House of Commons Hansard #110 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was health.

Topics

Question No. 162
Questions on the Order Paper
Routine Proceedings

3:25 p.m.

Regina—Lumsden—Lake Centre
Saskatchewan

Conservative

Tom Lukiwski Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform

Mr. Speaker, the Privy Council Office has contacted all departments and agencies to ascertain whether they have the electronic capacity to search for and sort financial information such as funds, grants, loans and loan guarantees by federal electoral riding. The results of the survey indicate that the majority of departments and agencies do not have this capacity. A manual search would require an inordinate cost and length of time. For this reason, the government is not able to provide a comprehensive answer to this question.

Questions on the Order Paper
Routine Proceedings

3:25 p.m.

Conservative

Tom Lukiwski Regina—Lumsden—Lake Centre, SK

Mr. Speaker, I ask that all remaining questions be allowed to stand.

Questions on the Order Paper
Routine Proceedings

3:25 p.m.

Liberal

The Speaker Peter Milliken

Is that agreed?

Questions on the Order Paper
Routine Proceedings

3:25 p.m.

Some hon. members

Agreed.

Motions for Papers
Routine Proceedings

3:25 p.m.

Regina—Lumsden—Lake Centre
Saskatchewan

Conservative

Tom Lukiwski Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform

Mr. Speaker, I ask that all notices of motions for the production of papers be allowed to stand.

Motions for Papers
Routine Proceedings

3:25 p.m.

Liberal

The Speaker Peter Milliken

Is that agreed?

Motions for Papers
Routine Proceedings

3:25 p.m.

Some hon. members

Agreed.

The House resumed from November 9, 2006, consideration of the motion that Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace), be read the second time and referred to a committee.

Criminal Code
Government Orders

3:25 p.m.

Conservative

Bradley Trost Saskatoon—Humboldt, SK

Mr. Speaker, I welcome this opportunity to contribute to the debate on Bill C-27, which deals with dangerous and high risk offenders.

This is a bill that was tabled last October as a definitive response to a very real problem facing all Canadians: how to ensure that we are safe from repeat violent and sexual offenders. This bill does not target minor offenders. It does not target one time offenders. It does not target property offenders.

This bill goes after the very worst of the worst. It tries to address the concern that the most dangerous violent and sexual predators are properly sentenced and supervised if and when they are released into the community.

It is my understanding that some hon. members opposite have some concerns with this bill, to the extent that they may not allow this legislation to move forward to committee as it stands. My purpose is to encourage them to take at least that small step.

This bill has been tabled to respond to the concerns of ordinary Canadians, all Canadians everywhere, about safe streets, but it was also tabled to respond to specific recommendations that had been subject to thorough and rigorous review by justice system workers at every level.

The bill includes many important reforms that we on this side of the House feel are too important for community safety for us to allow them to die on the floor of this chamber. While I recognize that there might be disagreement at this stage of the debate on some issues, I am hopeful, and I implore this House for a willingness to get this bill before committee where there will be an opportunity to fully explore this bill.

The target of this legislation is dangerous and high risk offenders. We are not talking about minor offences in this legislation. We are not talking about people who shoplift or who get into a bar fight. That is not to underestimate or downplay the extent or seriousness of those offences, but we are talking about psychopathic and habitual predators who have proven by their conduct that they are simply unable to control themselves in the community. They have committed manslaughter. They have committed sexual assaults. They have abducted and sexually molested children, not once, not twice, but three or more times.

Having followed this debate, I have noted that the primary concern of those who have already spoken in the previous hours of this debate, as I have heard, is that this bill offends the constitutional rights of individuals who would be subject to the new provision that raises a presumption of dangerousness for individuals convicted for a third time of a specific or violent sexual assault.

I would like to take a moment to respond to this concern as best I can in the time allotted, using, of course, the expertise of lawyers and researchers who have supplied me with information Again, I am arguing the general broad points and, as a non-lawyer, I implore people to listen. Even if they do not agree with all the specifics of the argument I will put forward from the lawyers who laid this case out to me, I urge hon. members opposite to at least listen and realize that these points are debatable.

The last major reform of the provisions that apply to the sentencing and management of dangerous and high risk offenders, as provided for in part XXIV and sections 810.1 and 810.2 of the Criminal Code, was in 1996, when Bill C-55 was introduced.

That legislation was the result of an exhaustive review by a federal-provincial-territorial task force of justice officials from across Canada. They made a series of recommendations that formed the basis of those reforms and were eventually passed by Parliament and came into force in August 1997.

The position on this side of the House is that since these reforms evolved through the courts, further requirements for changes to these provisions have become apparent.

Bill C-27 seeks to address these specific problems.

My understanding is that the primary objective of Bill C-55 in 1996 was arguably to make the dangerous offender sentence process less cumbersome for the courts, and to ensure that individuals who were somewhat likely to reoffend sexually or violently, but who did not meet the dangerous offender criteria, would still receive adequate supervision once released into the community after their penitentiary terms had expired.

A number of important substantive changes were introduced to realize these specific objectives. In the first place, provisions were amended to make the sentencing of all dangerous offenders automatic, that is, if an offender was found by the sentencing court to meet the strict criteria of section 753 of the Criminal Code, then the court was to have no further discretion. The individual had to be sentenced to an indeterminate sentence.

I would like to emphasize that my understanding is that, prior to the 1997 reforms, individuals would be declared by the court to be dangerous offenders if they met the criteria of the provision, but the court was able to give either an indeterminate sentence or a determinate sentence as the court saw fit in the circumstances.

Prior to the 1997 reforms, the Supreme Court of Canada indicated in an 1987 court case, R. v. Lyons, that while the indeterminate sentence was arguably the harshest sentence available in criminal law, it was not unconstitutional as there were adequate procedural checks and balances to prevent an indeterminate sentence from being imposed in cases where such a sentence could not be justified. Specifically, the discretion to refuse the indeterminate sentence, as well as the availability of parole, allowed the court to find that the indeterminate sentence itself did not violate the Charter of Rights and Freedoms.

The Supreme Court of Canada followed this approach in the subsequent landmark decision R. v. Johnson, in 2003, when it concluded that the 1997 reforms could not have intended to create an automatic indeterminate sentence for all individuals that met the dangerous offender criteria. Citing the prior ruling in Lyons, the court held that Parliament must have intended the reforms to be constitutionally viable and, as such, the 1997 amendment had to allow the sentencing court to retain full discretion to impose a fit sentence in the circumstances.

To give effect to this principle of constitutionality required discretion. In Johnson, the Supreme Court directed the sentencing court to refuse to declare an individual a dangerous offender if satisfied that a less harsh sentence, such as the long term offender supervision order, is available to achieve the objective of public safety, even if the individual fully meets the dangerous offender criteria.

Evidently this decision produced some inconsistency and confusion in the sentencing courts regarding the type of proof required to determine whether the lesser sentence could control the threat to the community, and who has the burden, and the extent of that burden.

In many jurisdictions, for example, sentencing courts have required crown prosecutors to meet the burden of the Johnson decision on the criminal standard of beyond a reasonable doubt. This can provide a huge strategic advantage to the offender, so I am told, so that counsel may advise them to simply refuse to participate in the entire process, leaving the Crown with a difficult evidentiary task to prove the negative in perpetuity without an opportunity to assess the offender directly.

I see that my time is running out, but I have gone through some of the legal points as best I understand them. I would like to finish off with a final general point.

We do not believe that the current situation is acceptable. We also believe there are real solutions that are not only viable but necessary. We believe Bill C-27 represents an important response to the problems with the current provision.

As such, I hope some effort will be made by all parties in the House to find a way to allow this bill to proceed to committee. This is a bill that protects public safety, protects our children and protects all of us. I urge all members to support this bill.

Criminal Code
Government Orders

3:35 p.m.

Bloc

Marc Lemay Abitibi—Témiscamingue, QC

Mr. Speaker, naturally, we have examined this bill. I thank my hon. colleague for the information he has just provided. However, before coming to this House, I was a criminal defence lawyer for 25 years.

I encourage the member to read the Johnson decision and especially the Supreme Court decision in Mitchell. These two Supreme Court decisions have found—let me quote from one to avoid any ambiguity—that “The principles underlying the... sentencing provisions dictate that a sentence must be appropriate in the circumstances of the individual case”.

This means that a court cannot impose a sentence of indeterminate detention if the offender could receive a lesser sentence, such as the long term offender designation currently provided for in our Criminal Code.

I have a very specific question for the member. Does he not think that the problem is not keeping individuals in detention but rather releasing them too soon, and that the problem lies much more with conditional release?

Criminal Code
Government Orders

3:35 p.m.

Conservative

Bradley Trost Saskatoon—Humboldt, SK

Mr. Speaker, as I noted in my speech, I am not a lawyer nor do I have that background. I was relying on the research of lawyers and so forth and they have a different opinion than the hon. member has. That is fine. Let us work that point out in committee. If at that point we cannot resolve the doubts of the hon. member, then the hon. member would be more justified to vote against the legislation.

At the end of his question he said that there are not only problems to be fixed in this legislation, but there are problems with parole and with sentencing, and I would agree with the hon. member. There are problems in other aspects of the justice system, with parole and so forth, but let us not let the good be the enemy of the best. Let us not let the need to proceed in one area deflect and distract from our need to proceed in other areas.

I would urge the hon. member that if in committee and if in the final stage his concerns cannot be alleviated, then I would understand much better the hon. member's position. At this point at second reading, perhaps he could at least look at supporting the bill in principle so that we may find some measure to deal with a very small number of very violent, dangerous offenders.

Criminal Code
Government Orders

3:40 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, the Supreme Court of Canada has upheld that the existing dangerous offender sections of the Criminal Code are constitutional. However, with regard to some of the changes in Bill C-27, experts within the legal community think that certain of those provisions in grafting on to the existing dangerous offenders provisions would raise again the argument of unconstitutional elements.

When debate first commenced back at the end of October last year, justice officials gave an opinion that they felt that the legislation as proposed to be amended by Bill C-27 would likely face a constitutional challenge in the courts. Is the member aware whether the justice officials continue to hold that opinion?

Criminal Code
Government Orders

3:40 p.m.

Conservative

Bradley Trost Saskatoon—Humboldt, SK

Mr. Speaker, I would reiterate to my hon. friend the general point in my speech that there is debate about the constitutionality. I accept that there are varying legal opinions on this matter. I urge my colleague to support the bill in principle at second reading and then at committee work out the details and let the constitutional arguments take place at that point.

I would urge the hon. member to support the bill in principle. If he cannot, then at third reading he may vote against it.

Criminal Code
Government Orders

3:40 p.m.

Liberal

Ken Boshcoff Thunder Bay—Rainy River, ON

Mr. Speaker, I am pleased to rise today, Valentine's Day, to speak to Bill C-27, an act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

I will preface my comments by saying that I am not a lawyer. The House has heard from numerous lawyers who have outlined technical flaws, quoted Supreme Court of Canada decisions and discussed at length specific sections and subsections of the Criminal Code and their application within the justice system. I have concerns about the changes proposed in this bill from an average citizen's standpoint.

Under this bill an offender who already has three previous designated offences and who is facing a dangerous offender hearing will be presumed to be a dangerous offender unless the offender can prove on the balance of probabilities that he or she is not. This proposed change is a serious concern to me and many other Canadians.

Our justice system operates on the premise that a defendant is innocent until proven guilty. It is up to the Crown to prove beyond a reasonable doubt that the defendant is guilty. It is not the responsibility of the defendant to show that he or she is innocent. Imagine if all of us had to do that.

The bill proposes a significant change in the premise of our justice system, a change that the legal community has not called for, a change that is unconstitutional and contradicts centuries of common law precedent. This leads me to question why. Why does the government want to reverse the onus of proof on to a defendant?

We have heard in the previous debate on Bill C-27 that the legal community has already denounced these proposed changes as unconstitutional, that the current system is working. What is the current system?

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 that has occurred for which the accused has been convicted is not an isolated incident but part of a pattern of behaviour that involves violence, aggressive or brutal conduct, or failure to control sexual impulses. In addition, it must be established that this pattern of behaviour is very likely to continue.

Even after this determination, the court still has discretion to not designate the offender as dangerous or to impose an indeterminate sentence. The current legislation meets the highest standard of rationality and proportionality in legal terms. The current system thus is working, so once again I ask why the government wants to change something that is working.

Surely the government must have been bombarded with pleas from the legal community pointing out the need for this change. There must have been hours of discussions. There indeed must have been repeated consultations with lawyers and justices across our country. There certainly must have been studies conducted and research into how such a system has worked in other countries. That is what we would expect. Nay, that is what we as a Parliament would demand before such a proposal appeared on the order paper.

Sadly, believe it or not, it would seem that no consultations have been undertaken. There has been no consideration of the pros and cons of this legislation outside of this chamber. Opinions have not been sought from the best legal minds in this country.

There seems to be a pattern forming here. The government does not seem to care what the people of Canada want. Instead, the Conservatives are heck bent on imposing their own narrow view of society. They do not want to hear what law professors and practising lawyers have to say. They do not want to hear what the John Howard Society has to say. They do not want to hear what average Canadians have to say. They do not want to listen because they think they know best. I can think of numerous other instances where the we know best syndrome has shown through.

In child care the Liberal government set up agreements to fund new early learning and child care spaces. The Liberal government held consultations with families, with child care professionals and with the provinces and territories. They told us they needed more access to child care and the money to pay for it. They told us about the shortages of spaces across the country. They gave us their vision for Canada's children and outlined the importance of these programs to the early education of Canada's children and their future success. Then the minority Conservative government came in. The Conservatives cancelled the funding agreements. They told Canadians they should fend for themselves in finding care for their children.

The we know best syndrome has also led to the cancelling of the Kelowna agreement. Once again the Liberal government had worked for years with aboriginal leaders and provincial and territorial governments to develop a funding agreement that would help. The Liberal government committed more than $5 billion over five years to close the gap between aboriginal peoples and other Canadians in the areas of health, education, housing and economic opportunities. Once again the minority Conservative government came to Ottawa and cancelled the Kelowna agreement. The Conservatives said they would have their own solution, but our aboriginal peoples are still waiting for help.

In taxation policy the Conservatives have refused to listen. Economists have repeatedly stressed that income tax relief is better for the economy and the country than a reduction in a consumption tax such as the GST. However, the Conservatives know best, so they raised the lowest income tax rates and added an additional tax burden to the thousands of low income working families and seniors--

Criminal Code
Government Orders

3:45 p.m.

Conservative

David Tilson Dufferin—Caledon, ON

Mr. Speaker, I rise on a point of order. I am interested in what my colleague has to say about the bill we are debating today. Somehow he has slipped into the Kelowna agreement. He has slipped into child care and now he is starting on taxation policies. What in the world does that stuff have to do with what is before us today?