What I would say would be the following. When we say that there's a de facto reverse onus going on, as Mr. Ménard pointed out, there are no statistics available to know if it's really as common as we think. So somebody like me, with 23 or 24 years, phones everybody I know in the country and says, “Listen, what's happening out there?” That's a far cry from Statistics Canada or any other structured group, but maybe it's time someone looked at it, number one, to see if that is the case. Because I'm not the first person who's said it here before you, nor am I the first attorney who's lived it in a courtroom with an attitude from the judiciary.
Number two, if that is the case, then I think perhaps the government has to look at what needs to be done so that the law reflects what's going on. Because you're quite right that judges should not be reversing the charter, any more than anybody else should be reversing the charter. But we should be looking first at finding out what's happening, why it's happening. Is it really only firearms, or is it machetes? Is it the worse the weapon, the less the chance? Because that just might make perfect common sense with paragraphs 515(10)(a), (b), and (c).
So this may be what's going on. It may not be what we are calling here a de facto reverse onus at all, but it may just be the proper application of 515(10)(a), (b), and (c).
Finally, if there is going to be some kind of change in the law to reflect what's going on, then it has to be done in a way that won't leave us open to years of legal wrangling over whether it's valid or not. I'm not by any means pretentious enough to say that I believe this will or will not pass constitutional muster. I'm only asking the question. I'm only reading the Criminal Code and saying if any of you were sitting on the bench and you had the argument, “Is this as bad as this?”, would it look arbitrary?
I don't know the answer, and I don't pretend to at all. But I do think it's a question that's going to rear its head at some point, and how many years will it be before we actually have a decision saying yes, this is valid or it's not? If the decision is that it's not, then how many people will have had their constitutional rights violated by a law before the courts have gotten around to saying, “Well, wait a minute now, this wasn't right”?