police.... And I think we did hear, Professor Doob, that this could be affecting a relatively small number of people.

What we've heard overwhelmingly as a committee is that a relatively small number of people are the problem, when they're out on the street. We heard testimony that when you take this small number of serious repeat offenders off the street—the people who are committing offences with a firearm, such as the serious ones Bill C-35 addresses—in some communities crime rates can dramatically fall from very high rates.

So I'm wondering, Mr. Muise, if you can comment on that, in your experience, because it's certainly something we've heard time and time again. Also, I think you wanted to make some comment on a question from Mr. Comartin, so I'll allow you time for that.

Could both of you keep your remarks brief, as I do have a couple of other questions.

[Dr. Anthony Doob]

Well, it's not my study. I've only seen the citations of it, and I don't believe it's a published study, so I don't have access to it.

The second problem we're talking about is how many of those people were not just on bail, but also on bail for firearms offences. So I think we have to be careful about who is the target of this, in terms of public safety. It's people who are charged with a firearms offence, who are going to go to a bail court, who are going to be detained, and who would have been released were it not for this bill—that is, who would be detained because of Bill C-35—but then commit another offence. So you're talking about a minuscule potential impact, because you're talking about this group.

My starting point from the Ontario data I'm aware of is that these folks are going to get detained. So when you change it by reversing the onus.... In reality, the onus is already reversed, as the previous witness has already told you. So you're talking about a minuscule number of people who might now be detained, but otherwise would have been released. Now you're saying, what proportion of that tiny number would commit another offence? This isn't public safety.

[John Muise, Director, Public Safety, Canadian Centre for Abuse Awareness]

Thank you, Mr. Patry.

Good morning, and thank you for the opportunity to appear before you as you deliberate on BillC-35. Looking around the room, I know that I've appeared before some of you, but for those I haven't, my background informs what I say, and I'll tell you a tiny bit about it.

I just wrapped up a 30-year career in law enforcement last year at the Toronto Police Service. My last posting was as a detective sergeant in the homicide squad, where I managed the retroactive DNA team in the major case management section. During my career I worked in both plain clothes and uniform, including stints in the drug squad in the early 1980s, and at the first-of-its-kind street crime unit in the early 1990s. It was a community-based education enforcement hybrid that partnered with local high schools for the purpose of tackling youth violence and gang crime in schools and communities. The original model that I participated in the development of has been copied in whole or in part in many communities across the country.

The last six out of seven of my years at the police service I spent on secondment to the Ontario Office for Victims of Crime, an advisory agency to the provincial government. We provided advice on public safety, support for crime victims, and criminal justice reform to several attorneys general and other justice sector ministries in two governments.

I'm going to touch on some of the points that the Canadian Centre for Abuse Awareness believes are pertinent in relation to Bill C-35.

Are the proposed amendments appropriate? The Criminal Code currently provides for reverse onus to switch the onus or burden of proof from the Crown to the accused when bail is being considered. It includes a variety of offences, and I think you know all of them, including certain offences perpetrated against the state as set out in section 469, an indictable offence committed while the accused was already on bail, certain organized crime and terrorism offences, offences committed by an accused who lives outside of the country, murder, and certain drug trafficking offences. It should be noted that this onus with respect to both the Crown and the defence is decided based on a balance of probabilities.

Despite the pronouncements in sections 7 and 11 of the charter, the Supreme Court has supported these provisions, as set out in two cases, one called Morales, and one called Pearson. Morales in particular determined a number of points, including that the right to be presumed innocent, as set out in section 11 of the charter, was not a relevant factor at bail hearings. In other words, guilt or innocence was not being considered, and punishment or sentence was not being imposed. Rather, the hearing was about granting preventive detention or not. The court ruled that public safety was an appropriate ground for denying bail. The court also ruled that the reverse onus provisions continued to be valid.

The court determined that the so-called public interest portion of the section was too vague and, as a result, unconstitutional. After that ruling, Parliament amended that section and it stated the following--and I think it's important:

on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.

This was added to the original clauses. Pearson made some of the same kinds of decisions.

As you know, in the sections currently contemplated in this bill are offences that involve carrying and using guns in the commission of serious firearm offences and that carry a minimum sentence of three years and up, some more than three years. As a result, they should fit in section 515 in relation to reverse onus.

Is violent crime on the rise in Canada? When it comes to statistics about crime rates, a whole lot of cherry-picking goes on. Criminologists, lawyers, law professors, and other academics are quick to remind you about sticking to the facts and getting it right. I certainly agree with them, but sometimes they're guilty of relying on short-term or year-to-year increases or decreases to make their cases. This can be misleading and inappropriate.

A check of the violent crime rate, calculated on the basis of 100,000 population and dating back to 1962, shows the rate for violent crime of 221 per 100,000 in 1962 increasing to 1,084 in 1992, and levelling off since then to slightly under 1,000 for the past nine years. This is an extraordinary increase by any measure, and the levelling off that has taken place over the last dozen years still has us light years away from the good old days. When one considers the new vocabulary of crime that exists today—and more on that in a moment—this extraordinary rise since 1962 is significant, and I don't think we can go to sleep.

Although the CCAA does not have access to corresponding long-term tables for firearms offences, we are confident that, if available, they would mirror or exceed the general violent crime rate, where similar offences are tracked. The CCAA strongly encourages the committee to obtain from department officials the same long-term tables in relation to firearm-related offences.

Law enforcement officers and other professionals working on the front lines of the criminal justice system know intuitively that there are a small number of offenders who commit a disproportionately large number of serious and violent crimes. They also know that a large number of serious violent crimes are committed by offenders out on bail or other forms of conditional or judicial release.

The LEGISinfo discussion paper prepared for this bill commented as follows:

According to statistics cited by the Government of Canada, of almost 1,000 crimes involving firearms or restricted weapons committed in Toronto in 2006, “nearly 40 per cent ... were committed by someone who was on bail, parole, temporary absence or probation.” According to the Toronto Police, 70% of people charged in a homicide in 2006 were under a court order at the time of the slaying.

The CCAA is confident that if these numbers were parsed, many offenders responsible for the commission of serious violent crimes would be found to have been out on bail or another form of conditional release at the time of the offence, including out on bail where firearms were used in the predicate offence. Again, the CCAA recommends that this committee obtain from department officials any information available in relation to these issues.

What about gun play in Toronto in the past 30 years? We want to provide an anecdotal sense of the history of firearm crime in Toronto. We suspect that the same things were occurring in other urban jurisdictions across the country.

I had a unique perspective as a law enforcement officer in the Toronto Police Service from 1976 until 2006. In those early years it was exceedingly rare, even in the busiest downtown divisions, that offenders were arrested in possession of illegal handguns or semi-automatic weapons. Even the most organized narcotics and drug traffickers did not carry or possess these kinds of firearms. I know; I worked in the drug squad. Uniformed, plainclothes, and undercover officers rarely confronted these kinds of weapons.

That changed in the late 1980s and coincided with the crack--that is, freebase cocaine--trade. It continued in the early 1990s and onward with the proliferation of American-style street gangs, usually arranged along ethnic lines, which now commit crime in support of territory and profit.

The results are in full view, often in areas where socially assisted housing predominates and from time to time on our crowded downtown streets: drive-by shootings, shots fired because of a perceived disrespect, brutal and often random home invasions, no self-respecting crack dealer who will leave home without his trusty Glock pistol or 9mm handgun, and whole communities marginalized and living in fear. We have a new vocabulary of violent and brutal crime, and the violent crime statistics I gave you earlier reflect that reality.

Most Canadian citizens neither witness nor experience the gun and gang play that exists in certain urban settings. They often see it only when they tune in to the nightly news. But for a large minority struggling in the lower social strata, the gun and gang play is all too real, wreaking havoc on communities and those who reside in them. It is not hyperbole to suggest that for some, guns and gangs have reduced their communities to virtual urban warfare danger zones, where if you don't join the bad guys, you keep your head down, hope for the best, and pray that you or one of your family members doesn't get shot.

What about stitches for snitches? Against the backdrop described above is the tremendously powerful credo that you don't rat or snitch to the police, ever. This notion has been alive and well for a long time. Started by prison inmates and organized crime groups, it is a particularly powerful social dynamic that has enveloped the communities described above. Urban law enforcement agencies have tremendous difficulty getting witness support where guns and gangs are involved. It is likely the single greatest reason why these offenders are not being brought to justice in the most serious of cases, particularly for homicide.

Allowing offenders who use firearms to get out on bail when they shouldn't contributes to further undermining the administration of justice. And it drives witnesses and victims, if they're still alive, further underground. This problem is not going away anytime soon.

In conclusion, this proposed amendment has received a significant degree of support from a wide variety of stakeholders. Those who possess and use firearms, as set out in this bill, have made very specific choices about how they choose to lead their lives, more so, at least from a public safety perspective, than any nickel-and-dime pot dealer. When you decide to pick up a firearm to use in a crime or as a tool that forms part of your criminal arsenal, you may not know how long you're going to jail for, but you certainly know the consequences if you fire that weapon, and you have made a clear choice. You have to know that serious violence and catastrophic victimization might occur.

The CCAA hasn't and wouldn't support any recommendation that attacks one of the fundamental principles of our justice system: the presumption of innocence. It is a cornerstore of the Canadian criminal justice system. The question we pose is, where do you draw the line? We would suggest that reversing the onus for a small number of similar offences involving firearms that all carry a significant minimum mandatory sentence is an appropriate place.

We would suggest that this is a legislative tweak rather than a dramatic shift in how the law is applied when it comes to bail. At the end of the day, it will still fall to our courts to decide on a balance of probabilities whether the accused should be held pending trial or not. Let us provide those same courts with this small tool to help in making decisions in support of enhanced public safety.

We encourage all members of this committee and all parliamentarians to work together to pass the legislation.

I've left copies of my brief with the clerk, and also a copy of the table with respect to the rise in violent crime.

Thank you.

[Dr. Anthony Doob, Professor, Centre for Criminology, University of Toronto, As an Individual]

Thank you for inviting me to appear before you.

I'm obviously aware of the fact that this bill has received wide support from various political parties and individual politicians at various levels of government. Notwithstanding this support, I'd urge you, in your decision about this bill, to think about the message that you're giving Canadians about the operation of the justice system.

Over the past 25 years or so, I have carried out research on, among other things, the public's understanding of the criminal justice system. My concern about this bill has less to do with its direct effect on the operation of the criminal justice system than it does with the clearly incorrect messages that it gives Canadians about the relationship between crime and the criminal law, and the false pictures it paints of the operation of the criminal justice system.

The first message you are communicating is simple. You are telling the Canadian public that by making a few changes in one of the 849 sections of the Criminal Code, Canadians will be safer from firearms-related offences. I wish it were this easy. I wish that by making these changes in the Criminal Code, gang, gun, and drug crime would be reduced and that you would be contributing to protecting Canadians. Unfortunately, it isn't that simple. But the message emanating form Parliament with this bill is that by toughening up on bail, you will have a measurable impact on the rate of serious crime with firearms. It won't.

I say this for a number of reasons. Our data in Canada on the operation of the bail courts are rather impoverished, but from the Ontario data that I have seen, serious cases of violence involving firearms are already almost invariably going to court for a bail hearing, and fewer than one-third of all non-trivial violent cases result in the accused being released prior to trial.

I have not seen data that deals specifically with violent offences involving firearms. It's very reasonable to assume that the release on bail rate for these cases would be even lower than the overall release rate for serious violent offences. If fewer than a third of all non-trivial violent cases result in a person being released, what effect should we expect a reverse onus provision would have on some of the most serious cases involving firearms?

The only data that I am aware of on the actual impact of reverse onus situations in Canada relate to a quite different type of judicial decision. In the mid-1990s the Young Offenders Act was changed such that, in certain cases, a youth would be presumptively transferred to adult court. We tracked the number of transfers to adult court for these offences during this period, and the changes in the law had no effect.

The studies that I am aware of on the operation of bail courts suggest that most releases from bail courts are with the consent of the Crown, and they're not the result of contested bail hearings. This is another reason one would not expect Bill C-35 to have a real effect on the operation of the bail courts. Crowns are not now likely to consent to the release of people accused of serious crimes involving firearms. Changing the law will therefore not change anything in terms of who is on the street.

Said differently, although you may tell your constituents that Bill C-35 will make them safer, I can assure you this is very unlikely to be the case. If you want to make your constituents safer, you would best spend your time looking at something else.

The problem is that solutions to the crime problem are not going to be as easy as making a few changes to one section of the Criminal Code. The evidence that has been repeatedly cited in support of this bill is interesting, largely because it does not address the relevant issue. We are told that in Toronto nearly 40% of crime involving firearms in 2006 was committed by someone who was on bail, parole, temporary absence, or probation. That may be an interesting statistic, and from my perspective it isn't terribly surprising.

The question one might ask of this statistic, however, is this. How many of these almost 40% were committed by people who had been released on bail for a firearms offence that would be captured by Bill C-35 and for whom the reverse onus might have made a difference? Though obviously available from the data used in that study, those who cite this study in the context of this bill do not provide more appropriate information.

More importantly, what we would like to know is that of all of those charged with firearms offences covered by Bill C-35, how many are released on bail, and of those who are released on bail, what proportion commits serious offences while on pretrial release? That's an answerable question by those who have the data.

It should be remembered that logically this is not a bill designed to reduce firearms offences; it is a bill that deals only with bail hearings for those who have already been charged, according to the police, with committing an offence involving a firearm. The firearms offence would have already taken place.

As best we can tell, offenders who are apprehended for serious violent offences, particularly those charged with offences with firearms, are increasingly held for bail and detained. Some lawyers, the one who appeared before you immediately before me, as an example, have publicly expressed the view that in many parts of Canada—Toronto would be a good example of this—release on bail has effectively already become a reverse onus for almost all cases. In reality, the accused must present an argument as to why he or she should be released and must also develop a plan to demonstrate that he or she will appear in court and commit no further offences.

So my concern is not that you are going to fill provincial prisons with additional remand prisoners. My concern, as I've already said, is that you're giving two incorrect messages about the criminal law and the criminal justice system. The first incorrect message is that Parliament, by adding another reverse onus provision to our bail laws, will protect us from crime. The second related concern is that you're giving a message that our bail courts are generally prone to release people who are likely to commit serious offences and that we need to restrict our bail laws in order to make ourselves safe.

Let me give you a picture of what our bail decisions really look like.

In this slide, I've plotted the overall rate of provincial imprisonment for Canada and its two largest components: those sentenced and the pretrial remand population. This slide and the next three give a picture of the people who are in provincial institutions on an average night in each of the years that is pictured. The number of people in custody is provided as a rate in order to take into account the population increase that has occurred in Canada.

The picture that you see from this graph is easy to describe. First, you see that the overall imprisonment in provincial institutions is fairly stable over this period, starting from the late 1970s and going up to about 2003. Second, you see an increase in imprisonment rates for those on pretrial remand--more than doubling--such that in the latter part of this graph there are just about as many in prison serving their sentences as being punished before being found guilty.

That's the picture for Canada as a whole. When we look at Ontario, we see the same pattern, except it's more extreme.

In Ontario, you see the natural consequences of tough decisions on bail. On an average night, Ontario has twice as many people being punished before being found guilty as being punished as a result of a sentence handed down by a judge. You may be thinking that this is the result of guns, gangs, drugs, domestic violence cases, and other violent things that males do. And certainly you would get support from looking at this slide, which shows the same information, but only for the male offenders.

But when we look at the pattern for women, we see something that might be surprising. We see more or less the same pattern. So if you were thinking about drugs, gangs, guns, and so on in the previous slide, it seems unlikely that the increased tough decisions made about bail would have created the effect for women that we have now, which is that twice as many women are serving their sentences before being found guilty as are serving their sentences after being found guilty, in Ontario's prisons.

Unfortunately, I was not able to find national data that broke down the imprisonment rates for men and women separately. I cannot comment, therefore, on whether the national rate for women looks the same as the rate for Ontario does.

Few of us really believe that the increase in pretrial detention for women is due to these serious crimes. What we're seeing is what's happening to a group of accused people who are not likely to be firearms-wielding offenders.

The picture tells you about the operation of our bail courts more generally. If women are being locked up at higher and higher rates, do we really believe that people who commit serious offences with firearms are being dealt with leniently? What relevance does this have for your consideration of Bill C-35?

I would suggest that one of the messages you are giving when you support Bill C-35 is that the criminal justice system is lenient in the manner in which it treats those who are arrested and brought by the police to court. We know that in Ontario, in recent years, more and more people are being brought before a court for a bail hearing. The police are reluctant to release people on the street who are at the police station. Not only are more people being brought to court, justices of the peace in Ontario are reluctant to release those accused of crimes. It's no wonder, then, that our pretrial remand population is increasing.

I know there has been a fair amount of concern expressed on other parts of these graphs, in particular the reduction in the size of the sentenced population. The most likely reason for this is obvious, as you heard from the previous witnesses. Judges are required to take into account the amount of time people have served when they hand down their sentences.

Taking into account the amount of time served in pretrial detention is an inexact science, as you already heard. When we hear stories about people preferring to serve “dead time” rather than sentence time so that they can be released on time served, it assumes that sentences are almost perfectly predictable. They are not, although they obviously become more predictable when there's a joint submission from the Crown and defence.

It is said that many accused prefer to serve their sentences before trial because they get a two-for-one credit for time served in pretrial detention. But I think the two-for-one credit for time served is often misunderstood. We have to remember what a sentence of imprisonment means. An offender in a provincial institution will almost certainly not serve more than two-thirds of his or her sentence. If the sentence is a reasonably long one, the offender will likely be eligible for parole or for temporary absence passes. The result is that they're likely to serve between one-third and two-thirds of their sentences.

Let's imagine that the proper sentence for an inmate is 100 days. The inmate might be expected to serve anywhere from 33 to 67 days. Let's assume they'd get the midway between these extremes of 50 days. If the inmate instead served 50 days in pretrial remand and got a two-for-one credit, it works out to be exactly the 100-day sentence he or she would be expected to get. In other words, two days of credit toward the sentence for each day served is a fair trade-off in the way our system works. Nevertheless, it's typically talked about as if it were a deep discount, but it isn't.

I'm not a big fan of our parole or discretionary release system as it currently exists. Twenty years ago I was part of a commission that recommended discretionary parole, as we know it, should be abolished. But two-for-one credit, as it currently operates, does not seem wildly out of line for an individual prisoner.

But if you think it doesn't matter whether or not people serve their sentences before or after they're found guilty, I disagree with you for two reasons.

First, such approaches distort the meaning of sentences. When ordinary people hear that an offender was sentenced to time served or got a short-sounding sentence because of a two-for-one discount on the sentence, they understandably have no way of evaluating what this means. It would appear that the offender got a light sentence, when he or she may have in fact served exactly the same time as if there had been no time in pretrial detention.

Second, as most correction authorities will tell you, the term “dead time” for those in pretrial detention describes quite well the usefulness of this time in terms of rehabilitation programs. Pretrial detention prisoners, at least in Ontario, are not normally eligible for correctional programming for a very simple reason. No one knows how long these prisoners will actually be in custody. Therefore, no one knows whether or not they will have an opportunity to finish any programming they start.

Bill C-35, then, contributes to many of the problems perceived and otherwise that we have in the justice system generally, particularly with bail. As I've said, I don't think it will result in appreciably more pretrial detention prisoners of the type covered by this bill. They already seem very likely to be detained. But the bill contributes to the perception that bail needs fixing and that in detaining more people before they're found guilty, we will contribute to public safety. I would suggest this bill reinforces a false perception of the justice system.

Finally, I'd like to remind you of the times that we live in with respect to crime. In the past 10 years or so, we've seen an overall decrease in crime. I've given you the figures for both Canada and Ontario. Although crime has apparently decreased, the operation of our bail courts has become tougher. We see the same pattern when we look at violent crime.

Of course, I am aware of the fact that the Prime Minister noted there were increases in 2005 in four categories of violent crime: homicides, attempted murder, robbery, and serious assaults. He failed to note, of course, that there were year-over-year decreases in robberies with firearms, the most serious sexual assaults, and various other categories of crime. But whether or not you're talking about robbery rates or robbery with firearms rates, year-over-year changes tell us little about crime trends.

I would suggest this is a time when we need to seriously think about how to reduce our levels of crime. If crime rates were increasing, it would be harder to have a reasonable discussion about how to invest to reduce crime. But with crime rates essentially stable or perhaps decreasing, we should be able to take advantage of the situation to carefully consider how best to make Canadians safer.

Unfortunately, I see no evidence of thoughtful discussion on this issue. Thus, given that the causes of crime are largely outside the criminal justice system, I would like to end by returning to the point I made earlier.

Changes in the criminal justice system of the kind you're considering will not affect crime. If we were interested in doing something about crime, we would investigate seriously where we might best invest our resources. We might ask, for example, whether resources would be best invested in public health, the police, schools, or our communities. These are not easy choices, but we have to make these choices. This bill does not encourage us to think about the choices that you and other levels of government need to make. Saying that we're going to do both, toughening the justice system and investing in communities, is inadequate if the focus is almost exclusively on the first.

Again, I realize that most of you favour this bill. In that context, therefore, my wish is only that you would cease making false promises to Canadians about its impact on safety. Crime is a serious problem that needs serious attention.

Thank you very much.

[The Chair, Liberal, Bernard Patry]

With your permission, I'd like to call the meeting to order. This is our 5th meeting on Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences)

Our witnesses are, as an individual, Monsieur Anthony N. Doob, professor, from the Centre for Criminology, University of Toronto; and from the Canadian Centre for Abuse Awareness, Monsieur John Muise, director of public safety.

I want to remind my colleagues that we need to be finished by 11 o'clock. There is another committee here at 11 o'clock.

We'll start with Mr. Doob's presentation, please.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you very much for being here.

There is a question that's been on my mind ever since we had our meeting the other night with the statisticians. It's over one particular slide they had, on which they indicated that of those arrested in relation to Bill C-35, 40% were found guilty and 60% were not.

I looked at that, and the first thing I thought was, holy cow, what's going on here? Is somebody not doing enough investigating, and they're coming up with insufficient evidence to convict on a charge? Or is Canada full of sharp lawyers like you who are able to get some of these guys off on technicalities or loopholes or whatever? If, out of all the arrests, 60% are found innocent and only 40% are found guilty, that draws a picture in my mind. According to a stat like that, we'd better be on the safe side and bail everybody out.

Yet in my riding there was one instance of a sexual assault with a weapon in which the individual was let out on bail, and as a result, two people are dead, and one is seriously injured. What kind of conclusions can you draw out of these situations?

To me, our job is to provide public safety.These statistics just blow my mind. When you have examples of a case or two in which tragedy has resulted because bail was granted, maybe we ought to be on the safe side and let society know that we will not release people, even on bail, until we're absolutely certain that they're not a threat to society.

Do you draw any conclusions from this 60-40 statistic?

[Réal Ménard, Bloc, Hochelaga, QC]

Good morning, and thank you for coming to join us today.

You know that we are debating Bill C-35 in a climate where crimes committed with firearms as well as the crime rate in general are going down. Of course, I am skipping over the reality of the street gangs in some large urban centres, above all Toronto and Vancouver, and we should not be afraid to say Montreal too. I do not want to be complacent, and I would be rightly criticized if I were.

But I am a little taken aback by your evidence. We were looking at two factors. First, reverse onus, that already exists at the judicial release or release on bail stages, does not seem to be based on a specific number of cases. It would add to the list of offences where reverse onus would apply, that is, cases where the accused and not the Crown would bear the burden of proof.

In your testimony, you said one thing that shocked me a little, and I would like you to give me some more details about it. You seem to be saying that when a case involving firearms comes before a judge, or a justice of the peace in Quebec, a kind of reverse onus already exists. The practice seems to have been alive and well before legislators made the decision to write it into law. Could you explain that? I assume that you are basing your remarks on those of the lawyers who are members of your association.

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

I'm pleased to hear that the Criminal Lawyers' Association has no fundamental objections to Bill C-35. As you may know, the Liberals support Bill C-35 and offered several times to have it fast-tracked by the government. The government decided not to take us up on it, but it was finally debated at second reading and is before committee now.

You talked about the fact that Bill C-35 meets the test of specificity. Can you expand a little more on that in relation to the decisions that have been made by the Supreme Court of Canada on reverse onus cases?

[The Chair, Liberal, Bernard Patry]

Bonjour, tout le monde. Good morning, everyone. Welcome to the meeting of the legislative committee on Bill C-35, pursuant to the order of reference of Tuesday, March 27, 2007, Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences).

As a witness this morning, from the Criminal Lawyers' Association,

we are pleased to welcome this morning

Mr. Michael Lomer, the treasurer.

Welcome, Mr. Lomer. The floor is yours for your remarks, please.

Criminal Code

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, I am pleased to rise today to express my support for Bill C-343, introduced by the hon. member for Regina—Qu'Appelle.

The government agrees that there is a pressing need to reduce the high rate of vehicles stolen every day in this country. This bill, by creating a distinct offence for motor vehicle theft, aims to do just that.

It is true that there are many offences in the Criminal Code that already address motor vehicle theft, such as theft, fraud, joyriding, possession of property obtained by crime, and flight from a peace officer. However, this bill will create a distinct offence, with penalties in the form of mandatory minimum sentences.

The sentence for a first offence will be a minimum fine of $1,000 or a minimum term of imprisonment of three months, or both. A second offence would result in a mandatory minimum fine of $5,000 or a minimum prison term of six months, or both. A third and subsequent offence would result in a minimum fine of $10,000 and a minimum term of imprisonment of two years, up to a maximum term of 10 years.

I am aware that not all members will agree on the penalty that a distinct Criminal Code offence for motor vehicle theft should have. However, I am certain that most members can agree on the utility of creating such an offence. Accordingly, the bill should be sent to the appropriate committee for review on its merits, including the proposed penalties.

I would like to note that the idea of a distinct offence for motor vehicle theft was supported by the hon. member for Winnipeg Centre on March 20, 2007, when he introduced Motion No. 295 calling for, among other things, an amendment to the Criminal Code to include auto theft as a distinct, stand-alone offence. Clearly this is an issue that cuts across party lines and is one that most members of the House can support.

Winnipeg holds the dubious distinction of being the car theft capital of Canada. For example, in Winnipeg, the auto theft rate in 2005 was 1,712 thefts per 100,000 population, whereas in Toronto there were 306 thefts reported per 100,000 population.

It is clear that the rate of auto theft in Canada is simply unacceptable. In 2001, the per capita rate of auto theft was 26% higher in Canada than it was in the United States. In the 1999 international crime victimization survey, Canada ranked fifth highest for a risk of car theft, with 1.6% of the population being a victim of car theft. Overall since 2001, the auto theft rate has remained roughly the same.

While in recent years auto theft rates have held steady at unacceptably high rates, the number of stolen vehicles that are recovered has been on the decline. It used to be that over 90% of stolen cars were recovered. Today, that rate has fallen to 70% nationwide, with recovery rates varying by city. In large cities in Ontario, Quebec and Nova Scotia, organized crime groups are believed to be more active in thefts, thanks in part to readily accessible ports that allow cars to be shipped out of the country quickly and with relative ease.

Out of the approximately 170,000 automobiles stolen every year, police and insurance experts estimate that about 20,000 of these cars are shipped abroad to destinations such as Eastern Europe, West Africa, the Middle East and Latin America.

Stealing and reselling a vehicle is an extremely lucrative way for organized criminals to make money.

Let us take, for example, the scenario when a new luxury SUV is stolen. It is valued at $65,000 on the lot. It would cost an organized criminal around $1,000 to pay a youth to steal the car and approximately $1,500 to have the car “re-VINned” if it is being sold in Canada, or if it is exported to another jurisdiction, around $3,000 for shipping and handling. The automobile would likely be sold for around $45,000, resulting in a profit of nearly $40,000 per car.

Clearly the rewards for motor vehicle theft are enormous. There is a great incentive for young future career criminals to get involved in motor vehicle theft rings.

The involvement of youth in motor vehicle theft is a serious problem. Almost 40% of those charged with stealing motor vehicles are between the ages of 12 and 17 years. While vehicles are often stolen by youth for joyriding, it is also frequently the case that youth are enticed by organized criminals to steal an automobile and deliver it to a predetermined location all for a set fee. This involvement in organized crime unfortunately often has the effect of cementing criminal behaviour in young offenders. This influence on Canada's at risk youth is another tragic aspect of motor vehicle theft.

Not all of the news is bad though. Advances in technology, such as alarm systems, steering wheel locks, and GPS tracking units are making it harder to steal motor vehicles. However, as technology advances so do the skills that professional car thieves use to defeat these technologies.

So while the smash and grab method employed by most joy riders will no longer work on newer cars outfitted with sophisticated anti-theft devices, the new career car thief will ultimately find ways to outfox these devices.

It has already been mentioned that auto theft costs Canadians more than a billion dollars a year in insurance costs, medical costs, legal costs, police costs, and costs to the victims, such as insurance deductibles.

However, what about the costs that are impossible to calculate? I am referring to the human toll that motor vehicle theft has on our society. All too often when a car is stolen, the offender will drive erratically or at a high speed and not always because of police pursuit. Each year motor vehicle theft results in over 30 deaths and over 50 people being seriously injured a year in Canada.

Recently, a 10 year old girl in Regina was killed after a driver of a stolen pickup truck smashed into the minivan she was travelling in while he was attempting to escape the police.

As a society we do not tolerate impaired driving and our laws should treat this type of dangerous driving with the same seriousness. It is time that we reaffirm our commitment to making Canada's roads and highways safer.

I am proud that the government is taking a number of measures to tackle crime in Canada. We have introduced a number of pieces of legislation that deal with serious criminal offences.

Bill C-10 was introduced to ensure that criminals who use guns in the commission of an offence or if an offence is gang related receive a very serious sentence with escalating mandatory minimum penalties for first and subsequent offences.

As well, the government also introduced Bill C-35 which seeks to protect the public from gun crime by amending the bail provisions in the Criminal Code. The proposed amendments would reverse the onus to the accused to prove why he or she should not be denied bail when the accused is charged with a serious offence committed with a firearm or charged with smuggling or trafficking firearms.

The government is serious about making our roads and highways safer. We introduced Bill C-19 which created five new offences to combat street racing. It also gets these dangerous drivers off the road by providing mandatory minimum periods of driving prohibition. I am pleased that this bill received royal assent on December 14, 2006.

Another step the government has taken to make our roads and highways safe is with Bill C-32 which aims to significantly increase fines and minimum jail terms for driving while impaired. This bill tackles driving while under the influence of both alcohol and drugs. Although it is already a crime to drive while impaired by drugs, currently police officers have to rely on symptoms of impairment to driving behaviour for an impaired driving investigation. There is no authority in the Criminal Code to demand physical sobriety tests or bodily fluid samples.

Bill C-32 would authorize the police to demand roadside testing and a drug recognition expert evaluation at the police station, and if this evaluation shows impairment, the police will be authorized to demand a sample of bodily fluid to identify that the impairment was caused by an illegal drug. Refusal to comply with these demands would be a criminal offence punishable by the same penalties for refusing to submit to an alcohol breath test.

The government is also committed to crime prevention. The 2007 budget allocates $64 million over two years to establish a national anti-drug strategy to crack down on gangs, grow ops and meth labs, prevent elicit drug use and illicit drug dependency. As well, the government has set aside $14 million over two years to combat the criminal use of firearms.

The hon. member for Regina—Qu'Appelle has brought forward a very important issue for the House to consider. I urge all hon. members to vote to send this bill to committee for further review.

[Craig Grimes]

What we can speak to are the number of cases. There are 871 cases, representing 1,633 charges. We are able to look at all of the charges in the case, and in order to present all of that information, we present the most serious, and the most serious are defined first by the decision. So in your example we can't speak to plea negotiation, but we do know that generally within the data set, 90% of convictions come with a guilty plea, and for these cases that contain one of the Bill C-35 offences, it's down to 84%. But some of those Bill C-35 offences also contain mandatory minimums.

[Lynn Barr-Telford]

Cases with at least one Bill C-35 charge had a 40% conviction rate. Where it was the most serious charge, it was a 31% conviction rate.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Nobody can take a stab at it? Okay.

That's really unfortunate, because if we don't have any data on it—and it's not your fault, of course—in terms of public policy we're rather flying blind here. This legislation is a bit of a shot in the dark. I have intended to support the legislation, but I regret that we don't have the data, and I just put that on the record.

Secondly, there are two notable statistics in the deck you provided, from my point of view. They should be noted as benchmarks. One is that only 40% of the Bill C-35 charges result in convictions. That's a 40% conviction rate.

Would I be correct in saying that if we increased the pretrial incarceration rate above 40%, we would probably be keeping innocent people in jail pending their trials?

Maybe you can't answer that.