Bill C-35 (39th Parliament, 1st Session) Committee on May 16th, 2007

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

Not too long ago, a police officer was killed in Laval and another was wounded. I know that the individual was released quite quickly. Could you explain why?

[Isabel Schurman]

Yes, I certainly can.

[The Chair, Liberal, Bernard Patry]

It was in Brossard. It was Laval officers who were in Brossard.

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

Excuse me.

[The Chair, Liberal, Bernard Patry]

I want to be sure that we are talking about the same case.

[Isabel Schurman]

It is the same case, I think.

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

Your firm was not involved, I hope.

[Isabel Schurman]

No. I would not have answered if that had been the case.

I have absolutely no connection to that case, but I am glad of that you brought up the question, because it is a case where a reverse onus exists in the Criminal Code. Because someone was killed, it is a murder. So reverse onus already applies. According to what I saw and read in the media—I do not know the file—it seems plain and obvious that the defence is going to claim self-defence.

I have the honour of teaching each year in the criminal law program of the Federation of Law Societies of Canada. Strange as it may seem, this was exactly the example that we used in our workshops last year. We had to decide if someone is guilty of the murder of a police officer if he believes that he is the victim of a home invasion. Life is strange sometimes: a very similar event happened a few months later.

I am happy that you raised that question, because it is a case where a reverse onus applies. The person was released on bail, because it was shown that he deserved to be released under paragraphs 515(10)(a), (b) and (c) of the Criminal Code. But this is extremely rare. Reverse onus does not mean that the person will not be granted bail. It just means that the accused must show why he should be released.

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

So, if I understand correctly, without referring to this case specifically, no one will be deprived of their freedom if reverse onus is correctly applied. For example, in this case, the individual got out immediately because he claimed self-defence. He was not forcibly confined.

[Isabel Schurman]

As I understand it, he provided a good deal of evidence. But the answer to your question is found in Madam Justice McLachlan's comments in the Pearson decision. She set aside the reverse onus for drug trafficking because she feared an unjust result if it was too widely applied. That is not what we want to do in constitutional law.

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

Agreed. Thank you.

I have no further questions.

[The Chair, Liberal, Bernard Patry]

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you.

I appreciate hearing from you this morning. I have to say right off the bat that I'm not a lawyer, and I'm sorry that I get lost in a lot of the lingo that goes on between you lawyers. You and Mr. Lee lost me totally.

It's hard to keep up with that. I don't quite understand where you get the idea that in reality it would change nothing. There are communities in this country that are actively seeking this kind of legislation because of the high rate of gun crime in their neighbourhoods. So the reality is they say we have to do something. You're saying in reality it will do nothing.

You're also saying the reality is that Canadians don't like guns. I live in a basically rural Alberta riding, and I would say that kind of statement would bring on a loud boo as a response. People there are quite active in their ranching, farming, hunting, and everything else they do. We have world contests like the fast gun draw. You wear a sidearm and try to be the fastest to draw. Last September I was there when a 14-year-old girl from California was the fastest gun in the west, and the crowds were cheering. So the reality is that what you said is not necessarily true. You make it sound very wide-sweeping and it isn't.

Another reality is that I've talked to a lot of police officers on the front lines. We don't have the stats, but they will say they are well aware of many individuals who were released on bail after being jailed for gun crimes, including my friend on my right here who is an ex-policeman. He will vouch that that's been going on and is still happening. The reality is that Canadians are worried about their safety and feel we must do as much as possible to protect them.

I personally know of one case of bail that ended up in the death of three people. I was acquainted with those people. Others don't want to talk about it today, even though it happened 12 or 14 years ago--I can't recall the date exactly--because of the tragedy that happened to them as victims.

All this lingo concentrates so heavily on legislation--legal this and legal that--that we forget about the victims who are real people. The reality is that people are not satisfied with the way things are--the status quo. On the gun crimes that happen, the communities want something to happen. They're asking for this kind of legislation. They've been here testifying to that. Police are asking for this kind of legislation.

You make blanket statements about reality, but the reality is, “Government, get off your tail and start fixing things to put an end to the tragedies that are happening amongst us.” I'm thinking of Mayerthorpe, where we lost four policemen in Alberta. I'm thinking of the Boxing Day incident in Toronto. We can name one after another. We can't sit back and say this is a useless piece of legislation that will do nothing. I don't agree with that at all.

You can comment any way you like on my response.

[The Chair, Liberal, Bernard Patry]

Thank you, Mr. Thompson.

Do you want to comment?

[Isabel Schurman]

If I may.

I'm sure that communities are asking for legislation to make their communities safer. It's happening all over the country. The reality is that the statistics that are available do show that crime rates are dropping and that violent crime is going down. But I'm sure that as politicians you're getting this all the time from communities, saying, please make our communities safer.

The way for us to do that is to listen to what we've been told by the professionals for so many years, that if we can create a certainty of apprehension, crime will go down. The biggest deterrent is the certainty of detection and apprehension. So when it comes to gun crimes, let's put our efforts there.

My comments--and I didn't mean to insult anybody from any province or from any native community; obviously there are contexts where Canadians do like guns, when they're in their proper context. When somebody is using a firearm for sustenance for himself and his family in a native community, nobody has a problem with that. The competitions you're talking about, nobody has a problem with them.

I think I tempered my comments with the fact that Canadians don't mind them in their proper context, a hunting rifle in hunting season on hunting territory. When I say Canadians don't like guns, I mean that in any courtroom in this country, when a bail hearing comes up and the evidence goes in before the judge and you see that somebody had a firearm, it makes everybody nervous. It makes everybody nervous. I think that's the way we are, perhaps as a people, without meaning to put down, in any way, shape or form, anyone in this country.

There will always be examples, I'm sure, of people who had a previous conviction and committed another crime, of terrible tragedies ending in death. Yes, of course, there will always be those examples. That's for sure. What we need is a plan to look at reducing gun crime across the board, if that's where the problem is, and not simply saying, well, there are going to be two or three offences for which we're going to change the burden, but in some much more serious ones, we're not going to go there. It will only create legal wrangling, which will leave out most of the Canadian population and take years to get to a settlement.

That's my fear. I may be right, I may be wrong, but that's my fear, and I'm only here to tell you my fears.

[Myron Thompson, Conservative, Wild Rose, AB]

My sense is most Canadians don't like criminals. It's not that they don't like guns.

[Isabel Schurman]

You have consensus on that.

[Myron Thompson, Conservative, Wild Rose, AB]

I would say that's reality, not that they don't like guns.

[The Chair, Liberal, Bernard Patry]

That's a different opinion.

We'll go to Madam Jennings, please.

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

Thank you, Chair.

Thank you, Ms. Schurman, for your presentation and for some of the information you've provided us.

What I'm taking from a lot of what you've explained to us is that rather than possibly putting a reverse onus for certain offences, and in this case Bill C-35 targets offences involving the use of a firearm, for instance, it might be more appropriate to look at subsection 515(10), and look at the possibility of maybe strengthening that. The strengthening may codify existing practices, but we don't have the statistics on that.

Right now, if we look at paragraph 515(10)(c), where it gives some of the conditions under which the judge, in determining whether or not this detention is necessary, the apparent strength of the prosecutor's case, the gravity of the offence--obviously if we're talking about offences where there's violence, where there's the use of any kind of weapon, that would obviously be part of it--the circumstances surrounding the commission of the offence...I would say instead of including whether a firearm is used, include whether a weapon was used. That weapon could be a blunt instrument. Getting hit over the head with a baseball bat can be just as a violent and just as repugnant as being hit by somebody's fist, or being threatened with a knife or a machete or a firearm.

Then if we look at subparagraph (iv), where it says “the fact that the accused”, and this is added on, and I think we wouldn't have a problem with that, the fact that the accused is liable on conviction for a potentially lengthy term of imprisonment.... I think judges probably already look at that, and if they don't, they should, but I don't think there would be any harm, and it might actually be beneficial, to have it codified.

As well, there is the fact that if on conviction the offence may, under the Criminal Code, lead to a minimum mandatory sentence. That may be a factor that the judge should be looking at in determining whether or not detention is necessary.

If the government concentrated on that section, it might actually result in safer communities and safer Canadians, simply on that one little slice that we're looking at, because it is piecemeal. But on that issue of detention, whether or not judges should be releasing or not releasing individuals who are accused of certain criminal offences, using those factors....

[Isabel Schurman]

You may be aware that a number of years ago there was a very different 515(10)(c) than the one we have now in the Criminal Code, and it was struck by the Supreme Court of Canada in a case called Morales because it did not pass the constitutional test. When it was replaced with the one we have presently—if it's of any consolation—it was criticized heavily by a lot of organizations around the country that thought it would be too broad or be too this or too that. And it has survived constitutional challenge.

It states that on any other just cause being shown, and without limiting the generality of the foregoing, where “the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances”.... And it includes the weapons you are talking about, including the apparent strength of the prosecution's case, the gravity and nature of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment.

In the section we have now, to come back to the Canadian Bar Association brief, where is the gap we have to remedy? The one we have now covers all the concerns you had. The one concern I would have about making the code specify whether there's a mandatory minimum sentence is that it may be safer to be looking at the objective gravity of the offence. Canadians have decided that certain offences merit a maximum of five years, whereas others merit a maximum of 10, 15, 25, or whatever, because we want to know which, to us, are the worst offences.

It may be wiser to key bail to the objective gravity rather than to the existence of a mandatory minimum when the mandatory minimums may not apply to the crimes that have the highest objective gravity.

The fear I would have is that by concentrating on the mandatory minimums, we may forget the presumption of innocence, for starters, but also, we may concentrate on something that does not necessarily mean there is no bail for the most serious offences in the Criminal Code. So that was my only concern with that.

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

Yes, but if you had--

[The Chair, Liberal, Bernard Patry]

You can ask a five-second question, if you want an answer.

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

If you already have a potentially lengthy term of imprisonment, if it was added on, including the possibility of a minimum mandatory.... I don't think adding that on would take away from the offences that have a potentially lengthy imprisonment involved and the object gravity of the offences, unless you're a really brilliant defence lawyer.

[Isabel Schurman]

Your position is definitely not without support in the bar across the country. I expressed one concern. I am not saying that your position is without support in various corners of the country.