Sunday, January 01, 2006

Martin and McGuinty's gun crime reverse onus proposal

Martin backs effort to keep gun-crime suspects in jail: That is the latest plank of the Liberals, to get tough on gun crime. How would they get "tough"? By making people prove they are innocent, a "reverse onus" test.

This is a summary of my thoughts of the idea: stupid, stupid, stupid, stupid, stupid, stupid, stupid.

The reverse onus test is one more example of how extreme cases can produce bad law. This idea is anathema to Canadian ideas of liberty and our English traditions. I predict if this law ever gets enacted in some form, it will run afoul of current habeas corpus provisions. As Andrew Coyne has noted, "How do you prove you're not a threat to society?"

Coyne also notes that this idea violates the Charter. In this, he is quite right to suggest that Martin/McGuinty idea violates the Charter, because it blatantly does.
10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Oh, and section 9 also provides the right not to be detained arbitrarily. And a reverse onus condition is precisely arbitrarily. Such a condition wouldn't last 5 minutes in a court.

Martin's spokesman says that he is confident such a condition will past muster in the Court system, saying "the importance of protecting citizens against gun violence is paramount." Unfortunately, I don't suppose anything short of wartime will ever justify this reverse onus test.

Martin ought to eat his own words on the subject of defending the Charter. Remember when Martin said "We have to recognize you can't cherry-pick Charter rights. What you have to do is say, 'If you want your rights to be respected, then you have to understand other people's rights have to be respected.' When the courts said this is a Charter right, then it is the responsibility of the prime minister to defend the Charter. "

Will Martin use the notwithstanding clause to overturn a court decision which does not jive with the Charter? As Martin said of Harper, so too he might ask himself: "
If he wants to overturn a Charter right, then he should come clean and say, 'Yes, I will use the notwithstanding clause.'"

For in a transparent display of political opportunism, he has dismissed one of the Charter's -- and the common law's -- most treasured legal right. It is so myopic - so stupid - that I can not see how it can possibly be justified as either policy or law.


Erik Sorenson said...

Yes, it would be thrown out in the first case to hit a judge. It's also, as you say, a re-run of Martin's accusations against Harper.

Sounds like "pots and kettles" to me. Along with 3 quarts/litres of pandering barnyard waste.

I figure the press and opposition parties will have a field day with this whopper.

Gary McHale said...

Interesting points you raise - however, I agree with "reverse onus" test. I believe the courts could work out a balance between the 2 ideas.

1st - "How do you prove you're not a threat to society?"

Several points could be made - no previous criminal record, stable job & home life, no proof of gang membership, community refers, actions at time of arrest etc.

2nd - detained arbitrarily - being arrested is not arbitrarily and the police would have to have some sort of evidents to support arresting an individual. Rounding up the first 100 people you see is arbitrary - not arresting a man with a gun in a bank.

I don't believe Martin has any interest in being this "reverse onus" into reality but it should be.

For a point of interest, I spent a day in jail in 2001 for asking my local MP how he voted (the crown dismissed the charge later), so I understand the need to protect someone's right but the public also needs to be protected.

Jonathan said...

In a state where freedom is the default position of people, unless they do something wrong, a reverse onus test ought not exist. If we are to still accept the proposition, "innocent until proven guilty," or free unless shown to be a threat to society, then we must not impose a reverse onus test.

As for the public being protected, I think the answer does not need to include a reverse onus test. For instance, one could impose stiff penalties for possession of a handgun. Or maybe even possession of a weapon in a public place could be illegal. At least it would be something so that people can properly live within their liberties rather than fear that they must prove that they are eligible to be free.

Gary McHale said...

"unless shown to be a threat to society"

Isn't is evidence that you were arrested with a gun - remember the position is that reverse onus test is for those using a gun during a criminal act or having a gun on their person. Is this not a threat?

Also, we have had several people killed in 2005 by people who are out on bail waiting for trial - how does stiff penalties protect the public from this?

You state, "live within their liberties rather than fear..." Are you stating that somehow if the reverse onus becomes reality that you and I will live in fear that we will be in jail the following day? Why do you have fear right now that you could be arrested? What would change to create this sudden fear of arrest?

Do you think there are a lot of people getting bail today on 1st degree murder charges? If we almost automatically disallow bail in such cases then why is it so hard to believe we could disallow bail on gun violence charges?

Finally, I don't see how this against the Charter of Rights since detained arbitrarily doesn't apply and idea of wrongful detention also doesn't apply. In the due course of a Police investigation the police officer believes a crimes has been committed and by the person arrested - the charge is stated to the court along with summary details of what happened - this is not wrongful detention.

Therefore, where is the problem with the Chart of Rights?

Anonymous said...

Coyne is probably wrong. Unfortunately, this discussion is really being carried on in ignorance of the Criminal Code

This proposal is nothing new. There are already a number of offences enumerated under section 515(6) of the Criminal Code that places the burden on the accused to justify their interim release. The provisions lists a number of specific offences, such as commiting a crime while on bail, as part of a criminal organization, or the charge involves terrorism. It then goes on to say:

"the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified"

In Pearson, the Supreme Court of Canada addressed the constitutionality of this provision and found it to be constitutional:

"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."

In other words, if Parliament simply adds "gun crimes" to the enumerated offences in 515(6), but does not alter the remainder of the scheme therein, if will likely pass scrutiny as held in Pearson.

Jonathan said...

Gary: let's say you have a gun and you are thrown in jail because you possess a gun legally. A murder has taken place in your neighbourhood. Your alibi has no witnesses, since you were asleep alone.

How do you prove you did not have anything to do with the murder? Even your point about raising that you have "no proof of gang membership" is still putting the onus on the cops to show you are a gang member. Even saying "no previous criminal record" places the burden, properly I might add, on the cops to show that you have a history of violence.

As for it violating the Charter, read up on L. v. Labe or s. 11 of the Charter. It denies presumption of innocence. In my opinion, detaining a person without just cause, which is essentially a reverse onus proposal, is also arbitrary. It is arbitrary because the person detaining you need not show why he or she is detaining you. Imagine being arrested for no reason other than you walked out of your house to get the newspaper. And you were in jail until you could prove you were not a threat to society. That is my feelings with this reverse onus proposal. You legally have a gun. So what? Are we going to start arresting people who buy knives too and make them prove that they are only using their knives to cut carrots? How can they reasonably be expected to show that they were only going to use their knives for making stir frys?