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

[Art Hanger, Conservative, Calgary Northeast, AB]

Right.

On another point that you mentioned, I think you left the impression with the committee that if these characters who are involved in gun crimes were kept in jail, they would be unable to feed their families or do their fatherly and husbandly duties. You've been in the criminal justice system a long time—I'm not sure how long as a defence lawyer—but I've been in it a long time too as a police officer, and I'm just scratching my head, trying to think back to how many people I've actually dealt with who were so intent on looking after their kids and who were involved in serious criminal activity, whether robberies or drugs, that involves firearms. I can only think of one, and that one happened to be a police officer who went off the rails. He actually did end up abandoning his family for some serious criminal activity—and he did have a family.

But going back into this argument of bad guys as the model fathers and husbands in our society, I'm really searching to think about anybody who fits that category, because most of them, 99.9% of them I would have to suggest, really couldn't care less about family, and if they did, they would abandon their criminal ways and go after doing that.

So I don't think that's going to make the impact that you really have tried to establish here with the committee.

[William Trudell]

I think I misspoke myself, which is not surprising. I wasn't talking about the bad guys. I was talking about the very difficult situation for people charged with offences to mount a package to support their release. My suggestion is that these people are not going to have jobs to go to, are not going to have families who support them and who will come forward as sureties, and will not probably have the roots in the community to get over the onus. I'm not holding any flag for people who are found to be bad guys after a trial, but what I'm saying is that the reverse onus makes it extremely difficult for persons to fashion a package of support in the community, so that a judge would think the risk is manageable.

That's what I was talking about. It's not the persons themselves, but it's the community support, the employer, etc., that they're obviously going to need to satisfy the onus.

[Art Hanger, Conservative, Calgary Northeast, AB]

That goes to my point then, really, that because of the lifestyle that these bandits live, they're not going to be able to do that whether they're in or out, and generally don't.

Apart from the fact that there may be some effort on the part of a defence lawyer wanting to create something like that as an argument to keep them out of jail, and apart from those particular situations, I don't see that as an argument not to put them away.

[William Trudell]

You know that I'm not going to agree with you when you call these people “bandits” and things like that. I often say, come on with me after this meeting and we'll go over to a hospital and we'll go into the delivery room, and you point out which ones will be victims and which ones will be my clients.

Quite frankly, you're forgetting something, with the greatest respect, and I say it with the greatest respect because I know you. A lot happens from release to trial, and what appears to be a bad guy and a “bandit” in the front end—and we can't make those statements because of the environment they come from, which is a lot tougher. It's a lot more in keeping with the dignity of this country to say that even those people who look like they're bandits and bad guys have a right to be presumed innocent and have a constitutional right to release. The measure of a great country, I guess, is how we treat the people who may not deserve it.

[The Chair, Liberal, Bernard Patry]

Thank you.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

I think our guest knows where I stand on a lot of these things. I too am disappointed that there aren't some statistics about bail. But when you look at risk and the safety of victims, we have lots of possible things that could happen that we look after pretty well.

When I was a farm lad, we had a vicious German shepherd. You made certain he was confined in a situation where he couldn't go after any guests who came to the farm. We had a bull you didn't want to jump in the corral with. That was well known to people who happened to come to the place. You look after risk.

I come from a small town, and we had one incident in our area where a person who was out on bail murdered two people and then killed himself. To me, that was the very thing that said that's enough of that. You don't take those kinds of risks. That's just common sense. If the person has demonstrated that he's capable of possibly doing it, then you don't take the chance. Nobody likes to play Russian roulette.

What does it take? What kind of a stat would make you and your organization say, well, now it makes more sense, maybe we should support this kind of bill? To me and, I would venture to say, millions of Canadians, it takes one. You just don't do it. It just doesn't make sense.

As a principal at a school, I had a kid who was arrested as part of...well, they called them the “apple dumpling gang”. He was 17, and he was part of this gang that robbed the Bank of Montreal at gunpoint in our hometown. Two days later, he was back in school. I thought that was rather strange: “You participated in a bank robbery, you weren't successful, you got arrested, and now you're back in school.” “Well, I'm out on bail.” So I talked to him about all these things.

But when you demonstrate that you could very possibly be a threat, why do you want to play with people's lives and take the chance?

[William Trudell]

Well, that's what justices of the peace do now; they balance the risk and decide. Every time I come here, I run a risk of what you're going to do to me when you question me, but the risk is worth it.

[The Chair, Liberal, Bernard Patry]

Now we'll go to Mr. Murphy.

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

Merci, monsieur le président.

I was just going to make a couple of statements and then ask a question that arises from your comments about section 1 of the charter. So you can get mentally prepared for that. I have just a couple of preamble comments about statistics.

My friend Larry mentioned that we didn't have the statistics. We're all a little disappointed by that. What we have, however, is the undertaking from the Canadian Centre for Justice Statistics, CCJS, that they would be looking at the way they ask the questions to track bail, and that's encouraging. So there will be statistics, I guess, specifically on bail. They were talking about recognizance, remands—just different language. They were unable to satisfy us on whether these reverse onus provisions that already exist work, for instance, and secondly, whether there is an increase in gun offences for which this reverse onus on bail might have an impact.

It's not the lack of stats. I'm leading toward section 1 here. The Supreme Court of Canada is going to understand that there was a lack of stats because of how the question was asked, not a lack of stats based on the lack of evidence of efficacy of such proposed measures. That's my first point.

The second is that we heard very strongly that this was merely codifying the practice, and you said, in your own words, “I don't see significant changes” in the application of the law by the justices and the prosecutors and, well, defence attorneys. There's not a lot that's going to change. That was reassuring, I suppose, and it made sense to me that this legislation should pass, because it's codifying something.

The third point, the last point, is that with respect to your section 1 challenge argument, this code changes with time. We've been saying that here. If you look at the current reverse onus sections, it's “inciting to mutiny”, “seditious offences”, “piracy”. It's in part 1 of the code, and it does make you think of a different time in our Canadian history, not the time of armed gangs in downtown Toronto.

So the code grows with time. Do you not think—and this is the question—that the Supreme Court, in reviewing this, as they did in the Vancouver Sun case on the ATA provisions, would say that the intent of Parliament was to address a concern about gang gun violence that's out there, absent statistics?

[William Trudell]

I don't know how you can do it absent statistics. What you're doing then is changing the law based upon anecdotal evidence.

Let me refer you to something in Hall. Just for the purpose that it might answer the question, I'm reading from the head note on page 4 of 36, at the last line: “The problem with s. 515(10)(c) is that it allows the subjective fears of the public and ill-informed emotional impulses extraneous to the bail system to form a sole basis for denying bail.” Then: “Section 515(10)(c) cannot be saved under s. 1 of the Charter. First, the respondent did not identify a pressing and substantial objective furthered by the provision.”

That's the same thing the court is going to visit upon this bill later on.

I say to you, Mr. Murphy, that if you got statistics that said the provisions of the tertiary ground as now constituted are not working, then you can have a comfort level in changing a basic principle here. But without them—and you're saying we don't have them, but we're going to change the bill because it doesn't make any difference anyway—That's not right, with great respect, because you're changing a fundamental principle, and that's the erosion of it.

That's the problem, with great respect, that we've been talking about every time we come here. There's a lack of consultation on some of the bills you're dealing with, and you're being asked—all members, all parties—to try to find out what the statistical information is. That's why you call people here to get input.

But if you're not satisfied that the evidence is there, then you can't reach a verdict, and you don't have any evidence. There's no evidence that this bill is needed.

I'm sorry. I don't know whether that answers.

[The Chair, Liberal, Bernard Patry]

Thank you.

We'll have a very short question from Madame Jennings.

Ms. Jennings.

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

No. It is all right.

[The Chair, Liberal, Bernard Patry]

All right.

We'll go to Monsieur Ménard, s'il vous plaît. No? We'll go first to Mr. Dykstra or Monsieur Petit, either one.

Monsieur Petit, you have five minutes, for both together. We're finishing at 4:30.

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

Thank you, Mr. Trudell. Your testimony raises a question. You told Mr. Bagnell that laws were being created due to an overreaction to certain events.

I find that your opinion is reasonable. Does it apply to the Canadian Firearms Registry? Do they want this registry because they are overreacting?

[William Trudell]

I don't know that I want to get there, but I can tell you this. Many years ago, when Allan Rock was the Minister of Justice, I wanted to support his gun movement and I found that there were different regions of the country that had very different reactions to it. But I can tell you this: there's no paucity of information and statistics and people who are prepared to help in relation to the success of the gun registry, including the police.

So it's not comparable, because you have so much information as to the necessity: international experience with the gun registry—You're not making the decision on that now. It's a debate that's been going on for a long time, but I would imagine there are rooms on Parliament Hill that are full of information on behalf of or contrary to the view of a gun registry. You have lots of information to make that decision; you don't have, in this one.

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Trudell, it's interesting. You've appeared over the last number of years a number of times in front of various Senate and justice committees. In doing a bit of research to get to know you a bit better, so that having met you—You've made lots of comments; there are lots of quotes, lots of things I may or may not disagree with.

But having said that, the one that stands out is a comment, and I want to get clarification from you as to whether this is actually a quote from you or not. You're quoted in the North Bay Nugget as saying in London in 2002 that Bill C-24, which at that time was and still is Canada's organized crime bill, “legalizes wrongdoing by the only organized gang in this country, which is the police”.

I'd like you to clarify that comment for me and, hopefully, say that you actually never said it.

[William Trudell]

No. If the North Bay Nugget said I said it— I think there's a context to my submissions and many submissions in terms of the organized crime legislation. We were very concerned, I think, at the time about how many people made up an organization. I think I was testifying, and said on a number of occasions, with others, that what we seem to say is organized is not really organized. A group of people coming into a room is not really an organization.

I probably said something such as that one of the most organized organizations is the police. So there was a lot of context to it. I don't think you want to judge me on the basis of something out of context from the North Bay Nugget, because I'm sure there are lots of police officers who—

[Rick Dykstra, Conservative, St. Catharines, ON]

Sir, I'm certainly not here to judge you on one comment. I was just asking you to give some clarification to that.

[William Trudell]

I have no difficulty—Let me finish.

[Rick Dykstra, Conservative, St. Catharines, ON]

One of the other questions I have is in regard to the point around statistics. I just want to get some clarification as to whether you thought on this reverse onus bill statistics were or were not important. I understand, based on comments that you've made earlier, that judges don't base their decisions on statistics, they base their decisions on the evidence and the presentations that are made before them.

[William Trudell]

Two things. With respect, I wasn't finished.

[Rick Dykstra, Conservative, St. Catharines, ON]

I'm sorry, I don't have that much time.

[William Trudell]

What I'm saying to you is we, and I, took a very strong stand in relation to the early legislation on organized crime. I stand by all of the submissions that I made, in context.

In terms of statistics, it's the statistics that will help you decide whether or not the change in this legislation is necessary. If this section is challenged, then you're going to end up getting to section 1. When you get to section 1, it has to be demonstratively supported, and that's when you have evidence of statistics that the court would decide whether or not it withstands charter scrutiny.

So when you get to that section 1 analysis of legislation, that's when the court wants to hear about the statistical problem that this legislation was brought in to address. If you can't support it, then the court may decide that it doesn't withstand charter scrutiny. They may decide, on the other hand, that it was reflective of a need at the particular time, and statistics may not be available.

[The Chair, Liberal, Bernard Patry]

Thank you. That's it, I'm sorry.

We'll go to Monsieur Serge Ménard.

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

Thank you, Mr. Chairman.

Let me venture to sum up your statements within their context. The doctrine of reasonable doubt is not natural. People naturally tend to think that there is no smoke without fire. Besides, the rule of law is firmly established and constantly defended because errors are made when it is not enforced. Basically, every civilized country has adopted it.

As a matter of fact, when faced with spectacular crimes and ominous threats, some people cannot accept the doctrine of reasonable doubt. This is the case with firearms, despite the fact that firearms-related offences are on the decrease. You can see this if you take the time to consult all the data compiled by Statistics Canada. You can find this in the publication that Statistics Canada made freely available a few months ago. We are referring to the most recent publication, number 82-002-XPF in the Statistics Canada catalogue. The document gives criminal statistics for 2005. On page 7, we can see that less crimes were committed.

For instance, robbery involving firearms was down by 5%, whereas robbery involving other kinds of arms had figures similar to the previous year's figures. We hear that the overall number of robberies is on the increase, but firearms-related robberies continue to go down. We know all this. Nevertheless, we do not feel that the government's attempt to table this bill is based on any real danger. Basically, the public revolution against some specific crimes has made the government unable to apply the doctrine of reasonable doubt.