Bill C-2 (39th Parliament, 2nd Session) committee  What I will say is that I haven't left the words “manifestly unconstitutional” hanging out there alone. I have said that the situation is one in which the legislation is not manifestly unconstitutional and is capable of reason, justification, and credible argumentation such that a court would accept it in a properly argued challenge.

Bill C-2 (39th Parliament, 2nd Session) committee  Gardiner has not been overruled, to my knowledge. Gardiner is a decision of the common law and Gardiner has some expression in the current Criminal Code.

Bill C-2 (39th Parliament, 2nd Session) committee  Proportionality is an issue that, of course, comes into the section 1 justification question, the justifiability of the legislation. When looking to whether or not this is a proportional response, the courts will have regard to a number of factors. Certainly they're going to look to the tailoring that goes into the design of the legislation.

Bill C-2 (39th Parliament, 2nd Session) committee  Arbitrary detention, of course, is something that will have to shake out in any litigation challenge. Manifest unconstitutionality is something that basically says it is on its face manifestly unconstitutional. I would challenge any of the experts you've had before you to suggest that this legislation is manifestly unconstitutional.

Bill C-2 (39th Parliament, 2nd Session) committee  I see the analogy you're drawing there.

Bill C-2 (39th Parliament, 2nd Session) committee  I would have to get back to you on that. I don't profess to be an expert in the validity of or at least the history of challenges to the parole system. I do note that under this statutory arrangement, there is of course a safeguard that there will be eligibility for parole within the system.

Bill C-2 (39th Parliament, 2nd Session) committee  Just to draw a circle around this, once again we are into a situation where we consider what the charter guarantees actually apply to. Sections 11 and 13, which are the self-incrimination and presumption of innocence provisions, are all formulated in terms of charged with an offence.

Bill C-2 (39th Parliament, 2nd Session) committee  I'll try to break your question down into parts. You began with some statements to the effect that in a way we were creating a presumption of guilt. Guilt, of course, is not part of this particular exercise. We are already past the point of guilt. We've established three convictions here.

Bill C-2 (39th Parliament, 2nd Session) committee  First, on the suggestion that you've had a number of witnesses who suggested that the bill is unconstitutional, I haven't followed your proceedings or read the blues or anything like that, but I am not surprised that people would come with a different point of view and suggest that there is a constitutional issue that will result in litigation and a constitutional challenge.

Bill C-2 (39th Parliament, 2nd Session) committee  I'm not doubting that they are, and maybe they have greater competence than I have. What I have attempted to get at here is simply the question that reasonable people at this stage, when considering legislation, will assess the legislation in a certain way. When I say that the legislation is not manifestly unconstitutional and is capable of a credible and reasoned defence, I am saying that if the government presses ahead with the legislation, as it is determined to do, it will have a good case to present in court, and the arguments that will be presented are capable of being accepted by the courts.

Bill C-2 (39th Parliament, 2nd Session) committee  I appreciate the concerns you're voicing. I would imagine that any time a reverse onus comes up in any part of criminal procedure, there is a similar kind of concern that arises in the sense that an onus that's cast upon the affected party obliges them to answer in some way. Answering directly by testifying is something that perhaps one can see as a violation of a right to silence.

Bill C-2 (39th Parliament, 2nd Session) committee  I will try to wrap up. I would suggest that—

Bill C-2 (39th Parliament, 2nd Session) committee  I will try to wrap up. I would just say that the Singh case deals with the right to silence and it also makes some observations on the relationship between self-incrimination and the right to silence. It's worth looking at. It also refers to the case of White in the Supreme Court of Canada, which deals extensively with the ambit of self-incrimination protection.

Bill C-2 (39th Parliament, 2nd Session) committee  This is what I'm trying to address. The process for assessing legislation begins at an early stage, when we are presented with various options for reform. These are the subjects of legal opinions, discussions, round tables, etc. The implications, constitutional or otherwise--policy people also weigh in on these discussions--also are involved.

Bill C-2 (39th Parliament, 2nd Session) committee  I could not tell you the number in particular. I know there have been more than one. I also know there are opinions that are not just written in relation to the charter, that various other parts of the department would weigh in on other legal issues. What I can say is that when opinions are devised, we attempt to look realistically at the prospects of the legislation that's been contemplated to determine whether or not there is, as I've said, at one level manifest unconstitutionality on the one hand or, on the other extreme, a continuum that would stretch manifest constitutionality.