Evidence of meeting #6 for Bill C-2 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was going.
A recording is available from Parliament.
4:30 p.m.
Conservative
The Chair Conservative Rick Dykstra
I'll ask the gentlemen if they can respond once we turn it over to Mr. Bagnell for his questions.
If you could work in a response, I'm sure Mr. Moore would appreciate it.
4:30 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
I'm sorry, but I want to ask a few questions.
I do want to thank the chiefs of police, though, for supporting Ms. Jennings' bill on modernization of investigative techniques.
Mr. Jones, I agree with virtually everything you said, and I've been lobbying for that.
My questions are for Ms. Schurman. Were you saying that under the old act, if someone committed a particularly brutal crime, one time, they could actually be a dangerous offender, but under the new act the prosecutors will wait until three crimes are committed?
4:30 p.m.
Professor, Faculty of Law, McGill University, As an Individual
I'm not saying they'll wait; I'm saying there's a danger in bringing this in, if you will, to the section. Under the old act, one of the key cases was the Ontario Court of Appeal in Langevin, where one very brutal act was sufficient to be declared a dangerous offender. So that exists now.
One of the dangers I can foresee—although I can't tell the future—is given that the legislator has seen fit to make specific sections to get the people who have prior convictions, there's a risk the courts might say that the legislator has spoken quite clearly, that if it's one act, it has to be very, very exceptional. We may even end up with a higher standard than we have now for the one-act situation. I'm not saying it will happen; I'm saying it could.
4:30 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
My second question is on the judicial discretion. My understanding is that subclause 42(4) basically allows judicial discretion. The judge—he or she—could impose a sentence for the offence of which the offender has been convicted only, so in fact being a dangerous offender would make no difference. The third offence would get the same level of sentence. Does that not leave the discretion with the judge, and therefore make it “charter fine” because he can make a proportionate sentence?
4:35 p.m.
Professor, Faculty of Law, McGill University, As an Individual
It does say that the court shall impose one of three possibilities. But then subsection 753(4.1) says that it has to be the indeterminate period unless the court is satisfied by the evidence that there's a reasonable expectation that a lesser measure would protect the public. That's putting the burden on the person before the court, as opposed to putting the burden on the prosecution to show that the indeterminate sentence is the appropriate response.
4:35 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Doesn't that put the burden on the judge, based on what he sees, to provide a reasonable sentence?
4:35 p.m.
Professor, Faculty of Law, McGill University, As an Individual
You see, because of the way 753(4.1) is worded, he's forced to impose the sentence of an indeterminate period in the penitentiary unless satisfied by evidence adduced by the hearing. The evidence is going to have to be adduced by somebody, and it's certainly not going to be adduced by the crown.
4:35 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
Okay. I have another question. Sorry for the rush, but we have time....
I know you wanted to talk more about reverse onus, and in that it's not an uncommon feature of the justice system and has passed charter muster before, can you explain to me why it wouldn't in this new use of it?
4:35 p.m.
Professor, Faculty of Law, McGill University, As an Individual
It is actually uncommon. It is an exceptional measure, the reverse onus. Gradually, over the years, we've seen them come into bail in a very limited way and to certain other provisions of the code in a very limited way, but every time the Supreme Court of Canada is called upon to talk about reverse onus, they still use the word “exceptional”, because it is in fact contrary to what the system generally should be doing.
Other than the comments I made earlier, I think one of the big problems we see here is that in the absence of empirical evidence showing why this is necessary, it's highly unlikely that it will pass a constitutional challenge, because if we don't have the evidence here to show why it's necessary, how is the crown going to have it at the challenge stage before the Supreme Court of Canada?
This is what my colleague beside me was talking about: there's no evidence here to show why it's necessary in these circumstances to reverse the burden.
4:35 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
My last question is this. You said this act isn't necessary, but would the fact that it calls for the prosecutor to actually make a decision as to whether or not to go for a hearing not help stop situations from slipping through the cracks?
I just want to go back to your last comments. When reverse onus is used on remand, it could be for every case, so it's not an exceptional situation.
4:35 p.m.
Professor, Faculty of Law, McGill University, As an Individual
Reverse onus in bail matters is exceptional. It's very exceptional. You have Pearson and Morales from the Supreme Court of Canada concerning major drug offences, but there are very limited offences for which the reverse onus has been approved in bail matters. When I spoke here on Bill C-35, we talked a bit about that, I think.
The other part of what you were asking—it's just escaped me now; I've lost it.
4:35 p.m.
Liberal
Larry Bagnell Liberal Yukon, YT
The fact that the prosecutor has to make a decision with that stuff.
4:35 p.m.
Professor, Faculty of Law, McGill University, As an Individual
As it is now, the prosecutor has to start the process. It's that once the prosecutor requests the assessment, the judge has to order it. There's no more judicial discretion to say, “Wait a minute now, I don't think this is an appropriate case for this”, at the beginning of the whole process.
4:35 p.m.
Conservative
4:35 p.m.
Conservative
Dick Harris Conservative Cariboo—Prince George, BC
Thank you very much, Mr. Chairman.
I think it's important to reiterate in this time that the designated offender part of this bill is designed specifically for the “worst of the worst” criminal, for the most incorrigible criminals in our society. Lest we get led astray by some of the comments that this will filter down to those who are not deserving of it, that's absolute nonsense: this designation is for the very worst in our society, who simply cannot take responsibility for what they're doing. I think it's important to keep repeating this, so that those folks who are watching this proceeding today have a clear understanding of why it's there.
Secondly, Professor Schurman, I appreciate your legal opinions. You've done a very great job. Your opinions are important to this. I think it's important also for the record to say that this bill wasn't drafted on the back of a napkin in an afternoon; it was drafted with the assistance of the finest legal and constitutional minds the Minister of Justice can find. When they signed off on it, they signed off with an understanding that it may face a constitutional or charter challenge in the future and they signed off with the complete confidence that this bill will withstand any constitutional or charter challenge. I think that's important to put on the record as well.
What we have here is a difference in legal opinion, which some day will be determined in the Supreme Court, likely. So appreciate those comments.
I want to ask one question before I finish on this reverse onus that witnesses yesterday seemed to be quite afraid of and that I think you, Mr. Jones, stated your apprehension about.
It's my understanding that in fact the reverse onus is used in the criminal system today when it comes to applying for parole, whereby someone who's making application for parole must go before a parole board and prove to them that he or she is worthy of getting parole.
That type of process seems to have worked pretty well up till now. If someone can't show the parole board hearing that they should be let out on parole, they simply don't get parole.
I'm trying to find where all the apprehension about this reverse onus comes from concerning a person who is already convicted. There's no question about whether they're guilty or not, as they've already been convicted. Now the onus is on them to tell the judge why they shouldn't be designated a dangerous offender, if that's what the crown is seeking.
It's an extension of a process that's already used today, so I can't understand the apprehension that defence lawyers in particular have with it, other than the fact that they're going to have to go from being defence lawyers to some other type of law where they're having to prove something rather than defend it.
Could you comment on that?
4:40 p.m.
Professor, Faculty of Law, McGill University, As an Individual
Do you mean anybody? Was it for me or for—
4:40 p.m.
Conservative
Dick Harris Conservative Cariboo—Prince George, BC
If we have a reverse onus system that works in the parole system for parole applications today, why are you so afraid of it as Bill C-2 would extend it to another part of the justice system?
4:40 p.m.
Professor, Faculty of Law, McGill University, As an Individual
It's because the rules of the game in a court of criminal justice have never been the same as the rules before an administrative body; because the goals and purposes of the hearing before the administrative body are different from the goals and purposes of the hearing in a criminal court; because the consequences to the accused person in a criminal court are often in a whole different category from those if they're proceeding before an administrative body. It's the whole common law tradition, which has been taken into our laws today, that—
4:40 p.m.
Conservative
Dick Harris Conservative Cariboo—Prince George, BC
Aren't they trying to accomplish the same thing? In the one case they want to get out of jail, and in the second case they want to stay out of jail, so they have to provide reasons why either one of those two things should happen.
4:40 p.m.
Professor, Faculty of Law, McGill University, As an Individual
Yes, but the rules of fundamental justice that the courts have said have to apply to the sentencing process are sometimes very different from what the courts have said are adequate for the administrative decision-making process after the sentencing has taken place. Those rules are often quite different.
4:40 p.m.
Conservative
Dick Harris Conservative Cariboo—Prince George, BC
And that's what keeps lawyers in business, I guess.
Thank you very much.