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

[William Trudell]

I think the two additions to the confidence in the public administration of justice cover the concerns without shifting the onus. In other words, if you say that the firearm was a part of the offence, and that gets added to the section that the public would lose confidence in the administration of justice, and of course that there's a minimum sentence for a firearm offence, you've covered off, in my respectful submission, what all parties want to do here, to address the level of confidence and fear, real or imagined. You can do that, if you feel it's appropriate, by the simple change in the subsection as opposed to shifting the onus.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

As a matter of fact, nothing really calls for amending the legislation, because the provisions that you described allow judges to fully take into account the danger posed by individuals in every case.

You are here to defend fundamental principles that are difficult to defend whenever spectacular crimes occur. You want us to continue following these principles that have been established over the centuries in the legislation of every civilized country.

[The Chair, Liberal, Bernard Patry]

Mr. Trudell, do you wish to respond? It was a comment. Thank you.

We'll go to Mr. Lee and Ms. Jennings, for five minutes together, and we'll finish with Mr. Moore.

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

Mr. Trudell, thank you for visiting with us again.

We're planning to adjust our laws here to actually adjust what is explicitly a charter right, the right to bail. In doing that adjustment, there are two things I want to ask you about. You have warned us that we many not have sufficient justification upfront, statistically or otherwise, to justify doing that adjustment to the charter right.

I want to ask about two things. First, for whatever reason, the government has chosen not to insert a preamble that might have attempted to articulate the nexus between people charged with these offences and further potential danger to the community. Second, regarding the presence in the words of some pro forma criminal offences like ammunition or a crossbow, which don't have anything directly to do really with danger from firearms, not directly, do you think these pro forma references to the crossbow and a couple of bullets in the guy's pocket will detract from our hope that the court will see there is a nexus between the danger of these people and these offences for which they're charged?

[William Trudell]

I think it's a problem, and I hope I can answer it.

What's going to come into the system? Who's going to lay the charges? It may very well be that by those examples certain people are going to be caught up into this web who it is not the intention of any of you to address, because obviously the police are the ones who make the decision on the charges. I think we have to be extremely careful about what charges come into the system to make sure that, whatever change is made to the criminal justice system, there is a nexus.

I was wondering why there's reference to crossbows and other things. That's sort of an erosion of the bail. If there's a specific problem and you're satisfied, then it should be narrowly constructed. Otherwise people are going to be caught up, brought into custody, and then remanded and not be able to get out on bail, when you really don't mean to be concerned about those people because the public is apparently not concerned about knives or crossbows.

If that helps, that's how I would--

[The Chair, Liberal, Bernard Patry]

Ms. Jennings.

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

Very briefly, on the question that Mr. Dykstra asked you about a statement that was attributed to you, obviously you did not have sufficient time to completely address your answer to that, and probably in particular your attitude toward the police. I'm sure you're not anti-police. I would like to offer you an opportunity, if you wish, to expand on your response to Mr. Dykstra.

[William Trudell]

I don't think Mr. Dykstra meant anything negative. He wanted some clarification. I don't remember the context, but I can tell you that I defend police officers and we consult with police officers. I just was representing a person charged with the first degree murder of a police officer and had all kinds of nice things said about the way it was handled.

I don't take anything personal from it. We come up here to try to help you; sometimes anecdotal things are said by all kinds of different witnesses here.

Look, I get up in the morning. I go to work. I have little kids and old kids. The first person I call when there's a problem is a police officer, and sometimes the first person police officers call when they have problems is me. I have a great deal of respect for the tough job they are doing.

I am concerned about the politicization of the police; I have said that publicly and will say it again. On the other hand, we work very hard with police at the national steering committee of the Canadian council, and you can't change the system without hearing from the stakeholders. You may be skeptical about some of the things I say. You can say that I'm just a defence lawyer; well, the police association may come here, and you may say, “Wait a minute; they're a police association.” The chiefs may come here and have a different view of it.

One of the sweetnesses of Canada is the respect we have for the police, but that doesn't mean that we can't be careful about the abuse of power, because they have extraordinary power.

[The Chair, Liberal, Bernard Patry]

Merci, monsieur Trudell.

Next is Mr. Moore, to finish.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you, Mr. Trudell, for being here.

There's been a lot of discussion today about statistics and the bill. It's a two-edged argument. We hear people say it won't make any difference, and yet somehow say it's so profound in impact that we shouldn't adopt it.

Certainly the government is responding to the calls from municipalities, from mayors, from provinces. I have personally asked large-city mayors what we could do on the justice side, and this has been raised to me personally as the number one issue—reverse onus on bail hearings. These are people who are educated. They know their individual communities better than any of us do, and what they're calling for is this reverse onus.

Further on the statistics, I want you to comment on something.

We had Michael Lomer here from the Criminal Lawyers' Association of Ontario. He said, actually, that he's supportive of the legislation and that in fact it's actually fairly specific. He also said reverse onus does nothing more to courts than to point them in the direction that Parliament wants them to look, and I think that is the message we are sending. It's a subtle message; we're saying that when it comes to these serious firearms offences of attempted murder, robbery, discharging a firearm with criminal content, and the rest, we want to be very sure the public is protected.

On the issue of statistics, Mr. Lomer said we don't use statistics in our arguments in court because the judge will say, “What do I care if 1,000 people are released? I'm looking at this individual, and this is his background, and these are my concerns, and statistics won't help you.” The long way around is that statistics are not necessarily helpful.

I would like your comment on that. The fact of the matter is that we've heard overwhelming evidence, some of it anecdotal, some of it by mayors and by the police, that this is a concern in their area. It is a relatively small number of individuals, but when they are out on the street for whatever reason—and it could be because they have bail—they pose a tremendous threat to the communities. We're talking about a small number of some of the more serious offenders.

Could you comment a bit on the statistics, and also on Mr. Lomer's opinion that this legislation is in fact quite constitutional and in keeping with what has been done with reverse onus in the code to date?

[William Trudell]

Statistics—the word I would rather use is evidence—that it is a problem. One of the ways you find out is that there are statistics showing hat bail provisions as currently structured are being abused.

I'm not sure what Mr. Lomer's position was. I represent the national council, and we have viewpoints from right across the country, as opposed to Toronto, a big city. It might be different in Saskatchewan. It might be different in Nunavut. So we feel, on behalf of the council, that there's a substantive, principled approach and that we cannot support this bill.

I understand, Mr. Moore, that there are people who are saying that we need to change this because it's a number one problem in Toronto. I see what the mayor said in Toronto. But is the mayor saying it because he knows that the tertiary ground, as applied right now, doesn't work, as opposed to saying that we have to get tougher on these big-city problems and send a message to those few who abuse the criminal justice system and commit these offences?

I am saying, on behalf of the Canadian Council, that the equipment is already there in the tertiary ground. But if you are specifically looking at those people, then the two additions you have introduced in the legislation in terms of looking at public confidence in the administration of justice—if it's a gun crime and it's a minimum three-year or four-year sentence—if you add those to the tertiary ground, that tightens it up a lot more and sends the message out, without fundamental change to the onus.

[The Chair, Liberal, Bernard Patry]

Thank you very much, Monsieur Trudell.

I think it was very interesting. From my point of view, I think it's important to have both sides: people who are supporting the bill and people who are not supporting the bill. That's the idea of having a committee.

Merci beaucoup.

The meeting is over.