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

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I am very pleased that you are prepared to hear what I have to say to the end.

When we are faced with a reality such as this, we sit down and pay attention to the crime rate. In some regions of the country it has gone down. Why? In Quebec, emphasis was placed on rehabilitation. There are dangerous offenders, but not many, and before an individual is declared a dangerous offender that person is first considered a long-term offender. This criminal can be supervised for 10 years.

Let us look at the crime rate in Quebec. It speaks for itself. Quebec is the place where there is the least amount of serious crime, but it is also the place where emphasis has been placed on rehabilitation. It is also the place in Canada where people are quite aware of the importance of gun control. This also says a lot. There are predispositions. There is intelligence in an approach.

The Prime Minister and his government have decided to do away with the firearms registry, to remove all controls and now weapons are pouring in from Montana, crossing the Canadian border, which is a real sieve. They are pouring in. Everyone is armed and it is a circus.

This is not how things work. First, we must keep the gun registry. Second, we must improve enforcement along our borders. Let us set up controls at the border, to prevent gun smuggling. One can go anywhere—a bar, a pub, whatever—ask for a handgun and get it very quickly. There is an incredible traffic going on for these weapons. That is the second measure to take, instead of passing cosmetic bills like this one, to make the Conservatives look good, because they want to show that they are the only ones defending justice. My foot!

I just said that these are two important measures, but the Conservatives are totally opposed to them.

Third, how about investing in prevention? We see some very young people—aged 10 to 12 or 13—working with henchmen from criminal organizations. For example, these young people help hand harvest cannabis plantations in Ontario, Quebec or elsewhere, and are paid $20 an hour. They work with organized crime and they learn to make quick money the easy way. Could it be that, as they get older, these young people will continue to deal with the criminal world and become part of it, instead of becoming honest members of our society? The purpose of prevention is to keep them from doing that. It is to ensure that those young people who are at risk can integrate our society and rehabilitate themselves, before they become adults and join the ranks of organized crime.

When do we hear about crime prevention for young people? When do we hear Conservatives talk about rehabilitation? Never.

I will conclude by simply saying that the Conservatives also claim to be great protectors of public funds. Looking at how they manage that money is my pet project. They claim to be great protectors of public funds. However, because of the measures that they want to take, jails will be full of people who, after three offences—regardless of the merits of the case and the good judgment of judges and coroners—will join the inmate population, thus increasing it significantly.

I would like to give you a few figures relating to the cost of rehabilitating a prisoner. In Canada, keeping a person in the prison system costs an average of $88,000. I am not talking about maximum security. Maximum security—incarcerating dangerous offenders—costs $120,000 per year. That is a lot of money.

Do you know how much it costs to supervise an offender? About $26,000 per year. $26,000 compared to $120,000 or $88,000 speaks volumes.

First of all, the Conservatives opted for Criminal Code reforms that provide no new tools for fighting criminals. Second, they did so merely to look good and give people the impression that they are strong supporters of a police state and the victims, even though they are doing nothing to help victims. What they are really doing is creating criminals, promoting recidivism and creating potential victims.

Third, they have not considered prevention and rehabilitation, even though that is what works. Wherever this approach has been used, crime rates have dropped and there have been fewer serious offences. Wherever there is a sense that the people's representatives do not support rehabilitation, we get situations like in Edmonton and Calgary, where the crime rate is sky-high.

Maybe this means something.

Furthermore, these ineffective measures, which are completely useless for protecting potential victims, cost an arm and a leg; they are a huge waste of public funds. As I said, measures like these create fertile ground for recidivism. There are people who go to prison and end up staying there 10, 12, 15 years. Most studies show that when they come out, their risk to re-offend is higher than it would be if they had had access to rehabilitation, as they do in Quebec and other countries. We have to think about this and stop going for the right-wing police approach by claiming to be the only ones fighting for justice. Give me a break.

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

Mr. Speaker, I have one comment to make on the whole issue of the opposition's soft on crime stance and one particular question for the hon. member from the Bloc.

The first thing I would comment on is that apparently the opposition members think it is an appropriate sentence to have criminals sit at home watching a 52 inch plasma TV stolen from a house that they just burnt down. That is exactly what these members are saying should be an appropriate sentence as opposed to Bill C-9.

I am absolutely appalled that he would stand in the House and say that for $26,000, that is the reason we cannot afford to designate somebody as a dangerous offender.

In our province there is a man by the name of Peter Whitmore who has just recently abused two 12-year-old boys. It is the sixth or seventh time he has done this. He was not designated a dangerous offender. Had he been so, he would have been in jail.

Why does that member not come to my province and tell the parents of these 12-year-olds that $26,000 is more than the value of a young child? Please come out.

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I would like to resume with a more civilized tone. The Conservatives have a tendency to shout like that and sound off indignantly. They should express their indignation about their own government's failure to act on organized crime. They should stop throwing stones at the Bloc Québécois. I have a good memory. In 13 years, there were three major reforms to the Criminal Code to get the Hells Angels and other such criminal gangs behind bars. Those three major reforms were introduced by the Bloc Québécois. We did everything we could to get those reforms passed. The Conservatives were reluctant to adopt the reforms needed to fight real criminals with real tools.

Getting back to his example, what does Bill C-27 have to offer? From the first serious offence for assault or a heinous sexual crime—which we find just as heinous as my Conservative colleague does—a coroner can ask that the convicted individual be designated a dangerous offender. They want to give such criminals three chances. Where is the logic in this bill?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I might say at the beginning, as one of the ones you tuned up for shouting across the floor earlier, that you are to be congratulated for the non-partisan and fair approach you take to your occupancy of the Chair. You treat both sides the same.

I have a question to the member who spoke, and it spins off what the new government member said a minute ago when he outlined a serious crime and indeed it is a serious crime. However, when we are looking at these bills, the key question is, will it work? That is what is fundamental. We all know there are crimes out there and there needs to be penalties for them, but the key question in terms of the whole new approach the Conservatives are taking to law and order is, will it work?

I attended the justice committee the other day. There was no evidence nor concrete facts. The Conservatives are basically bringing in an Americanization of our justice system. Which country do we feel safer in walking the streets, this one or south of the border? So I ask the member--

[The Acting Speaker, Royal Galipeau]

To be fair, again, this question and comment period will collapse at 5:30 p.m. and I would like to give time to the New Democratic Party for a question. I recognize the hon. member for Saint-Hyacinthe—Bagot.

I ask that the response be brief.

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, my Liberal colleague is entirely correct. What they are trying to do is simply copy the Americans. In the United States, where such a policy was brought in, here is what happened. The American rate of incarceration is seven times higher. There are three times more homicides in the U.S. than in Canada, and four times more than in Quebec.

Why would we copy such a policy here, when it clearly does not work and accomplishes nothing? Despite my colleague's indignation, I still insist that this measure is completely ridiculous. Its sole purpose is to make the Conservatives look good in the eyes of Canadians and deliver on their promises, which are completely ridiculous.

[The Acting Speaker, Royal Galipeau]

The hon. member for Winnipeg Centre will recognize that there is less than a minute for both the question and the answer.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I want to thank my colleague, the member for Saint-Hyacinthe—Bagot, for his eloquent and thoughtful remarks. I will dwell only on the one issue that he raised.

In my earlier comments, I said that in fact the Conservatives are being soft on crime on the issue of reverse onus as it pertains to the proceeds of crime. It was a Bloc Québécois initiative that said in situations of organized crime why should we not be able to seize the luxury homes and assets and have organizaed crime prove that it earned that money legally and it was not purchased through the proceeds of crime.

Is it not the Conservatives who are going soft on that policy? They are not going after organized crime nearly as stiffly as was recommended by our colleague Richard Marceau from the Bloc Québécois?

[Yvan Loubier, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I thank my hon. colleague and NDP friend for this question.

Reverse onus for the proceeds of crime is not the only amendment to the Criminal Code introduced by the Bloc Québécois. There were three others, and they were all major.

One of them, for example, is what led to operation springtime 2001 and its outcome, which targeted criminal biker gangs and made it easier to prove someone's membership in a criminal gang. We followed up with reverse onus. These are real tools, unlike the nonsense being presented here today. And those real tools were the Bloc Québécois' contribution.

[The Acting Speaker, Royal Galipeau]

It being 5:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

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

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

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

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

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

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

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

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

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

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

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

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

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

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

Bill C-27 seeks to address these specific problems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Bradley Trost, Conservative, Saskatoon—Humboldt, SK]

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

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

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

[Paul Szabo, Liberal, Mississauga South, ON]

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

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