Bill C-35 (39th Parliament, 1st Session) Committee on May 9th, 2007

[The Chair, Liberal, Bernard Patry]

Good afternoon, everyone. Welcome to this meeting of the Legislative Committee on BillC-35.

It's an act to amend the Criminal Code in regard to reverse onus in bail hearings for firearm-related offences. This is meeting number seven.

Our witness today is from the Canadian Council of Criminal Defence Lawyers, Mr. William M. Trudell, the chair.

Welcome, Mr. Trudell. The floor is yours for your presentation, and after that we will have questions and answers in a seven-minute round.

Go ahead, please.

[William Trudell, Chair, Canadian Council of Criminal Defence Lawyers]

Mr. Chair, I thank you very much for inviting the Canadian Council to be present. I'm especially grateful because I understand that you may not hear too many witnesses on this bill.

As probably all of you know now, the Canadian Council is a national council with representation throughout the country. We offer a national voice not on behalf of defence counsel so much as the administration of justice in relation to the preservation of due process as it affects accused persons. We're very grateful to be given the opportunity to come here.

Unfortunately, we do not support the bill. I know from what I've read that it may be a minority situation in relation to what's happening here, but let me give you some ideas as to why we're concerned about this bill.

It is a principle issue, and that is based upon the fact that there is a constitutional right to release, and the shifting of the onus has to be done upon a principle basis. What we see here is a lack of statistical information that would support the need for this bill. In other words, are there statistics that would show that there are firearm offences being committed by people out on bail, or people on bail on firearm offences committing other offences? We don't know that this statistical information is available. From my reading of previous meetings, it doesn't seem like it is. So it's not, in my respectful submission, supported by evidence and consultation that the bill is indeed needed.

What we would ask you to consider is, when changes are made to criminal justice, to the legislation, that you look at the impact of the entire system.

Yesterday I was in Quebec City at the national Steering Committee on Justice Efficiencies and Access to the Justice System. As you know, that committee has now met for a number of years, with representatives who are totally apolitical, representatives of first ministers, chief justices, deputy ministers, and we were talking about pilot projects taking place across the country on the issue of bail. We are all cognizant of an incredible remand population in this country, and I thought it was bit ironic that I was coming here today to testify on a new bill that talks about a reverse onus.

I could say to you that it's not going to make any difference, and so why not pass it? Because I want to say to you that it's our experience on the ground that people charged with gun-related offences are not released.

The bill provisions, as elucidated now in Hall with a tertiary ground of public confidence in the administration of justice, are already there. It is extremely difficult for someone charged with this type of offence to be released on bail.

When the tertiary ground was introduced a number of years ago, there was probably a lot of complaining about how this shifted and almost made it impossible and much more difficult for persons to get out, because the tertiary ground has to be interpreted in an enlightened way. But I can tell you, and I believe I speak for the experience right across the country, that if you're charged with a firearm-related offence, it is going to be extremely difficult for you to be released on bail.

The primary ground is whether a person will show up. The secondary ground is strict: in the public interest, is there a substantial likelihood that a person may commit another offence? And then the tertiary ground addresses the public confidence in the administration of justice. Therefore, we do not feel this bill adds anything.

So one might say, well, why are you here? If it's not going to make much difference, then let's go home. The point is that there's a principle here. The principle is that there's a presumption of innocence and you have a constitutional right to bail, and that's an important principle that should be looked at.

I would ask you to consider this. When changes are made to legislation, we have to look at the entire system and how it works. For instance, the national Steering Committee on Justice Efficiencies did a report on early case consideration. We consulted with the chiefs of police, and they had input into this. What we all came up with is that we're not doing a good job at the front end, so when a case gets to the arrest point and a bail hearing....

You know hearsay evidence is admissible. These cases have not been properly screened. Hearsay evidence is allowed at the bail hearing, you're ending up really with a kind of mini-trial, and at the end of the day, when you move this case along, you're going to find that it's not optically what it appeared to be at the front end.

If we're going to make bail much more restrictive, we have to look at putting energy into making sure cases are properly screened when they come into the system. As you know, there are only a couple of provinces in the country that have pre-charge screening involving crown counsel. That's left to the police in many jurisdictions, including Ontario. They lay the charges and the crown attorneys get the charges after they've come into the system.

You've given me some time here, and I might be battered and bruised by the time I leave, but I want to say it anyway.

I read some of the background paper from the parliamentary library concerning comments made in support of this legislation. It was of very great concern to me because Premier McGuinty, from my province, and Mayor David Miller were quoted as supporting this bill. Mayor Miller said the legislative amendments in the bill are very important and he hopes the legislation will encourage witnesses of gun crimes to talk to police, knowing that criminals will remain behind bars and not be out on bail. Surely that's not why we change legislation. There's still a presumption of innocence.

Premier McGuinty also said he supports this bill because it will cut down on gun crime. Those are, with the greatest respect, political statements; they arise out of a terrible shooting that took place on Boxing Day in Toronto. Yet the reaction to this bill has to be on a principled basis.

I know people have talked about Hall. I know you've been told that this bill follows the Hall decision, but I also respectfully submit that in this case this reverse onus may not stand up to constitutional arguments. When you get to deciding whether or not it's an infringement, you have to go to clause 1; the court is going to want to know that there is evidence, that this can be backed up, and there is no evidence. Without the statistical analysis showing there is a problem here, I think it may have problems later on.

Lastly, in Hall there are four grounds, tertiary grounds, that are taken into consideration in deciding whether the public confidence in the administration of justice is weighed properly. This bill adds two grounds. Those two grounds are in clause 5, which says “the apparent strength of the prosecution’s case”http://www.sushi4all.com/sushi4allhome.htmlthat's not new—“the gravity of the offence”--that's not new—“the circumstances surrounding the commission of the offence”—that's not new. But added is “including whether a firearm was used”—that's new—and then “the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment"—that's not new—“or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.”

So what this legislation does is add two more factors the court can take into consideration as tertiary grounds. In our respectful submission, that covers it. If that seems to be a problem, well, you're making it more difficult for persons to get out in relation to these firearm offences, so you do not need the reverse onus.

Those are my submissions.

Thank you.

[The Chair, Liberal, Bernard Patry]

Merci beaucoup. Thank you very much, Monsieur Trudell.

Now we'll start with Mr. Bagnell, please, for a seven-minute round.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you very much for coming.

I think I can assure you that at least the opposition members—and I think the government members—agree with you 100%. We're pretty upset that there were no statistics in this area, when we had the stats people here. A bill should be based on statistics and the factual background, so we're in agreement on that.

I'm curious. I think virtually all of the people who have come before us, if not all, have basically been in favour of this bill, including lawyers. Some of them mentioned the same points as you did, that it won't make a lot of difference, but if we're making a principled decision, we're making a principled decision, because a lot of them don't get out anyway.

Is there any reason why virtually everyone else is supporting this bill and your organization is not?

[William Trudell]

We're here to represent the fundamental principles of justice. Due process—I guess you could use that phrase of the United States. The fact that it may not make much difference practically on the ground, which may be the case, doesn't mean that it's a principled decision to make. In other words, it is reactive, in my respectful submission, to situational events. If you start with the premise that there's a constitutional right to bail, and you move from that premise to the presumption of innocence that overrides everything, then before you change that, before you put the onus on an accused person, there has to be a principled reason for it.

So we're not just here to change legislation, with respect, for practical reasons. There's a fundamental principle that has to be the rock that you build on.

[Larry Bagnell, Liberal, Yukon, YT]

It's not that the reverse onus is not used on a number of occasions already; it's the principled use of it.

[William Trudell]

It actually is, so let me talk about what those are.

We're talking about firearm. It's not knives; it's specifically firearms.

Let's take drug cases. There's a reverse onus in certain serious drug cases. Well, there was consultation, and the problem of drugs is an international problem, and Hall reflects that there are certain cases in which the bail provisions are not enough to deal with what is perceived to be a bigger issue.

Murder—a more serious offence, I can't think of. Terrorism offences are international. So what we're talking about is that where there is a reverse onus, there have sometimes been international—or certainly national—reasons for it. The Supreme Court of Canada doesn't say reverse onus is okay. They look at the specific reasons why, and specific offences.

So what I say to you is that we're not trying to be obstructionist; we're just asking why this is happening. If you want to make it more difficult for somebody to get out—and I'm saying you don't have to—then you can add those two aspects of it. If you've been involved in an offence with a gun, then you have a bigger problem, because the public confidence in the administration of justice is going to be strained. But you shift the onus, and that's fundamentally very difficult.

What happens when you shift the onus? On the practical side, that's going to make bail hearings more difficult. There's no question about it. They're going to be longer. There are going to be people who are without jobs, without families, single parents, who are unable to meet the onus. There's no question about it.

What is the onus? The onus is covered by getting a package that controls the risk. How do you do that? Get somebody from the community to support the person—an employer, a family member—and you're going to have to put up a significant recognizance. So who are the people who are not going to be able to meet this onus?

In our respectful submission, there are certain cases in which the legislature has the reverse onus, but those cases are specific, and they are sanctioned by the courts. We respectfully submit that there's not the same evidence on this bill.

[Larry Bagnell, Liberal, Yukon, YT]

Just let me get my last question in here.

The examples you gave in which reverse onus is used are serious, and a lot of people consider these offences serious. I'm sure someone in their questioning is going to bring up that there are a number of offences that occur when people are on bail. These offences that are committed while people are on bail are obviously serious offences, the reason for which reverse onus was put on the other ones, so why would we not put this in to further protect the citizenry?

[William Trudell]

First of all, I think you want to be satisfied as parliamentarians, with the greatest respect, that there's a need. There's anecdotal evidence all over the place. I can give you great anecdotes that some other people may not agree with. But where's the hard evidence that there's a problem with the existing bill situation with people charged with firearms offences? When you say we're going to keep these people in and we're going to protect the public, you've jumped a long way, because you may keep people in who, at the end of the day, are proven to be innocent or indeed innocent of something. What you have when the case comes into the system is a picture, but by the time the trial comes or by the time the preliminary comes, that picture always changes significantly.

I'm not saying that guns may not be a problem in this country. Quite frankly, I'm from Toronto and I may have a different view of guns than someone from Saskatchewan or New Brunswick on our council. The bottom line is that the Criminal Code is there. The tertiary ground covers exactly what you are talking about, protecting the public and adding public confidence in the administration of justice. It's already in the Criminal Code.

That's why I say to you—forget about reverse onus—you already have to deal with the tertiary ground. Is what happens practically on the ground that justices start with the first ground, then go to the second ground, and then are supposed to go to the third ground? No. What happens is that you go to the third ground, the tertiary ground, the public. When an offence takes place in a milieu, for instance, like Toronto after Boxing Day, nobody's going to get out, because the justices are going to reflect the environment and the public's concern. When there are threats of terrorism, we're going to react to that.

But our job here is to say, wait a minute, we have to hang on to these basic principles, and then ask, are we shocking the basic principles to cover situational events? If you had evidence before you that people were abusing the bail system, especially people charged with firearms offences, you wouldn't want to hear any witnesses. It would be obvious.

With great respect—Sorry.

[The Chair, Liberal, Bernard Patry]

Thank you.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Good afternoon, Mr. Trudell. I am glad to see you again. With the Canadian Police Association, you are, no doubt, among our most regular witnesses. However, you rarely share the same opinion about a bill. But that is another matter.

This bill deals with subsections 515(6) and 515(10) of the Criminal Code. It seeks to modify the principle of release on bail before the hearing.

You have already touched on the point that interests me. First, you are right in saying that the government tabled the bill before we could obtain any reliable and conclusive statistics. Our first witness was the Canadian Centre for Justice Statistics. As was the case with Bill C-9 on suspended sentences and Bill C-10, we feel that the government is motivated by ideological factors that are not supported by any reliable statistics.

I think that you have much to contribute to the committee. You represent people who appear before justices of the peace and before courts on a daily basis, people who have committed offences, some of which are firearms-related.

Several witnesses told us that whenever firearms are involved, judges seldom grant bail, and as this was already well established in practice, it did not need to be enshrined in legislation.

Moreover, subsection 515(10) gives the judge an option to deny bail, if he thinks that evidence will be destroyed or that the individual poses a threat to society or that he will not show up at his hearing, despite the individual's constitutional right to bail.

Please tell us about how defence lawyers, whom you represent, approach release before the hearing when a client applies for bail in a firearms-related offence?

[William Trudell]

It's my opinion, based upon research we have from canvassing defence counsel across the country, that people charged with firearms offences, unless they're accidental discharges in northern Saskatchewan, do not get released on bail. If they get released on bail, the bail restrictions are so severe that it amounts to house arrest. Actually, house arrest is the package that defence counsel proposes in almost every case where they are representing someone. On the package that a defence counsel has to present now with a gun charge or an offence that has guns associated with it, you have to propose house arrest or your client will not be released.

In Toronto, and I think in Vancouver, the government has guns and gangs prosecutors, and a lot of resources are put into the prosecution of these cases. I don't know where the problem is. I have not seen evidence, because I can't get it for you. No defence counsel is going to say—I respectfully submit that the crowns would tell you that people just don't get out.

It's an enormous task to represent someone on bail. I think what's happening a lot, Mr. Ménard, is that people don't even contest bail. They see a detention order, and there is pressure to move the case on because they're not going to get out.

I don't know whether that has answered your question. If you have a case where someone has a gun, the only way you're going to succeed is if you have house arrest and you are able to show that the Crown's case is not as strong as it optically is. Therefore you end up with a mini-trial at a bail hearing, which costs money and time. That flies in the face of all kinds of work going on in this country by people of all political stripes to try to figure out a better way to manage bail hearings.

We do such a poor job of managing each criminal justice case. We find out after it comes off the assembly line that what we thought was going to be a Ford is really a Pontiac. It's a job for the police, the crowns, and the defence to make sure they look at things at the front end. Rarely do you get a case at the bail stage that's ready to go to trial.

[Réal Ménard, Bloc, Hochelaga, QC]

You are right. You have clearly shown that the government is in error because it does not base its public policies on reasoning supported by statistics. Fortunately, the Bloc Québécois is keeping an eye on this. I think the public will know this.

Mr. Chairman, the witnesses also told us, especially the Canadian Centre for Justice Statistics, that contrary to common opinion, and what one might think, we are in a period in which firearms-related offences are on the decrease. Moreover, I have no doubt that during the second round, my colleague Serge Ménard will speak about the inconsistency of tabling a bill like this one while abolishing the public firearms registry. I will let him put that question.

Have you any information about the decrease in firearms-related offences?

[William Trudell]

If that's statistically what the case is, let me say that if we come here and the Bloc happens to agree with our position, we're happy. But we are apolitical, and we're talking about fundamental things.

Quite frankly, I don't have the evidence that firearm offences are going down, because what we are reacting to is situational—major explosions in Toronto and Vancouver that seem to appeal to certain aspects of trying to get tougher on crime. But I think the overall crime rate is going down.

[The Chair, Liberal, Bernard Patry]

Thank you, Mr. Trudell.

Mr. Comartin, please.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Statistically over the last four years and even longer than that, the use of the long guns in crime has actually dropped precipitously. The use of handguns and illegal guns has gone up marginally, and it may have peaked at around 2005. We haven't seen the 2006 figures yet, but the suggestion seems to be that it probably peaked at 2005.

Let me ask you this. There is a general consensus. Even Professor Doob, who is so far probably the strongest witness other than you to oppose this legislation, was clear that it's probably not going to make any difference at this period in time. Those people who are faced with the charge of using a gun in a crime are not likely to get out and simply won't get out.

What I want to ask you is this. If we incorporate this and make the assumption that it's not going to make any difference or hardly any difference at all, down the road, if crime rates continue to drop, gun crimes continue to drop, and gun crimes with handguns and illegal guns start to drop, what do you see happening at that point with the judiciary? Will they continue to keep them in, even if we only have one murder a year with a gun? Will the practice stay? Will they become more willing to entertain arguments that will allow the person out on bail pending the trial?

[William Trudell]

As we move forward, after the situational events that we're all reacting to recede a little, I think the constitutional challenge to this section takes on more of a possibility of success. As we move forward, I'm not sure what judges will do, but we will have eroded a basic principle of the right to bail and, in some respects, the presumption of innocence. We may never be able to go back.

But in two years, three years, four years, or five years, Mr. Comartin, there's one thing that's probably going to still be in the Criminal Code, and that's the tertiary ground. It is the public confidence in the administration of justice. You can't ignore it anymore. It's there.

I don't see significant changes in what judges will do with this legislation. I don't think it's going to survive that long.

Did I answer that or not?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

You only answered on the charter side, in terms of how the initial trial judge and the appeal courts will handle it. In terms of the practicality on a daily basis of those charges coming up for bail, will the judges eventually become more lenient in allowing for bail?

[William Trudell]

No, I don't think so. Do you know why? Despite the work of the national steering committee and everybody being in agreement, including chiefs, we have to do a better job of making sure there's not a lot of junk coming into the system and there's screening.

You will have bail hearings with hearsay evidence. You will have to deal with public confidence in the administration of justice. People who will be charged with these types of offences, and who probably don't have jobs and families, will not have the ability to put together a package to establish that they're candidates for bail.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

That's all. Thank you.

[The Chair, Liberal, Bernard Patry]

We'll go to Mr. Thompson, who will share his time with Mr. Hanger, or it's the opposite. It's up to you.

Mr. Hanger.

[Art Hanger, Conservative, Calgary Northeast, AB]

Mr. Trudell, thank you for appearing again. It's always fine to have you in front of our committee.

[William Trudell]

I write these things down when you say them.

[Art Hanger, Conservative, Calgary Northeast, AB]

Please don't read between the lines. I'm serious.

In any event, given the fact that there has been evidence not only before this committee but before other committees as well that deals with firearms, would you not agree that we're really talking about a small group of people who are involved in firearms activity?

[William Trudell]

It probably is, and that small group of people aren't being released.