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

[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.

[Michael Lomer, Treasurer, Criminal Lawyers' Association]

Thank you very much, Mr. Chairman. I want to thank the committee for inviting the Criminal Lawyers' Association to be present at the hearing on this piece of legislation.

It's a relatively narrowly focused piece of legislation. We have been familiar with reverse onus provisions in our Criminal Code for some years and have learned to live and work with them and understand their rationales. The Supreme Court of Canada, I think, has probably spoken on them about three different times. They've been constitutionally approved.

In the past, our problem, as an association representing individuals charged with offences, was not the reverse onus or anything of that nature, until the tertiary ground came along, and it was so broadly brushed that it was essentially “maintain confidence in the administration of justice”. And this was something we just couldn't get a handle on in terms of exactly what was being got at by the legislation. Was it confidence that we lock up all criminals? Was it confidence that everybody is entitled to bail unless it was reasonably withheld?

Then there was a challenge to that, and the end result was that Parliament then enacted specific examples of what was meant by that. I note that this legislation, the legislation that is being proposed here, does that as well, but in the context of firearms and the firearms being used to commit other criminal offences.

I have to say that this legislation will undoubtedly face constitutional challenges. I think, quite frankly, it will pass them, and it will pass them because the specificity with which it is drawn will direct any court deciding the constitutionality of the legislation to what it was that Parliament was getting at and why.

So I think the end result for the Criminal Lawyers' Association--you have to understand, I only was able to consult with our committee at this point, because it came up so quickly--is that we don't have any particularly strong quarrel with this legislation. If you invited us here today thinking we would be the ones to tell you it was problematic and wrong-headed, or it was way too broad, or any of those things, I'm afraid it's not. It's actually fairly specific.

What one has to understand with respect to bail in general is that it is fact driven, and that's regardless of whether there is a reverse onus or not.

Let me give you an example. If a young kid is charged with trafficking in marijuana by selling $30 or $20 worth of marijuana to a friend, whether there's a reverse onus or not, he will get bail. If he's charged with 10 kilos of heroin, the reverse onus is there, but even if it weren't, it would in all likelihood trigger a detention order because of the nature of the offence, the nature of the drug, the quantities of the drug, and that sort of thing.

So what I'm trying to say is that reverse onus does nothing more to courts than point them in the direction that Parliament is saying they want them to look. I also have to tell you that I think, quite frankly, at least in the courts in Toronto, they're already looking extremely carefully at any cases that come up where firearms are involved. While there is no legislated reverse onus, there is what could be called a de facto reverse onus when guns are involved.

Mr. Chair, those are my opening comments with respect to your legislation. I welcome any comments or questions.

[The Chair, Liberal, Bernard Patry]

Thank you very much.

Now we'll go for seven minutes, starting with Mrs. Jennings, please.

[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?

[Michael Lomer]

I tried to give the example of when the original paragraph 515(10)(c) came down. It had just the “maintain confidence in the administration of justice”. The difficulty was that confidence in that administration depended on, quite frankly, the point of view of the person looking at it--judge, police officer, crown attorney, defence lawyer, or defendant. There was that difficulty in trying to get a focus on it.

It was subsequently amended to actually give focus to it, and that passed constitutional muster. It's for the same reason I say that when you look at paragraph 515(10)(c) and its amendments, you'll see that they're all focused. That focus will give specificity and will point out to the courts why Parliament feels a reverse onus is appropriate in those circumstances. They will also say that, looking at our recent history, it's probably justifiable.

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

Thank you.

If there's any time left, I'll share it with Mr. Lee.

[The Chair, Liberal, Bernard Patry]

Okay. We'll get a second round.

Mr. Murphy is next.

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

Thank you for coming, and thank you for your comments.

We had a presentation from the Canadian Centre for Justice Statistics at the last meeting, and I would like your comment on the role of statistics generally. We tend to rely on them quite a bit because they're empirical, but what we found in the presentation--nobody's fault--was that the Canadian Centre for Justice Statistics did not keep track of the number of times bail was granted.

I think we're all in favour of this legislation in principle, yet as legislators--not necessarily as lawyers from your point of view, but as legislators--perhaps we would like to have the support of statistics that show the number of bail applications that were granted and the number of bail conditions that were broken, leading to incarceration, etc. There's a piecemeal way of doing it in the last slide that we were given, by extrapolation, but it's a bit inexact and can lead any side of the argument on people being at large when they shouldn't be.

What I'd like to know from you is how your organization relies on statistics. Would you see a need for improvement in the gathering of statistics to help you in arriving at your positions?

[Michael Lomer]

There's that old truism by Mark Twain about statistics, but I won't bore you with it.

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

It's already on record.

[Michael Lomer]

It probably is. There's always a kernel of truth in anything that man said.

As a practical matter, when you are dealing as a defence lawyer in what I call the micro as opposed to the macro view of legislation--in other words, when I'm acting at a bail hearing for an individual--I'm looking at what is the law, how does it affect that individual, and what is the outcome? Rarely, and really only in forums such as this and in other legislative initiatives, do members of the Criminal Lawyers' Association sitting on the committee get a chance to debate what I call the macro.

So as a general rule, we don't use statistics in our arguments in court, because a judge will say, “What do I care if 1,000 people were released? I'm looking at this individual; this is his background, these are my concerns, and statistics won't help you with that.”

With respect to gathering statistics, that's a much larger question, because there's a clear cost-benefit analysis that has to go on for anybody collecting that sort of statistic. There were various local initiatives in statistics gathering in Toronto. We didn't find them terribly helpful, because you really have to look at the gatherer.

Statistics—and I think this is the reason Mark Twain was so circumspect—really depend on who's asking the question and gathering the information. They can be skewed, even subconsciously, by the types of questions you ask and the information you're looking for.

So this is the long way around to say that statistics are not necessarily helpful, leaving aside such things as the homicide rate, which tells us that this country is not, contrary to the headlines above the fold across Canada from time to time, going to hell in a handbasket. We don't have crime rampant in the streets. We have some problems here and there, and we've probably had them since I was a child--I would probably remember headlines--but I don't think the headlines drive the issue. That's why I think perhaps that one statistic is of some value in terms of keeping us centred.

I hope that answers the question.

[The Chair, Liberal, Bernard Patry]

We'll go to Monsieur Ménard, s'il vous plaît.

[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.

[Michael Lomer]

I think what we're getting at here is the practical versus the theoretical, or perhaps more accurately, it's the practical versus the importance that legislators have in directing to the courts that which they perceive to be important. It's for that reason...even though I understand that the statistics tend to indicate there has been a lowered incidence of firearms, you can't tell that to the people living in Toronto. We had the year of the gun; everybody's heard about it. It was rather shocking.

But there is still a role, not driven by statistics, but driven by the public perception and the need to know that the situation has been taken in hand with legislation. I'm not talking about being tough on crime, because there are a lot of issues with that type of phraseology. What I'm talking about here is a much more specific nuanced approach that tells the courts and the public that firearms and offences committed with firearms are particularly problematic and that we have to deal with them. I think it's for that reason that even though you can make statistical arguments, and as a practical matter the courts have already dealt with it and reversed the onus, if you will, in a de facto way, legislatively there is nonetheless some value in pointing out that this is a concern.

[Réal Ménard, Bloc, Hochelaga, QC]

Of course, this committee is not doubting your word. Like all those who have appeared before the committee, your association has always provided clear and considered views. When we draw up the list of witnesses, your name is accepted by both the government and the opposition side and your authority is clear. We do not even have to make a case for you to appear, because of the extent to which your authority is almost universally recognized.

You are saying that the courts already apply reverse onus in firearms-related offences. Do you have any statistics on that, or are you reporting what the members of your association tell you? This is an important statement for the direction of our work. So I would like to know how you support it.

[Michael Lomer]

I'm thinking now particularly of a court in Scarborough that has, perhaps oddly enough, one of the highest incidences of gun crimes and has the justices of the peace dealing with them.

You will see that the inevitable position of the Crown is that whether or not there are other outstanding charges, if there's a gun involved, whether it's a Crown onus or not, they will be asking for a detention order. They will require persuasion. That mindset is probably reflected in the way justices of the peace look at it when they see gun cases come up. The net result, in my experience and certainly that of my colleagues, is that if there are releases on bail, they are on much more rigorous terms. They are much less likely to get released. They will require not merely a surety but a whole program in place to ensure there will not be another offence, especially involving guns.

Monsieur Ménard, I hope that has answered your question. It's difficult to try to get statistics out of the day-to-day workings of court. We operate completely anecdotally as a reality. You hear stories; you know from those stories...and I don't mean they're fabrications.

[The Chair, Liberal, Bernard Patry]

Thank you.

We'll go to Mr. Comartin, please.

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

Thank you, Mr. Chairman.

Thank you, Mr. Lomer, for being here.

In terms of the practical approach that's been taken by our judiciary in the Toronto area, is it your belief that this is true of the judiciary across the country?

[Michael Lomer]

I would suspect, although I certainly can't know, that it is undoubtedly going to be the judiciary's experience that tempers the way they look at something. In other words, if you don't get gun charges in, say, rural Alberta, except for somebody who has failed to get a licence—

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

They don't charge them there anyway.

[Michael Lomer]

I don't know what they do, but I'm absolutely sure that it will be dealt with differently than drive-bys in the city, or something of that nature.

As I said, bail is a particularly fact-driven case. Quite frankly, the best parliamentarians can do in their job as legislators is point to where they have concerns, and certainly reverse onus does that.

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

My party supports this legislation as well, but let me play devil's advocate for a moment.

Do we pose a risk of constraining the judiciary too much by imposing this, in particular imposing this around gun crimes? Then the problem with gun crimes eases over the next while, as it did dramatically in Toronto in less than 12 months, but now we've handcuffed the judiciary with the reverse onus, specifically on gun crimes.

[Michael Lomer]

Reverse onus has never meant that people who should otherwise get out won't get out. I have to say that at the outset. If somebody is a worthy candidate for bail, all things being equal, the onus does not particularly influence the outcome. So I don't think that as a general rule I would be too concerned about it.

Where I might encourage the legislators to look is at the reverse onuses that presently exist, for example, trafficking in a narcotic. That was a reverse onus from the time we had the Narcotic Control Act, well before the present legislation, which has many different levels of trafficking, depending on the drug. I question whether, as a practical matter, it makes sense to have a reverse onus in trafficking in marijuana but no reverse onus up until now in robbery with a firearm. You know, it's one of those disconnects that existed.

So there is some value in going back to the legislation as it presently exists and asking if there is still justification for it.

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

This legislation was being driven by the headlines. It's difficult to comment on a specific case, but we just had one in Montreal with a police officer being killed and the individual accused of that crime being released on bail.

Are there in fact cases that are going to be affected by this legislation above and beyond what the practice has become?

[Michael Lomer]

I know very little about the facts of the Montreal case, but what I do know indicates that there certainly is a viable defence. Whether it's a winnable defence, I have no clue. But it struck me at the outset that there was a certain viability that probably stems from the no-knock warrants, which we are so fond of using. I won't get into that.

In answer to your question, I don't think the onus alone is going to affect the outcome.