moved that Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences), be read the second time and referred to a committee.
Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-35 which proposes that additional reverse onus situations apply in bail hearings for firearm related offences.
Procedural law is an important issue because it relates to how our criminal courts operate.
During this session of Parliament our government has introduced 10 bills to strengthen or improve Canada's criminal justice system. We have taken action to increase the mandatory minimum penalties for gun crimes, ban house arrest for serious offences, crack down on street racing, impose stricter conditions on dangerous offenders, and bring our impaired driving laws into the 21st century.
In Canada the law provides that a person charged with an offence has the right not to be denied bail without just cause. That means that the accused must be released unless the Crown shows that it is justified to keep the accused in custody before trial. Occasionally, the accused is required to show why pretrial detention is not justified. This is called a reverse onus.
Parliament has already created several reverse onus provisions for bail hearings. The concept was first introduced into the Criminal Code in 1976. When creating reverse onus provisions, Parliament must be mindful of balancing the rights of the accused to reasonable bail with the need to safeguard the safety of the public and to maintain confidence in the administration of justice.
The Criminal Code provides that there are three grounds that can be relied upon in order to justify keeping an accused in custody before trial. The first ground is to ensure that the accused will face the charges in court and not flee from justice. The second ground is to protect the public if there is a substantial risk that the accused will reoffend while on bail or if there is a risk that the accused will interfere with the administration of justice. The third ground is where the detention of the accused is necessary to maintain confidence in the administration of justice.
Bill C-35 is consistent with the principles that currently underlie Canada's bail regime. I would like to take a minute to talk about the proposals contained in the bill.
Bill C-35 creates a reverse onus provision for eight serious offences when committed with a firearm. They are: attempted murder, discharging a firearm with criminal intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery and extortion.
These serious crimes carry a mandatory minimum penalty of four years and under Bill C-10 the minimum penalty would increase in certain circumstances to five years on a first offence, seven years on a second offence and if they still do not get the message, 10 years on a third or subsequent offence.
Bill C-35 also creates a reverse onus provision for any offence involving a firearm or other regulated weapon if committed while the accused is bound by a weapons prohibition order.
A mandatory weapons prohibition order is imposed upon conviction for over 70 offences, namely, when an offender is convicted of an indictable offence in which violence against a person was used, threatened or attempted and for which the maximum penalty is 10 years or more; specific firearms offences; or trafficking, smuggling or producing drugs.
In other words, mandatory weapons prohibition orders are imposed on people who are convicted of violent crimes, drug offences or serious weapons related offences.
The courts are also empowered to impose prohibition orders after conviction for other less serious crimes if they consider it appropriate in the interests of public safety. These are called discretionary prohibition orders and they remain in force for up to 10 years. A mandatory weapons prohibition order remains in force for a minimum term of 10 years and in many cases for life.
It should also be noted that it is possible to have a weapons prohibition order imposed on a person even though the person is not charged with or convicted of a criminal offence.
An order prohibiting someone from possessing firearms or other regulated weapons can be obtained by the court for preventive reasons. If a peace officer or a firearms officer has reasonable grounds to believe that it is not desirable or in the interests of the public safety that a person should possess firearms or other weapons, an order to prohibit possession can be obtained and it can remain in force for up to five years.
Weapons prohibition orders are an important tool in our criminal law to help prevent firearm violence, whether it is firearm homicides or the full range of other firearm related crimes, but also accidental injuries and suicides.
Whether the prohibition orders that are currently in force were imposed in a mandatory or discretionary way following conviction for a criminal offence or in a preventive manner due to public safety concerns, I would like to highlight that there are approximately 35,000 prohibition orders currently in force in Canada.
Therefore, this proposal, which provides a reverse onus for anyone charged with an indictable weapons related offence, if already prohibited from possessing weapons, has a very broad reach, given the large number of offenders currently subject to a prohibition order.
The idea of triggering a reverse onus for persons charged with serious weapons related offences if committed while prohibited makes sense. These people already have been considered by a court to be a public safety threat. That is why the prohibition order was imposed in the first place.
They should not benefit from a presumptive entitlement to bail when they have demonstrated their inability to abide by a court order on a matter of direct relevance: their alleged reoffending involving weapons in direct contravention of an existing court order not to possess weapons.
The courts must be required to take a serious look at these types of cases. The accused persons should bear the onus of demonstrating why it is not justified to keep them in custody.
I realize that I have taken a bit of time on this point, but I think it is an important feature of the bill. As I said earlier, from a public safety perspective it makes sense.
Bill C-35 also creates a reverse onus provision for the three following serious firearm related offences: firearm smuggling, firearm trafficking or possession of a firearm for the purposes of trafficking.
While these offences do not involve the actual use of a firearm, where the safety of the public is directly put at risk, they are still serious offences nonetheless.
Those who are involved with firearm trafficking and smuggling are responsible for the illegal supply of guns to people who cannot lawfully possess them and who are very likely to use them for a criminal purpose.
We also have a problem with an underground firearms market where guns that have been stolen from within Canada or smuggled into country are traded and sold to people who are not allowed to possess them legally. We want to get at those individuals who are trafficking in firearms and we want this bill to apply to them.
Today in Canada street gang members and drug traffickers arm themselves with guns, usually handguns, therefore creating the demand for illegal guns. They are well organized and sophisticated illegal operations.
Law enforcement officers tell us that some of the schemes involve drugs first being smuggled to the United States and sold there, and the proceeds are used to purchase guns that are smuggled back into Canada. Law enforcement officers also tell us that some firearms traffickers even rent out guns for the night, if anyone can believe it.
We have a reverse onus that currently applies to those charged with drug trafficking and smuggling. There is no good reason not to include a reverse onus for those who are involved in firearms trafficking and smuggling. From a public safety perspective, although firearms traffickers may not be the ones actually pulling the trigger and causing the death of a person, they certainly play a significant role in the firearm homicide problem.
In addition to the reverse onus provisions, Bill C-35 also proposes additional factors that the courts must consider in determining whether the accused should be detained before trial in order to maintain confidence in the administration of justice. Namely, the courts must consider the following factors: whether the accused allegedly used a firearm in the commission of an offence; or whether the accused faces a minimum sentence of three or more years.
With respect to this provision, referred to as the “tertiary or third ground”, it should be noted that certain terms ruled to be too vague in the existing provision are being removed in response to the Supreme Court of Canada decision in the case of R. v. Hall. Specifically, the phrase “on any other just cause being shown and, without limiting the generality of the foregoing” is being removed.
We know that Canadians are concerned about violent firearm offenders being released back into the community. The goal of Bill C-35 is to prevent the re-commission of offences, particularly gun violence, by persons out on bail.
Bill C-35 seeks to enhance the current bail regime by making it more effective with regard to serious crimes involving firearms and it does so in a way that is consistent with the Canadian Charter of Rights and Freedoms. Subsection 11e) of the charter recognizes the right not to be denied bail without just cause.
The Supreme Court of Canada recognized that there are situations in which the reverse onus is necessary to prevent absconding or reoffending while out on bail, for example, in drug trafficking cases.
I consider these bail reforms to be a rational and constitutional approach to tackling serious gun and gang problems that currently exist in our communities.
Police officers, provincial and some municipal governments, who are more directly involved in fighting crime, have been expressing serious concerns for some time about the release from pre-trial custody of persons involved in gun and gang related crimes. This tougher bail scheme for firearms offences responds to their concerns.
Persons involved in criminal gangs are able to easily regain possession of illegal guns, to continue with their criminal activities, which usually revolve around the drug trade and turf wars.
These proposals appropriately focus on serious firearm offences, and particularly when committed by those already prohibited from possessing firearms and other weapons.
These measures are beneficial for the victims and their families as well as for witnesses who may be reluctant to come forward with information or to testify for fear of retaliation. It is important that they be encouraged to cooperate with authorities and knowing that the accused is behind bars will help in that regard.
These measures are also beneficial for Canadians in general. This bill will help restore Canadians' confidence in the administration of justice. Bill C-35 confirms the government's resolve to ensure that Canada's criminal justice system appropriately safeguards the safety of the public.
It is important to note that this bail reform initiative is part of a larger plan for tackling gun and gang violence. The government's plan includes interventions at different levels. We have taken action to put more law enforcement officers on our streets and at our border points including armed border guards to help crack down on firearm smuggling and trafficking.
We have dedicated resources to help prevent crime and to focus specifically on preventing youth at risk from getting involved in street gangs and drugs. As mentioned earlier, we have proposed tougher sentences for those convicted of serious crimes involving firearms with particularly stiff penalties for repeat firearms offenders.
Canada's new government promised to tackle crime to make our streets safer.
Bill C-35 appropriately targets serious offences involving the use of firearms and it also addresses the emerging concern with respect to firearm trafficking and smuggling. Equally important, Bill C-35 targets violent repeat offenders by proposing a reverse onus for any indictable offence involving firearms or other regulated weapons if committed while the accused is under a weapons prohibition.
This is a minority Parliament. We have to have the support of all political parties and I say to them, it is not enough to talk about fighting crime at election time. We have to do it when we are sitting here in this Parliament. I believe that this is a worthwhile positive contribution to making the streets and Canadian communities safer.