Bill C-2 (39th Parliament, 2nd Session) Committee on Oct. 30th, 2007

[The Chair, Conservative, Rick Dykstra]

I want to welcome everyone back here this afternoon. I know there's been lots of activity in the House and there's still some going on across the street, I understand, but as Ms. Jennings said this morning, we have a lot of hard word to do here on a bill, so we're going to get started.

Pursuant to the order of reference of Friday, October 26, the Legislative Committee on Bill C-2 will now resume its study on the bill.

We welcome Minister Nicholson to make a presentation. We will hear his presentation of approximately ten minutes and then go to questioning.

Thank you.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much, Mr. Chairman. I'm pleased to be joined at the table by Catherine Kane, the acting senior general counsel, criminal law policy section; and Douglas Hoover, counsel, criminal law policy section.

Mr. Chairman, I'm pleased to appear before your committee as it begins its review of Bill C-10, the Tackling Violent Crime Act.

This is the government's first piece of legislation in this session of Parliament. The Tackling Violent Crime Act underscores our commitment to safeguard Canadians in their homes and on their streets and in their communities. It is a confidence measure. Bill C-10 reflects the depth of this unwavering commitment by the Government of Canada.

As a confidence measure, Bill C-10 reflects the depth of this unwavering commitment.

Canadians are losing confidence in our criminal justice system. They want a justice system that has clear and strong laws that denounce and deter violent crime. They want a justice system that imposes penalties that adequately reflect the serious nature of these crimes and that rehabilitate offenders to prevent them from reoffending. Bill C-10 seeks to restore Canadians' confidence in our system by restoring their safety and security in their communities, and this is in fact what is reflected in the preamble to Bill C-2.

The proposed Tackling Violent Crime Act brings together five criminal law reform bills that we introduced in the previous session of Parliament. One of them, Bill C-10, imposed higher mandatory minimum penalties of imprisonment for eight specific offences involving the use of restricted or prohibited firearms or in connection with organized crime, which of course includes gangs, and also for offences that do not involve the actual use of a firearm--namely, firearm trafficking or smuggling--or the illegal possession of a restricted or prohibited firearm with ammunition. The Tackling Violent Crime Act reintroduces the former Bill C-10 as passed by the House of Commons.

It also includes one of my favourites, Bill C-22, which increased the age of consent for sexual activity from 14 to 16 years of age to protect young people against adult sexual predators. There is proposed, as I'm sure you are aware, a five-year close-in-age exception to prevent the criminalization of sexual activity between consenting teenagers. The Tackling Violent Crime Act reintroduces Bill C-22 as passed by the House of Commons.

It also includes Bill C-32, which addressed impaired driving by proposing the legislative framework for the drug recognition expert program and requiring participation in roadside and drug recognition expert sobriety testing; by simplifying the investigation and prosecution of impaired driving; and by proposing procedural and sentencing changes, including creating the new offences of being “over 80” and refusing to provide a breath sample where the person's operation of the vehicle has caused bodily harm or death. The Tackling Violent Crime Act reintroduces the former Bill C-32 as amended and reported back from the justice committee.

We also have Bill C-35, which imposes a reverse onus for bail for accused charged with any of eight serious offences committed with a firearm, with an indictable offence involving firearms or other regulated weapons if committed while under a weapons prohibition order, or with firearm trafficking or possession for the purpose of trafficking and firearm smuggling. The Tackling Violent Crime Act reintroduces the former Bill C-35 as passed by the House of Commons.

The Tackling Violent Crime Act also reintroduces reforms proposed by the former Bill C-27, addressing dangerous and repeat violent offenders, with additional improvements.

As I have noted, and with the exception of the dangerous offenders reforms, all of these reforms have been thoroughly debated, reviewed, and supported in the House of Commons.

These reforms included in Bill C-27 had not progressed to the same level of understanding and support in the previous session and now include additional improvements to address concerns that have been identified in the House of Commons as well as by my provincial and territorial counterparts. Let me take a moment to go through these reforms.

The Tackling Violent Crime Act retains all of the reforms previously proposed in Bill C-27 regarding peace bonds, which had been well received within the House of Commons and beyond. Accordingly, Bill C-10 proposes to double the maximum duration of these protective court orders from one to two years and to clarify that the court can impose a broad range of conditions to ensure public safety, including curfews, electronic monitoring, treatment, and drug and alcohol prohibitions.

I believe this particular provision will be well received across this country. Many people have complained for many years that by the time you get a one-year peace bond, it's too short a period of time, and that two years would be much more appropriate in terms of getting the bond and having it put in place.

Under this bill as well as under the former Bill C-27, crown prosecutors will still have to declare in open court whether or not they intend to bring a dangerous offender application where an individual is convicted for a third time of a serious offence.

We have retained some procedural enhancements to the dangerous offenders procedures, allowing for more flexibility regarding the filing of the necessary psychiatric assessments.

As in the former Bill C-27, an individual who is convicted of a third sufficiently violent or sexual offence is still presumed dangerous.

Bill C-10 also toughens the sentencing provision regarding whether a dangerous offender should receive an indeterminate or a less severe sentence. This amendment modifies Bill C-27's approach to make the courts impose a sentence that ensures public safety.

Finally, it includes a new provision that would allow a crown prosecutor to apply for a second dangerous offender sentencing hearing in the specific instance where an individual is convicted of breaching a condition of their long-term supervision order.

This second hearing targets individuals who were found by the original court to meet the dangerous offender criteria but were nonetheless able to satisfy the court that they could be managed under the lesser long-term offender sentence. If they show by their conduct, once released into the community, that they are not manageable and are convicted of the offence of breaching a condition of their supervision order, they would now be subject to another dangerous offender sentence hearing.

Importantly, this new proposal does not wait for the offender to commit yet another sexual assault or violent offence to bring the offender back for a second hearing for a dangerous offender sentence. Instead, it would be triggered simply by the offender's failure to comply with the conditions of his release contained in his long-term supervision order--for example, for failing to return to his residence before curfew or for consuming alcohol or drugs. Of course, this second hearing would also be triggered if the offender in fact did commit a further sexual or violent offence after his release into the community.

These new proposals directly respond to a serious problem identified by provincial and territorial attorneys general in recent months. Indeed, some of these issues have been flagged since about 2003. Since the 2003 judgment by the Supreme Court of Canada in the Johnson case, many violent offenders who meet the dangerous offender criteria have nonetheless managed to escape its indeterminate sentence on the basis that they could be managed; that is, the risk of harm that they pose to the community could be successfully managed in the community under a long-term offender sentence.

So we reviewed the dangerous offender cases since the 2003 Johnson case and identified 74 such violent offenders. We then looked at how these individuals fared once they were released into the community. To date, 28 of these 74 dangerous offenders have been released into the community. Of these 28, over 60% were subsequently detained for breaching the conditions of their long-term supervision and 10 were convicted of breaching a condition of their long-term supervision orders.

Bill C-10 will prevent dangerous offenders from escaping the dangerous offender indeterminate sentence in the first place and will enable us to more effectively deal with those who nonetheless receive the long-term offender sentence but then demonstrate an inability to abide by the conditions of their long-term offender supervision order.

Of course I have carefully considered the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights in respect of the totality of these new dangerous offender reforms, and I am satisfied that they are fully constitutional. These measures have been carefully tailored to provide a prospective, targeted, and balanced response to the real and pressing problem posed by these dangerous offenders.

To sum up, Mr. Chairman, the Tackling Violent Crime Act proposes reforms that have already been supported by the House of Commons.

In the case of the new dangerous offender provisions, it proposes modifications that many have signalled an interest in supporting.

I appreciate the collaborative spirit this committee and members have shown thus far to enable the commencement of the review of Bill C-10, and it is my hope and that of all Canadians that this collaboration will continue to enable expeditious passage of this bill.

Thank you, Mr. Chair.

[The Chair, Conservative, Rick Dykstra]

Thank you, Minister.

We'll now start the rounds using a process very similar to the one we use in standing committees. The first round will be seven minutes, and the following rounds will be five.

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Mr. Chairman.

Thank you very much, Minister, for your presentation. There are a few facts I would like to raise before asking you two questions. I will be very brief.

On October 26, 2006, the Liberals made the first offer to fast-track a package of justice bills through the House. This included Bill C-9 as it had been amended; Bill C-18, which is the DNA identification; Bill C-19, street racing; Bill C-22, age of consent, which we now find as part of Bill C-9,; Bill C-23, criminal procedure; and Bill C-26, payday loans. This offer effectively guaranteed the Conservative government a majority in the House to pass those pieces of legislation, including the one that is in Bill C-9, the age of consent, at that time. Had the government accepted the Liberal offer, Bill C-22, the age of consent, would have become the law before the end of 2006 and our children would no longer have been vulnerable to sexual predators.

On March 14, the Honourable Stéphane Dion, leader of the official opposition, added Bill C-35, bail reform, to the list of bills that the Liberal caucus was offering to the Conservative government to fast-track. Despite again this offer of majority support, it took the Conservatives until May 30 to actually move it up on the order paper so that it would get to committee.

Finally, on March 21, 2007, Liberals again attempted to use an opposition day motion that, if passed, would have immediately resulted in the passage at all stages of four justice bills: Bill C-18, DNA identification; Bill C-22, age of consent, which is the bill that we see again before the House in your tackling crime bill, Bill C-9; Bill C-23, criminal procedure; and Bill C-35, bail reform. Incredibly, the Conservative House Leader raised a procedural point of order to block the motion. In other words, the Conservatives have in fact fought the Liberals' attempts three times to pass justice bills, including the one that's incorporated in Bill C-9.

Now, I notice that in Bill C-9, the section that deals with the dangerous offender, two categories of amendments have been brought forward. One deals with the long-term offenders. A breach of supervision orders, for instance, could trigger a new dangerous offender hearing in order to make them liable to the kinds of sentences that dangerous offenders can be liable to. Minister, if you studied the transcripts of the House committee that studied Bill C-27, or was in the process of studying it last spring before the prorogation of the House, you would see that Liberals actually made proposals for the very kinds of amendments that we now find in the Bill C-27 section of Bill C-2, and they received support from the Canadian Police Association, Mr. Tony Cannavino, and from other witnesses who appeared and who thought it was a great idea and that it would actually strengthen Bill C-27 and make the system more effective.

So I'm pleased that the government listened; however, we also made another proposal. Right now the Crown continues to enjoy discretionary authority as to whether or not an application for remand and assessment for a dangerous offender designation will actually be made, and so your reverse presumption will operate and become effective only if the Crown makes that application. Liberals had been proposing that a third conviction automatically trigger a dangerous offender hearing. That would then allow every single offender who had been convicted three times of a type of crime that can lead to a dangerous offender hearing to actually be called before such a hearing, to actually be assessed and evaluated.

May I ask why the government has decided, in its wisdom, not to go forward with an automatic trigger rather than a reverse presumption, which will possibly never or very rarely be put into effect because the Crown retains the discretionary authority to make the application or not?

I am finished.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I may have other questions, but they will have to wait for another day.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Or you may get Mr. Lee to ask them.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

No. Mr. Lee has his own questions, and they're substantive.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

You've covered a lot of ground, Madam Jennings. One of the things you said is that Canadian children weren't as well protected from sexual predators as they would have been if the age of consent bill had been passed. I agree with you. I wish it had been passed. I was very disappointed that the Senate went home and didn't pass that, and when I was asked this question, I said, “Canadian children aren't as well protected as they should be if that bill had been passed”. I agree. It should have been passed.

Now, with respect to the offer regarding the fast-tracking, I know this came in the form of a--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

May I interrupt for one moment, please?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm sorry. I thought you were done, but please go right ahead.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much.

[The Chair, Conservative, Rick Dykstra]

You have about 40 seconds left.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Do you mean that you wish it had been passed October 26, 2006, when the Liberals offered the Conservative government a formal offer to fast-track Bill C-22, age of consent?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

If I could continue, you indicated as part of your question that on a couple of occasions the Liberal Party proposed motions and then on an opposition day proposed to fast-track a number of justice bills. The problem with that, as I'm sure your House leader and others could probably confirm, was that it was procedurally out of order. It was confirmed by the Speaker of the House to be procedurally out of order, and it didn't have the support of the NDP and the Bloc Québécois. So that was a bit of a problem in terms of trying to move this forward.

Nonetheless, I'm looking for support for this legislation anywhere I can get it for any of these particular issues, and again we have that--

[The Chair, Conservative, Rick Dykstra]

Minister, we've come up to time, so we'll have to go to Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Good day, Minister. I also extend greetings to your officials.

I will begin with three questions, with your permission. You will understand that my questions are on Bill C-27 since for us, this is the most problematic aspect of the bill.

Firstly, to what extent can one see parallels or make comparisons with legislation in effect in the United States? More particularly, 25 states and the federal government have provisions for what is known as “three strikes and you're out”. I would like you to establish parallels, if there are any. You know that the committee has had access to literature which was not conclusive as to the benefits of this legislation in the United States.

Secondly, I would like you to explain what is wrong with the current regime. For instance, is the burden of proof too onerous for the prosecutor, so much so that the Crown does not use these provisions as it should? The Bloc Québécois does not call into question the fact that there should be provisions on dangerous offenders in the Criminal Code. We are simply trying to understand why we need a system like the one you are proposing.

Thirdly, I would like to go back to a question Ms. Jennings raised without going into it in depth. The obligation relating to the designation of a person as a “dangerous offender” is to make an announcement, but if I understood correctly, there will be no obligation on the part of the prosecutor to use that provision. Could you clarify that for me?

Those are my first three questions. If the chair is willing, I will have three more.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not sure, Monsieur Ménard. I caught all but the third one. You said there are provisions in the Criminal Code.... Sorry.

[Réal Ménard, Bloc, Hochelaga, QC]

Is there an obligation on the prosecutor? When one reads the bill, one gets the impression that he has the obligation to divulge or not, but that he's not obliged to use that provision. To put the question simply, what is the new obligation on the prosecutor pursuant to Bill C-27 concerning dangerous offenders?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Mr. Chair. I think I've got it.

In your first question, Monsieur Ménard, you asked how this was different from American legislation. All legislation in the United States, of course, is not the same. The criminal law power is part of each state. You may be referring to what is usually referred to as a law in the state of California--and again I'm not an expert on California law--which carries automatic convictions or rather automatic sentence provisions for individuals who have been convicted of three crimes.

In Canada we have what is known as a rebuttable presumption. If an individual has been convicted of the three types of crimes that I indicated in my opening statements, then there is an onus on the Crown to direct the court's attention to whether the Crown will proceed with a dangerous offender application. The onus would shift to the individual to demonstrate--and it's a rebuttable presumption, and that individual would have all the safeguards built into the Canadian system.... They can bring evidence to show that they cannot or should not be designated a dangerous offender. So to that extent, there's nothing automatic about it. There, of course, would be a hearing that would determine this, but again the individual could rebut that presumption.

What are the problems with the dangerous offenders law as it stands? I think there was some need for clarification after the R. v. Johnson decision in 2003 to clarify some of the procedures and the criteria with respect to dangerous offenders.

You made reference to Madam Jennings' comments about some of the issues that arise regarding an individual who has been designated a dangerous offender but nonetheless receives a long-term offender sentence, and about how there have been some problems. She identified a couple of groups that have indicated there were problems in that area. In addition, I can tell you there are provincial attorneys general who believe that there should be some resolution, some clarification on that. So I think there are a number of problems, a couple of which I've just mentioned to you.

You have another question?

[Réal Ménard, Bloc, Hochelaga, QC]

Could you be more specific about the current regime? A person may be declared a dangerous offender—and we understand the difference between a “long-term offender” and a “dangerous offender”—after committing a serious offence if a person is at risk for re-offending and does not have the adequate qualities in terms of self-control. Can you tell us something about the reasons why you are introducing this bill?

Do the Crown prosecutors not use these provisions? The statistics the researcher sent us mentioned 384 dangerous offenders, 333 of which were imprisoned. What is the problem you are trying to correct? None of the opposition parties is questioning the need for such provisions in the Criminal Code. I'm trying to understand. Is it because the burden of proof is too onerous? Is it because the prosecutor finds this too demanding administratively speaking, before the courts?

[Rob Nicholson, Conservative, Niagara Falls, ON]

One of them is just what I indicated. There are those individuals with whom we believe there is a problem. If they get a dangerous offender designation and then they are subsequently released into the public and they then don't comply, the way the law is set up it becomes very difficult. They basically have to start all over again, and as you may know, this is a very time-consuming, difficult, expensive operation that crown attorneys are sometimes reluctant to pursue.

So that is very much a concern that I believe is being addressed. It is also one of the reasons why in Bill C-27, since the Johnson case, which I'm sure you're familiar with, we've actually seen a reduction in the number of attempts to designate individuals as dangerous offenders. That reduction, I believe, was a direct result of the Johnson decision. We are attempting to clarify that as well, and I think that would be helpful and would be welcomed by crown attorneys.

Mr. Hoover, I believe, has something else that he might be able to add.

Are we out of time on this, Mr. Chair?

[The Chair, Conservative, Rick Dykstra]

Minister, he may have something to add, but Mr. Hoover may have to do that at the next opportunity.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Okay, fair enough.

[The Chair, Conservative, Rick Dykstra]

Mr. Ménard's time is up.

Mr. Comartin.