Sunday, January 01, 2006

McGuinty/Martin's reverse onus gun-crime solution: will the law profs deride it?

One year ago, 134 law professors sent a letter to Conservative leader Stephen Harper. (Read the letter here). They refuted Harper's constitutional position on same-sex marriage.

I have always seen this letter as a baltantly political move. It is a classic case of an "appeal to authority" - professors give their legal opinion. Their opinion is merely a way to cloak their political views with a degree of authority.

It is within their right as legal professionals to submit such a letter to a party leader. But right does not equal responsibility. And it will be interesting to see whether law professors take up their responsibility as teachers of the law to explain why Paul Martin's/Dalton McGuinty's "reverse onus" proposal violates the Charter of Rights. The reverse onus proposal "would require those accused of gun crimes to demonstrate why they should be released."

Will Canada's law professors stand up and refute this position? Prove me wrong. Tell me these letters have nothing to do with politics. I want to believe. Really.


Anonymous said...

Hey Jonathon, I do agree with you on the point about that previous letter. Though I believe that ultimately the Supreme Court would, indeed, change the definition of marriage, I don't think it is so clear cut as the professors presented it.

As for the reverse onus point, though I already said this on your previous thread, I'll repost so you can read: I don't think Coyne is right.. the reverse onus idea is nothing new and has been found to not offend the Charter, including ss 9, 10, 11(e).

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...

As for you thinking me and Coyne are wrong on this issue, read my latest post on R. v. Laba. It violates the Charter. Read the decision. Even the Crown conceded as much.

As for the offences in 515(6) that place a burden on the accused, I suspect they exist because they haven't been challenged and ruled upon by the Supreme Court (except for the section ruled upon in Pearson for example). The section in R. v. Laba for instance, struck down a law passed in 1938 - not exactly a new law. What is to guarentee that those sections in the Criminal Code that place a reverse onus would be ruled legal today?

As for Pearson, I think many justices might have changed their opinion since that case, which is why R. v. Laba ruled that the reverse onus proposal violated the constitution. Even now, I am inclined to agree that the McLachlin court will conclude what she concluded in 1992, that "It follows of necessity that s. 515(6)(d) violates s. 11(e) of the Charter."