Reverse Onus/Will Martin Over ride

[Wilber]

They already have the teeth, they just don't have the balls to use them.

Every time the subject of electing judges and prosecutors comes up. they all cry that they will loose their independence. Every time they are criticized for giving sentences that are too lenient they say they are subject to sentencing guidelines from the Justice Ministry or the jails are too full. In other words, they want it both ways.

Maybe they should just do their job and enforce the laws as the politicians have written them and if there aren't enough jail cells available, let the politicians worry about it. That's their job.

[Guest eureka]

They already have the teeth, they just don't have the balls to use them.

Every time the subject of electing judges and prosecutors comes up. they all cry that they will loose their independence. Every time they are criticized for giving sentences that are too lenient they say they are subject to sentencing guidelines from the Justice Ministry or the jails are too full. In other words, they want it both ways.

Maybe they should just do their job and enforce the laws as the politicians have written them and if there aren't enough jail cells available, let the politicians worry about it. That's their job.

And every time I see a post like this, it shows me how little people know of the justice system. Good in a way since it shows you have been mostly a good boy, though.

[Wilber]

I know that there are people that the police won't bother to arrest unless they catch them in the act because they have arrested them dozens of times and had the prosecutors renege when they said they would press charges. They don't bother because half the time they try to arrest these people there is a struggle and it is a cop that ends up getting hurt.

How many of these prosecutors and judges walk up to doors or vehicles in their working day wondering if someone on the other side (someone that may be "well known to them") is going to try and do them harm.

I know that when the police say that someone is "well known to them" what they would often like to say is "we arrest this SOB every week but some other SOB's keep turning him loose."

[FTA Lawyer]

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?

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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...

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...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

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**APPLAUSE**

FTA

[FTA Lawyer]

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.

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Reverse onus already exists for certain specified crimes (e.g. murder) or situations

(e.g. allegedly committing an indictable offence while on bail for another) and frankly, it is possible that Martin could get it for gun crime without using the notwithstanding clause (i.e. it is clearly a breach of s. 7 but might be saved by s. 1 due to the pressing concern over escalating incidents of gun violence).

I would much prefer using reverse onus for people where there are reasonable and probable grounds to believe they have committed a gun crime rather than mindlessly blow billions on registries and gun bans that can only serve to punish the law-abiding...even though it is a partial erosion of liberty.

BUT, the difference in running a regular bail hearing versus a reverse-onus one is dramatic...it's not simple semantics. In the normal scenario, you are considered released with no conditions, unless the Crown can show why conditions are necessary. And you only get detained if various levels of conditions of release are insufficient. Detention is truly a "last resort".

In the reverse onus scenario you are considered detained unless you can demonstrate how all of the grounds regarding bail (Primary - ensure attendance in court; Secondary - prevent commission of further offences; Tertiary - overall protection of the administration of justice) can bet met if you were to get released.

We should not just lightly move to reverse onus as though it is really no different...unless you have spent time in a Remand Centre (even if only as a visitor rather than a resident) you can't really appreciate this fact.

And for those who would blindly trust the police and the state...wake up! I recently had a client who was arrested two feet outside of jail after being released from a sentence. He was arrested WITH A VALIDLY SIGNED WARRANT for having stolen a car. He was re-processed, spent several days in 23 1/2 hour lock-up and had to attend court.

The problem was that he was in jail on the date that the car was stolen...the absolute best alibi known to the criminal justice system. Do you think the cops checked that before applying for the arrest warrant? Do you think they checked it before executing the warrant? Do you think they investigated it when he told them he was in jail at the time...before they put him back in jail?

No.

It would have taken all of 5 minutes to make one call or type in his name on the computer...

There is a reason we have protections in our system, and why defense lawyers have an incredibly important role to play in making us be able to feel confident that we have done the right thing before taking away a person's liberty.

FTA