House of Commons Hansard #147 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was crown.

Topics

Criminal Code
Routine Proceedings

12:05 p.m.

Some hon. members

Agreed.

Criminal Code
Routine Proceedings

12:05 p.m.

Liberal

The Speaker Peter Milliken

(Motion agreed to, bill read the third time and passed)

The Environment
Petitions
Routine Proceedings

12:05 p.m.

NDP

Jean Crowder Nanaimo—Cowichan, BC

Mr. Speaker, I have two petitions from Nanaimo—Cowichan. The petitioners call upon the government to legislate programs consistent with the meteorological reality and act immediately to reduce the climate change crisis by diminishing fossil fuel dependency, while sponsoring initiatives and incentives to promote less harmful technologies.

I have a large number of people from places like Duncan, Cobble Hill and the rest of the riding signing onto these petitions.

Human Trafficking
Petitions
Routine Proceedings

12:05 p.m.

Conservative

Patricia Davidson Sarnia—Lambton, ON

Mr. Speaker, I am pleased to rise today on behalf of hundreds of residents of my constituency in Sarnia—Lambton to present a petition on human trafficking. The petitioners request the government to continue its work to combat trafficking of persons worldwide.

Questions on the Order Paper
Routine Proceedings

12:10 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 questions be allowed to stand.

Questions on the Order Paper
Routine Proceedings

12:10 p.m.

Liberal

The Speaker Peter Milliken

Is that agreed?

Questions on the Order Paper
Routine Proceedings

12:10 p.m.

Some hon. members

Agreed.

The House resumed 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

12:10 p.m.

Liberal

John Maloney Welland, ON

Mr. Speaker, I am very pleased to rise today to speak to Bill C-27.

The bill will amend the dangerous offender and long term offender provisions of the Criminal Code to require the prosecutor to advise the court whether the prosecutor intends to proceed with an application for an assessment under those provisions when the prosecutor is of the opinion that the offence with which the offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence, and was sentenced to at least two years or more of imprisonment for each of these convictions.

The bill also removes the court's discretion to refuse to order an assessment when it is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long term offender.

Further, to provide that if the court is satisfied in a hearing for a dangerous offender designation, that the offence for which the offender has been convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more where the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions.

The provisions to make the designation are presumed to have been met unless the contrary is proved on a balance of probabilities.

Also, to clarify, that even when the conditions to make a dangerous offender designation have been met, a court must consider whether a lesser sentence, including a long term offender designation, would adequately protect the public and that neither the prosecutor nor the offender has the onus of proof in this matter.

The bill will also amend sections 810.1 and 810.2 of the Criminal Code to allow the duration of a recognizance to be for a period of up to two years if the court is satisfied that the defendant was convicted previously of an offence of a sexual nature against a child or a serious personal injury offence. Also, to clarify, the scope of conditions available for a recognizance is broad and those conditions may include electronic monitoring, treatment and a requirement to report to a designated authority.

I strongly support efforts to protect Canadians and punish repeat offenders who present a threat to our communities. That is why Canada already has some of the toughest dangerous offender laws. I suggest the Liberal Party is definitely committed to passing justice legislation that will protect Canadian communities.

While we support Bill C-27 at second reading, our concerns about the effectiveness of the bill are serious enough that we will definitely introduce amendments in committee.

I want to assure the House that our amendments are not designed to weaken the bill, but to in fact make it stronger and more effective by getting dangerous offenders off our streets.

The government has indicated that the purpose of the bill is to make it easier for Crown attorneys to obtain dangerous offender designations. In fact, I suggest the contrary may be true.

What will happen if the bill passes? First, the Crown attorney will have to give notice presumably after two convictions. Right now two convictions are not needed. It could be done after one conviction if it can be established the individual will be a threat to society. In fact, an indeterminate sentence can be obtained based simply on one conviction. The Crown attorney is still forced to prove beyond a reasonable doubt that these elements of that individual's behaviour threaten society at large.

Will the proposed law make our society safer because of a need for multiple convictions? I suggest not.

Under the current legislation, a Crown attorney can trigger an application for a dangerous offender hearing when the offender is convicted of a predicate serious personal injury offence. This is defined as being a specific sexual assault offence or an offence that was violent or potentially violent, and which carries a maximum sentence of at least 10 years or more.

Under the proposed bill, offenders who already have three previous designated offences which are listed in the bill and are facing a dangerous offender hearing will be presumed to be dangerous offenders unless they can prove, on the balance of probabilities, that they are not. This reverse onus is highly controversial and many legal experts have already indicated that they feel it is unconstitutional. Officials from the Department of Justice have indicated that they anticipate that these new provisions will face a constitutional challenge.

The existing dangerous offender sections have already been found to be constitutionally valid. By grafting on sections that raise constitutional questions, the Conservative government is putting the entire regime in jeopardy.

While it is likely that a court would simply strike down the offending sections and leave the rest of the regime in place, it could choose to strike down the entire regime. By introducing sections that they know to be unconstitutional, the Conservatives are wasting the time of the police, the Crown attorneys and our already overworked courts.

I suggest that the implications have not been well thought out. If the entire section was struck down, would this lead to current dangerous offenders being given an open door to challenge the grounds of the indefinite incarceration sentences they are already serving? Could we see the likes of Paul Bernardo and Clifford Olson back on the street? Are the Conservatives willing to take that risk? I urge and implore the Conservatives to consider a reference to the Supreme Court on the constitutionality of these proposed changes. We do not need a flood of monsters back on our streets.

The new legislation could also lead to a series of unintended consequences. Due to the reverse onus which comes into play on a third conviction, both defence lawyers and Crown attorneys will approach earlier convictions in a different manner. Defence lawyers in particular would be less likely to seek a plea bargain for their clients if it starts them down the road toward three convictions.

Fewer plea bargains mean more trials and more trials lead to more backlog in our already overworked provincial courts. The bill does not provide for any additional resources for the provinces that are primary administrators of the justice system in our country.

Many of these flaws, I suggest, could have been avoided had the government held specific and widespread consultations with the provinces and key stakeholders in advance of introducing this bill, as is the common practice. The Liberal Party would not oppose legislation that makes the dangerous offender sections of the Criminal Code stronger, provided it was done in a constitutional manner and that provinces receive the assistance they require to effectively handle the new provisions. This has not happened.

I strongly support legislative efforts to protect Canadians and to 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 the system that works now. Changes proposed must respect the constitutional standards and not risk successful constitutional challenges which could undermine the protections we already have in this country.

I would like to turn briefly to a consideration of the long term offender designation. The former Liberal government in 1997 created a 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 of a dangerous offender. A change was needed as now we have over 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 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.

There has been developing case law in the areas of both dangerous offenders and the long term offender designation. In September 2003 the Supreme Court of Canada held that a sentencing judge must consider fully the prospects of controlling an offender under a long term offender designation before a dangerous offender designation can be made. This is part of Regina v. Johnson. If the court had a reasonable belief 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 the lesser sentence, even if he or she otherwise meets all criteria for a dangerous offender designation.

It is important to codify the Supreme Court of Canada's decision in Regina v. Johnson. Reforms must ensure that offenders who should be designated as dangerous or long term offenders 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 an order imperative of the current minority Conservative government rather than governing responsibly for all Canadians. Victims themselves will not be happy when they discover a flawed law, not a strong one.

Criminal Code
Government Orders

12:20 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, the member, as usual, has provided clarity for the entire House about some of the key provisions of the legislation before us and some of the challenges we have as legislators to come forward with constructive amendments to ensure that we do make good laws and wise decisions.

The member referred briefly to a question of constitutionality or a constitutional challenge with regard to this piece of legislation. I understand that prior to a piece of legislation coming to the House that the government must do a proper review with the Department of Justice and have an opinion that this legislation is in fact constitutional.

I wonder if the member could explain how it is that the Department of Justice and the Minister of Justice could opine that the bill would be constitutional when there are still some questions about its constitutionality.

Criminal Code
Government Orders

12:20 p.m.

Liberal

John Maloney Welland, ON

Mr. Speaker, the member is correct. The Minister of Justice in his role as the Attorney General of Canada must certify that every bill that comes before the House meets charter challenges. He may have done so in this case.

I suggest that in view of the growing evidence and growing concern by many judicial minds and many professors that the “three strikes and you're out” provisions, the reverse onus provisions of this bill, do in fact violate our Constitution and our Charter of Rights and Freedoms.

My concern is that if in fact the bill does pass the House with these flaws that there will be court challenges costing time and money, and costing delay in other cases going forward until there is a final determination of whether it is or is not constitutional.

I am suggesting that because of the concern about this that we should have a reference to the Supreme Court of Canada before the law comes into effect. I say this with all due respect to our Attorney General. I doubt his position, but I am not the final arbiter. That would finally determine it and we could proceed one way or the other based on that determination. It would be much more prudent to do it that way.

Criminal Code
Government Orders

12:20 p.m.

Conservative

Ken Epp Edmonton—Sherwood Park, AB

Mr. Speaker, I am curious about the most recent conversion of Liberal members to getting tough on crime, or at least they like to take on the language. Now Liberal members are expressing these big concerns, but they are apt to do that.

Surely, the Supreme Court of Canada would guarantee the freedom of person to Canadians to not be threatened by serious criminals. We have people who use explosives and firearms. We have people who sexually exploit a person with a disability. We have people who procure sexual activity, especially with children. These are very serious crimes.

I would like to recommend to the Liberal Party that it is time that we, as parliamentarians representing our constituents, stand up and stand up strongly for putting away serious offenders for the protection of society. We need to start pushing on that. We need to make sure that Canadians recognize what is being done here. It is time that we stop hiding behind the charter in our quest for protecting the rights of the charter for law-abiding citizens.

I am really perplexed by all of the different reasons those members come up with for not supporting this bill in its present form.

Criminal Code
Government Orders

12:25 p.m.

Liberal

John Maloney Welland, ON

Mr. Speaker, the Liberals have always been tough on crime, but we are also smart on crime, which is a different position than the one taken by our Conservative friends.

I take no issue with a firm approach on those sections which the member opposite set out. However, it is the process involved in this bill that will come under the threat of a charter challenge. It is the process of three strikes--

Criminal Code
Government Orders

12:25 p.m.

Conservative

The Acting Speaker Royal Galipeau

Resuming debate, the hon. member for Mississauga South.

Criminal Code
Government Orders

12:25 p.m.

Liberal

Paul Szabo Mississauga South, ON

Mr. Speaker, I want to assure the House that the Liberal Party will be supporting Bill C-27 at second reading to get it to committee and for the very good reason that it is important that we allow the committee to do its work. We want the committee to consider a couple of important amendments that we believe will improve this legislation, which is a bill to amend the Criminal Code as it pertains to dangerous offenders and recognizance to keep the peace.

The member for Welland has very succinctly outlined the principal provisions of the bill and I will not repeat them. I would like to bring to the attention of the House and all Canadians the two areas which we will be seeking to amend. We hope the committee will seek expert testimony and consider why we believe these amendments would be important to pass at committee to improve the legislation.

One amendment has to do with dangerous offender hearings for violations of long term offender orders. Currently, when a judge is making a determination as to whether or not a dangerous offender designation is appropriate, one alternative at the judge's disposal is the long term offender designation.

Someone designated as a long term offender is subject to a supervision order that can last as long as 10 years after he completes his prison sentence. However, if the long term offender violates a term of his supervision order, he cannot then be compelled to face a new dangerous offender hearing. He can only face a dangerous offender hearing if he commits a new and serious criminal offence.

We believe that the bill should include a new provision that would allow crown attorneys to order a new dangerous offender hearing for those who have violated the terms of their long term offender supervision order.

The other amendment that we will be proposing at committee, should this bill pass at second reading and I believe it will, has to do with mandatory dangerous offender hearings. Currently, the decision to pursue the dangerous offender designation is entirely within the discretion of the crown. There is nothing that mandates that the crown must seek a designation either to repeat offenders or for specific types of offences.

We believe that we should insist on an amendment that would create a provision that the crown must seek a dangerous offender hearing for those who have three convictions for serious offences. This could be positioned as a reasonable alternative to the contentious reverse onus provisions.

I believe there will be support in the House for Bill C-27. Canadians should be assured that the Liberals are very supportive of being tough on criminals who commit serious crimes, but when legislation comes forward, it is important to do the proper due diligence to make sure that in practice and in the application of the legislation, the laws are of the most effective form and provide the greatest latitude and opportunity for justice to prevail.

I want to conclude by saying that every now and then there are some statements in the House about who is tougher on crime. Canadians understand that it is not simply a matter of being tough on criminals. Canadians also want us to do everything possible to reduce crime from happening in the first place.

The criminal justice system really requires a balanced approach. It is about being tough with those who commit serious crimes that warrant serious penalties. There is ample evidence that on a case by case basis there are circumstances which require judicial independence, which require latitude. We have to take into account things such as addictions. The Canadian Centre on Substance Abuse came out with a report in the past few weeks which indicated that 42% of criminal offences involve alcohol and another 8% involved the use of drugs. There are a lot of people with addictions out there.

We also know about fetal alcohol spectrum disorder and the fact that many of the people who suffer from this mental disability are not subject to rehabilitation. These people commit crimes but they do not know right from wrong. We must be absolutely sure that, within the penal system, within the judicial system and the process that we go through, every case has the flexibility and the availability of judicial discretion to take into account mitigating or exacerbating circumstances, which is why there is such latitude within the Criminal Code for sentencing provisions.

Having said that, I am pleased to lend my support and to indicate our party's support for Bill C-27 at second reading and to get it to committee so we can consider important amendments to ensure this is a very good bill for all Canadians.