Bill C-35 (39th Parliament, 1st Session) Committee on April 16th, 2007

[The Chair, Liberal, Bernard Patry]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

There are some offences that are not included because they already go to a superior court. So what we are doing is adding other offences that can and should be subject to a reverse onus. That's not the total list, and it's not the exclusive list. There are other offences that will not end up in what we refer to in Ontario as provincial court or before a justice of the peace; they would go directly to a superior court judge.

Do you have anything to add on that?

[The Chair, Liberal, Bernard Patry]

Ms. Besner.

[Julie Besner]

The scope of certain offences is very broad. This is true of manslaughter and or criminal negligence causing death. You may have noticed that these two offences were not included in Bill C-10, for example. The same model was more or less followed in terms of selecting offences with a limited scope.

It should also be noted that the reverse onus scheme applies in the case of a person who has been ordered by the court not to be in possession of weapons. Therefore, if such a person were to commit an offence with a firearm, the reverse onus provision would apply. Consequently, up to a point, this is included, but not from the outset, as is the case with the eight other offences.

[The Chair, Liberal, Bernard Patry]

Thank you, Ms. Besner.

Madam Kane, did you want to add something?

No. Merci.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you, Minister, again for being here. It's becoming a regular occurrence with the justice committee and now on this legislative committee. It's good to have you here with this bill.

Minister, could you just talk a little generally about some of the other stakeholder support for this bill? There's been a big call for this type of legislation on firearms offences from stakeholders in the community who are interested in protecting Canadians from gun violence. We hear all too often about gun violence, and in many cases involving people who had already had some interaction with the law.

I'm wondering if there's some comment from some provinces, mayors, that would lend support for this initiative.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you've made a very good point. This has actually received widespread support. Just before the question period I was over at the Canadian Police Association meeting. The CPA is very supportive generally of the initiatives we have taken as a government and are supportive of a bill like Bill C-35. We have heard back from provincial and municipal governments, prosecutors. Indeed, in my hometown of Niagara Falls I've been stopped twice on the streets recently by police officers who just wanted to tell me that they are supportive of the initiatives, including initiatives like this. My colleague, Mr. Dykstra, would know about the Niagara Regional Police; so many of those individuals have come forward and expressed a complete support for this.

So I think there is widespread support, and I have certainly been very pleased. Quite frankly, I'm actually encouraged by the possibility that we're going to be able to move forward on this. The Liberal Party have at various times expressed support for this. Today they said they're largely in support in principle, and I hope the devil isn't in the details. I'm hoping that the way it is now we're going to move forward on that. The New Democratic Party has indicated that it is supportive of this particular legislation, and I am hoping the Bloc will see the light and will come on board with this move to improve the criminal justice system in this country. I say to them that I'm sure that when they go home and explain this to individuals in their constituencies, overwhelmingly the people will tell them this is on the right track; it's a step in the right direction.

So in the end, Mr. Moore, I'm hoping this will have the unanimous support of Parliament, because the bottom line is that this can't or shouldn't be a partisan matter. This is just improving the Criminal Code and making it better and safer for all Canadians.

[Rob Moore, Conservative, Fundy Royal, NB]

On the issue, Minister, of an individual who is already under a weapons prohibition, I think the current situation would come as a surprise to many Canadians. I'm wondering if we can walk through that a bit, the scenario where my understanding is that this person has already had a brush with the law and is under an order not to be in possession of a weapon, and then this bill contemplates that if the person is involved in an indictable offence that involves a firearm, they too would have a reverse onus.

Ms. Besner mentioned how the reverse onus is applied to the more serious firearms offences, firearms trafficking and possession. Is this also, do you feel, at that higher threshold? In this situation where the person is already under a firearms prohibition order and now they've gone out and used a firearm in the commission of an indictable offence, do you feel this also meets that charter requirement, that interpretation, that there be some distinguishing between a low-level and a higher-level offence?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Certainly, you've hit the nail on the head. In the first instance, we added eight serious offences for which we say that when they're committed with a firearm there should be a reverse onus. But you quite correctly point out that there is another category, and what we're saying is that in any indictable offence in which a firearm or another regulated weapon is used, if the person accused of committing the offence did so while they were already under a prohibition order, the reverse onus should apply to them. It seems to me that's common sense. If the individual is already prohibited or is under a prohibition order and we find that they're being accused of a crime for which they're under that prohibition order, wouldn't it make sense to have that individual demonstrate to the court why they should be released?

So it certainly is a broader category and it captures more offences. But I think it's perfectly reasonable under the circumstances that we ask that individual to show why he or she should be released. Again, I think it expands the areas of a reverse onus for bail within that, but it's certainly consistent with the present legislation and it's certainly consistent with what we talked about in the last election with Canadians.

[The Chair, Liberal, Bernard Patry]

That's fine.

Mr. Lee.

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

I just wanted to confirm for the minister that I'll be supporting the bill, and my party is supporting the bill, but we do have work to do here.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Hear, hear! I've always said good things about you, Mr. Lee, all these years I've known you.

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

I want to focus on two areas. The Library of Parliament produced a document reviewing the bill. It indicated that according to one law faculty study, in 90% of gun crime cases, bail is already refused. That's probably a good thing. This bill merely statutorily brings up the rear and codifies what was probably happening for the greater part of cases, but not all.

I want to ask about two things. They don't have anything to do directly with the principle of the bill. This will increase in theory, marginally, bail detentions, even though, as I pointed out earlier, 90% of the gun crime situations don't result in bail. This will increase the amount of what is called two-for-one or three-for-one time that the inmates serve. If that is true--and I'm sure it was not an intended result--we're going to have a lot of these individuals who are kept on the two-for-one time.

Two-for-one time or three-for-one time refers to the court's recognition of pre-conviction detention time as being worth either double or triple that of a post-conviction sentence. The courts have confirmed that. So we're going to end up with a lot of individuals who are serving pre-detention time and who will then be convicted and sentenced, and a lot of them will move right to release or very close to release without the benefit of the conditional release that imposes restrictions on them when they're released.

I'm just wondering if the department has taken that into consideration, because this may be an unintended result. Some of these individuals maybe should have some post-detention conditions imposed on them, significant ones.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you've covered a fair amount of ground, Mr. Lee. You indicated that it's possible, and there are many cases in which people who are charged with serious firearms offences are already detained. As you indicated in your comments, this certainly gives the tools and the direction, and it sends a message out with respect to bail. And there can and there undoubtedly will be more individuals who will not make bail when we bring in changes.

You've pointed out the credit system that applies in this country or in our criminal justice system with respect to individuals who serve time prior to their conviction. I would say to you that ultimately there is great discretion by judges with respect to the maximum sentence of individuals. At the sentencing portion of that, judges can and should make sentences--and I'm sure they will--that are commensurate with the crime that's before them.

So I don't share your concern that there is going to be some sort of a large impact or that these individuals are going to be soon set free. My guess is that somebody who gets convicted of using a firearm in attempted murder is not somebody who is going to be released in any hurry even if he or she gets credit for some of the time served prior to the trial.

I don't see this as a major problem, but I'm certainly always interested in hearing your comments and your take on these things.

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

My last question has to do with the fact that we're changing in a significant way the bail arrangements, which are charter protected. I'm wondering why the government didn't prepare a preamble for the bill that would allow Parliament to dialogue with and send a message to the courts for that time when inevitably they're going to have to deal with this in the courtroom in terms of a charter challenge.

We've used preambles before. Wouldn't it have been better for us to actually craft one? And since we haven't, could I suggest that we might be able to craft one here at the committee to explain to the courts why we believe this change in the law is important?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not anticipating an unfavourable charter challenge. It seems to me that, first of all, we wouldn't have brought forward the legislation in any case if we didn't think it would withstand a charter challenge. That's the one thing.

As was indicated in response to an earlier question, the department looked very carefully at the decisions of the Supreme Court of Canada in this area, particularly the last three that have been rendered by the Supreme Court in the last 17 years. In one case, we even picked up on the dissenting opinion--as was pointed out by Ms. Besner--that we help codify within the bill itself some of the language that was raised in the Supreme Court. We clarified that to make it much clearer.

I'm not worried about this, in the sense that this builds on other reverse onus provisions with respect to bail. We're just building on that, and we're adding to that. I know those sections have withstood scrutiny up to this point in time, so I fully expect and wouldn't see any problem with our continuing on that. I'm sure that's one of the reasons why your party is supporting it.

[The Chair, Liberal, Bernard Patry]

Thank you.

Mr. Hanger.

[Art Hanger, Conservative, Calgary Northeast, AB]

Thank you, Mr. Chairman.

Mr. Minister, thank you for the introduction of this information and for appearing in front of the committee.

I was a police officer during the time when reference to the onus being on the accused, at least to prove certain situations, was very prevalent. The Bail Reform Act changed all that. One of the provisions back then was that there was a necessity to have the trial expedited. Many times the accused pleaded guilty rather than going through a pre-trial portion of detention, which was not at that time factored into any sentencing provisions. Most of the time they were given a sentence upon conviction or a guilty plea.

The courts are very different now, and there's a real backlog when it comes to these detention issues. I don't imagine that's going to change any. There may not be a big increase--I agree--and this may not affect a whole lot of people. The detention side, when it comes to pre-trial, is not going to be an issue here.

The other problematic aspect when it comes to court is that many gun-related offences—and this still happens today—are being dealt away with prior to maybe a guilty plea. You'll never see a bail order or a violation of any bail order, and you'll never see a probation order. I'm curious how, if at all, those aspects are going to be dealt with.

[The Chair, Liberal, Bernard Patry]

Mr. Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Are you talking about the plea bargaining system?

[Art Hanger, Conservative, Calgary Northeast, AB]

If you want to call it plea bargaining, sometimes it's called that, but sometimes it is a negotiation in which offences that sit right in the lap of the prosecutor and the defence are decided on to expedite the situation in the court.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Certainly, we want the courts to have the resources to be able to hear these cases. This is why I spend part of my time as Minister of Justice--and it is my responsibility to do so--on the appointment of superior court judges, to make sure that our courts are staffed, and that they are able to hear the cases that are brought before them.

Again, this bill doesn't address the subject you're talking about. There are negotiations that take place. You were involved with the criminal justice system in a previous incarnation before becoming a member of Parliament. As a lawyer practising criminal law back in the 1980s, in representing my clients, certainly on many occasions I sat down with the crown attorneys and talked to them about the possibility of moving ahead on some charges and not on others. It seems to me that's a component that exists within our criminal justice system. But it's important that there be judges in place, that there be courts in place, and that there be resources in place to adequately deal with these issues.

Many of these issues, as you know, are administered at the provincial level. Our job at the federal level is to set the law as we see it should be for Canadians, and basically that's what we're doing. We're making a statement about how we think people should be treated and how we can best protect the public. It's a balancing act, Mr. Hanger, and this bill does what it's supposed to do.

[Art Hanger, Conservative, Calgary Northeast, AB]

I think it is going to improve things, there's no question. I see that there are sometimes logistical issues, too, that factor into the impact this bill should have and sometimes really interfere with it.

You have an offender who has committed a firearms offence a second time. The first time he was given a probation order. He's past the probation order. Does it apply?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Does he have a prohibition order?

[Art Hanger, Conservative, Calgary Northeast, AB]

Yes, he has a prohibition order, and he is past that prohibition time. Does it apply?