Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC)
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.
He said: 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.
Mr. Brian Murphy (Moncton—Riverview—Dieppe, Lib.):
Mr. Speaker, I am pleased to speak here today to Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences).
Before going any further, I feel it is very important to understand what Bill C-35 hopes to achieve, particularly the version of the bill before us today in the House.
Bill C-35 proposes changes to the bail provisions of the Criminal Code and would provide a reverse onus if an accused is charged with any of the following crimes, which are grouped into, relatively speaking, four groups of offences.
The first group comprises eight serious offences committed with a firearm: attempted murder, robbery, discharging a firearm with intent, aggravated sexual assault, sexual assault with a weapon, kidnapping, hostage taking and extortion.
The second group of offences are those that are indictable, involving firearms or regulated weapons if committed while under a weapons prohibition order. The minister spoke at some length about that second part but the bill comprises various types of offences.
Another group of offences is firearm trafficking, possession for the purpose of trafficking and firearm smuggling.
Again, we would like to appear at the committee and the legislative committee, should I be on it, and ask the government what is being done to stop the trafficking and importation of firearms in this country.
These are all serious offences. Individuals accused of any of these crimes must be dealt with, with the greatest care, to ensure these potentially dangerous individuals do not cause any more harm to society. I think everyone in this House would agree with that principle. I see that the member for Wild Rose would agree with this comment.
We must also remember that in Canada everyone is innocent until proven guilty. These rights, such as the presumption of innocence and the right not to be denied bail without just cause in section 11(d) of the charter, are firmly entrenched in our Constitution. Although our system presumes the accused is innocent pending trial, there are reasons in our community to deny bail. This can be done to ensure, under the three grounds of bail, that society remains safe.
The primary ground for denying bail is clearly the flight risk. Will the accused leave the jurisdiction? The secondary ground deals with the protection of the public. The third, although somewhat ambiguous but very much a part of our Criminal Code for some time, is whether the bail order would maintain confidence in the administration of justice. That is the tertiary ground and it is the one we should be the most concerned about with respect to the perception in the public of how well their justice system works.
As a footnote I might add that the government, although not with this bill, is doing a great disservice to our communities, cities, towns, villages and rural areas in their feelings of security. It is doing much to scaremonger and make Canadians very fearful of situations they need not be fearful of.
We in this House should stand up as bastions, as protectors of the Criminal Code and the criminal justice system, and tell Canadians that the Criminal Code of Canada does work, that the justice system as administered in Canada does work and that we are a safe country.
Under Bill C-35, if an accused is charged with an indictable offence committed while already released on another indictable offence charge, if the person fails to appear in court or breaches a release of a condition, if that person is accused of being a member of an organized crime or terrorism unit or other such grave offences, including drug trafficking and smuggling, or if the accused is not an ordinary resident of Canada, then the onus already shifts. We see in the Criminal Code, as interpreted in the case of the Attorney General of Quebec v. Edwin Pearson, that the Supreme Court of Canada has already dealt with the reverse onus provisions as they existed in the Criminal Code for some time by majority decision in 1992.
I would hope no one would leave this place and talk to the public, the press or their constituents and say that this is new law. This is not new law. This is an extension of existing law written in the code. I will be non-partisan here and say that the Criminal Code was created by both Conservative and Liberal governments and that it was a Conservative prime minister who wrote it. It is the best legislation Conservatives have ever brought in. It is from the 19th century and that explains a lot about the evolution of Conservative legislative prowess.
Nevertheless, these extensions are very timely and, if they are pinpointed correctly, I have no doubt that the legislative committee will use its wisdom in refining the bill and asking the questions that need to be asked.
It is good to see Conservative governments once again following the Liberal pedigree of good criminal law.
Since the last election, the Conservative government has been all about making Canada a safer place. It is trying to convince Canadians that our towns, villages and cities are full of dangerous gangs and criminals, roaming the streets at night, armed to the teeth, ready to shoot at everything that moves. This is simply not the reality.
In fact, crime rates have gone down in Canada over the years. Of course, there is still much work to be done and nothing is perfect. However, contrary to the image that the Conservative government is trying to project, Canada is not like a wild west town where chaos reigns supreme.
The Conservative government also seems to think all criminals pending trial are running loose in our communities, when the actual numbers from Statistics Canada say otherwise. There were 125,871, maybe more since this date in 2004, Canadians imprisoned and awaiting trial. Close to 84,000 were behind bars serving sentences. There were significant numbers of people, and more now, awaiting trial and not on bail, as perhaps the new stories would counter-indicate. The bail system works. It needs to be tweaked. The bill will go to committee and it will be discussed in the fullness of time.
The government has been trying to convince Canadians that it is hard at work ending crime and violence, but the facts speak otherwise. It has a plethora of justice bills before committees. Instead of doing omnibus reform and criminal bills, several at a time, it has chosen to do probably 20 by the time it is finished, because that is 20 news cycles, 20 news stories.
We cannot find one measure aimed in the justice bill package at preventing criminality. There is no bill before the House or before a committee that talks specifically about preventing criminality and violence.
We have also seen harsher sentences. I only need draw the attention of the House to the fact that a month ago, Judge Sylvio Savoie, in Moncton's Provincial Court, gave a repeat drunk driving offender five years, when the prosecution asked for four. Those stories, the stories of when judges use their discretion to impose harder sentences than were called for, need to be told, and they are out there. We need to balance the story.
We have seen a bunch of showboat legislation. In the new spirit of cooperation, I think the Conservatives have finally come to realize that they must put bills through committees that will pass. It is a minority Parliament. There must be compromise. In light of that sense and that new desire from the other sides with respect to justice bills, that it is too important to play politics, I think this bill can be saved.
The bill does need to be explained in terms of public perception, that it will not cure everything and that not everybody who is accused of a crime will be denied bail. There will still be the three grounds. There will be a procedural reversal of onus, which I think will be upheld by R. v. Pearson and R. v. Hall. Unfortunately, I did not get a chance to ask the justice minister. Nor did I hear from him ab initio whether he had received an opinion from the attorney general's department on the constitutionality of this legislation.
It is not a wild goose chase. When the Supreme Court of Canada had a split decision in 1992, on whether 11(d), the right to a fair hearing and the right to bail, was constitutional, and it was not a unanimous opinion, followed up later by R. v. Hall on the question of increased reverse onus on the procedural aspect of bail hearings, there is a good question as to whether this is constitutional. I hope the minister will be able to answer the question from our critic, the member for Notre-Dame-de-Grâce—Lachine, or in other venues as to the constitutionality of that legislation.
We need to know and Canadians need to know, once again, that legislation proposed by Conservatives is more than just a repeat of the press release, which went on the night before the bill was tabled. We need to know whether the bill has the merit and the substance which is required to stand the test of challenge in our courts.
During the press conference last November 23 in Toronto, the Prime Minister of Canada said, in referring to Toronto, that almost 1,000 crimes involving firearms or restricted weapons had been committed so far that year. I cannot do anything else but wonder how come so many weapons are out there, and I think that hon. members have asked the minister the right questions. What is being done to clamp down on the trafficking and importation of guns in our country?
The Conservatives can blather on all they want about how horrible the long gun registry was, but what is the alternative? What are they doing about getting those guns off the streets, seizing them at the borders and getting them out of circulation? As much as I think Bill C-35 is a good bill in principle, it will not take the guns out of the hands of the people bringing guns into the country.
As much as I think Bill C-35 is a good bill in principle, it will not take the guns out of the hands of the people bringing guns into the country. By and large, and I think it is a non-partisan issue, people who traffic in guns are not deterred by new legislation brought in by the Canadian Parliament. Many of the guns on the streets of our cities come from international gun smugglers. Therefore, the reverse onus on bail provisions in Bill C-35 seem to throw out a real challenge as to how the cause and effect of the bill introduced and the reduction of firearms in general will result. We need to ask these questions.
What is the government doing with respect to the gun licenses for life approach of the Minister of Public Safety? Chief Blair gave very telling testimony before the Standing Committee on Justice and Human Rights in Toronto. He said that with our existing laws, essentially the Criminal Code of Canada, and with the appropriate budget resources, he and his force were very successful in getting guns off the streets in certain parts of Toronto.
The question also becomes this. Where are the resources that will go to complement the Conservative justice agenda. Everything that is being proposed will cost money. Where is the money? Where is the plan with each bill and the costing thereon? These are good questions that will be put to the minister and others at committee level.
Harsher punishments and reverse onus in bail hearings, as Bill C-35 proposes, are good measures. We support these measures, but they will not help prevent crime or make Canada and our communities any safer over the long term.
As legislators, we have a responsibility to ask ourselves how we can prevent crime. Unfortunately, many questions are left without clear answers when we analyze Bill C-35. Would the money of Canadians be better spent on prevention, putting more police officers on the street? For example, would hiring more police officers in strategic locations be more effective than putting more people in jail and denying them their bail?
I will draw to the attention of the House the article in The Globe and Mail on January 24 by Bruce McMeekin. It is very important to consider that article is generally in favour of Bill C-35 and that perhaps the public would think the bill would have prevented some of the worst cases of slayings and gun crime in our history.
When we talk about the Boxing Day incident in Toronto and other events in that area, Bill C-35 would not necessarily have prevented those crimes. The existing bail provisions might have prevented them had the court hearing gone the other way.
What is important to remember is that the accused will still have an opportunity to get bail. Bail will still be awarded even if a person is accused for a second time for one of the listed crimes. The shifting of the procedural onus relates only to his or her ability to be free or not free pending the trial. It has nothing to do with guilt or innocence.
Under the existing reverse onus provisions, the standard of proof is on a balance of probabilities. People will still be able, with legal representation, to get bail, and bail might not have been given in previous situations.
We support the bill going to the legislative committee. There are many questions to be asked. Overall, Parliamentarians owe it through their oath of office in this place and to Canadians in general to be fair in representing how well our justice system works and that the exceptions to the rule are not the rule. The exceptions to the rule are egregious. When we have serious crimes that occur to people we know, people related to us, we take it very seriously and it is very bad, but it does not mean that we throw out the baby with the bathwater. It does not mean that all that went before was useless in combatting crime.
When will someone stand from the other side and say that the criminal justice system works in many regards? When will someone say that by tinkering with bail provisions and by referring this to the committee, we by no means support it in whole, we have many questions about this legislation? When will a member from the other side and when will the Minister of Justice stand and say that they support the good work done in the criminal justice system by all the players, the Crown prosecutors, the parole officers, the judges most who have been under constant attack by the government? When will the government stand and say we have a safe community?
We need to work on making it more secure and safe. I suspect 100 years ago parliamentarians were also trying to do that when they enacted revisions to the Criminal Code. No one in this place wants to have weaker laws with unsafe communities.
Bill C-35 will go to the legislative committee no doubt and it will receive a rough ride on many fronts. There are many loopholes with respect to the considerations to be given to the bill.
In short, we are pleased to comment on the bill, but there will be many questions at the committee. I hope the minister, the parliamentary secretary and the members of that legislative committee will be ready for them.