Mr. Speaker, as the justice critic for the official opposition, I am very pleased to rise in this House to discuss Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences).
Before I begin my speech, I would like to thank the Parliamentary Secretary to the Minister of Justice for his kind words of congratulation on my appointment to the critic portfolio.
No doubt everyone is aware that Bill C-35 amends the Criminal Code to provide that the accused will be required to demonstrate, when charged with certain serious offences involving firearms or other regulated weapons, that pre-trial detention is not justified in their case.
The bill also introduces two factors relating to such offences that the courts must take into account in deciding whether detention is justified or not.
I can say right now that the Liberal Party is not opposed to the principle of reverse onus on bail issues. This principle is already in use in Canadian courts. It is in the Criminal Code for serious offences, such as murder.
Therefore, our party would in fact like to see this bill referred to the Standing Committee on Justice and Human Rights so that we can ensure it will accomplish what it sets out to do, that it does indeed meet appropriate safeguards, such as that of our Canadian Charter of Rights and Freedoms, and that legal and criminal experts do concur in its usefulness.
Accordingly, I would normally have respectfully asked my caucus colleagues to support sending Bill C-35 to the Standing Committee on Justice and Human Rights at second reading. However, the motion that the government has tabled would have this bill go to a special legislative committee. As such, I have not had an opportunity to study the ramifications should the House decide to send it to a legislative committee. I honestly believe that the bill should go to the justice committee. However, I would welcome comments from the parliamentary secretary on behalf of the government as to the reasons for sending it to a legislative committee rather than to the justice committee.
Getting back to the bill itself, given that the bill would amend the current provisions of Canada's bail system, perhaps we should begin our inquiry with a look at how bail arrangements now function.
It is the charter that sets out the basic measures regarding bail. The charter's section 11 lists the fundamental legal rights of Canadians who stand accused of certain crimes. The charter states:
Any person charged with an offence has the right:
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
That means a person cannot be forced to incriminate himself or herself.
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; and
e) not to be denied reasonable bail without just cause--
The charter sets out the very conditions by which our criminal provisions must operate. It has as a principle that an individual who is charged of a crime is not to be denied reasonable bail without just cause.
As I mentioned, the Liberal Party is not opposed in principle to reverse onus in the case of bail. We ourselves have brought in provisions over the years since Confederation on the creation, adoption and subsequent modification and amendment to our criminal justice system provisions that provide for reverse onus for certain crimes. That is not the issue here.
Members may then ask about the last point, which makes clear that liberty pending trial is the presumption and basic entitlement of every Canadian under the charter. We are all presumed innocent, as many of my colleagues who have spoken to this bill have underlined, and we are all granted the right not to be denied bail without just cause.
Then let us talk about which reasons could motivate a judge to deny bail to a suspect accused of a particular crime where there is not already a reverse onus provision in the Criminal Code. Charter section 11(e) which states “not to be denied reasonable bail without just cause”, presumes then that the individual charged with a criminal offence has the possibility of getting bail and it is up to the Crown to show to the judge why that accused should not be awarded bail.
Current provisions hold that bail can be denied on one or more of the following three grounds. The first or primary ground is to ensure that the accused does not flee from justice on any charges currently before the courts. This could be someone who has been charged for a crime but who has not yet stood trial but who is then found, on reasonable grounds, to have committed another criminal offence and is charged with new charges. This is a primary ground where the judge could and would probably refuse bail on the grounds that the accused was a real danger of flight risk.
The secondary ground on which a judge may refuse or deny bail to a suspect is to protect the public if there is substantial likelihood that the accused will reoffend if released.
The tertiary ground is to maintain Canadians' confidence in the administration of justice in their country, for instance, in light of the gravity of the offence. Many times if someone is charged with an offence that is particularly heinous and quite grave, the judge will take that into account and deem it necessary to deny bail in order to preserve Canadians' confidence in the administration of justice.
Under the circumstances that I have just outlined, the prosecutor bears the onus of demonstrating why an accused should be refused or denied bail.
However, as I said a few moments ago, there are some cases where the accused has the onus of demonstrating that pre-trial detention is not justified.
There is a range of situations in which the accused—the accused, not the Crown—must satisfy a judge that he or she deserves to be released before trial. I would like to offer a few examples.
When the suspect is charged with an indictable offence committed while already released and awaiting trial on another indictable offence. In that case, it is the accused who will have to satisfy the judge that there are reasons and grounds that justify the judge granting release on bail.
When the suspect fails to appear in court or has allegedly breached a release condition. This is another situation in which it is the accused who must satisfy the judge that he or she deserves to be released while awaiting trial.
When the suspect is charged with an indictable offence involving organized crime, terrorism or security of information.
There is also the case of a suspect charged with an indictable offence consisting of drug trafficking, smuggling or production.
And last—although this list is not exhaustive—when the suspect is not a Canadian resident and is charged with any indictable offence.
These are situations in which, under the existing provisions of the Criminal Code, the accused has the burden of proof and must satisfy the judge as to the reasons why he or she should be released.
The reverse onus already exists in those situations. That is proof that the Liberal Party is not opposed in principle to the idea of reverse onus for release on bail.
As well, a person charged with murder, treason, certain war crimes or other rare indictable offences is automatically kept in detention until he or she is granted interim release after a hearing before a superior court of criminal jurisdiction.
We can therefore see that there are a variety of situations in which the principle of no pre-trial detention, a principle found in section 11 of the Charter, is already reversed in the Criminal Code. Thus there are various reasons that can justify the reverse onus.
Speaking as justice critic for the official opposition, as I said earlier, we would like to see this bill sent to a committee, but to the Standing Committee on Justice.
I stand to be corrected if information is wrong. The government is offering as its reason that this will expedite matters, that the Standing Committee on Justice is buried in work and that it would not be able to examine a bill like this expeditiously and effectively.
But a legislative committee will for the most part be composed of the same members—as the House is aware—because it is the members of the Standing Committee on Justice who have expertise and experience in this field.
We are simply going to divide them in half, and the work will not get done any faster.
Before addressing this subject, I would like to point out that the government has not answered certain questions. Here are a few examples.
When the government publicly announced its intention to rewrite some of our bail laws, there was interest and support but questions were asked. At the time, some of the concern, which no longer appears to exist, about the then long promised legislation, focused on whether the law would survive constitutional scrutiny. In my view, it most likely will, but if the bill should become law, we can expect to see challenges to the courts on the constitutionality of the bill.
However, most experts, leaving aside the constitutional issue, which most experts now seem to downplay, are still troubled with the larger issue, which is whether bail laws are an effective tool for cracking down on gun violence.
I believe the government would admit that bail has not been researched as extensively as other areas of our criminal justice system and that some of the most basic questions regarding the effectiveness of our bail laws as they exist today remain unanswered. For instance, how many people who are currently charged with gun crimes are actually granted bail? In a longitudinal study, how many individuals convicted of committing a gun crime have been released on bail? Under the current criminal provisions, it is possible for a person to actually reoffend while awaiting trial and reoffend in a firearm related offence. We do not have any of that information.
I noted the comments made by the member for Wild Rose, in response to members of an opposition party, when he said that we need to act. I agree that we need to act, but I do not think we need to act cautiously. We need to act in full knowledge so that we know that the legislation we bring forward will achieve the objectives that we want it to achieve.
We also want to ensure it will be effective. The worst thing any government or any Parliament can do is adopt legislation on the basis that it will make our communities safer but in the end does no such thing. It gives a false sense of security to Canadians, which is not a good thing. When Canadians realize that the legislation does not make them safer, it becomes that much more difficult to convince Canadians that other legislation is effective.
It is difficult to bring in legislation, but particularly legislation that restricts the scope of freedom, the liberty and the rights we all enjoy in particular situations. The bill is being touted as one that would make our communities safer. It may very well do that but we need the information.
In 1995 the Commission on Systemic Racism in the Ontario criminal justice system found that blacks accused of a crime were more likely than white people accused of a crime to be imprisoned before trial. That means to be denied bail while awaiting trial. That difference in the numbers could not be explained away or justified by the factors normally considered in granting bail.
In 2004 there were 125,871 Canadians in prison and awaiting trial, and 83,733 behind bars serving sentences. That is according to Statistics Canada.
I hope the government would agree that this bill should go before the Standing Committee on Justice and Human Rights. The government should bring us the information that will assure us and Canadians that should the bill be adopted, it will in fact be effective and achieve the objectives it is supposed to and make our country--
