Bill C-27 (Historical)

An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace)

This enactment amends the dangerous offender and long-term offender provisions of the Criminal Code
(a) 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 for 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 of imprisonment for each of those convictions;
(b) to remove 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;
(c) 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 and that 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 conditions to make the designation are presumed to have been met unless the contrary is proved on a balance of probabilities; and
(d) to clarify that, even when the conditions to make a dangerous offender designation have been met, the 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 the matter.
The enactment also amends sections 810.1 and 810.2 of the Criminal Code
(a) 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; and
(b) to clarify that the scope of conditions available for recognizances is broad and that those conditions may include electronic monitoring, treatment and a requirement to report to a designated authority.

Criminal Code

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

moved 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.

Mr. Speaker, I am certainly pleased to speak to Bill C-27, an act that amends part XXIV of the Criminal Code regarding the dangerous offender provisions in section 810.1 and 810.2 of the peace bonds.

I wish I could be as happy with respect to Bill C-22, in which the NDP voted against sending this to committee and not supporting the age of protection bill. I am very concerned about that, and I think Canadians will be too.

Bill C-27 is a significant step to strengthen the existing provisions of the Criminal Code that target the most dangerous and high risk offenders in the country. It follows through on our commitments to tackle the very real problem of dangerous repeat predators who are released into our communities without adequate sentencing and management. This is common sense legislation.

Canadians have told us that steps must be taken to deal with these individuals. I am standing in this House today to let Canadians know that Canada's new government agrees with them. Our government cares deeply about safe streets and security. The government is going to stand up for Canadians by making it easier for crown attorneys to get dangerous offender designations on those who deserve them.

This bill places the onus on predators who have committed two prior serious violent sexual crimes to convince the court why they should not be designated a dangerous offender and by lengthening and strengthening the terms of peace bonds made pursuant to section 810 of the Criminal Code.

Simply put, our government is going to the wall on an issue that matters most to Canadians. Getting things done for families and taxpayers means keeping our most dangerous criminals off the streets and behind bars. Canadians want, and deserve, nothing less.

These same concerns have been expressed to us by all provincial attorneys general, by police, by victims and, most important, by individual Canadians from all walks of life. However, I want to make it clear from the beginning that these reforms were very carefully tailored. This bill would achieve a proper balance between the rights of Canadians to be safe from violent and sexual crimes with the fundamental rights of individuals facing lengthy prison terms.

The bill focuses on reforms in two areas of the Criminal Code. First and foremost, we are proposing several significant amendments that would provide crown prosecutors with enhanced abilities to obtain dangerous offender designations where it is justifiable to do so.

Second, we are proposing a number of amendments to the specific peace bond provisions that target high risk sexual and violent predators, doubling their duration to two years and clarifying the extent of conditions that may be imposed by a court.

Currently, the dangerous offender designation in part XXIV of the Criminal Code is arguably the toughest sanction available in Canadian law. As the law now stands, each and every time an individual is designated as a dangerous offender under section 753, the sentence imposed is indeterminate, with no opportunity for parole for seven years.

In reality, very few of these individuals are released. Most live out the rest of their lives behind bars. Dangerous offenders, on average, are imprisoned for even longer periods than individuals serving a life sentence for murder. That is why the Supreme Court of Canada has referred to the dangerous offender application as the harshest sentence available in Canadian law, reserved for the worst of the worst.

That being said, the Supreme Court of Canada has held that the indeterminate sentence that goes with the dangerous offender designation is constitutional where it is the only reasonable way that we can protect the public.

The Lyons decision was the first challenge to the Supreme Court of Canada on the dangerous offender designation after the 1982 entrenchment into the Constitution Act of the Charter of Rights and Freedoms. The court indicated that the provision was constitutional primarily because the sentencing judge retained discretion to refuse to impose the indeterminate sentence.

In 1997, a decade after the decision in Lyons, Parliament proclaimed significant amendments to the dangerous offender provisions. Prior to 1997, where an individual was declared to be a dangerous offender, the court had the choice of sentencing the individual to an indeterminate sentence, with no parole for three years, or to a determinate sentence of any length suitable in the circumstances.

The 1997 changes removed this discretion of the court and made the indeterminate sentence automatic for every dangerous offender designation while lengthening the duration before the first parole application to seven years.

The 1997 amendments also created the option of the long term offender designation where the individual did not meet the onerous standards for dangerous offender designation. This new instrument allowed the court to impose, in addition to a regular sentence of imprisonment, a court ordered period of post-release community supervision of up to 10 years.

In 2003, the Supreme Court of Canada issued its first ruling on the constitutionality of the 1997 changes to the dangerous offender designation. The case was the Johnson decision, an appeal from the British Columbia Court of Appeal. At stake was whether the 1997 changes requiring the indeterminate sentence with no discretion had gone too far.

While the Supreme Court of Canada in Johnson upheld the 1997 changes as constitutional, it also held that in fact the sentencing court did retain its ultimate discretion in the matter. Specifically, the court said that even where the Crown had fully discharged its burden to prove that the offender fully met all of the prerequisite criteria of a dangerous offender designation under subsection 753.(1), the sentencing judge still had a duty to exercise his discretion by determining whether the risk the offender posed to the general public could be successfully managed under a lesser sentence.

The court indicated that before a sentencing judge could impose the indeterminate sentence, it had to explicitly consider the specific issue of whether the individual's risk to society could be successfully managed under the long term offender designation or any other sentence.

While this decision was consistent with the court's previous decision in Lyons and reflected longstanding principles of sentencing, the impact of Johnson was felt across the country. There was a flurry of appeals filed by existing dangerous offenders who argued that the sentencing judge had failed to consider the long term offender sentence option as required by the Supreme Court.

In the 18 months subsequent to Johnson, over 30 such appeals were argued, resulting in 20 orders for a new dangerous offender hearing because of the error. The number of annual designations was halved from about 25 per year to about 12 designations due primarily to confusion in the sentencing courts of how to apply the principle in Johnson in practice.

Following Johnson, the Crown's success rate of applications fell well below 50% whereas the traditional rate was about 70%. Those individuals who previously would have faced dangerous offender applications simply were not subject to that any more as a result of the Supreme Court of Canada decision.

It was in this context that the new government committed to develop a policy to respond to this unacceptable situation. Throughout this process we were all encouraged by the support of provincial and territorial ministers of justice. This legislation is an effective and coherent response to the changes brought about by the court decision in Johnson.

I would like to outline the changes that are contained in this bill.

[The Deputy Speaker, Bill Blaikie]

Order, please. I am sorry, but the minister will have to do that in the time that remains to him when we return to the bill at some future date.

The House resumed from October 30 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.

[The Deputy Speaker, Bill Blaikie]

It seems to me I remember interrupting the Minister of Justice when he had 11 minutes remaining in his speech. We look forward to hearing the remainder now.

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, I was just getting to the highlights of my speech and I am glad you are back to hear the rest of it.

I was talking about the context of the development of the dangerous offender legislation in reaction to the Johnson situation, whereby many of the applications were no longer undertaken by the crown because of the difficulties created by the Supreme Court of Canada. I would like to outline the changes that are contained in this bill.

First, we have addressed what we believe to be problems of consistency across jurisdictions. Specifically, we do not believe that crowns across Canada are always seeking dangerous offender designations whenever appropriate. The legislation requires crown attorneys to make a declaration to the court in certain situations of whether they have considered and intend to pursue a dangerous offender designation. This is found in the new proposed section 752.01.

This operates in reference to the offence list defined in the amended section 752 referred to as the designated offence list. I would note that the designated offence list includes all of the offences listed in the primary offence list, plus all of the other serious violent personal offences listed in the Criminal Code.

Under new section 752.01, once an individual has been sentenced for an offence, which in the opinion of the prosecutor is a serious personal injury offence as currently defined in section 752 of the code, the crown is directed to consider whether the individual has at least two prior convictions of a designated violent or sexual offence that received a sentence of at least two years.

This provision will ensure the crown will more consistently consider whether it should pursue a dangerous offender designation. While this is not intended in any way to bind either the court or the offender as to the sentence that will actually be pursued, it is nonetheless important to encourage greater diligence in sentencing repeat violent and sexual offenders.

The next proposed amendment is one that has received a great deal of attention, the new so-called reverse onus provision. The first thing to remember is that the dangerous offender hearing occurs after a conviction. We are not dealing with an innocent person. We are dealing with a convicted criminal, a criminal who has been convicted of a very serious offence.

In some contexts there are automatic prison sentences. For example, in the case of certain firearms offences and murder they are automatic. There is no hearing other than an automatic imposition of at least the minimum.

In this particular case, the offender will be presumed innocent until the trial judge makes a finding of guilt. After that the crown makes the choice whether to proceed with a dangerous offender designation. Post-Johnson, we believe that in many cases individuals who are at real risk to commit further violent sexual offences are escaping a dangerous offender designation. This amendment is designed to address this situation.

As it currently stands, the crown prosecutor must apply to the court before a dangerous offender hearing can proceed and the court will order the hearing based on whether the individual has in fact been convicted of a serious personal injury offence, that is the smaller list of serious offences which are defined in section 752, and whether there is a reasonable likelihood that the individual will be found to be a dangerous offender. We are not changing that process. The crown retains the full discretion as to whether or not a dangerous offender application should be brought forward.

The provincial attorney general must still file his or her consent in writing before the application can proceed to the next step. The judge must still order a psychiatric assessment before the hearing can proceed. The existing process continues to apply to any situation where the prosecutor is of the view that a dangerous offender application is merited.

Once the hearing is under way, the new reverse onus provision will only take effect if the following prerequisites are met: first, the crown has to satisfy the court that there are two prior convictions from a new list of 12 serious sexual or violent primary designated offences in section 752; second, each of the previous convictions must have carried at least a two year sentence; third, the court must be satisfied that the current offence for which the offender has been found guilty, the predicate offence, must also be one of the primary offences; and finally, the court must be satisfied that the predicate offence would otherwise merit at least a two year sentence.

If these prerequisite conditions are proven, then the crown is presumed to have satisfied the court that the offender meets the prerequisites of a dangerous offender designation under section 753(1). The offender is then given the opportunity to rebut this presumption on a balance of probabilities.

I note that many individuals have suggested that this provision does not respect the charter of rights. I must respond that those individuals have failed to fully consider the impact not only of this provision, but of the following amendment in proposed section 753(1.2)

In the first place, I emphasize that the list of qualifying offences that trigger the reverse onus, the primary offences, is very narrow and carefully tailored. Again, it is a list of 12 offences. I note that every one of those offences carries at least a maximum penalty of 10 years in prison. These are all very serious offences.

In our analysis we have determined that all of these offences commonly arise as a predicate offence and dangerous offender designations. Of the current 360 dangerous offenders, for example, about 80% had a predicate offence of one of the seven listed sexual offences from the primary list. For the remaining dangerous offenders, the vast majority were convicted of one of the remaining five offences on the primary list. The list was deliberately tailored to effect this reality.

We constructed the list to make sure that the very nature of each offence would satisfy the threshold criteria of a serious personal injury offence. We also avoided offences such as manslaughter and impaired driving causing death that, while on their face are serious, do not by their nature require the same intent to commit serious harm. Further, I emphasize that for the reverse onus to apply, each previous conviction must have received a sentence of at least two years which signals that the offence was serious. As an additional criteria the judge must be satisfied that the current offence would also be eligible for at least a two year penitentiary sentence.

We believe that if an offender has met all of these criteria, it is reasonable to presume that the person meets the prerequisites of a dangerous offender designation. There is a clear and rational connection between the triggering criteria and a finding that the individual is a dangerous offender. This justifies the presumption contained in this legislation. Based upon this analysis, I am firmly convinced that these provisions will withstand constitutional scrutiny.

Again I point out that the reverse onus is fully rebuttable by the offender. I note that in all dangerous offender proceedings the defendant has access to legal aid if counsel cannot be afforded, and this allows access to independent expert psychiatric witnesses for the defence. If such expert witnesses are unable to place evidence countering the presumption, then the offender clearly should be deemed to fully meet the criteria of the dangerous offender designation.

I must point out that this does not end the extent of the constitutional protection built into the proposal. I want to emphasize that in every single case, even if the offender fails to satisfy the court that he or she does not meet the dangerousness criteria, the court still retains full discretion to refuse the dangerous offender indeterminate sentence.

This bill enshrines the discretion of the court to refuse to make the dangerous offender designation. We are making it clear that consistent with the principle laid out in Johnson, the sentencing judge may not impose an indeterminate sentence unless the court is satisfied that there is no lesser sentence available which can adequately protect the public.

We are acknowledging and embracing the need for the courts to retain their ultimate discretion in this matter and that is fully consistent with the Supreme Court of Canada decisions in the Johnson and Lyons cases.

Given the narrow tailoring of the primary offence list and given the respect, now codified--it is important to mention that this is now codified--for the discretion of the judge to impose a fit sentence, I can stand before the House today and state with full confidence that I believe the legislation will withstand constitutional challenges. The ultimate judicial discretion is not touched. It is there and is now entrenched in the legislation.

In closing, I would remind the House that there is a long list of innocent people that have fallen to individuals with lengthy violent criminal records, Christopher Stephenson, Jonathan Wamback and Frank Groves to name a few. They are names that should haunt us until we as a nation summon the courage to take action and enact tougher legislation against dangerous offenders. How many more children are we prepared to sacrifice? How many more victims are we prepared to sacrifice? When will we join with the majority of Canadians who say enough is enough.

Our choice is simple: stand by and do nothing as more people fall victim to these predators, or send a message that Canadians have had enough.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, there is certainly a consensus that this is an important bill for Canadians.

The minister has asked the House for prompt consideration of Bill C-27. I understand that the steering committee of the justice committee has tried to calendar its work. The steering committee has found that there is a substantial backlog within the justice committee, to the extent that it may very well take the committee until the fall of next year before it can get through all the work that is necessary on the large number of bills that have been sent to the committee after passage at second reading.

If the minister is serious about this bill going through all stages of the legislative process, what steps is he prepared to take to ensure there is sufficient time for this bill to be considered by Parliament?

[Vic Toews, Conservative, 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, Bloc, 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, Conservative, 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, Conservative, 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, Conservative, 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, Conservative, 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, Conservative, 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, Liberal, 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.