Debates of Oct. 31st, 2006
House of Commons Hansard #73 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was dangerous.
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Vic Toews Provencher, MB
Mr. Speaker, I have spoken with our House leader specifically on that issue. I understand there may well be discussions going on between the House leaders.
If the hon. member has any other suggestions that he would like to make in respect of how we can expedite these types of bills, I would be only too pleased to hear him on that point.
Réal Ménard Hochelaga, QC
Mr. Speaker, I have two brief questions for the minister.
We had understood that what reversed the presumption of innocence and triggered the process to identify someone as a dangerous offender was the fact that that individual had been convicted three times for offences on a certain list of offences. The minister spoke of 12 offences, but we were under the impression that the list of primary offences that appears in the bill contains 22. Thus, 22 offences were on the list, although the minister spoke of 12 in his speech.
Am I to understand that if a person was convicted three times for one of the 22 offences included on the list of primary offences, we would then begin the process described in the minister's speech? Can he please explain to us the difference between the list of 12 offences and the list of 22 offences that appear in the bill?
Vic Toews Provencher, MB
Mr. Speaker, I would first of all like to clarify that the issue of presumption of innocence of course deals with an individual before that individual is convicted. We are now dealing with an individual who in fact has been convicted. That individual is no longer innocent; he is a convicted criminal.
There are two lists. As I understand how the lists work is that in respect of the primary designated offences, on the third offence there is a change in the presumption. The prior two offences, though, can be taken from the designated list as opposed to the primary designated list. It is in respect of the smaller list of offences where the actual presumption changes after the individual has been convicted, not the larger list, the more general designated list.
David Sweet Ancaster—Dundas—Flamborough—Westdale, ON
Mr. Speaker, people from my riding and in fact the greater city of Hamilton are listening quite closely to this debate for a number of reasons, not the least of which is that recently an assistant crown attorney spent almost two years developing a case against a repeat offender who brazenly went into a shopping mall in Hamilton and stabbed a woman 17 times and left her for dead. Miraculously she survived.
Will this make it easier for some of the crown attorneys to be able to establish a case of credibility? Will the reverse onus portion of this stand up constitutionally?
Vic Toews Provencher, MB
Mr. Speaker, prior to the Johnson case in the Supreme Court of Canada, the onus was in fact lower on the Crown to try to establish this designation. The Johnson case changed that and required the onus on the Crown, in respect of this sentencing provision, to prove beyond a reasonable doubt that this was the only appropriate disposition. That is virtually an insurmountable onus to meet in this context.
What we are saying is where an individual has been convicted of two prior serious offences, where he or she has received at least a penitentiary term on each of them, on the third one it is clear that the individual has established a pattern of conduct. The individual has been convicted now for the third time of a very serious offence. Therefore, it is incumbent upon that individual, not the Crown, to demonstrate that.
With respect to the other dangerous offenders' applications, they do not have to wait until the third conviction. They can proceed even if the individual has never been convicted of a particular offence. For example, let us say an individual had raped five women on separate occasions, but had not been convicted. They can still proceed on a dangerous offender application even if there has been no prior conviction, but in that situation the reverse onus does not kick in. We are lowering the onus to a balance of probabilities once the individual has been convicted of guilt beyond a reasonable doubt.
We are not fooling with any of the constitutional guarantees in this respect, but we recognize that once the conviction takes place and then the sentencing phase takes over, there are different legal principles that are appropriately applied in an appropriate constitutional context.
Pierre Poilievre Parliamentary Secretary to the President of the Treasury Board
Mr. Speaker, today we are speaking about public safety issues. In the justice committee last week, the Liberals teamed up with the separatists and passed an amendment to allow arsonists, car thieves and burglars to serve their sentences in the comfort of their own homes. They apparently think those kinds of serious criminals, who steal products worth over $5,000 and ruin lives, should be allowed to serve their sentences in our communities.
Furthermore, they are now saying that it is not acceptable for us to permanently jail those people who have committed three serious violent or sexual offences until such time as they can prove they are safe.
I do not remember the Liberals saying any of this during the last election. In fact, in the days leading up to the vote, I remember the Liberals pretending that they were tough on crime. Now they have flip-flopped and they are trying to obstruct our efforts to crack down on crime and make our streets safer.
Could the minister of Justice tell us what the reaction has been from Canadians to the decision by the Liberals to allow car thieves to serve their sentences in the comfort of their living rooms and what has been the reaction of Canadians to our plans to bring in mandatory jail time and serious sentences for hard criminals?
Vic Toews Provencher, MB
Mr. Speaker, this is a good opportunity to talk about the prior Bill C-9 as well because it fits right into this discussion, and I will explain why.
The Liberals, with the Bill C-9 amendments, have made it an incredibly complex sentencing hearing, which will discourage Crown attorneys from contesting whether there should be a conditional sentence or not. The process that they brought in is a bureaucratic process similar to the kind of situation that the court created as a result of the Johnson decision. It is very complex and very onerous.
Essentially the Liberals have gutted Bill C-9 by making a very complex process, which will discourage the Crown attorneys from seeking appropriate sentences, and that is my concern. I do not know why they would choose to add that kind of burden on the Crown, even after the Crown has proven a case beyond a reasonable doubt.
I am speaking as a former Crown attorney. I would look at that situation and say, “Why is Parliament doing this to us? We are just trying to get the job done”. If they have convicted an individual beyond a reasonable who, let us say, pointed a knife at someone and committed a robbery, the Crown now has to prove, beyond simply the regular proof, that a conditional sentence is not appropriate. It is totally unworkable, and I believe the Liberals know that. I believe that is why they are doing it, and it is unfortunate.
Sue Barnes London West, ON
Mr. Speaker, I rise today to speak to Bill C-27, which was recently introduced by the Conservative government. We will now debate the bill and I will provide a context of the current established law already existing in the Criminal Code.
Under the dangerous offenders and long term offender provisions of the Criminal Code of Canada, the Crown may trigger an application where the offender is convicted of a predicate serious personal injury offence. This prerequisite is defined in section 752(b) as being a specific sexual assault offence, sections 271, 272 or 273, or alternatively as meeting the criteria in section 752(a), which requires a finding that the particular offence was essentially violent or potentially violent and which carries a potential maximum sentence of at least 10 years or more. All part XXIV Crown applications must be directly approved by the provincial attorney general in writing. The dangerous offender designation now carries an automatic indeterminate term of imprisonment with no parole application for seven years.
The 1987 case of R. v. Lyons has held that the imposition of a sentence of indeterminate detention as authorized by this part does not offend sections 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. Section 7 states, “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Section 9 states, “everyone has the right not to be arbitrarily detained or imprisoned”. Section 12 states, “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.
Currently, before the accused can be found to be a dangerous offender, it must be established to the satisfaction of the court that the offence for which the accused has been convicted is not an isolated occurrence, but part of a pattern of behaviour, which has involved violence, aggressive or brutal conduct or failure to control sexual impulses. Further, it must be established that the pattern is very likely to continue. Even after this, the court still has discretion not to designate the offender as dangerous or to impose an indeterminate sentence. Thus the existing legislation meets the highest standard of rationality and proportionality in legal terms.
In other words, the dangerous offender section we currently have in the country, which has put behind bars 360 offenders as dangerous offenders, is charter proof and is working.
As further context, the former Liberal government in 1997 created the long term offender designation, which was targeted at sexual and violent offenders, in response to concerns that many sexual and violent offenders required specific attention even if not meeting the criteria for a dangerous offender. This change was needed as now we have, as of June 2005, 300 offenders under the long term offender designation in Canada.
This long term offender designation allows individuals convicted of a serious personal injury offence, who on the evidence are likely to reoffend but who can likely be managed through a regular sentence along with a specific term of federal supervision in the community, to be given a long term offender supervision order of up to 10 years after their release from serving their original court imposed sentence. Once released the offenders are subject to any number of supervisory conditions ordered by the National Parole Board. These can include orders to stay away from areas where children congregate, 24/7 monitoring, regular reporting to police or other agencies and include conditions which would affect their liberty, such as residing in federal halfway houses. A breach of a long term order condition itself is an indictable criminal offence punishable by up to 10 years imprisonment.
There has been developing case law in the areas of both dangerous offenders and long term offenders designation. In September 2003 the Supreme Court of Canada held that a sentencing judge must consider fully the prospects of control of an offender under a long term offender designation before a dangerous offender designation could be made. That is part of R. v. Johnson. If the court has a reasonable belief that the risk that the offender poses to the general public can be controlled under a long term offender designation, then the offender must be given this lesser sentence, even if he or she otherwise meets all the criteria for a dangerous offender designation.
Currently, procedure for and criteria for finding a person to be a dangerous offender is set out in sections 753, 754 and 757 of the Criminal Code of Canada. Procedure criteria for and consequences of finding a person to be a long term offender are set out in sections 753.1 to 753.4 and 757. The rights of appeal are found in section 759 of the Criminal Code of Canada
The Liberal Party strongly supports legitimate efforts to protect Canadians and punish offenders who represent threats to the safety of our communities across Canada. When changes are made to the current working system, they should be done in a manner that would not jeopardize this working system. Changes proposed must meet the constitutional muster and not risk successful constitutional challenges, which could undermine protections that we already have in this country.
We also think it is important to codify the Supreme Court of Canada decision in R. v. Johnson. Reforms must ensure that offenders who should be designated as a dangerous or long term offender do not slip through the cracks of the judicial system, while at the same time the reforms must in no way violate the rights of fundamental justice ensured to all Canadians. To do so would have the unfortunate effect of being more messaging to a law and order imperative of the current minority Conservative government rather than responsibly governing for all Canadians. Victims themselves will not be happy when they discover a flawed law, not a strong one.
In the short term since this bill was tabled, serious concerns have already been raised by those knowledgeable in the legal community with respect to the constitutionality of some of the proposed changes in Bill C-27. These are not restricted just particularly to the provisions that shift the burden of proof from the Crown to the defendant and certain dangerous offender hearings. Justice officials have already confirmed publicly and privately that they expect the legislation will be challenged.
The Supreme Court of Canada has upheld the existing dangerous offender sections of the Criminal Code and has, by case law, clarified the use of the long term offender legislation. What will happen when unconstitutional elements are grafted on to those existing sections? Would it put in jeopardy the entire regime? Could anyone guarantee, even the Minister of Justice, what the court would do? We know that there will always be divergent legal opinions, but more important, we do not want to lose the ability to designate a dangerous offender for this would make Canadians less safe, not more safe. Perhaps the government hopes for unconstitutional elements of this legislation to be severed by the court, but nobody can guarantee a court's response.
This is why in the normal course of events with governments in the past, legislation was widely consulted before introduction. No change to such an important and needed part of the Criminal Code should be undertaken without both empirical evidence-based studies and broad-based consultations to help ensure that the legislation is the best it can be before bringing it to Parliament. Justice officials have confirmed to me that neither was done here.
Under the former Liberal government, I believe discussions were ongoing with respect to the Johnson decision and the needed clarification and the subject matter of peace bonds. There are ways to bring in a number of reforms to the dangerous offender and peace bond provisions to enhance the protection of all Canadians from high risk and violent offenders. Any proposed changes should take into account, in advance, the potential impact of those changes, especially in a minority Parliament. These changes should have been approached in a serious non-partisan manner. The potential for negative unintended consequences related to Bill C-27 is great and not confined to constitutional issues.
This proposed legislation, in part because of the large widening of designated offenders, could impact everything from the charges that are laid to the way Crown attorneys prosecute the cases and how defence lawyers defend their clients. I have been strongly warned by both defence lawyers and prosecutors that with Bill C-27 the end result is likely to be more costly in trials, fewer plea bargains and a greater backlog of cases in our already overburdened judicial system. That is to say nothing of the re-victimization of victims who have to go through a trial.
We should also be wary of the Askov effect where we could lose prosecutions because of court delays. This is not just because of the number of new dangerous offender and long term offender hearings. It is because whenever an artificial number is used, for example three, it will have an effect on charges one, two and three. What is the true potential cost and impact of the bill? Has it really been properly assessed with this hasty legislation? The legislation will affect the financial and time burden upon the justice systems in Canada. The expense of these changes is downloaded to the provinces that administer the system of justice for us in Canada.
The dangerous offender designation is among the most severe penalties--some say the severest--because it involves incarceration for an indeterminate period. As a result, a dangerous offender hearing is one of the most legally complex and time consuming procedures in our criminal justice system, often including not only psychiatric but other testimony that is complicated.
The system is undermined if the dangerous offenders do not have any counsel during the process. A significant number of criminal defendants rely on legal aid programs for representation. Unrepresented accused in these situations would not save costs but add them and perhaps would provide later challenges on designation.
I raise the point because legal aid is an area to which the government is not paying sufficient attention. Some provinces, including my own, are currently experiencing severe problems. There is a pattern with this minority Conservative government, that of messaging to the public before introduction of a bill. Without the benefit of the real details of the legislation, the government wants its messaging delivered to the public even if it is the incorrect message.
Here, the government desired a message of a U.S. style “three strikes and you're out” law. It wanted people to believe that this law would strengthen the ability to catch problematic situations. The Prime Minister even cited a case currently before the courts in his press conference and photo opportunity. As the bill was not even tabled at that time, the people lined up to support the announcement had not seen the details of Bill C-27.
Where are the challenges that the bill presents? Many Canadians have already started to speak out. I will share with the House some of the concerns raised with me by others who are more expert than I in this field of specialized criminal and constitutional law.
The new proposed section 752.01 in Bill C-27 reads, “If the prosecutor is of the opinion...” In essence, new section 752.01 would require prosecutors to notify courts as soon as feasible after a finding of guilt, whether the prosecutor intends to make an application for dangerous offender status.
First, existing subsections 752.1(1) and 752.1(2) already deal with timing of applications, so this new section is not needed to control notice to the courts. The more unusual and very probably unenforceable situation is the wording of this new section. How does one, in law, enforce this kind of notice provision without making findings about a prosecutor's opinion? Are we going to have hearings in which a prosecutor gives evidence as to his or her opinion? I do not think so.
Is this the federal government's clumsy attempt to direct provincial prosecutors to turn their thoughts and actions to the dangerous offender provisions and bring more frequent applications? If so, the lengthy listing of offences set out in the bill as designated offences are primarily offences prosecuted by provincial, and not federal, prosecutors.
Is the federal Minister of Justice really trying to give policy directions to provincial prosecutors about when to bring dangerous offender applications? Again, the administration of justice is provincial. If this is the intent, it is likely to be ultra vires or out of the federal government's jurisdiction, especially if the intention is to impose statutory duties on provincial prosecutors, especially in areas of prosecutorial discretion. One could ask also what the consequence is for prosecutors who fail to notify the court as soon as feasible.
So just in this section, we have issues not only of jurisdiction but of an unenforceable standard and no consequence for not doing the action.
I will now address the reverse onus situation found in new subsection 753(1.1). While some commentators have felt that the protections about presumption of innocence found in section 11(d) of the charter would apply only to persons charged with an offence and only until they have been found guilty, arguably this section could apply to a sentencing process.
However, the principles of fundamental justice in section 7 of the charter are more likely to place the burden of proof on the prosecution, even at the sentencing phase, which would include hearings on dangerous offender sentences.
The appropriate standard of proof in criminal law is “beyond a reasonable doubt”. In proposed subsection 753(1.1), the standard is lowered to the balance of probabilities, at the same time--and I emphasize at the same time--as the onus is reversed in the same section. The reality is that the dangerous offender hearing is predicated on the fear of possible future offences and not on the current offence before the court. That is important to understand.
What is being essentially changed here is now a presumption that the risk posed by a three strikes offender is the equivalent in every case of the category now defined in the legislation as dangerous offending to be presumed to possess the kind of risk that a dangerous offender is to a society. In other words, do they really pose the specific kind of risk that the dangerous offender provisions require? They are different tests in law.
On the face of it, this would be a violation of the charter, but now we must examine whether there is a justifiable limitation on the presumption of innocence under section 1 of the charter. Is it demonstrably justifiable to limit or compromise the values we hold in the presumption of innocence during the situation of a dangerous offender hearing? In constitutional terms, what is the documented need for changing the onus in this way?
The justice official could not answer this question when specifically asked by me. Why taint this area unnecessarily? Obviously it was a choice of the political master. The provision requires that the courts assume a fact of future dangerousness even in cases where that might not be proven or be capable of being proven or, as one expert said to me, in fact may not be true.
Proposed subsection 753(1.1) puts the onus on the individual before the court to prove a negative: that he or she does not represent the kind of threat the dangerous offender provisions were looking to address. Under section 1 charter challenges, there must be a pressing and substantial need for a legislative provision that infringes on charter rights. Does a political need to be seen to be acting qualify for this?
As was pointed out by an early Globe and Mail editorial, most offenders that the public would be concerned with in recent newspaper stories would not have been caught under this section because the sentences of prior convictions were not federal sentences, but provincial sentences of less than two years. Thus, we have a provision inserted not because of a pressing and substantial need in law to do this, but to show political action even if it does not solve the issues.
What if the court, in examining this section, instead decides that the use of a reverse onus, based on the factors identified, does not lead to the rational inference that the absence of restraint posing a likelihood of future death or injury, substantial general indifference to foreseeable consequences or incorrigible brutality, follows? Here is where the government could have just stayed with making it easier for the Crown with the use of the lower evidentiary burden.
Instead, the government has chosen to impose a legal burden of proof on those with three strikes. What this means is that a judge will be forced to find an accused poses the kind of threat that a dangerous offender does not only when the judge has a doubt about that, but even where the judge thinks it is as likely true as when he does not pose that danger. This is vastly different from just lowering the onus on the Crown when the Crown holds the burden of proof.
I spoke to one provincial minister of justice who thought “the three strikes” adds nothing to the bill. In existing paragraph 754(1)(a), the provincial attorney general still has to consent to each application for a dangerous offender designation, and there is nothing in the bill removing this consent from the Criminal Code.
The way Bill C-27 reads, it raises the question of whether the bill is minimally impairing in the constitutional context. There are many technical constitutional aspects of the bill that would engage experts. One, Professor David Paciocco, has provided me with his analysis in relation to the bill. I have tried to capture some of his and others' ideas in my limited time. I cannot do justice to all the arguments.
However, I do need to talk about the need to insert or codify R. v. Johnson. Proposed subsection 753(1.2) is found in clause 3 of Bill C-27 beside the margin note limitation. After adding the reverse onus provision just discussed, we now have a section that would seem to effectively disregard this same reverse onus section and disregard the initial findings of threat of dangerousness that proposed subsection 753(1.1) forces in the bill, and states that the court can apply an ordinary determinant sentence, the indeterminate sentence, or the long term offender sentence if it wishes.
This, in other words, is judicial discretion. I will not have time to quote the section so I will leave it for members to read, but it states “despite subsection (1)”. Here is the least restrictive sentencing principle--and I just have a couple of paragraphs more--in the Criminal Code captured by 718 coming into play, clarified in R. v. Johnson.
Why go through the reverse onus? This is deceptive. The Minister of Justice has concentrated not on the law but on a message in the first subsection about being tough on crime and then has placed in the second subsection the findings of the court decision and the existing law. The burden of proof in this subsection is missing. This is unusual. What is the intention?
Somebody knew what they were supposed to do here, and they made it look like it would all work, but I think it is smoke and mirrors--
The Acting Speaker Andrew Scheer
Questions and comments. The hon. Parliamentary Secretary to the President of the Treasury Board.
Pierre Poilievre Parliamentary Secretary to the President of the Treasury Board
Mr. Speaker, what we have seen is a pattern whereby the Liberals try to camouflage their soft on crime policy by claiming their opposition to our agenda has more to do with legalistic interpretations and procedural disagreements. In reality, what they do not want Canadians to know is that they continue to be soft on crime. They voted just last week in a committee to allow car thieves, break and enter artists and burglars to serve their sentences in the comfort of their living rooms.
Now today we have a member rising to tell us she does not believe that after a serious sexual and violent offender has committed three crimes, and has been convicted on all three beyond a reasonable doubt, the individual should be considered dangerous. She considers that after three convictions beyond a reasonable doubt of serious violent offences a criminal might still be safe to be on our streets.
We on this side of the House believe that such criminals should have to prove they are safe, that the onus ought not to be on the Crown but on the criminal. She disagrees with that. She disagrees with our tough on crime agenda that seeks to keep serious violent and sexual criminals behind bars forever unless they can prove themselves to be safe. She disagrees with that.
She can tie us in as many legal knots as humanly possible and she can go on reading 16-sentence paragraphs to try to confuse the Canadian people about her real position, but the reality is that she and her party, after coddling criminals for 13 years while in government, continue to hold the same position in opposition. Why will she not just stand up and admit it?
Sue Barnes London West, ON
Mr. Speaker, I want to address Canadians on this. Why should this concern Canadians? Because the law needs to be constitutionally valid to protect them. Bills on the order paper are not valid laws. At best, they are works in progress, and sometimes they are failures if the proper homework has not been done in advance. Protection of the public should not be dealt with in this disrespectful manner.
This bill, while it is complex, is full of unenforceable and constitutionally suspect provisions. It will have unintended and very costly implications for the justice systems administered by the provinces. It will even impact on the resources of the provincial mental health systems, in which there are delays now for mental health resources required for these assessments.
I submit that the bill should be redone properly from the start. I know that there are many inside the justice department who are very capable of doing this job and who must be very concerned with following a more ideological than legal directive. Canadians do deserve better. So do our hard-working systems of justice in this country. I would remind the Conservatives that they are in a minority government without the authority for this type of action, for changing a legal system and deceiving the public in this way, because what is important is that we have a working dangerous offender system.
Yes, there were cases and it would have been good to codify them, but it would have been better to do it in a manner that potentially does not affect the safety of Canadians by making them less safe, because we do not need a part of or the full dangerous offender provision thrown out. We have the Minister of Justice doing this, but we also have David Paciocco, who knows this stuff inside out, giving interviews to journalists and saying that this is constitutionally suspect.
I am concerned that instead of protecting victims we are setting them up for having long trials from the first offence forward. I am concerned about the impact on legal aid systems. Mostly, though, I am concerned with doing the job properly. If the Conservatives had put a proper bill in here, without some of the things they have done in this bill quite intentionally, I am sure that every party in the House would be supporting it, because there is no one party that has ownership of protection of the public.
In his messaging, we have the minister's office full of communications experts as opposed to legal experts. That is all about messaging. This House is better than that. The members in this House want to do serious work. I find it distressing that we have a Minister of Justice who would deliberately put forward provisions that he knows will be challenged.
Daryl Kramp Prince Edward—Hastings, ON
Mr. Speaker, the concern I have is the legalese, the perpetual talk and conversation. If I could for a moment, I would like to add a little voice of real experience. I would suggest the hon. member's position on this is lacking a bit of reality and I would like to refer back to my history as a former police officer many years ago.
I have spoken on many occasions to criminals similar to the ones outlined in this bill and heard them say they only had a one in 10 chance of ever being caught, a one in 20 chance of ever being convicted, and if that ever happened the reality was that they would probably only serve a short sentence anyway. Then they would ask what the odds were of that ever happening again.
Quite honestly, we have all seen the statistics and the statistics do not lie. They vary from offence to offence, but every time a serious criminal offence happens we all know that 15, 20, 25 other violent offences have taken place. We are not talking about just one offence or a second offence. We are talking about multiple offences where there has been significant damage to the Canadian population.
We are only talking about a very small group of people. We are not talking about hundreds and thousands of people. We are talking about the most heinous people in Canadian society who have absolutely no regard for life and humanity. We have a duty and obligation to protect the public. That means taking each and every measure possible.
The public does not realize what it takes to get a conviction. Getting a conviction for a serious indictable offence takes in most cases years of attention to a file. It is a long judicial process, as the hon. member has mentioned, and yet to get a conviction registered is very difficult, but once that has happened, what are the odds of that happening again? When it happens again, how many other people have been victimized in the meantime by that same individual: 15, 20, 30, 40, 50 people?
We have an obligation to go over, above and beyond. We cannot infringe on the rights of criminals any more than we can a victim, I recognize that reality. However, we must step forward and say enough is enough. They have done it once, they have done it twice, but after the third conviction, for God's sake, how many offences have occurred then? We must draw the line somewhere. We must raise the bar. We must draw the attention of the House to some action and this bill does it.
I have a question for the member. Does she not feel that the future of victims is as important as the need for protection of the individual involved?
Sue Barnes London West, ON
Mr. Speaker, I have respect for this member and the work he did in his past life, as I hope he has for me. I served for six years on the Ontario Criminal Code Review Board dealing with murderers, rapists and some of the worst situations for not criminally responsible. I understand that we are all concerned. It is not a question of feeling more or doing more. We all care about this.
To put that message that someone is soft, no. We all want a smart system that works. The member has touched on that reverse onus section and I will quote him the subsection right below that. The member has probably not read the bill as I have and most people do not read the bills. They get the messaging as opposed to reading the bills. What the bill says after the reverse onus is:
Despite subsection (1),--
And that is the reverse onus section:
the court shall not find the offender to be a dangerous offender if it is satisfied by the evidence adduced during the hearing of an application under that subsection that a lesser sentence — either a finding that the offender is a long-term offender or a sentence for the offence for which the offender has been convicted — would adequately protect the public. Neither the prosecutor nor the offender has the onus of proof in this matter.
What we find here is the least restrictive sentencing principle in the Criminal Code captured by section 718 coming into play and adding to that the case result of Regina v. Johnson.
Why go through the reverse onus? That is the deceptive part of this bill. It is not about the law. One section is actually put up there and then it is reversed with this section. It is messaging to a public while doing something totally different. The something totally different is actually what I think will be the saving part because that is what would be codified as a result of Regina v. Johnson.
We have it in case law right now. It is very important to understand here that there are people who have drafted this who obviously knew the constitutional tests to be made.
I do not like standing here talking constitutional law any more than anyone else, but others in this chamber will give the evidence about longer terms not being deterrents. What we need here and what absolutely happens many times is that the reverse only section only talks about a certain list of designated offences. What really happens in real life, as this member would know, is that there might be a crime committed down at the provincial level that is part of and should be going for a dangerous offender hearing, and should not be waiting for this--
October 31st, 2006 / 12:50 p.m.
Réal Ménard Hochelaga, QC
Mr. Speaker, it is my pleasure to rise today on a bill on dangerous offenders that seeks to create a different emphasis and direction from the approach we already have.
Before presenting the Bloc’s basic arguments and position on dangerous offenders, I would first like to emphasize just how seriously the Bloc takes community safety.
No member of Parliament would want to live in communities where there is a threat to public safety. Whether in Quebec or in any other province, no one would want older people, single parents, children, working people or our parents to find themselves in harm’s way as they go about their regular lives in the community.
I must say that I am a little tired of hearing the demagogic, simplistic rhetoric coming from the Conservatives. Their rhetoric implies that anyone who does not support their position is unscrupulous, lax and not very concerned about public safety. I hope this kind of talk will end. This subject is far too serious for them to indulge in such simple-mindedness.
The Bloc Québécois does not support this bill as worded. Does this mean that the Bloc feels that there is no need for the Criminal Code to contain provisions on dangerous offenders and long-term offenders? Of course not.
The Bloc is perfectly aware of the fact that there are some people who commit criminal acts and, unfortunately, have no self-control nor any control of their impulses and have certain personalities with a very high risk that they will re-offend. Is this genetic or acquired? Is it a question of the environment or their upbringing? Is it a matter of values? Is it a question of their families? I do not know. What I do know, though, is that it is the responsibility of parliamentarians to protect people against this kind of behaviour and these kinds of personalities.
The government’s rhetoric seems peculiar because it tends to imply that these provisions have not been used in the past and do not exist, or that crown attorneys are reluctant to use them.
I would have liked to see the Minister of Justice rise in this House and tell us that his government is introducing a bill on dangerous offenders because prosecutors and the justice system—under his administration—are not using these provisions.
We would then have asked ourselves what procedure must be followed to ensure that in cases where it has to be proved that a person presents a risk, that person must be found to be a dangerous offender, with everything that implies. A dangerous offender can be imprisoned for an indeterminate period.
Under sections 752 and 753 of the Criminal Code, certain individuals are considered dangerous offenders. We do not need the minister’s current bill; the courts and the prosecutors have done their jobs. There are, right now, people who are considered to be dangerous offenders and in some cases, they have been in prison for 20 years.
What is dangerous in the bill and in the approach taken by the Minister of Justice is the idea that we should do things automatically.
If an individual commits—in three instances—an offence on the list of primary offences, the burden of proof will automatically be reversed, and the person will have to prove that he or she is not a dangerous offender. Unfortunately, things cannot work this way in criminal law.
Perhaps this is something we need to complain about; perhaps there should be no Charter; perhaps there should be no trials; perhaps there should be no courts; perhaps we should send everyone to prison once they have committed a serious offence against a person.
Perhaps some people support that kind of justice system, but let them have the courage to say so clearly. Once again, the dividing line is not between people who care about the safety of victims and communities and the people who do not care about it. I am even tempted to say that it is not even the question of reverse onus that defines that line. Reversing the burden of proof is a benchmark, an important cornerstone of the justice system. It is an important principle, as is the presumption of innocence. The courts have offered guidance on what the presumption of innocence means, but that is not the gospel truth. We can agree that, in some circumstances, the burden of proof has to be reversed.
My former colleague, the member for Charlesbourg—Haute-Saint-Charles, a man who was respected by all parties in this House, once introduced a bill concerning property acquired through crime. It was directed particularly at organized crime. In 1997, I was in this House when we added sections 465, 466 and 467 to the Criminal Code to create what is called a criminal organization offence. New law had to be made. The Hell's Angels, the Rock Machine and the Bandidos presented a real danger to the community because they were engaging in open warfare within the community for control of the drug market. They plainly held the ordinary people in contempt.
I even recall having conversations with senior officials in the Department of Justice who said they wanted to break up organized crime using the conspiracy provisions. In the Bloc Québécois, we were convinced that we had to make new law and that what we needed was a new offence. When my colleague, the former member for Charlesbourg—Haute-Saint-Charles, introduced that bill, we were convinced that this was what had to be done.
The difference with dangerous offenders is that the Crown has access to existing provisions. There are guidelines: a psychiatrist's report is required. Quebec, for example, has an arrangement with the Philippe Pinel Institute, which evaluates offender profiles. Why specify “after three times”? This is not about the number of times or the quantity. If an individual presents such a profile—if, after the first offence it is determined that the individual lacks self-control, is a risk to re-offend and a danger to society—nothing prevents the Crown from using sections 751, 752 and 753. The section is very clear, so clear that the courts have used it over 300 times.
Of course, there are exceptional circumstances. When an individual goes into a convenience store and commits robbery, that is unfortunate and deserves to be punished. It is reprehensible, and the justice system must act. Nobody has said otherwise. However, such a crime does not mean we are dealing with a dangerous offender who should spend 20 years in prison with no eligibility for parole and be jailed indeterminately. The government's approach is disappointing because it lacks nuance and perspective.
Earlier, I was listening to the Parliamentary Secretary to the President of the Treasury Board. Apparently he is the youngest member of the House. The parliamentary secretary rose twice in this House to call the opposition member irresponsible. How did we suddenly become not responsible? Because in the committee, which included all of the opposition parties, we voted to amend Bill C-9. The opposition member said that we wanted to allow thieves to serve their sentences in the community.
He is a little young to be such a demagogue and to make such an argument, which is extremely simplistic.
The reality is the following: in 1996, we added something to the Criminal Code on the nearly unanimous recommendations of the justice ministers. I was in this House at the time and we realized that the prisons were populated, but that a third of the incarcerations had to do with unpaid fines. People were imprisoned for failing to pay a fine.
Of course, we are not encouraging people not to pay their fine, but should they be incarcerated for that? When Bill C-41 was passed, Canada had the third highest incarceration rate in the world. Only Russia and the United States had more prisoners than Canada.
I want to remind hon. members that the minister was unable to show a single scientific study to prove that there is a link between the harshness of the sentences and the rate of recidivism. We know full well that it is not by having stricter sentences or putting more people in prison that we will make our communities safer to live in.
Sometimes imprisonment cannot be avoided. But if the minister were right, the reality in the United States would certainly deserve a second look: they send seven times as many people to prison as Canada does. However, the homicide rate is four times lower in Canada—and I will mention just one type of offence. In a society that sends more people to prison, we would expect there to be less crime and recidivism, but that is not the case.
Could it be that it is not so much the harshness of the sentences but the real fear of the prospect of ending up behind bars that is the real deterrent preventing an individual from committing a crime?
We therefore agree on the need to include provisions concerning dangerous offenders in the Criminal Code. We agree on the crown prosecutor's responsibility, based on a psychiatrist's or psychologist's report. When an assessment shows that, after an initial offence, a person represents a threat to public safety, we agree that the Criminal Code provisions regarding sections 751, 752 and 753 must apply. We are not saying that the court has to wait for two to five offences, but we cannot support the idea of a list of 22 offences, even though we agree that they are serious. The proposed primary designated offences include sexual interference, invitation to sexual touching, exploitation, incest, attempted murder, sexual assault, attempted rape and indecent assault on female. These are serious offences, but we cannot support a legal system that operates automatically.
This is the main difference between the Bloc Québécois and the Conservatives. We in the Bloc are concerned about public safety. It was the Bloc that first fought for a real anti-gang law. It was the Bloc that brought about the reversal of the burden of proof in cases of proceeds of crime, by introducing a bill that was passed unanimously.
We approve prison terms when necessary, because sometimes they are necessary. Sometimes prison can have a deterrent effect, but the main principle of the administration of justice is individualized sentencing. I repeat, this is the main difference between the Bloc Québécois and the Conservatives. Every situation should be dealt with in light of what led to the crime, the crime that was committed, and the offender's profile.
Sentencing can never be automatic, because when we go in that direction we do not appreciate the facts. That is what justice is all about. Who wants to live in a society where we are on automatic pilot?
Unfortunately, the Conservative government is going in the wrong direction. It did so on the issue of conditional sentencing. The Minister of Justice and the Parliamentary Secretary to the President of the Treasury Board have been talking about conditional sentencing. I repeat, the Bloc Québécois agrees—of course— that the right of the individual to serve the sentence in the community is not a constitutional right. It is a privilege. However, the Supreme Court also stated in the Proulx decision that it remained a sanction. The conditional sentence is a type of imprisonment. Of course we agree that all types of offences do not have the same degree of seriousness.
An 18 year old who draws graffitis on a wall three times is guilty of public mischief. It is reprehensible, sad and unacceptable. However, in the list proposed by the minister, this youth, whose graffiti caused $5,000 in damages in total, would not have been eligible for conditional sentencing. We believe that there are cases where an automatic approach—which precludes a conditional sentence—is not indicated.
We can—of course— understand that it may be less appropriate for individuals who have committed sexual assaults, rape, abuse— especially in the case of sexual offences—to serve their sentences in the community. We want to denounce these acts; we want to send a message about these types of offences.
We should remember that conditional sentences represent 5% of sentences, but the minister was unable to make this fine distinction.
In closing, the Bloc Québécois believes that dangerous offenders must be dealt with in a particular way, that dangerous offenders should not be released if they represent a risk to the community. However, we do not accept the logic of automatic process, a logic by which we are unable to assess a situation according to the offender's profile, his record, or the circumstances that led him to commit the crime.
That is the price to be paid for living in a society where the symbol of justice is a balance among rights; but also a balance among responsibilities. Yes, crown prosecutors must evaluate the situation. Yes, a judge must evaluate the situation. Yes, there are constitutional freedoms that must be protected. Yes, there are situations that call for imprisonment and enforcement.
The danger arises when the response becomes automatic. Every time the Conservative government wants to propose simple solutions to complex problems, we cannot accept that. However, we will never be soft on crime. We will never unconditionally defend criminals. We will certainly be able to say that there are situations where people deserve to be locked up; that they cannot be rehabilitated and deserve a firm sentence of 20 or 25 years in prison. We are able to make distinctions between cases. Once again, we do not accept the logic of an automatic response and we do not accept the contempt in which this government holds the work of the judiciary.
When we see the way in which the courts have interpreted conditional sentencing; when we see the way in which provisions for dangerous offenders have been used, we have no reason not to have confidence in the justice system. Does that mean to say that there are no judges who have gone astray? Yes, indeed it is possible.
This is a Conservative tactic.
In 2003, out of 257,000 cases where there was a conviction, 13,000 cases resulted in a conditional sentence. In his appearance before the Standing Committee on Justice, the minister gave five examples of cases where, a priori, without having studied the file in greater detail, it would seem that there was little reason for a conditional sentence. Does that mean to say that the administration of justice has been brought into disrepute? Does that mean that we should be thinking in terms of automatic responses? Certainly not.
That is why we are very uneasy about this government in connection with justice. Not to mention the blackmail it employs. We began this session in September; tomorrow we will be into November. The Standing Committee on Justice adopted two bills, reviewed budgetary allocations and is beginning review of a third bill. Members have had a respectable workload. However, it is clear that when bills are being examined, witnesses must be heard. Our work of legislative review; our work as members of parliament, which consists in considering the consequences of a bill, must always be done with the greatest attention.