Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 15th, 2007

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

I've a minute. Well, I want to give our witness a chance to speak.

If I could change tack a little bit, my question is on the constitutionality of this particular piece of legislation and, in particular, the designated offender part of the legislation. Do you believe this particular piece of legislation, and the designated offender portion of it, would withstand a constitutional challenge?

[Pierre Landreville]

I am not going to answer your second question, it is beyond my scope. As for your first question, if I understood correctly, the bill includes a list of offences; you named the most serious ones, but there are also offences such as breaking and entering and assault.

[The Chair, Conservative, Rick Dykstra]

Thank you.

I think we're going to have to conclude there.

Thank you, Mr. Landreville, for your detailed statistical perspective. As I know there were a couple of questions about your stats, if you did want to forward them to the clerk, I'm sure she would be more than happy to extend those to members of the committee.

I would like to ask our ministry officials to come forward. We are running into a bit of a time constraint here, so I'm seeking a little bit of a time extension past 11 o'clock so that we can allow for questions to our ministry officials. The second part of it is that we'll probably start immediately with five-minute, rather than seven-minute, rounds.

As I indicated, it would be extremely helpful if we could keep our questions as concise as possible to allow as many of us to ask questions as we can. Certainly if the officials have any opening comments, I would ask that they be extremely brief. I'd like to leave as much time as possible for questions and an opportunity for you to respond to those over the next 45 minutes. I'll probably seek from the committee an extension of about 10 minutes, or perhaps 15 minutes, just to make up for the time we spent dealing with the motion, and that will allow us a full hour to be able to deal with the ministry.

Mr. Cohen.

[Stanley Cohen, Senior General Counsel, Human Rights Law Section, Department of Justice]

I have no opening statement to make, but I thought perhaps I should introduce myself since I haven't appeared on this matter.

[The Chair, Conservative, Rick Dykstra]

We would really appreciate your doing that. Thank you.

[Stanley Cohen]

My name is Stanley Cohen and I am the senior general counsel at the Department of Justice. I give advice on the charter as it applies to criminal justice and national security matters. I have appeared before parliamentary committees before, so I'm a familiar figure to some of you around this table. I have a background in academia and law reform, and I hope that I have what you're looking for. I'm here to be cooperative and to assist you in any way I can.

Thank you.

[The Chair, Conservative, Rick Dykstra]

Thank you very much, Mr. Cohen.

I will immediately turn to our first panel.

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

I simply have one question, and then I'll hand over the rest of my time to my colleague Mr. Murphy.

Is it your expert opinion that the provisions of Bill C-2 that are directly related to the dangerous offender system would pass a constitutional challenge? If so, why?

The rest of my time is for Mr. Murphy.

[Stanley Cohen]

The way I can answer that question, without straying over any lines that constrain my operation, is to suggest that there is a process in the department for analyzing legislation for its compatibility or inconsistency with the Canadian Charter of Rights and Freedoms. This legislation has been examined and would not be in front of you if an opinion had been issued to the effect that the legislation in question was manifestly unconstitutional and could not be defended by credible arguments before a court.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Drilling down on that answer, there was some suggestion that in the dangerous offender procedure where this evidentiary burden would shift to the accused—it's more than an accused, the convicted person on sentencing—it might in some way infringe the convicted person's right to silence, that is, the right against self-incrimination. In buttressing that position, I believe Mr. Hoover suggested that there was case law to that effect. I believe the name is—I was going to say Grewal, but that's not the right name—Grayer, something like the cheese, not the member of Parliament.

In any event, it was subsequently suggested by witnesses at our last meeting that that case law was not authoritative for the proposition that when there are shifting evidentiary burdens, silence is still protected, just at one's peril. In other words, the convicted person can remain silent, but they bear the consequences of doing so if it means they don't adduce evidence that might help them.

It was quite clear in the testimony we had from the Criminal Lawyers' Association that it was a misinterpretation of that....

Well, Mr. Hoover, you were in the room when it was suggested.

So maybe rightfully to you, Mr. Cohen, what is the implication of these changes to the right to remain silent or the right against self-incrimination in the charter?

[Stanley Cohen]

That question, of course, covers a lot of ground.

There is, of course, under the Constitution, a right to silence. Generally that's a right that accrues when one is faced with police interrogation. The relationship between the right to silence and the right against self-incrimination is one that has been commented upon in the case law, and self-incrimination is a somewhat larger concept.

To come back to your question about the significance of the Grayer case as it relates to the right to silence, the Grayer case basically says that an individual who finds himself in the kinds of circumstances that an individual might find himself in, in a dangerous offender application, is entitled to rest and to sit on his or her hands and not to cooperate in any way. There is nothing in this legislation that compels that individual to testify, and there is nothing in a reverse onus that directly causes the person to have to speak.

When an individual is facing this kind of situation--we can call it jeopardy--there is a natural implication or a natural impetus in the individual to want to be able to answer, and that is why, of course, these matters will end up in litigation. But individuals are capable, notwithstanding their right to sit on their hands, of making an informed and tactical decision as to whether or not they will speak up. They don't have to speak up. That does not end the matter.

The individual has—and indeed it emerges from the legislation and from practice—the right to cross-examine, the right to call witnesses, the right to rely upon any evidence that's adduced by the state, in order to answer the case that has been brought forward. So to that extent, this perhaps might not be called silence, but it certainly is silence in terms of the individual speaking or the individual cooperating. That is not a matter that I would suggest implicates the so-called notion of self-incrimination.

I would point out that self-incrimination protections generally are housed either under section 11 or section 13 of the charter, which are premised and preceded by an indication that those rights are guaranteed in relation to persons charged with an offence. When an individual is charged with an offence, then those particular protections arise.

Lyons, which remains the fundamental case and the one to which everyone should return when they look at dangerous offender legislation, written by Mr. Justice La Forest, a balanced and moderate jurist and an expert in this area—

[The Chair, Conservative, Rick Dykstra]

Excuse me, Mr. Cohen.

We're going to have to move forward.

[Stanley Cohen]

All right. Let me just say what Lyons does say. Lyons says that this is not a situation involving the protection of section 11 because the person is not charged with an offence. This is part of the sentencing process.

[The Chair, Conservative, Rick Dykstra]

Thank you.

I apologize. We're on a tight timeframe. I don't want to cut you off, but we do need to try to keep order for everyone.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

With all due respect, Mr. Cohen, I have been here since 1994 and I can tell you that we have already in the past examined regulations and legislation which the department said was constitutional but which was subsequently invalidated. My colleague may have said that this happened under the Liberals, but the antiterrorism provisions were studied in committee, right? Mr. Comartin was a member of the committee. Some provisions were ruled to be unconstitutional. When Ms. Marleau was Minister of Health, the anti-smoking regulations were invalidated. So I find your assertion to be presumptuous to say the least. Just because the department refers the bill to us does not mean that it cannot be deemed unconstitutional later on.

But since you are telling us with confidence that the bill is constitutional, I would like you for once, as a parliamentarian, to clarify the verification mechanisms. Please be quite precise. When the minister signs a memorandum in cabinet stating that it is constitutional, exactly how is this done?

I also have three questions to ask you about the substance. Like you I am a lawyer and I obviously know that legislation can be challenged. You said that you have checked everything generally, but what, more specifically, have you done, and what are the reasonable guarantees?

[Stanley Cohen]

First of all, I've appeared in front of you in a number of these matters that you've mentioned, and I have never offered an opinion that a piece of legislation is constitutional and will be upheld by the court, or is unconstitutional and will be struck down by the court. What I have said is what I said at the beginning. There is a process for making an assessment and the Minister of Justice has an obligation to make this examination. What conclusion we have reached is that the legislation in question is not manifestly unconstitutional. That does not mean that it cannot be--

[Réal Ménard, Bloc, Hochelaga, QC]

Wait a minute, I'm the one asking the questions. What is the process? Don't tell me that it is constitutional, explain the process to me.

[Stanley Cohen]

I said that the legislation is not manifestly unconstitutional and is capable of reasoned defence in the court. The process for making that assessment...you asked me what the process is.

[Réal Ménard, Bloc, Hochelaga, QC]

That was not my question. Tell me what process the department follows, step by step. That's what I want to understand. And answer my question specifically.

[Stanley Cohen]

This is what I'm trying to address.

The process for assessing legislation begins at an early stage, when we are presented with various options for reform. These are the subjects of legal opinions, discussions, round tables, etc. The implications, constitutional or otherwise--policy people also weigh in on these discussions--also are involved. Constitutional considerations are taken into account. Opinions are prepared and they are sent up for consideration by higher-ups and ultimately will make their way to the minister who has the final authority for deciding these things.

[Réal Ménard, Bloc, Hochelaga, QC]

How many legal opinions have there been for this file?

[Stanley Cohen]

I could not tell you the number in particular. I know there have been more than one. I also know there are opinions that are not just written in relation to the charter, that various other parts of the department would weigh in on other legal issues.

What I can say is that when opinions are devised, we attempt to look realistically at the prospects of the legislation that's been contemplated to determine whether or not there is, as I've said, at one level manifest unconstitutionality on the one hand or, on the other extreme, a continuum that would stretch manifest constitutionality.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like to ask you a second question before my time is up.

Mr. Chairman—

[The Chair, Conservative, Rick Dykstra]

Your time is officially up, Mr. Ménard. My apologies. I'm sure you're going to get another round.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm not sure, Mr. Cohen, if this is to you or Mr. Hoover, but I'm concerned about a number of things. The constitutionality with regard to the division of power really concerns me. If you look at some of the exchanges we've had at the meetings between the federal government and the provincial attorneys general over the last couple of decades, they've always been very careful about protecting the administration of justice as their territory, which it obviously is under the Constitution. I think we may be infringing on that, but even more so on the charter.

I've been told that the direction to the department to put these five bills into one came just 48 hours before this session of Parliament started. I don't know when the decision was made. Will you confirm that you got only 48 hours' notice to put these together? That's my first question.

Question number two is, when was the decision made to incorporate the breach of supervision order as a triggering event?

The third one—and I guess this is the one that disturbs me the most—is what kind of consultation went on? We heard from Mr. Cooper when he testified. Here you have the person who prosecutes in a region more than anybody in the country right now. He came forward and said, look, what I really need are amendments to part XXIV so I have access to better evidence to prosecute these applications. He said if he got those amendments they would be of immeasurable assistance.

The other point he made in his testimony was that he really wasn't going to change his practice if these amendments went through. So why are we doing this, and why didn't we pay attention to people like him and do amendments to part XXIV, which would have made his job easier?