Wednesday, January 04, 2006

Reverse Onus in Gun-Related Bail Hearings

In the aftermath of the Boxing Day gangbanger shoot-out in the middle of Canada's busiest shopping street (Toronto's Yonge St.) that left an innocent 15-year old dead, officials such as Prime Minister Paul Martin have called for reforms to Canadian bail practices.

They want to to change bail conditions so people charged with gun offences can be kept behind bars unless they could show good cause for being released, something known as "reverse onus". Normally, the onus is on the Crown prosecutors to show why an accused should be denied bail.

Officials acknowledge that reverse onus appears to run contrary to the presumption of innocence but they believe the courts will recognize the importance of protecting citizens against what many see as increasingly brazen gun violence, especially in Toronto.

There are already a number of offences enumerated under section 515(6) of the Criminal Code that place the onus on the accused to justify bail. The section lists offences, such as commiting a crime while on bail, as part of a criminal organization, terrorism-related offences, narcotics-related offences, etc.

In R. v. Pearson, [1992] 3 S.C.R. 665, a majority of the Supreme Court upheld reverse onus with regards to bail in drug cases. :"While s. 515(6)(d) provides for persons to be 'detained' within the meaning of s. 9 of the Charter, those persons are not detained 'arbitrarily'. Detention under s. 515(6)(d) is not governed by unstructured discretion. The section fixes specific conditions for bail. Furthermore, the bail process is subject to very exacting procedural guarantees and subject to review by a superior court."

Significantly, Beverley McLachlin, currently the Chief Justice of the Supreme Court, was in the dissent and wrote: "Section 515(6)(d) of the Code is not justifiable under s. 1 of the Charter. While the legislative objectives of avoiding repeat offences and absconding are of sufficient importance to warrant overriding a constitutional right, s. 515(6)(d) goes further than is necessary to achieve those objectives. There is no reason to conclude that small and casual traffickers pose any particular threat of repeating the offence or fleeing from their trial. Section 515(6)(d) is thus of no force and effect pursuant to s. 52 of the Constitution Act, 1982."

So how would today's Court look at a Charter challenge to any new reverse onus provision in the Criminal Code related to gun crimes?

On January 2, the Globe and Mail, in an article entitled Targeting gun offences presents legal quagmire, quoted various legal experts as saying it is a "total crap shoot" whether reverse onus would survive a constitutional challenge under the Canadian Charter of Rights and Freedoms.

Retired University of Toronto political science professor Peter Russell is quoted as saying: "It's a judgment call about how serious the gun problem is at this point. They would have to provide some evidence," since there is no proof that gun crimes are climbing, certainly not across Canada. University of Alberta law professor Gerald Gall explains that the government would have to argue there is a "pressing state objective" because the Criminal Code applies "not just to Toronto, but the rest of the country.''

Yesterday, CTV News had a story on its website entitled Gun plan could see innocents 'languish' in jail that quoted criminal lawyer Steven Skurka. Skurka says "For example, there is a distinction between someone having a gun in their possession and actually using a firearm." He adds that the difference is important legally.

Also yesterday, the Toronto Star article Lawyers doubt tougher bail rules included comments from criminal lawyer Clayton Ruby: " '(R)everse onuses don't generally make a lot of difference' because judges tend to take into account the circumstances of the alleged offence and the accused. 'It sounds good, which makes for good politics, but it doesn't make much difference,' Ruby said."

Some additional background on the issue of bail conditions is available from the collection Canadian Charter of Rights Decisions Digests - section 11(e) on denial of bail for just cause.

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posted by Michel-Adrien at 7:33 pm

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