Reverse Onus/Will Martin Over ride

[rbacon]

Does Liberal Paul Martin intend to use the Not Withstanding Clause to over ride the Sacred Charter. There is no other way he can impose Reverse Onus for those seeking bail. Another secret Agenda of the Liberals? Come clean Paul.

[Craig Nasty]

That not necessarily the case. A Reverse Onus on those seeking bail could possibly be justified under section 1 of the Charter, with the reasonable limitations.

Section 1 is what saves Night Tresspassing have the Reverse Onus Clause on it

[willy]

with the reasonable limitations.

Is simple possession a reasonable limitation to suspend rights?

Just asking.

[kimmy]

okeedokey, as usual with RBacon's posts I had to do some research to figure out what he's talking about. However, in this instance he does have a point:

Sun media: Martin proposing new bail rules for gun crimes

OTTAWA -- Prime Minister Paul Martin yesterday threw his support behind a multi-government effort to keep those accused of gun violence in jail.

Martin agreed to support "reverse onus" bail conditions, which would require those accused of gun crimes to demonstrate why they should be released.

The promise was part of a pledge during a phone call yesterday to Premier Dalton McGuinty and Mayor David Miller, who have vowed to end the gun violence that most recently claimed the life of 15-year-old Jane Creba.

(...snip...)

But changing the Criminal Code will be tough, even if the Liberals are re-elected.

Reid acknowledged the reverse onus provision will require justification under the Charter of Rights, but the Liberals believe the courts will recognize "the importance of protecting citizens against gun violence is paramount."

This blogger argues that Paul Martin has been smoking crack:

"Potent Pew" law blog: reverse onus a dubious proposition

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.

(...snip... he argues that this proposal would violate sections 9 and 10 of the charter, in reference to "habeas corpus", and the right to not be detained arbitrarily...)

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. "

It sounds as though this idea is on the shakiest of legal ground, and should probably be filed under the heading of "we'll say anything to get elected."

While Jack Layton and Stephen Harper propose to fight gun crime by enforcing the law, Paul Martin apparently wants to challenge legal principles that date back to the Magna Carta.

-k

[Guest eureka]

Reverse onus has already been upheld by the SCC wrt certain drug crimes. It has been used in Quebec for some time to curb the biker gangs.

It is debateable but not necessarily a violation of the Charter. That will take legal minds to decide. In any event, it is just a step on the way to dealing with the causes of violence.

[kimmy]

Reverse onus has already been upheld by the SCC wrt certain drug crimes. It has been used in Quebec for some time to curb the biker gangs.

It is debateable but not necessarily a violation of the Charter. That will take legal minds to decide. In any event, it is just a step on the way to dealing with the causes of violence.

If I recall correctly (which is hardly a given, as I'm no lawyer) the precident you're referring to deals with arbitrary seizure of property as opposed to arbitrary incarceration, yes? If that's the case then I assume it would not be relevant as a precident in reference to Martin's plan to apply arbitrary incarceration. Martin's notion (or McGuinty's, actually; Martin appears to be a tag-along on this...) would once again put us on a path to years of court challenges, and is unlikely to be successful anyway, given the makeup of the Supreme Court.

And I have to wonder, what's the driving force behind this idea, anyway? Why does McGuinty want people denied bail? I mean, we've heard that at least one of the suspects in the Boxing Day gunfight was fresh out of jail after serving a very short sentence for a violent robbery. Maybe tougher sentences or some kind of tougher probation enforcement would be indicated. But why bail? Is there some sort of problem with people committing crimes while on bail? Is flight from bail some sort of problem? If that's the case, then maybe the judges should be using more discretion when deciding on bail. Perhaps this could be dealt with by sending out a memo, rather than trampling on one of the oldest traditions in our legal system?

Just a couple of weeks ago our Prime Minister was waxing poetic about "defending the Charter." He says it's the Prime Minister's most important job, and that if you won't stand up for the Charter then you shouldn't be running for Prime Minister. Well he ought to step down. Because this is utterly appalling. If I was a civil libertarian, I would be a lot more worried about this idea than about gays' right to use the word "marriage."

-kimmy

[Riverwind]

It sounds as though this idea is on the shakiest of legal ground, and should probably be filed under the heading of "we'll say anything to get elected."

Even if this proposal does not violate the charter there are unintended consequences. For example, under current sentencing rules a day spend in jail before a conviction counts as two after a conviction. This means that someone could be given a 2 year sentance but out on the street the day the trial ended.

[Guest eureka]

Reverse Onus has been used in Quebec to deal with the Biker gangs. O believe quite successfully.

Whether it violates the Charter is a question. It has not been challenged so far and I have mixed feelings about it. I am not sure that it is even a problem judiciosly used as the process is not dissimilar to the current practise where a suspect is questioned in bail court and must show the same things in his answers.

[betsy]

Mike Duffy was interviewing a guy last night (sorry, failed to get his name)...but he is a lawyer of some office. I was in the middle of doing something so I also failed to really listen.

From what I understood...

He said that owning a handgun is different from carrying one. That with what Martin proposes, cops can be searching your house and you're in trouble if they found one in your closet.

That you sit in jail without bail...even if you had not done anything except have a handgun in your possession?

So this proposal of Martin gives cops reasons to search your house? Is this not violating fundamental rights? If true...

There was a lot of protesting when drastic measures were being implemented to seek out terrorists in Canada, and this was in the name of National security....but hardly any peep now.

Why are we being held "hostage" by these bad elements in our society...a very small percentage to the rest of the society....that we practically have to scrap or change the constitutions around?

This is capitulating to a form of terrorism!

[betsy]

A lot of these gang members are young...minors....troubled minors!

Put yourself in their shoes and feel how "elated" they must be feeling for getting all these attention....for having the whole city in the grip of their terror....for Layton to be blaming society again for "creating" monsters like these...for the PM to be scrambling in panic, making decisions that threatens more of our individual rights. Look how we cower in fear!

Gee, those bastards must be having a great time and giving each other the high five!

[Guest eureka]

Cops cannot "search your house," Betsy. Only under the same conditions as without the reversal. This has to do with bail and you are engaging in the usual tactic of the "Right" to claim lost Liberties where they are not lost.

[kimmy]

Reverse Onus has been used in Quebec to deal with the Biker gangs. O believe quite successfully.

I asked earlier: you're referring to property seizure and not denial of bail, aren't you?

Whether it violates the Charter is a question. It has not been challenged so far and I have mixed feelings about it. I am not sure that it is even a problem judiciosly used as the process is not dissimilar to the current practise where a suspect is questioned in bail court and must show the same things in his answers.

Not dissimilar, except that instead of the crown showing that the suspect is a threat to detain him, the suspect must show he's not a threat to get released. They might not be dissimilar from a grammatical point of view, but in terms of being consistent with our rights, there is a rather significant difference I would think.

This has to do with bail and you are engaging in the usual tactic of the "Right" to claim lost Liberties where they are not lost.

What we're talking about here is not trivial. Sparhawk points out that there can be long waits before trial, and that the pre-trial custody could wind up counting for a sentence longer than a conviction. Does that seem right? Over in the Tookie Williams thread you were arguing the fallibility of police; yet here you seem to be arguing in favor of the crown being able to detain a suspect without trial and not have to make a case for his continued detention (the "reverse onus," after all, will be on the suspect.)

Given the potential delay between the laying of charges and the trial, the difference we are talking about is not trivial. It has happened before that the wait between charges and trial was so long as to be deemed unconstitutional. This situation might be developing again as the delay to trial threatens to exceed the guideline established by the Supreme Court:

Courtroom backlog in Ontario may result in mass dismissal of cases

If it is unfair to the suspect that the delay between charges and trial is now exceeding 8 to 10 months, how much more unfair is if McGuinty and Martin get their way and the suspect spend that time in lockup?? Maybe if Martin and McGuinty are concerned about what suspects might do while they're out on bail, they should spend the money required to give the court system the capacity to get the backlog to a reasonable figure.

You say no right is being denied. If I were a young black man in Toronto, instead of a white chick in Edmonton, would I find that reassuring?

-k

[Shakeyhands]

You say no right is being denied.  If I were a young black man in Toronto, instead of a white chick in Edmonton, would I find that reassuring?

-k

<{POST_SNAPBACK}>

I thought all CPC'rs were the law and order type, I think the only time you need to be worried as a white chick in Edmonton or a black man in Toronto is if you have an illegal gun...

[betsy]

Cops cannot "search your house," Betsy. Only under the same conditions as without the reversal. This has to do with bail and you are engaging in the usual tactic of the "Right" to claim lost Liberties where they are not lost.

<{POST_SNAPBACK}>

Well I don't understand much about this....so I'll just keep out of this one and observe the thread.

[kimmy]

You say no right is being denied.  If I were a young black man in Toronto, instead of a white chick in Edmonton, would I find that reassuring?

I thought all CPC'rs were the law and order type, I think the only time you need to be worried as a white chick in Edmonton or a black man in Toronto is if you have an illegal gun...

...and I thought that "Liberals" were all about Defending The Charter ™ ...get back to me when you recognize the contradictions inherent between what Paul Martin says he stands for and what he says he wants to do in this harebrained proposal.

In all seriousness, yes. I'm all for law and order.

I'm all for strengthening the RCMP and for increased security at border-crossings and ports. I'm for more police in places that need a stronger law enforcement presence.

I'm all for tougher sentences of violent crime. Tougher parole conditions for violent crime. I'm all for keeping dangerous people locked up longer, even if it means (gasp!) creating more prison spaces.

I'm even for unmonitored security cameras in public areas; cameras that keep 24 hours of footage that police could access with a warrant if they had reason to believe the camera contained evidence about a crime.

I'm strongly in favor of enforcing the laws we have. I'm certainly not in favor of breaking the law in the name of appearing to be tough on urban gun violence.

The question is, when did Mr Defender Of The Charter decide that you really *can* "cherry pick" from the Charter?

As Canadians we scoff at Americans getting so amped up about terrorism that they're willing to erode personal liberty with legislation that gives the state excessive power to suspend someone's rights in the name of protecting Americans from terrorists. And yet here we are starting down a slippery slope towards the same thing in the name of protecting Canadians from urban terrorists.

-k

[Shakeyhands]

I see this like I see the 90 day driving suspension when arrested for impaired...

This along with automatic sentences (no exceptions) is the way to go.

[kimmy]

I see this like I see the 90 day driving suspension when arrested for impaired...

This along with automatic sentences (no exceptions) is the way to go.

Cool. Except instead of losing your drivers license for 90 days, you can be incarcerated for 8+ months without a trial. Practically the same thing, right?

-k

[Riverwind]

I see this like I see the 90 day driving suspension when arrested for impaired...

They already do that in BC. The BC gov't won a court case recently that rules a driver's license is a privilege and not a right which means the gov't can take it away for any reason they feel like. The BC gov't has gone to town with this power and created all sorts of offenses that result in immediate driving suspensions. For example, if you get caught in a speed trap three times in one year then you lose your license. If you get your license back and you get one traffic ticket for whatever reason you lose your license again for twice the amount of time.

Frankly, the BC case illustrates why it is really important to protect some basic rights with out exceptions - once they are allowed to be eroded for whatever reason it may be no longer possible to recover them.

[Shakeyhands]

Doesn't seem that different to me, its all overseen by a judge who has the right to give or deny bail. And afterall, their doing something wrong with a handgun in order to land there in the first place no?

[kimmy]

Doesn't seem that different to me, its all overseen by a judge who has the right to give or deny bail.  And afterall, their doing something wrong with a handgun in order to land there in the first place no?

Suddenly the "liberals" around here have developed tremendous faith in the police, but I can't imagine our hypothetical young black man from Toronto would be as trusting. Do you not grasp what "reverse onus" means? Presently a suspect is to be released unless the crown can present a compelling argument as to why he should not; "reverse onus" places the onus on the defendant: he will not be released unless he can give a compelling argument that he should be. What we're talking about here is imprisonment without due process-- for (as already noted) periods that can be several months.

-k

[Shakeyhands]

Doesn't seem that different to me, its all overseen by a judge who has the right to give or deny bail.  And afterall, their doing something wrong with a handgun in order to land there in the first place no?

<{POST_SNAPBACK}>

Suddenly the "liberals" around here have developed tremendous faith in the police, but I can't imagine our hypothetical young black man from Toronto would be as trusting. Do you not grasp what "reverse onus" means? Presently a suspect is to be released unless the crown can present a compelling argument as to why he should not; "reverse onus" places the onus on the defendant: he will not be released unless he can give a compelling argument that he should be. What we're talking about here is imprisonment without due process-- for (as already noted) periods that can be several months.

-k

<{POST_SNAPBACK}>

I sure do know what it means and I really don't have an issue with it, in fact not only do I not have an issue with it when it comes to handgun crimes, I don't have an issue with it when it comes to any violent crime accusation.

[Argus]

Suddenly the "liberals" around here have developed tremendous faith in the police, but I can't imagine our hypothetical young black man from Toronto would be as trusting.  Do you not grasp what "reverse onus" means? Presently a suspect is to be released unless the crown can present a compelling argument as to why he should not;  "reverse onus" places the onus on the defendant:  he will not be released unless he can give a compelling argument that he should be.  What we're talking about here is imprisonment without due process-- for (as already noted) periods that can be several months.

<{POST_SNAPBACK}>

I sure do know what it means and I really don't have an issue with it, in fact not only do I not have an issue with it when it comes to handgun crimes, I don't have an issue with it when it comes to any violent crime accusation.

<{POST_SNAPBACK}>

I saw Shakeyhands miolest a little boy! I saw it! I saw it! Arrest him!

Don't worry, Shakeyhands, my story is all so much BS, but when your trial comes up, in about eighteen months or so, the judge will certainly set you free. Until then, have fun in jail.

[Wilber]

You say no right is being denied.  If I were a young black man in Toronto, instead of a white chick in Edmonton, would I find that reassuring?

<{POST_SNAPBACK}>

I thought all CPC'rs were the law and order type, I think the only time you need to be worried as a white chick in Edmonton or a black man in Toronto is if you have an illegal gun...

<{POST_SNAPBACK}>

...and I thought that "Liberals" were all about Defending The Charter ...get back to me when you recognize the contradictions inherent between what Paul Martin says he stands for and what he says he wants to do in this harebrained proposal.

In all seriousness, yes. I'm all for law and order.

I'm all for strengthening the RCMP and for increased security at border-crossings and ports. I'm for more police in places that need a stronger law enforcement presence.

I'm all for tougher sentences of violent crime. Tougher parole conditions for violent crime. I'm all for keeping dangerous people locked up longer, even if it means (gasp!) creating more prison spaces.

I'm even for unmonitored security cameras in public areas; cameras that keep 24 hours of footage that police could access with a warrant if they had reason to believe the camera contained evidence about a crime.

I'm strongly in favor of enforcing the laws we have. I'm certainly not in favor of breaking the law in the name of appearing to be tough on urban gun violence.

The question is, when did Mr Defender Of The Charter decide that you really *can* "cherry pick" from the Charter?

As Canadians we scoff at Americans getting so amped up about terrorism that they're willing to erode personal liberty with legislation that gives the state excessive power to suspend someone's rights in the name of protecting Americans from terrorists. And yet here we are starting down a slippery slope towards the same thing in the name of protecting Canadians from urban terrorists.

-k

<{POST_SNAPBACK}>

Well done kimmy.

[Guest eureka]

I am talking, Kimmy, only of the bail provisions with respect to Bikers in Quebec. Seizure of property is a different question.

The question of Reverse onus is being somewhat overplayed by its opposition: I am among the opposition, by the way. Lawyers in the Toronto area are now mostly saying that it wil make little difference except to keep a few more hard core suspects under wraps.

The actual process in bail hearings will not be much different than it is now: it will have a different method of presenting a case for bail but it has to be made either way. The delays and pre-trial incarcerations will not be changed much at all.

I am opposed to the idea for civil libertarian reasons; not for any practical cause. It could be the top of the "slippery slope:" it could be a precursor to less savoury tactics. Unlikely, but it could and I am opposed to even the appearance of a restriction on Liberties.

Having said that, it will be essential to toughen the requirements for bail in these cases. The result will be the same in every way.

[Shakeyhands]

Suddenly the "liberals" around here have developed tremendous faith in the police, but I can't imagine our hypothetical young black man from Toronto would be as trusting.   Do you not grasp what "reverse onus" means? Presently a suspect is to be released unless the crown can present a compelling argument as to why he should not;  "reverse onus" places the onus on the defendant:  he will not be released unless he can give a compelling argument that he should be.  What we're talking about here is imprisonment without due process-- for (as already noted) periods that can be several months.

<{POST_SNAPBACK}>

I sure do know what it means and I really don't have an issue with it, in fact not only do I not have an issue with it when it comes to handgun crimes, I don't have an issue with it when it comes to any violent crime accusation.

<{POST_SNAPBACK}>

I saw Shakeyhands miolest a little boy! I saw it! I saw it! Arrest him!

Don't worry, Shakeyhands, my story is all so much BS, but when your trial comes up, in about eighteen months or so, the judge will certainly set you free. Until then, have fun in jail.

<{POST_SNAPBACK}>

I would think that a judge would expect something more concrete than that, it would be over seen by a judge you know... geesh.

Really this isn't all that different than it is now, just gives a little more teeth to the judge and prosecutors...