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

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

Mr. Speaker, this being Halloween, it is with some sadness that I rise in the House. It is the first Halloween in the history of my fathering three children, Maeve who is 10 years old, Megan who is 8 years old, and Bronwyn who is 7 years old, that I will not be with them to go door to door. However, I do hope that their costumes, which I had a preview of, are effective. I hope they are nice little girls who go door to door and give a lot of joy on this joyous evening.

I also hope their costumes are more effective than what I would call the Prime Minister and the Minister of Justice dressed up as sheriffs through their justice rubric, which is really disguised as effective and, to the point of Bill C-27, masquerading as good law. On all of those three counts, the Conservatives, the Prime Minister and the Minister of Justice and this bill fail. Their disguise is thin and their masquerade is not working.

I am pleased to address the House today on the matter of Bill C-27. This bill amends the Criminal Code with respect to dangerous offenders and recognizance to keep the peace.

I will not comment on recognizance to keep the peace. We on this side of the House, myself included, agree with the provisions of this bill.

Although the main goal of Bill C-27 is to make it easier for crown prosecutors to obtain dangerous offender designations, it touches upon an important concept in our entire justice system. It is not just the justice system that prevails in Moncton, New Brunswick or, indeed, in Canada. The aspect that is being reviewed, which must be given the spotlight and the microscope, is a fundamental principle of justice in the common law world and that is the presumption of innocence.

This bill reverses the burden of proof from the crown to the defendant. If Bill C-27 were to be adopted in its entirety as it is, an offender found guilty of a third conviction of a designated violent or sexual offence would need to prove that he or she does not qualify as a dangerous offender. That in summary is the issue to be debated.

I might, by way of introduction, suggest that every criminal was a child at one time, and what night could be more fitting to speak about children than Halloween, and every child, as he or she goes down the road of life, makes steps, some wrong, some right and some in the middle.

Not every child has the privilege of coming from a home with two parents, from a home that is affluent enough to afford the necessities of life, from a home that advocates literacy or from a home full of love and caring. There are many homes where this is not the case. Many homes and families are broken either by economic ravages or social blight.

However, in the Conservatives' Leave it to Beaver world, everyone has this perfect home and everyone must grow up like Wally and Beaver to be productive citizens of society. Although we do not really know how Beaver and Wally ended up, I suspect some of them may have ended up on the other side. The social policies of the government are destroying the fabric of the community and they will lead to more crime.

When certain individuals have gone down the wrong side of the justice road toward the dangerous offender designation, things have gone terribly wrong for them. Let us leave aside the issue of mental health and the fact that the only option for some people is treatment for the long term. Let us talk about the people left behind on the social strata from leaving the field that the government has posited on social programs in the community. Those people could end up on the dangerous offender road.

The combination of these laws and this policy regarding social re-engineering, à la George Bush, will leave us with more criminal justice issues. It is an important context to remember.

We on all sides of the House agree that dangerous criminals should be kept locked up for our own safety and the safety of society but that is not the issue. We must do all we can to ensure dangerous criminals do not take advantage of legal loopholes to fall through the cracks of our judicial system. Most important, we, as members of Parliament, have the duty to ensure that the bills and changes we adopt meet constitutional standards and rigorous test and that they do not jeopardize the protections we have in place.

The theme of my speech and my point is that this bad law would actually put the victims of crime in greater jeopardy. If this law is, in any way, struck down, the people who perpetrate crimes, who might be designated dangerous or long term offenders, might go free. That does not help victims. We want laws that work.

Locking up dangerous criminals is not a new or Conservative idea. In 1997 the Liberal government created new legislation addressing long term offenders and ensuring sexual and violent offenders received the special supervision they deserved from our judicial system.

It is important to understand that in the long term offender and dangerous offender categories we are not talking about millions of people or thousands of people. We are hardly talking about hundreds of people. In the province of New Brunswick right now there is one application for a dangerous offender designation. In the briefing that members of the justice committee received from the justice department, the number of applications per year is about 24. This vacillates somewhere from a low of 12 to a high of 48. These people we are talking about are dangerous. They are bad apples and they need to be locked away.

That is why the long term offender legislation is also at play here. If someone does not meet the dangerous offender plateau, then a judge must consider the long term offender designation, which is less onerous and does not involve indefinite sentencing without parole for seven years at least.

The problem with this legislation, as justice officials indicated to us, is that it was well on the way to being introduced whether the Conservatives, the Liberals or, God forbid, the NDP or the Bloc formed government, and it was to close a loophole that had been created by the well-spoken upon decision of R. v. Johnson. The loophole had to be closed so that it was very clear that a judge must consider whether the accused met the long term definition before the dangerous offender designation took effect.

As of 2005, a total of 300 offenders across Canada have been designated long term offenders, not dangerous offenders.

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.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I want to thank my colleague for his question and I would refer my colleague—not to avoid the question—to two Supreme Court rulings.

I invite my colleagues opposite to go read them. In 2003, there were Supreme Court rulings in the Johnson and Mitchell cases. These rulings reminded us that the underlying principles of sentencing require that the sentence fit the offender's situation. In other words—this is at least the fifth time I have said this—we sincerely think that under the Canadian Charter of Rights and Freedoms, if by some misfortune Bill C-27 became law, constitutionally, it would not pass the test of the Constitution of Canada, with all due respect, given the recent Supreme Court rulings.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I would like my colleagues opposite to listen to what I have to say. I hope you will forgive me at once, Mr. Speaker, if, in the course of making my argument, I refer to you as “your honour” because my 25 years of practising criminal law will have shown through and caused me to err in that.

In fact, Mr. Speaker, I would be showing you respect because if I were to call you “your honour”, your salary would increase by nearly $100,000. This is why we have judges who, as a matter of conscience and in the work they do every day, are able to decide the appropriate sentence for any individual appearing before them. There is a fundamental flaw in the bill before us; Bill C-27 is making a big mistake and the party in power must realize that. If we have to, we will defeat it before it even reaches second reading because this bill seeks to punish crimes, not individuals. Allow me to explain.

When an accused person appears before the court, he is accused of an offence and must answer for his actions and, of course, his offence. Let us take, for example, one of the offences this bill seeks to punish: attempt to commit murder or invitation to sexual touching. Actually, take any one of the offences mentioned in the bill. If we take attempt to commit murder, the individual who appears before the court must be sentenced.

The party opposite is forgetting one of the fundamental principles: the sentence must be individualized. I repeat, Mr. Speaker, it must be individualized. This means that the judge addresses the individual and hands down a sentence that takes into account the sentencing criteria established by the courts of appeal and the Supreme Court. For the information of my colleagues opposite, these are called “sentencing principles”.

We humbly believe that this bill is contrary to all those principles, because what the Supreme Court has said over and over, and will say again if this bill has to end up before the Supreme Court, is that a sentence is unique. It must be addressed to the individual who is before the judge. That is not what this bill is trying to do. What this bill is trying to do is make it so that if an individual is convicted of a serious crime for the third time, he or she is then “out” for life. The person is in prison.

That is not what must be done. It is unacceptable to think like this. Yes, there really are dangerous criminals in society. But saying that is not a solution to all our problems. We have to make it so that people who do not deserve to live in society are excluded from society, for as long as possible, when they exhibit such little respect for the laws of this country and continually reoffend.

We have before us a bill that goes even farther, in that it reverses the burden of proof. I am going to provide some further explanation for my colleagues opposite. One of the most important principles, as stated by the Supreme Court and by the Privy Council in London, a principle that is the backbone of the legal system, the criminal justice system, in Canada, is that the Crown has the burden not only of proving beyond a reasonable doubt that an individual is guilty, but also of showing what sentence must be imposed on the individual.

What this bill is trying to do is to reverse the burden of proof. I can tell this House, from experience, that it is unlikely that the Supreme Court will give this bill its approval, for more than one reason. First, and particularly, because of section 16 of the Canadian Charter of Rights and Freedoms, which our good Prime Minister prides himself on his respect for. He is not respecting it with this bill. He is placing the burden of proof on the accused.

It seems to me that we did a good job. In fact, the Bloc Québécois was not always opposed to this bill. The evidence of that is that as recently as yesterday I was saying to this House that Bill C-22 was a good bill. The people on the other side of the House can get things right. I will keep saying it: unfortunately, they are trying to punish the crime rather than the individual who committed the crime. That is unfortunate, and it is unacceptable. The Barreau du Québec, the Law Society of Ontario and the Canadian Bar Association have said so repeatedly and will say so again when they appear before the Standing Committee on Justice and Human rights, of which I am a member.

Members will realize from this introduction that the Bloc Québécois is against this bill. I hope that is quite clear. The Bloc is against it for a number of reasons. This bill proposes a harmful and ineffective approach that will not improve public safety. Worse yet, it would allow for automatic sentencing, which is dangerous and irresponsible. I rise in this House to say that reversing the burden of proof is not justified.

If my colleagues opposite had had good lawyers, they would have turned to section 753 of the Criminal Code. Section 753 of the Criminal Code is clear, or at least I think it is. I have relied on it a number of times in court. This is what that section says:

753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied—

The court may find the offender to be a dangerous offender if all the conditions are met. The Criminal Code has all the arguments, all the elements and all the clauses to control dangerous individuals.

Section 753 asks that the following conditions be met:

753. (1)(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752—

I will spare you all these details and focus on the essential point. When arguing before the court, the Crown must show:

753. (1)(a)(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour—

I did not make this up. It is in the Criminal Code. I repeat, it is in the Criminal Code. We do not need Bill C-27. Paragraph 753(1)(a)(ii) adds:

753. (1)(a)(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour—

I will spare the House the rest but will translate it into plain language for my hon. colleagues across the aisle.

This is what is happening now, this very day, before a court somewhere in Canada. I have had to argue cases and can tell the House how it works.

It can happen as early as the first offence or the first charge. An individual is brought before the court accused of attempted murder. He shows no signs of remorse. He even says and repeats that if he is freed, he will take care of a few other people too. That has already happened.

Here is another example. A serial rapist says, “If I get out, don’t get all worked up, but all women are going to get it”. That is totally unacceptable.

So what do we do? What does the crown attorney do? He asks the court to declare the person a “long-term offender”. That is done now. There is no need for evidence beyond a reasonable doubt. Legal precedents and the testimony of people who know the accused are submitted and the court hands down a decision. It is true that this decision can be appealed, but it certainly is not easy. Once a court has handed down a judgment and supported it well, it is virtually unassailable. That is how it is. We have already been through it. This procedure exists and can be implemented as early as the first offence.

So why Bill C-27? In the Bloc Québécois—I am one of those who say it along with my hon. colleague from Hochelaga—we say that justice must be based on a personalized process that is geared to each case and based on the principle of rehabilitation.

I will put that into plain language for my hon. colleagues across the aisle. One of the most important principles established by courts of appeal and supreme courts is that punishments must be just and proportional to the offence but also aimed at rehabilitating the accused. With this bill, the government wants to get rid of rehabilitation. There is no place for rehabilitation in a country with a bill like this, and it does not look as if the government wants reconsider its position.

Let us take this even further. As if that were not enough, we have section 761 of the Criminal Code, which is also clear. It exists. It is still there, just as it was there yesterday when I looked at the Criminal Code. It has not disappeared. Section 761 states, and I quote:

—where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person—

What does that section mean? It means that if we have a dangerous, long-term offender as identified by the court, the court sends that offender to an institution where he is held in custody. After seven years, the National Parole Board will again carefully review that individual's case to determine if that individual can possibly, I repeat possibly, be rehabilitated or if that individual has begun a rehabilitation process. If that is not the case, the National Parole Board must justify its decision.

We already have all the tools we need. We do not need Bill C-27. Neither Quebec nor Canada needs it. I hope this is clear enough. We already have all the tools we need to put away individuals who do not deserve to be and should not be in society.

Only after a fair and equitable trial, after the court has declared an individual to be a dangerous, long-term offender, can this apply. Then, the sentence will be individualized. That is what this bill does not do. We must not forget that this is extremely dangerous.

This bill would make changes to the process of declaring someone a dangerous offender. An accused person would be presumed to meet the criteria for designation as a dangerous offender as soon as he is convicted of a third serious offence. There is no middle ground, it is all or nothing. Rehabilitation is no longer an option.

Even worse, that presumption would shift the burden of proof from the Crown to the accused, who would then have to prove to the judge that he should not be declared a dangerous offender.

With respect, I must say that the Canadian judicial system will never tolerate that. In my opinion, reversing the burden of proof is unfair and would violate section 16 of the Canadian Charter of Rights and Freedoms, which entitles us to a full defence. In Canada, it is not up to the accused to defend himself—we will have to explain this again to our colleagues opposite—it is up to the Crown to prove beyond a reasonable doubt that the accused is guilty.

If the Conservatives want to change that, if they want to reverse the burden of proof and take a new approach, let them table a bill, but not one like Bill C-27. This new bill would probably be unacceptable as well because the Bloc Québécois does not believe that Canadian and Quebec societies would accept the reversal of the burden of proof.

If the colleagues opposite, in government, believe that this bill will fight crime, then I have good and bad news for them. The goods news is that is false. The bad news is that it will completely choke the justice system. Before a case is closed, what will happen when an accused discovers that he may be declared a dangerous offender with the reversal of the burden of proof? It is not difficult to see that all proceedings will be taken as far as possible and the court rooms will be overflowing.

We already have this problem. In Quebec City, Toronto, here in Ottawa, Kingston and Vancouver the court rooms are full. It is not this kind of bill that will solve the problem of crime in Quebec and in Canada.

As I only have one more minute I will conclude my speech. Time goes so quickly that I will allow myself to answer the questions.

Based on my 25 years of experience in criminal law, this reversal of the burden of proof is wrong and unacceptable, and I believe that we would be going in a very dangerous direction, to the far right, were we to accept even considering this bill and having it adopted by Parliament. I therefore urge all members of this House to vote against the bill.

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Speaker, among the many duties of government perhaps none is more important than the protection of our citizens from crime. Not only is it our duty, it is also part of the commitment the Conservatives made to the citizens of this country. It also flows from what was learned in my community earlier this summer when the Minister of Justice participated in a round table discussion with people involved in or affected by our justice system. This bill is a crucial part of our justice package aimed directly at that goal.

Those of us who live in St. Catharines understand all too well the absolute necessity of effective dangerous offender legislation. It was 15 years ago that our city was gripped by fear, sparked by the horrific crimes of Paul Bernardo and Karla Homolka. The brutal murders of Kristin French, Leslie Mahaffy and Tammy Homolka have not been forgotten in St. Catharines, and I doubt that they ever will be.

Arising out of this horrific situation was the fact that Paul Bernardo was determined to be a dangerous offender and will remain in prison indefinitely. The people of St. Catharines breathed a huge sigh of relief when that decision was made. We know that some people, like Bernardo, are not capable of being rehabilitated. We know that for some criminals reoffending is not just a statistical probability, it is a certainty.

Many Canadian communities have been victimized by repeat sexual or violent offenders who have somehow slipped through the cracks of the justice system and have been allowed to repeat their crimes again and again. This cannot stand. Catch and release is a great way to spend an afternoon fishing. It is not the way to protect Canadians.

An article in last Thursday's Edmonton Journal underlines the glaring hole in our justice system that Bill C-27 is needed to fill. The article is entitled “Notorious rapist deserves prison forever, 1969 victim says”. It details a lengthy criminal record of Stephen Ewanchuk. His 1969 victim was choked, beaten and raped. He was later convicted for that rape and sentenced to three years in prison. Between that rape and the later conviction, he was again convicted in 1969 for a different rape.

In 1972 he was sentenced to 10 years for yet another rape. In 1986 he was convicted of sexual assault and sentenced to 15 months in prison. In 1994 he was convicted of another sexual assault and sentenced to two years. I am not done. In 2005 he was convicted of sexually assaulting an eight year old girl. There is an old saying that says once is chance, twice is coincidence, three times is a pattern.

With Ewanchuk it has been six times and that is a farce and a mockery of justice. Now, after six sexual offences, it is the Crown that must prove that Stephen Ewanchuk is a dangerous offender. After six offences, this should not be a question. Under our legislation it would be Mr. Ewanchuk who would face the burden of proving that he is not a dangerous offender. Justice demands no less.

In addition to this reverse onus provision, this legislation will strengthen sections 810.1 and 810.2, high risk peace bonds, by doubling the duration to 24 months and clarifying that a broad range of conditions may be imposed in order to protect the public. It should be obvious that no one's rights are more grievously violated than the victims of violent sexual offences, but for 13 years the rights of victims were ignored. Today we are taking an important step toward rebalancing the scales of justice. Canadians want these laws in place. They know that the coddling of violent criminals must end.

A couple of weeks ago I received an email from a constituent named Les Hulls. He was forwarding me a message that he had sent to the member for Mount Royal. Mr. Hulls was upset that the Liberal member had criticized Bill C-27. He wrote, “If you look to the United States for the 'three strikes you're out parallel', you'll find that they've been moving away from it...”

In his email to the member for Mount Royal, Mr. Hulls also said, “Canadians want tougher laws when dealing with repeat offenders of violent and sexual crimes. I am a voter and I do not care what the Americans are doing”.

I could not put it better myself. Canadians are fed up reading stories about crimes committed by five, six and seven time violent offenders, and rightly so. Canadian streets belong to hard-working and law abiding citizens. This legislation is a big step toward winning those streets back. It is, quite simply, the right thing to do.

Of course, not everyone agrees that the legislation is the right thing to do. A Toronto defence attorney, Clayton Ruby, had this to say about our bill: “The Tories get votes from bashing criminals and Canadians simply seem stupid enough to bite on this again, and again and again.” Judging by the slipshod logic of some of the criticisms I have heard of the bill, Mr. Ruby is not the only one who thinks Canadians are stupid.

At this point I would like to discuss two criticisms. In particular, that Canadians are far too smart for them. One criticism made by a number of people, including the member for Windsor—Tecumseh, is that the reverse onus provision will be struck down by the Supreme Court as a violation of the charter guarantee of the presumption of innocence.

I would note first of all that this is a peculiar position for my friend from Windsor—Tecumseh to take when one considers his party's platform from the last January election. That platform claimed that the NDP would introduce an omnibus safe communities act. It went on to list a number of measures, one of which was, “Support a reverse onus on bail for all gun related crimes”.

We believe that was a good idea, so you can understand my confusion, Mr. Speaker, upon hearing that the member for Windsor—Tecumseh, the NDP justice critic, now believes reverse onus provisions are unconstitutional.

More generally, I think anyone who claims the bill violates the principle of innocent before proven guilty is being disingenuous. Unlike Mr. Ruby I recognize that the Canadian people are anything but stupid. They cannot help but see, therefore, that the provisions of the bill apply only to those offenders who have already been proven guilty. Again, for those who have already been proven guilty for a third time no less of designated sexual or violent offences, the presumption of innocence has nothing to do with sentencing. Sentencing is the only area that the bill will affect.

I know this is clear enough for Canadian voters because a number of them have contacted me to express their strong support for the bill. I hope I have made this clear enough for my friends across the aisle.

There is a second criticism that has been levelled at the bill. I know that Canadians are too smart to buy this one as well. That criticism is that California's three strikes has not worked, so therefore our legislation will not work. The problem with this line of reasoning, of course, is that our bill barely even resembles the California law.

Under California legislation, any third felony conviction automatically results in a life sentence. Our bill however significantly improves on that legislation in two crucial aspects. First, it is not automatic. Offenders will still have the opportunity to prove to the judge why they should not be labelled dangerous offenders.

Second, and unlike California law, our legislation will only apply to violent or sexual offenders. It is true that we will not declare anyone a dangerous offender for stealing a slice of pizza, not even three slices of pizza.

According to the justice policy institute, an American think tank, approximately two-thirds of convictions under California law were for non-violent offenders. By avoiding that defect, our bill would avoid all of the associated problems while still acting as an effective deterrent against violent and sexual offenders.

Again, unlike Clayton Ruby, I do not believe that Canadians are stupid. I know that Canadians understand the points I have just made, but I hope the members opposite do as well. Our job is to protect Canadians. I stand here in my place and say that we will fulfill that duty by passing this important piece of legislation.

[Helena Guergis, Conservative, Parliamentary Secretary to the Minister of International Trade]

Mr. Speaker, I am splitting my time with the member for St. Catharines.

I am very pleased today to speak to Bill C-27, an act to amend part XXIV of the Criminal Code, dangerous offenders, and sections 810.1 and 810.2, peace bonds.

Few issues trigger more emotion than how the government treats our most dangerous criminals, especially when it comes to sex offences against children. While it is one thing to be convicted of such a crime, it is quite another to see someone commit a child sexual offence who has been convicted three, four, five times or more and is back out reoffending.

As such, I support this legislation. I urge every member of this chamber to do the same. It is time to move forward with tougher legislation that protects Canadians and their families.

Quite simply, the current provisions are not working as well as they should. It saddens me to think of the Canadians whose lives have been changed forever because of a hardened repeat offender. We can and we should do something about this now.

I have looked over the bill and I wonder how anyone can stand against these reforms. I look at the requirement for a crown to stand in open court and declare whether, on a third serious violent conviction where the prior offences received a two year sentence, a dangerous offender designation would be sought, and I ask “why not?” Why we should not require a crown to specifically consider this issue and declare his intention?

I see the proposal to reverse the burden of proof onto the offender convicted for a third time of a third serious sexual offence in a dangerous offender hearing. I look at the reform of the peace bond provisions that seek to extend the duration from 12 months to 24 months for convicted offenders in the community. I note that judges will be called upon to consider more vigorous conditions to ensure the public safety. Again, the question should not be why, but why not.

So far the only real reason given by members opposite as to why the bill should not be supported has been that the rights of the offender have been compromised. I find myself greatly disturbed by the claims of the opposition. In my opinion, the opposition members, who cite the rights of offenders being that more important than the rights of victims and survivors, should be ashamed of themselves.

I listened to the comments of the Minister of Justice. He indicated that these provisions were carefully crafted to ensure constitutionality. He has indicated, for example, that the provision imposing a reverse onus on the offender where there has been a third violent or sexual offence conviction is constitutional.

He indicated it was constitutional because it was narrowly designed, that it reflected the types of convictions that commonly led to a dangerous offender designation. He said that these offences were violent and harmful by their very nature and that they all required intent to harm another person. He spoke of how these qualifying offences were restricted to instances that carried a two year or more sentence. It appears to me, therefore, that the criteria to trigger the reverse onus were not simply drawn from a hat. These were not randomly chosen offences, nor should they be.

As I understand it, the inclusion of any offence on the primary list of offences is based on the following criteria: that there is at least a 10 year maximum sentence allowed; the nature of the offence is such that there is a sufficient element of brutality and harm intended; there is a common occurrence of the offence in the historical application of dangerous offender applications: and, the offence is not so overly broad by its nature so as to possibly allow an absurd result by its inclusion in the primary list of offences.

I looked closely at these offences. I wanted to know what would justify triggering the reverse elements. After checking, I completely support the Minister of Justice.

In the first place, I note that of the 12 primary designated offences that trigger reverse onus, 7 are sexual offences, divided between sexual offences committed against adults and offences against children.

It was 15 years ago that I entered into the rape crisis centre and received training in crisis intervention. I volunteered there for seven and a half years. I want every member of the House to know that the statistics, which were so alarming back then, have not changed. I suggest to the opposition parties that are so opposed to the bill that what we have been doing for the past decade has done nothing. It has not worked. It is time to change the strategy.

I note that according to analysis from Correctional Services Canada, over 80% of all dangerous offenders were designated as a result of a predicate conviction for one or more of the seven listed primary offences. About half of these offenders committed their offences against adults and half against children. Of the remaining 15% to 20% of offenders who were designated as dangerous offenders for other offences, about three-quarters of them were so designated as the result of a conviction for one of the five remaining listed primary offences. The remaining handful of offenders were convicted of a wide variety of offences including, for example, arson and fraud.

This seems to illustrate that there is a clear and precise logic behind the design of the primary offence list. For example, I look at the kidnapping offence. Interestingly, a quick look at existing case law indicates that a large number of non-sexual dangerous offender designations had one or more kidnapping convictions, but also many of them had sexual assault offence histories prior to the dangerous offender application.

A review of case law indicated that a total of 15 individuals were subject to a dangerous offender application since 1997 based on a kidnapping offence. Fourteen were designated as dangerous offenders and one was a long term offender. Again, this illustrates that kidnapping belongs on the list.

Then I looked at the same period for the offence of forcible confinement. I could see only five incidents of a dangerous offender application being sought in those cases. In four of those cases there were one or more of the other primary offences also listed. In addition to the low incidence of such an offence triggering a dangerous offender application, I noted that in half of these cases the dangerous offender designation was denied.

Finally, I note that while there are typically about 1,500 convictions each year for forcible confinement according to Statistics Canada, there are less than 100 per year on average for kidnapping. While forcible confinement offenders receive an average sentence of about six months, the average conviction for kidnapping is about three years. What this tells me is that the offence of kidnapping should be a triggering offence for the reverse onus, but forceable confinement should not. Kidnapping meets the criteria; forceable confinement does not.

The bottom line is the list of triggering offences makes sense. While I am sure there will be much discussion in the chamber and at committee about which offences should be in or out, at least it is clear to me that there has been some consideration in the development of the list.

I have the utmost confidence that these reforms will accomplish what the Minister of Justice has set out to do. A lot of concerns have been expressed by police, by victims, by many volunteers in crisis centres and by provincial ministers of justice that in too many cases individuals were being set loose in the community even though they were clearly uncontrollable.

There was a broad consensus that since 2003 the dangerous offender provisions had become difficult to use even as the shield of last resort against predators who were bound to reoffend if released. I believe these reforms address those problems, but I also belive they do so in a very measured and balanced way that fully respects fundamental principles of justice and human rights.

As such, I fully support these measures that seek to restore to a reasonable level the protection that Canadians want and need against the very worst sexual and violent offenders in the country.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I will begin today by talking a bit about the theory of criminal justice and how we get tough on crime, which is the slogan often used by those across the way.

We cannot get tough on crime without being smart on crime and that means not just descending into slogans, such as “getting tough on crime”, “war on crime” and “three strikes you're out”. We know where that rhetoric comes from and we know that it is based on false analysis. It is based on ideology and sloganism, not on criminological research, social research or demographics which all gives serious concern to knee-jerk, superficial stoking of the fears in society about a situation that may not exist. That is done for purposes that are ideological and polemical and they carry a real danger of being self-fulfilling.

I would like to take a few minutes to speak about how being tough on crime means being smart on crime first.

Let us just take the 12 bills dealing with criminal justice that are before this House and the one that is before the other place. The official opposition has offered this week to cooperate and fast track eight out of the eleven of those bills, and I will speak to the other two in a moment, but that is in no way doing anything but making this place work with sensible dialogue and debate over how to, without holding up any of these bills, ensure they are not more dangerous than what we are to believe they are to protect us against.

We have offered to fast track Bill C-9, the conditional sentencing bill. It has had serious debate and an appropriate amendment was moved by opposition parties so it can now go ahead. We will give it all the speed it needs.

We will fast track Bill C-18, the DNA identification act; Bill C-19, street racing; Bill C-23, criminal procedure improvements; and Bill C-26, payday loans. I would pause to say that five out of the six bills that I have just mentioned were actually initiated under the previous Liberal government. They will go forward with our support and with sensible amendments where necessary. We will fast track two other bills.

We opposed the judicial salaries bill because we opposed the suggestion by the government that it disregard the Judicial Compensation and Benefits Commission which recommended appropriate increases for judges' salaries over the last four year period. While we opposed that, we allowed it to pass on division so there would be no slowing up of that process.

The 13th bill is Bill S-3, the military sex offender act, which is now before the other place. We will be supporting that bill and are willing to fast track it in every way we can.

In the context of discussing the dangerous offender legislation, it is important to underline the cooperation that is going on in the House to identify what is important, to carry on work that was done by the previous government and to get some of these things moved ahead.

However, Bill C-27 is of a different order. The dangerous offender legislation before us has some major flaws that I will speak about but I would first say that we need a reality check. Let us take a reality check first on the criminal conviction statistics in Canada which have been steadily coming down over the last 10 to 15 years. That is what the research tells us. The demographics themselves in society are leading through analysis to that decline in the crime rate. While we may raise the fears of the public to justify simplistic solutions through sloganeering and superficial claims to put fear in the hearts of Canadians, the crime rate comes down.

Let us take another reality check on the situation in the U.S. where these slogans come from and much of this legislation seems to be patterned after. The United States has the highest crime rates and incarceration rates. It also has the most dangerous communities and the most expensive criminal justice system.

If we are to follow any model in the world when we amend our criminal justice statutes, we certainly do not want to follow the so-called war on crime in the United States.

Let me pause to mention that the state of California spends more on criminal justice and corrections than it spends on education. That should be very edifying to all of us.

Let me give another example about the folly of pretending that just by putting people in jail on very restrictive terms without any adjustment for the context of a particular case can be more dangerous for society. Most convicted people, dangerous or not, will get out. We have the Bernardos and some of the most horrid criminals in our country's history who will be behind bars, blessedly, forever, but most criminals will get out.

Let us think of those people who go into a prison situation, which members opposite would like to see everyone go into. It is a bit of an irony to consider that prison life, if that is what we can call it, prison for life, is the place in society which should be the most protected but is in fact the place where one is most likely to be assaulted, raped, infected and injected, and these people will come out.

Therefore, we need to take particular care for the correctional services, the proper services within them and who we put behind bars and for how long.

Let me speak about the fact that 25% of the prison population in this country is made up of aboriginal people. This is a stunning statistic of despair. Can this be the result of a fair criminal justice system or is this a result of despair in aboriginal communities? Is it part of the despair of our prevention system and our criminal justice system of preventative crime? Is it a matter of racism in society? What is happening?

These are the underpinning questions that we must be asking ourselves in the House as we respond to the reality of the criminal justice system. This is 1% of the population and 25% of the prison population.

Let us ensure that when people do come out of prison, if they are going to be spending time there, that they have been rehabilitated and they are safe to society because the vast majority will come out.

We will not ensure that the context of the situation is properly taken into account in peculiar circumstances unless police officers, prosecutors, judges, correctional officers and parole officers have the discretion to identify where the dangers are and where someone may have a better response to a criminal justice sanction than simply putting someone in jail for an indefinite period.

Turning to Bill C-27, the dangerous offender legislation, the member opposite has mentioned that there is dangerous offender legislation on the books now and it is operating. It operates as a companion with long term offender legislation which can kick in. Prosecutors have the discretion to bring forward at sentencing applications before a judge for a long term offender or a dangerous offender designation. That works. It has been covered by the Supreme Court of Canada in the Lyons and Johnson cases in 1997 and 2002. It has been found to be constitutionally appropriate. I would suggest that it is working because it allows for all the proper discretions to be exercised.

The problem with what is being suggested in Bill C-27, and it has been referred to by numerous members of the House, is the reverse onus provision at sentencing after a third conviction of a certain type of very serious crime.

We have heard some people say that this offends the presumption of innocence, which is an historical criminal law principle in our legal system. However, the trouble is not with the presumption of innocence, which is subsection 11(d) of the charter. The question is about the reverse onus of the burden. This is not a conviction matter. It is not a presumption of innocence because the person has already been convicted for the third time.

What we are talking about is whether fundamental justice, in reversing the onus on such an extraordinary punishment, can meet the tests under section 7 of the charter for fundamental justice. There is strong authority that this simply cannot be done. This does not meet the tests of fundamental justice. It involves, for instance, the convicted person proving a negative into the future. Yes, it is on the balance of probabilities and, yes, as the member opposite said, there is judicial discretion to determine whether that onus is met or not, but there is still a reverse onus and, in many cases, it is an impossible burden to attempt to prove a negative into the future.

It is also a problem because it offends section 7 as being against the principles of fundamental justice and it is a problem under section 1 as to whether this is a justifiable limit on the rights under the charter. Is it a substantive need? Is it a rational connection? Is there minimal impairment? I would say that under all those cases this reverse onus does not meet the test. This is highly constitutionally suspect. Why, when we have a provision that is working well, would we want to throw ourselves into very likely years of constitutional charter litigation when we have charter compliant provisions now for dangerous and long term offenders?

We also have a problem that this will not be enforceable. This is ultra vires of the federal government to tell the provincial governments, which are responsible for the administration of criminal justice, who they should prosecute and what sentences they should ask for. That simply cannot be supported in our constitutional division of powers and, therefore, it is inappropriate for the government to put this forward.

There are also dangerous unintended consequences that could come to the fore here. We have long delays in our criminal justice system today. A report in the paper last week showed that in the province of Ontario 100,000 charges have gone beyond the nine months before they actually go to trial. This is bouncing very perilously close up against the Supreme Court of Canada Askov decision where all members will remember with regret that 30,000 criminal cases were dismissed because it took too long for people to get to trial.

If people are facing this so-called simplistic, superficial three strikes and they are out law, which has been so disastrously unsuccessful and dangerous in the United States, they will insist on going to trial more often. There will be less guilty pleas which will cause further delays in the courts and perhaps more cases will be thrown out because of charter violations.

The one side of it is that there will be more trials, longer delays and more costs to the prison system. I have not even begun to talk about the hundreds of millions of dollars in capital costs that will be required to build the prisons that will hold these long term offenders.

Costs will be going up, delays will be longer and cases will be thrown out for charter violations because of delay. The other dynamic that may happen and where prosecutors, with long dockets and not wanting to have further delays in trials, may charge people with lesser offences than would otherwise justify a conviction for a more serious case that may give them a longer prison term, or the convicted person may plea bargain to a lesser offence.

Both of those dynamics are more likely to put dangerous people on the streets and put in danger the men and women the member opposite was just speaking about. We have to be very careful when we tinker with these laws, especially if we are doing it superficially and against the evidence of criminologists and social scientists as to what is effective and what is not.

Let us turn for a moment to what being tough on crime by being smart on crime really means. It means a national crime prevention strategy, such as the one the previous government put into place across this country over a period of 13 years, funded in a very targeted way, to help kids have things to do after school. If I may indulge myself in a short phrase, it is about shooting hoops, not drugs. There are sports programs across this country in the evening and even far into the night where kids who otherwise would have been getting in trouble are involved in healthy activity.

We have to watch for issues of poverty and cultural exclusion.

We have to look at the issue of legal aid, which is in underfunded disrepair across this country, thus involving people in perhaps building up criminal records when they should have been having trials and pleading not guilty. They are pleading guilty because they cannot defend themselves in the courts without assistance.

We have to look at issues of homelessness. We have to look at issues of mental illness. The Kirby-Keon Senate report was an extraordinary statement of sound thinking about how to deal with those with mental illnesses, who unfortunately fall into the ranks of the homeless as well as the ranks of the criminal justice system, which is the worst place for them to be. We have to rethink this and meet our social contract around the concept of deinstitutionalization, whereby governments emptied the mental hospitals but then did not provide services in the community to support people.

We have to look at drug courts. They are operating in Toronto and Vancouver and in numerous American states. That is one example of where the American criminal justice system has actually been a stunning success at diverting people out of the criminal system if they will go into detox and treatment.

We have to look at issues of harm reduction. Drugs, addiction and substance abuse are great parts of the despair that leads people into the criminal justice system. Harm reduction, of course, involves needle exchanges and safe injection sites, which the government has failed to guarantee would be extended in Vancouver, when it has been an example for literally the world to consider the effectiveness of harm reduction in that situation, to help motivate people into detox.

We need shelters for them. We need transitional housing. We need skills training. We need affordable housing. We need jobs. In fact, the social enterprise initiatives of the last Liberal government, which were ready to go across this country, certainly in my province of British Columbia, were cancelled by the current government in its last budget. Those are the things that can assist people to not fall into crime and into despair, which leads them to become dangerous for other members of society.

What are we going to do instead? We are going to dismantle the gun registry. It is amazing that any thought could be given to that at this stage after the tragedy at Dawson College in Montreal.

We have a Prime Minister who will not go to an international AIDS conference in Toronto. We have a Prime Minister who did not go to a world conference on harm reduction in Vancouver last April.

We are simply looking in the wrong direction. We have to be tough on crime, I agree with all members opposite, but we are going to be tough on crime by being smart on crime and not by being simply superficial and using slogans.

[Jim Prentice, Conservative, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I did not appreciate how unruly the House is after question period. I am sure it is a continuing challenge.

Before I adjourned in preparation for question period, we were discussing this particular legislation, the dangerous offender legislation, Bill C-27. I had taken some exception to the comments of members from the New Democratic Party that had referred in their speeches to this being a matter of cooperation or a matter of the health of communities.

The NDP takes umbrage with Bill C-27. I was simply saying before we adjourned that the purpose of this legislation is to deal with the safety of our streets, the safety of women and children in our society, and the treatment of people who are dangerous sexual predators. For the life of me, I am not sure what the NDP is talking about with respect to this.

This legislation is extremely important. It results from a need to follow up upon a previous decision of the Supreme Court, Regina v. Johnson. That case made it very difficult in the minds of some, almost impossible for the police and crown prosecutors to actually secure dangerous offender designations against dangerous sexual predators. The consequences were very clear and the empirical evidence supports the fact that there were fewer prosecutions and fewer convictions. I do not think it is difficult to extrapolate to say, as a result more sexual predators left on the streets.

Certainly, it is an issue in Calgary that I have talked with city police about. I am well aware of the issues that they have undertaken to use scarce policing resources to manage people on the streets who are incorrigible sexual predators and dangerous offenders.

The legislation itself follows up as an amendment to section 753 of the Criminal Code. Canadians need to appreciate, as other parties in the House seek to protect dangerous offenders, the kinds of individuals that we are talking about. If individuals were to make a passing reference to section 753 of the Criminal Code, they would see that we are talking about people who constitute a threat to the life, the safety or the physical or mental well-being of other Canadians.

We are talking about people who show a failure to restrain their behaviour with a likelihood of causing death or injury to other persons or inflict severe psychological damage on other persons. We are speaking about individuals who show a substantial degree of indifference on their part in respect of the foreseeable consequences of their action and the effect of that action on other people.

Frankly, we are speaking about people whose conduct is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

Simply stated, we are dealing with dangerous offenders, with the most dangerous criminal predatory elements in our society. What the Minister of Justice is attempting to do with this bill is to escape from the logic of the previous court decision which essentially said that the only way these people could be incarcerated as dangerous offenders was if the Crown and the police were able to show beyond a reasonable doubt that these people could not be on the streets.

That is an unfair test. We have heard much in the House about the necessity for balance. Clearly, that kind of a situation lacks any sort of balance at all. I speak on this because I feel very strongly about it. The existing law in this country does not provide the degree of protection that is required for women and children on the streets of our cities and communities.

It is high time that Parliament did something about it. This is not the first attempt either. In 1995 and 1997 there were unsuccessful attempts to tighten up the dangerous offender provisions of the legislation.

One of the issues is whether or not this particular legislation, and in particular the provision that relates to offenders who have two previous convictions, is balanced and whether it respects the Constitution.

I would like to refer the House to the actual legislation, Bill C-27, which is before us and specifically the amendment to section 753, which states:

If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more...the conditions in [section 753]...are presumed to have been met unless the contrary is proved on a balance of probabilities.

Therefore, the discretion on the part of the judiciary remains. It still has to assess the evidence. It still has to examine the circumstances of the case and it still has to decide on the balance of probabilities. However, the constitutional jurisdiction or discretion on the part of the court remains. This legislation therefore has the necessary balance between these presumptive provisions and the ability of the court to make its determination based on the evidence.

It carries on and specifically defines a limitation in proposed subsection (1.2), where it says:

Despite subsection (1), 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...would adequately protect the public.

So there is a limitation in this legislation that allows for the court to assess the evidence, weigh the evidence, and make the determination which the court is required to do.

In the time available, I will not speak about Correctional Service Canada and the National Parole Board, and the power they have to extend an offender's stay in custody past a conditional and, in certain circumstances, past the statutory release date. For certain groups of offenders, typically those with two or more violent offences, a dangerous or a long term offender designation may be imposed during the sentencing process.

Dangerous and long term offender designations are set by the court after an application by a crown attorney at the time of sentencing. A designation can be given as a result of a single act of brutality or a number of offences. This legislation allows for such applications to be conducted in a reasonable way, based on the evidence that is before the court.

The nature of the offence that we are speaking of would be a serious personal injury offence as defined in section 752 of the Criminal Code. I would implore other members of the House from other parties who have not yet decided whether they support this legislation, and who should, to look at section 752 and look at the list of criminal offences of which we are speaking.

I reiterate my point that these are the most dangerous offenders in our society. They include indictable offences such as first degree murder involving the use or attempted use of violence, or conduct endangering or likely to endanger the life or safety of another person.

These offenders represent a continuing serious threat to life in our society, to the safety, physical and mental well-being of other individuals. Surely, the first obligation of Parliament, the first obligation of this hallowed chamber, is to ensure that we have sufficient protection for women and children from these kinds of people who are on our streets, sadly, in our cities.

The amendments in Bill C-27 would strengthen the dangerous and long term offender provisions to ensure that violent and/or sexual criminals would receive some of the toughest sanctions in the Criminal Code.

There are those in this House who say that this is unwarranted. I ask them to stand in this House, to face the Canadian public who are justifiably concerned about this, whether we be parents, whether we be husbands who are very concerned about this, and say that they are prepared to mollycoddle violent and sexual criminals who are a threat to vulnerable people in our society. That is essentially what they are proposing.

Designation as a dangerous offender means that the offender must serve an indeterminate sentence with no entitlement to statutory release. It also means that offenders can be detained in a correctional facility for an indefinite period if they have a history of serious or violent offences and pose a safety threat to the public. That is the way it should be.

The legislation will ensure that the judicial responsibility to weigh the evidence carries on, that we have a balanced and fair trial process with respect to these people, and that the designation of a person as a dangerous offender will be conducted in a way that accords with the Canadian charter. However, at the end of the day, those who are the most serious risks to the health and the safety of women and children in our society will be incarcerated in circumstances where they should be.

Like other offenders, dangerous offenders may apply for conditional release. However, they may only do so after serving seven years of their sentence. A conditional release will be granted only if it is determined by the National Parole Board that the offenders can be safely reintegrated into the community and if released, these offenders are monitored in the same way as other parolees who are under supervision for life.

Again, the chances of a dangerous offender achieving conditional release are very low because of the nature of the individuals about whom we are speaking and the fact that this type of behaviour is incorrigible and is not readily changed. It is fair to say that many of these individuals who are dangerous offenders end up spending much of the rest of their lives behind bars.

The reason that this legislation is warranted goes back to a previous court case and to previous attempts to remedy this defect in the Criminal Code. It is quite clear that over time, if one looks at the evidence, the dangerous offender applications and the convictions have decreased as a result of previous judicial decisions. That makes it difficult to secure prosecutions successfully. If one talks to crown prosecutors and the police, they will say this.

The effect of this legislation, which is put forward by the Minister of Justice, including the third strike presumption, is reasonable. If one has been previously convicted of two such incidents that are dangerous offender designations, there is no reason why there should not be a presumption and a shift of an onus in terms of the third such conviction that is brought before the court. Surely, that is a minimum requirement that Parliament should impose to keep our streets safe and the security of our women and children tight.

Those are the submissions I would make with respect to Bill C-27. I am pleased to answer any questions.

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.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am pleased to speak on behalf of the federal New Democrat caucus on second reading of Bill C-27.

First, I would like to pay tribute to the very able justice critic, the member for Windsor—Tecumseh, who has given the NDP caucus incredible guidance, information and led the debate within the caucus on this bill as well as close to a dozen bills that have been thrown at the justice committee from the Conservative government. The member for Windsor—Tecumseh has earned respect from all sides of the House for his intelligence and wisdom and how he has approached these matters. I certainly speak today based on the wisdom and guidance that he has provided to the NDP caucus.

We are at a very interesting and critical juncture in this debate. Being the fourth party to speak, it has been clear to anyone watching the debate and if it was not clear to the government previously it would be clear to it now, that this bill is going down. Three parties are opposed to this bill at second reading, which as we know is a debate in principle. It looks like the bill will not go forward to committee. That is a very serious situation.

I listened, sometimes with a smile on my face, to the political rhetoric that has spewed forth time and time again from the government on this bill and many of the others. The government's mantra is that members who do not support these bills are soft on crime, that if they do not support Bill C-27, they are soft on crime; they are giving a free ride to criminals, they do not care about the public, they do not care about victims, they do not care about anything. We have heard it over and over again. Government members must dream about it and repeat in their sleep.

One of the members said we should look at reality. Let us look at reality. There are three opposition parties basically saying no to this bill because it is a very fundamentally flawed bill. The parties that have spoken thus far have given very strong both philosophical and intellectual reasons but also legal and practical reasons why this bill just does not cut it. That needs to be said.

We have heard from the Prime Minister that the opposition is delaying the crime bills. Bill C-22, the age of consent bill, was introduced in June but the government itself did not call it until yesterday. So much for the delay. The same goes for this bill. This is the first time we have had an opportunity to debate it.

Let us put aside all the political bunk and rhetoric and focus on the merits of this bill and whether or not it is a good, sound piece of legislation. Presumably that is what we come to this place to do, to represent our constituents, to represent sound public policy, public interest and to decide whether or not legislation that comes from the government is good. We make our judgment on that and decide whether the legislation should continue. That is what we are debating here today, not all the political rhetoric.

In terms of Bill C-27, as I said, the NDP caucus is opposed to it. I note that in the information put out by the justice minister's office we are told that this particular bill will make it easier for crown prosecutors to obtain dangerous offender designations. It goes on to point out that a cornerstone of the reforms in this bill is that an offender found guilty and convicted of a third designated violent or sexual offence must prove that he or she does not qualify as a dangerous offender. This is what is referred to as the reverse onus. This is one of the major reasons that certainly the NDP and other parties we have heard from today are opposed to this bill. Why is that so?

I would like to quote a very good article written by Paula Simons which appeared in the Edmonton Journal in October, as well as in the Regina Leader-Post, and maybe other publications. In that article the author pointed out:

It's a rule of law as old as the Magna Carta, a golden thread that runs through almost 800 years of British legal tradition. And it's enshrined in Section 11 of the Canadian Charter of Rights and Freedoms, which guarantees that any person charged with an offence has the right to be presumed innocent until proven guilty.

I begin with this first argument and fundamental point because it is very much the underpinning of the concerns that we have about the bill. The bill brings forward a provision that will bring in reverse onus and will remove from the system the state's responsibility to bring forward evidence to show that someone is a dangerous offender. The onus will be put on the offender to show why he or she is not a dangerous offender.

I point out that in basically eliminating these hundreds of years of tradition, we did have sections in the Criminal Code that did have reverse onus clauses. This is something that was actually contained in our Criminal Code before the charter, but since 1982 when the charter came in, those provisions have been either struck down by the courts or voluntarily removed through successive Criminal Code reviews and amendments.

We really need to understand that within our judicial system we have had a long-standing practice of assuming someone's innocence until he or she is proven guilty and looking at each case on its merit. We are not talking about a cookie cutter system where one checks off a little box and it is either black or white, yes or no. We are dealing with individual offences. We are dealing with individual victims. The basis of our justice system is that we have the capacity and the ability to make judgments based on applying the law as it exists to determine each of those cases.

Bill C-27 will be a massive reversal of that very important democratic and just tradition within our judicial system. For that reason alone, we are opposed to the bill.

In the current environment in our judicial system, 85% of current dangerous offenders are still in custody. They do not get out. We are talking about longer than a life sentence if someone is convicted as a dangerous offender.

I would argue, and I know our justice critic, the member for Windsor—Tecumseh, would argue that there is no doubt the provisions and the system we have require improvements, but the basic provisions that are there actually are working. Basically completely eliminating that provision and bringing in the reverse onus we see as something that one, will be struck down and will be subject to a charter challenge, and two, will not necessarily improve the safety of Canadians. We have heard that today throughout the debate.

The second problem I can identify is that the bill crosses a boundary whereby it will allow a federal jurisdiction, the federal government, to move into a provincial jurisdiction and tell prosecutors, who are under provincial jurisdiction under the administration of the law, what they should be doing. This is very problematic and is likely to be challenged and struck down.

It makes one think why a bill would be brought forward when two of its basic tenets are things that are legally very open to challenge. As we have heard today, there have been many expert opinions that these particular provisions would be struck down.

There is of course an enormous amount of concern in Canadian society about crime, safety and making sure that people who are dangerous are not on our streets. These are very legitimate things. As New Democrats, we want to ensure that we have the best criminal justice system which ensures that when a dangerous offence has taken place, someone is convicted and the appropriate sentence is given.

It seems surprising to us that under this proposed bill, we would wait until someone had been convicted a second and third time before this kind of provision would apply. The most efficient, intelligent and practical thing to do would be to make sure that the system is working as early as possible, in terms of earlier intervention, by providing crown prosecutors with the resources they need to get the convictions they need, when they can see that there is information and evidence before them.

Right now if a prosecutor is of a mind that there may be information that leads him or her to believe that someone should be prosecuted as a dangerous offender, it is expensive and it takes time to do that. It takes a lot of resources to do the investigation. The reality is that in some instances, prosecutors may back away from that because they are simply overwhelmed by the system as it is and what they can deal with in terms of managing the cases that they have.

The point I am trying to make is that if we are truly interested in making sure that dangerous offenders are locked up and that the public and our communities are safe, then surely we would want to ensure that the system is responding in a way that the prosecutors can actually do their jobs.

Rather than waiting for the second or the third conviction and then placing the onus on the offender to show why he or she would not be a dangerous offender or a risk to society, why not give the prosecutors the tools and the resources to actually do the job they need to do, so that we do not even get into those other situations? We believe that would be a much better scenario, a much better set of rules under which to operate.

What kind of message are we sending out to the public with this bill? We have heard the rhetoric from the government that it is all about getting tough on crime, but actually what we are saying is that it is okay to wait for the second or third time. Do we want to give offenders that third time?

From our point of view, it is much better to have a system that provides the resources and the tools to make the system work as it should and to make sure that the prosecutors are actually able to deal with these cases, and where they can see that the dangerous offender designation is required through prosecution, that they are actually able to follow that up. That is a very important point.

A fourth argument I would like to raise is that if there were a seriousness about this bill and dealing with dangerous offenders, then we should be looking at what we can change that would actually improve the work that takes place. One example would be changes to the evidentiary burden on the prosecutors. Right now they have to line up three psychiatrists when they are trying to prove their case for a dangerous offender. Maybe we should be looking at that. Maybe we should be saying that only two psychiatrists are necessary in order for the prosecutor to bring forward the required expert information.

There are a number of things that could be done within the system to actually improve the resources of the prosecutors to do their jobs, but this is being completely overlooked by the government. Instead we have this very heavy-handed approach that has been brought in by the government where there is absolutely no confidence whatsoever from anybody in the justice system and the law profession that this law will actually be upheld.

In fact earlier I heard the member from the Bloc say that this is why they are afraid of the government. It was a very interesting remark. I think it echoes a sentiment in the public that we see the government loading in these crime bills and there seems to be very little thought to some of them.

The opposition parties have worked together very closely at the justice committee and have tried to convince the government why some of these bills are so seriously flawed. Yet the government does not seem willing to engage in that debate. Therefore, one is left with the conclusion that it is about political spin. It is about the politics of fear. It is about playing on people's fear about crime and safety, which people have, without really ever addressing it.

One of the fears Canadians have is that we are moving closer and closer to the U.S. style of justice system where it has the “three strikes and you're out” laws in effect. The evidence shows us that it has not worked. Again, from this very good article in the Edmonton Journal, it quotes from a 2004 report by the Justice Policy Institute in Washington, D.C. It cited FBI crime statistics that showed violent crime and homicide rates between 1993 and 2002 dropped faster in states without the three strikes law. This is very interesting and we should learn from the very real evidence available in the United States.

I know members of the Conservative government will argue that this is not exactly the same law, but it is based on the same kinds of principles and it is moving us closer and closer to the kind of system we see in the United States. We have heard its kind of mantra on getting tough on crime.

The report also compared California to New York. California has the toughest three strikes law. It sent people to jail for life even if their third crime was stealing a piece of pizza. New York has no such legislation, yet its overall crime index fell 50% from 1993 to 2002. California's overall crime index fell only 39%.

Despite the fall in crime rate between 1994 and 2004, in the 10 years experience of the California three strikes policy, its prison population rose by almost 23%. The Justice Policy Institute study estimated that building and staffing the extra prisons to house all those prisoners cost the state an extra $8 billion U.S. over 10 years.

I bring forward these points of information because they are very pertinent to this debate, not only in terms of this bill but also other bills that are before the House. As a Bloc member said, this is why we are so afraid of the government. It is embarking on a radical departure. It seems hell-bent on radical changes whether they are shown to work or not. This should be of very grave concern to all of us.

I totally reject the arguments, which will come forward now, that the NDP is soft on crime. Nothing could be further from the truth. We want to be intelligent about our response to crime and justice in our country. We want to ensure that there is sound public policy development. We want to ensure that we do not adopt legislation that has been shown not to work, that may create incredible havoc within the judicial system and that will undermine very fundamental principles established over many hundreds of years.

The government needs to take note. This is a minority Parliament. We have a majority of members in the House who say, with a united voice, that this is not good legislation and that it will be defeated. Therefore, the government members can squawk all they want about that. They can try to put out their political line that nobody on this side cares about crime, which we know is absolute nonsense, or they can get serious and engage in a real debate about what changes need to be made to the justice system. I have offered a few today, so have the other parties.

The Conservatives can choose if they so wish. If they are serious about putting public policy first and protecting the Canadian public, they can look at changes that will work within our judicial system. It is their decision. I do not know what they will decide, but they should take note of the fact that three parties now oppose the bill.

[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--

[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?

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.

[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.

Business of the House

[Rob Nicholson, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, today we will continue with Bill C-28, the bill to implement the 2006 budget tax measures. This would be followed, time permitting, with Bill S-2, hazardous materials, and Bill C-6, the aeronautics amendments.

Tomorrow we will continue with the business from today with the possibility as well of completing the third reading stage of Bill C-16. I will talk to the opposition House leader about that after this.

Next week we hope to begin debate on some of the government's justice bills. The first one will be on the age of consent, Bill C-22. If we could get unanimous consent to pass that at all stages that would be very much appreciated.

We will go then to Bill C-27, our dangerous offenders bill and any cooperation we can get to move that along would be appreciated, I think, by the people of this country.

I am looking forward to sitting down with the official opposition and other parties to discuss the speedy passage of the many popular bills that the government has introduced and I am looking forward to their cooperation on that.

Pursuant to Standing Order 66(2), I would like to designate Tuesday, October 31, as the day to continue debate on the second report of the Standing Committee on Agriculture and Agri-Food.

In response to the member's questions, consideration in committee of the whole of the votes under the Department of Human Resources and Skills Development on the main estimates for the fiscal year ending March 31, 2007, shall take place on Wednesday, November 1, 2006, pursuant to the Standing Orders. The second day for consideration of committee of the whole will be November 7, 2006.

As well, I should indicate that Thursday, November 2, 2006, shall be an allotted day.

With respect to the member's questions with respect to the same sex marriage, we will fulfill our campaign promise on that and we will be proceeding with it this fall.