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

[The Chair, Liberal, Bernard Patry]

Mr. Petit.

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

Thank you, Mr. Chair.

Thank you for being with us today, Mr. Lomer.

You spoke of a very specific phenomenon. At the bail hearing, the preliminary stage that is, facts matter and the right to bail does not necessarily matter. So you have to argue on the facts of the case. Earlier, you mentioned cities, Toronto, for example, where serious events have recently taken place. Mr. Comartin told us about a police officer who was shot to death when he was visiting a house.

When the evening papers report on something like that, a lawyer knows that bail is going to be difficult to get the next morning, even without dealing with reverse onus. You have enough experience to know that if the biggest paper in Toronto runs articles for two or three days on a particular murder, the judge is going to be very reluctant to grant bail when the lawyer appears with his client, even if he is a good client. Have I understood what you were saying?

[Michael Lomer]

That's it exactly. In fact, there's also a bit of a kickback, if you will, in a judicial sense. By this, I mean that after we had some really shocking gun cases in Toronto, for a short period of time there almost became judge-made law reversing the onus on gun cases, just by virtue of the holding that a judge made regarding a particular bail. Then the crowns would use that holding and say, yes, the law is changing, even though the law hadn't changed. It was like a common law development.

The kickback was other jurists saying, no, the law has not changed; it is exactly as it was before. So this creates a debate, and we have a judicial debate. I'm sure your researchers could dig out the cases reflecting that very debate.

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

I now move to my second question. We are talking about reverse onus in bail cases. The Criminal Code calls for reverse onus in cases of possession of stolen goods. The lawyer has to show... We have cases where lawmakers, without any statistics whatsoever, have reversed the onus. We lawyers have to do it. We are talking about bail. It is different, we understand that.

But I would like to ask you a question that was raised by Mr. Bagnell and Mr. Lee. It has to do with the time spent in detention while bail is being considered counting double, and whether the judge takes that into account when the person in custody hears his sentence at the end of the process.

In Quebec, we have this peculiar phenomenon, and you have the same thing too. Some of our clients are asking to be sentenced to more than two years plus a day, because they know that they will serve a sixth of the sentence rather than two thirds. We have clients who want to be sent to a federal prison rather than a provincial one. Do you have the same phenomenon, and does it have an effect on bail applications?

[Michael Lomer]

We've devolved into the mathematics of what people want for sentencing when they know they're going to be convicted.

I've had clients who had previously been in reformatory say, “Please get me a penitentiary sentence”, which is one day more, or “Please, I want to go a certain area.” These are what I would describe as generally ineffectual manipulations of the system. I say “ineffectual” because they're still going to be serving a sentence. Yes, the federal system has fast-tracks for first offenders in non-violent crimes. Yes, it's sometimes harder to get provincial than federal parole. That's not always the case, though, as I keep cautioning my clients. They may be thinking that this is what they're hearing, but it's not necessarily what is in fact going on.

For example, just as a general observation, federal parole has tightened up significantly in the past 10 years or so. They'll talk—they think they're jailhouse lawyers—but they may not be correct.

[The Chair, Liberal, Bernard Patry]

Thank you.

Go ahead, Mrs. Freeman.

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

Thank you for being here to give us your point of view, Mr. Lomer. I would like clarification on two points you raised in your remarks.

You said that you were in agreement with the bill, and its 12 new offences for which reverse onus would apply. You also said that other existing cases of reverse onus should be looked at again, for example section 469 of the Criminal Code dealing with organized crime and terrorism-related offences. Can you give us more details?

[Michael Lomer]

Regarding the example I was using, don't make trafficking in all narcotics a reverse onus, which is the way the law is now, as I understand it. But instead, look at the reversal in the context of the changes that have been made to the new narcotic control act. They have clearly identified a hierarchy of trafficking offences.

For example, trafficking in less than 30 grams of marijuana can be an absolute jurisdiction, a magistrate offence. You don't get a preliminary; you don't get anything of that nature. The question is whether that needs to be a reverse onus offence. It is presently. That's what I meant by looking at other pieces of legislation: are there presently reverse onuses?

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

On the other hand, you talked about the fight against crime. At the moment, bills that fight crime often involve stiffer penalties. You talked about another way. To fight crime, you talked about designing programs to get right to the heart of the problem of crime. You said that harsher penalties are perhaps not the only way to fight crime. Fighting crime is the object of the exercise. Can you describe for us some other ways of attacking crime?

[Michael Lomer]

What I was getting at is that I have rarely had a client who has said to me, “If I knew that was the penalty, I never would have done the offence.” They have little idea of what's in store for them. In fact, it was worse with the Young Offenders Act, where parts of the justice system were actively misinforming the public as to what the potential penalties were. All the little young offenders thought the Young Offenders Act was a walk in the park, only to find out somewhat differently.

It's incumbent upon the parties to the justice system to not--at least not without good just cause--denigrate the laws that we have. That's probably a good starting point.

I talked about using a medical model for drug trafficking cases. I talked about targeted programs, where you can identify the types of individuals who are at serious risk to commit particular crimes such as gun crimes. I see those as essentially inner-city, disaffected, low-functioning people. I can outline it, but I don't need to go into it. I'm sure you understand.

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

I am talking about prevention. Harsher penalties are not necessarily the only way to proceed. Putting people in prison is enormously expensive. The money could be used for prevention.

Do you have any proposals along those lines?

A little earlier, you said that you could define the profile of those capable of committing certain crimes.

[Michael Lomer]

I am not a social scientist who could design these programs. What I can say with some certainty.... Let me back up. As you mentioned, one of the difficulties is the financing. Jails are incredibly expensive, but—

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

I am going to come back to what you said in your remarks.

You clearly said that passing bills that call for harsher penalties would not necessarily mean dealing with the problem, and that other courses of action need to be designed because imposing stiffer penalties was not necessarily the appropriate way to combat crime. That's what you said.

I would like to hear more of your comments.

[Michael Lomer]

After doing this for 25 years, one of the things I have observed is that we have incredible numbers of things that we are going to make the individual who has been convicted of a crime do or not do. There are huge numbers of orders, whether it's to stay out of parks, depending on the type of offence, or it's this or that. In my view, the focus has always been after the fact. This is a little off topic of this legislation, but I was trying to direct the legislators to look at before-the-fact things that happen in our communities. I don't know if I can be any clearer than that.

It's easier for legislation to pile on things after the fact than it is for us to create something that takes place beforehand. The fact of the matter is that you never see its successes. Its successes are in the absence of headlines.

[The Chair, Liberal, Bernard Patry]

Merci.

Now we'll go to Mr. Hanger and Mr. Thompson. Mr. Hanger, please.

[Art Hanger, Conservative, Calgary Northeast, AB]

Thank you, Mr. Chairman.

Thank you, Mr. Lomer, for appearing before us.

This is on more of a process question. An offender is picked up by the police under prior situations, often with the use of a gun in a crime. He goes before a bail magistrate, not necessarily a justice. In this legislation we're talking about his appearing before a justice, are we not?

[Michael Lomer]

I can only speak for Ontario, but all bails, generally speaking, are done in front of justices of the peace. Occasionally you will have a judge doing the bail, but usually because that judge is helping out the courts where there's a backlog, as opposed to.... He or she has the right to do it, but as a practical matter, we have had JPs, or justices of the peace, doing it.

I think that answers your question.

[Art Hanger, Conservative, Calgary Northeast, AB]

Not quite.

[Michael Lomer]

This legislation will go to JPs as well. It will. That's the way I read it, because it just fits into the old legislation, it doesn't change any of the definitions of the old legislation. In other words, offences that are called 469 offences, like murder and that sort of thing, always go to a superior court judge. You have to bring an application to get there. But the reverse onus doesn't tell you that you have taken your application to a superior court judge; it just reverses the onus to the jurist sitting, and that jurist would still be a justice of the peace.

[Art Hanger, Conservative, Calgary Northeast, AB]

This JP, then, would end up evaluating everything: the strength of the prosecutor's case, as it points out here, the gravity of the offence, the circumstances, including whether a firearm is used or was just in possession of. So that evaluation, then, would be in depth.

[Michael Lomer]

It is now. It's based primarily on the synopsis prepared by the police at the time. Often, they're getting better at it. You'll have photocopies of the interview notes, and things of that nature, that show up right at the bail hearing. As a process issue, that gets done on a daily basis, the issue of whether or not the Crown's case is overwhelming, bulletproof, or weak, or whatever.

[Art Hanger, Conservative, Calgary Northeast, AB]

Some jurisdictions are a little different, I guess.

Going back to the purpose behind this legislation, of course, that's to hit gang activity indirectly. It could be drive-by shootings; it could be disputes within the drug world; it could be related, to some degree, to the lower end of the organized criminal chain. Would you see that as the targeting of very many people?

[Michael Lomer]

I am not in the SIS or the police special services, which collect that sort of information. But I don't find it at all surprising that we have in 2005, the year of the gun, a targeted area and groups targeted by the police and major projects with a number of arrests that don't involve a lot of people—my estimate would probably be less than 50—and suddenly the headlines are gone. I don't think it really is a lot of people, but I could have a chief of police beside me saying I'm talking through my hat. He has better access to better information than I'll ever have. But that's what I saw. I saw a significant police response to a significant problem, a lot of arrests—and by a lot I mean 50—and now we don't seem to have the same degree, although we still have it.

[The Chair, Liberal, Bernard Patry]

Merci.

We will finish with Mr. Thompson.

[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?