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

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I listened with interest to the parliamentary secretary's comments on Bill C-27 and the issue of the reverse onus.

The presumption is that if an application is brought for a dangerous offender hearing under Bill C-27, the offender would automatically be presumed to be a dangerous offender and would bear the burden of refuting that presumption.

I wonder if the member is aware that some provincial attorneys general have expressed concern that while they do want to see the dangerous offender system strengthened and made more effective, they have concerns that this provision, which reverses the presumption onto the shoulders of the offender, might in fact be deemed constitutionally invalid.

I wonder if his government has looked at that issue and what expert opinions they have on the question of the constitutionality of such a provision.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, obviously, I am sure that the Minister of Justice has done his due diligence and obtained opinions, and there will probably be some range of opinions.

However, we are not talking about someone who comes before the court presumed to be innocent of any offences and with a clean record. In this case, we are talking about someone who has been before the courts on a violent or sexual offence that has encountered a two years sentence, sentenced once to two years, and then repeats the offence. The individual comes before the court, is convicted of a serious offence, either injury or sexual offence, with another two year sentence, and then appears before the court yet again. The individual is not innocent, but is proven guilty of that offence and has a sentence of two years or greater. At that point the court is saying that this individual must then be presumed to be a dangerous offender unless the individual can prove otherwise.

That is an appropriate thing to be done. I would hope that our constitution, at some point, would say that these individuals have done enough damage to society, they have hurt enough young children in society, they have done enough damage to them emotionally, physically and otherwise that it is incumbent upon them to show why they should not be put away with an indeterminate sentence where society is protected.

Of course, they could raise that issue, but at some point the threshold is crossed where it is constitutional. Certainly, in other cases where there has been reverse onus positions in either bail provisions or other ones, the court has found them to be constitutional and to stand the test of constitutionality.

There may be a test that we would like to see happen, but if we ask any mother or father of a young child, they would be very much concerned and would be very much offended if our Constitution did not allow them that additional avenue of protection that is specified in Bill C-27.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, I appreciate the hon. member's intent in terms of protecting Canadian citizens from people who could be considered dangerous offenders.

One of the concerns I have is the right of all Canadian citizens, regardless of being innocent or guilty, to have access to legal aid or to lawyers.

An awful lot of people in my riding bring up the issue of the inability to seek legal aid, and legal aid in various provinces is getting harder and harder for people to access in order to have their grievances or whatever heard by the judiciary.

Can the hon. member indicate, in the premise of the bill or in any future aspects of the bill, that everybody, under that premise, will have full and equal access to legal assistance to defend themselves under any circumstances?

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, as we know, the provinces determine how the legal aid system works from province to province and certainly provide for that.

I can also say that some courts appoint counsel if they feel that representation is needed. It is not a question of whether or not one should be represented. The issue of the bill is that at some point a person ought to be declared a dangerous offender and society should be protected, and every avenue should be used to make that process happen. Province by province will make that determination, I am sure.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, as the official opposition's justice critic I am pleased to rise and speak to Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace). Members will no doubt be familiar with this bill as it has been debated at second reading on a number of occasions.

I would like to preface my remarks today with the following facts.

First, it is important to point out that in spite of the fearmongering rhetoric that emanates from the government benches, crime in Canada is, and has been for some years now, in general decline. Though media reports and the occasional sensational story may lead us to believe otherwise, Statistics Canada reported that crime fell by 22% and the violent crime rate fell by 13% between 1992 and 2004. These facts unmistakably belie the government's propaganda to the contrary.

I also wish to state that we Liberals support strong, effective criminal legislation. There is no doubt about that. We want to see tough and smart legislation being introduced in the House, the kind of legislation that will actually make Canadians and their communities a safer and happier place. We will not accept a Prime Minister who pushes a petty, partisan agenda using front line police officers or a Minister of Public Safety who dismantles or tries to dismantle Canada's widely used gun registry. We want legislation that achieves results, not headlines.

That is why our party on numerous occasions tried to fast track a number of justice bills. Inexplicably, these offers have been met with deafening silence from the government. Thus, we are not amused when we hear government members claiming shamelessly and falsely that we are soft on this or that.

With respect to the bill currently before us, we have heard from several members of all parties. I would like to thank them for their contributions. In particular, I would like to thank my colleague from London West, who gave us an eloquent and intelligent analysis of Bill C-27. She highlighted the bill's shortcomings, which I would like to review here.

First, the proposed new section 752.01:

If the prosecutor is of the opinion that an offence for which an 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, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).

This section would require prosecutors to notify the court as soon as possible after the finding of guilt of their intent to seek dangerous offender designation . The problem with this is that subsections 752.1(1) and 752.1(2) already govern the submission of such applications. The amendment proposed by Bill C-27 is therefore redundant because the relevant provisions already exist in the Criminal Code.

Furthermore, as my colleague from London West explained, there were problems concerning jurisdiction because the list of designated offences included a large number of offences under provincial jurisdiction. Everyone except for the minority Conservative government knows this. The administration of justice falls under provincial jurisdiction. There is also a problem in terms of application because failure to comply with this provision carries no consequence. It seems the government was not being very careful when it drafted this clause.

The second problem is a big one because it is constitutional. As I said, several constitutional experts believe that section 7 and paragraph 11(d) of the Canadian Charter of Rights and Freedoms would be violated by the clause in the bill that establishes the presumption that an offender is dangerous.

The Liberals believe that this bill can be improved in a way that respects the charter and our Constitution and guarantees real safety for Canadians and Canadian communities. That is why we intend to draft some amendments. We hope that the government will take a close look at them and agree to them. I will explain them.

First, one of the problems with this bill is that there is no obligation, on a third conviction of the most serious personal injury offences, for the crown prosecutor to actually apply for a dangerous offender hearing. It is all very well and good to say that we are going to if an application is made and that the offender will be presumed to be a dangerous offender, but if the crown prosecutors do not make the application, there is no dangerous offender hearing.

We on the Liberal side, we of the official opposition, are open to the idea of reform of the dangerous offender sections. We want to toughen the legislation in committee and address some of the serious concerns that remain regarding the way this bill is designed.

One of the proposed amendments that we will bring is in regard to the fact that currently when a judge is making a determination as to whether or not the dangerous offender designation is appropriate, one alternative already exists after disposition, and that is the long term offender designation. However, if the judge designates someone a long term offender and gives a supervision order that can be as long as 10 years after that offender completes his prison sentence, and if the long term offender violates a term of his supervision order, he cannot, under the current system, be compelled to face a new dangerous offender hearing. He can only face a new dangerous offender hearing if he commits another new and serious criminal offence.

This is a hole in the system that the experience of actually putting it into practice has brought to light. We on the Liberal side, the official opposition, are of the opinion that if an offender has received a long term offender designation that is because he went through a dangerous offender hearing. If that offender violates and is found guilty of breaching the supervision order for a long term offender, it is already a criminal act. That criminal act should be designated as one of the criminal acts that would automatically trigger a new dangerous offender hearing. This is a provision, if it is put in place, that would actually strengthen the entire system and make Canadians safer.

The second is as I mentioned. Currently, and even if Bill C-27 were adopted as is, there is no obligation that a crown prosecutor make an application to have a dangerous offender hearing upon a third conviction of a serious personal injury offence. We believe it should be mandatory. We believe that among the list of the designated offences there is a whole series of offences where it is clear that it should be automatic.

Therefore, we wish to bring an amendment to Bill C-27 that would make a dangerous offender hearing automatic if there is a third conviction on a series of very violent personal injury offences and possibly even those criminal acts that are very violent and in which a firearm is involved. We are prepared to look at that as well.

However, we wish this bill to get into committee so that we can explore this, hear from expert witnesses on the various issues and bring forth our amendments. I would hope that the government would support these amendments, because the amendments the Liberals are proposing would actually strengthen the dangerous offender system, much more than the particular reverse onus or reverse presumption that the government is proposing.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, I listened to the hon. member's comments. At one point she accused us of a petty partisan agenda. I can assure the member that in my riding people of all political stripes are asking us to take action on the matter of criminal offences in Canada. For a long time, people have been aware that the system is out of balance in terms of taking into account the victims' needs.

She also commented that the violent crime rate has dropped by 13%. That may be true or it may not be true. My question is this: if in her riding the murder rate was 100 per year and then dropped to 87, would that be acceptable? Would the rate of sexual offences dropping to 87 still be acceptable?

Is it not true that we still have an obligation to deal with an unacceptably high incidence of these kinds of situations where young people are being exploited and sexual offences continue to occur? We are talking about this happening after three convictions, not just accusations. I think it is time for us to act. Canadians are asking us to act. I would appreciate the member's response.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am continually astounded by the deafness of the members of the government. I clearly stated that the Liberal caucus, the official opposition, is in favour of strengthening the dangerous offender system. That is point number one. Our proposed amendments would actually make this stronger rather than the proposed amendment the government is proposing to reverse the presumption.

On the issue of the falling violent crime rate, the member presumes that because I quoted Statistics Canada, which said violent crime rates have actually gone down, it means the rate as it is now is perfectly acceptable to me. That is a presumption which is completely wrong. To quote Statistics Canada is to provide a context so that people understand. No murder, no homicide, is acceptable, but if people think it is getting worse that in fact is not what the statistics and Statistics Canada are telling us.

[John Baird, Conservative, Ottawa West—Nepean, ON]

More people get murdered every year.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So therefore, the dangerous offender system needs to be improved and we believe that our amendments, which would make dangerous offender hearings mandatory on a third conviction of the most serious personal injury criminal acts, would actually strengthen the dangerous offender act; it would not be as the Conservatives intend to do with Bill C-27 as it is now written and leave it to the discretion of the crown prosecutor.

[John Baird, Conservative, Ottawa West—Nepean, ON]

Give the public service more leeway? Why should elected people get to decide things?

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

What Canadians may not know is that a dangerous offender hearing costs approximately $100,000. Therefore, many crown prosecutors, even if they believe the offender is a dangerous offender, may decide not to make an application for a hearing because they do not have the budget for it or because it is very time consuming. Therefore, it should not be left to their discretion. It should be made mandatory. I hope, given the comments of that Conservative member, that he at least would support such an amendment to the bill.

I hope that he would also support an amendment that would make a breach of a long term offender order an automatic trigger for a dangerous offender hearing. I hope he would support it and talk to his justice minister and other ministers, including the Minister of the Environment, who seems to be having a great deal of fun heckling while I am speaking, to convince them that they are good amendments.

[John Baird, Conservative, Ottawa West—Nepean, ON]

You don't heckle? Talk about the pot calling the kettle black.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

This is a serious issue. I would ask through you, Mr. Speaker, that the Minister of the Environment stop making comments that tickle my humour and distract me from the points I am attempting to make. I believe I am making them very well notwithstanding his diversionary tactics.

The Liberals approve of the provisions that would strengthen the recognizance sections of the Criminal Code, sections 810.1 and 810.2. We think those are excellent.

We also think that some of the technical amendments or changes are good, but where we think the bill fails is that, one, it does not make a dangerous offender hearing application automatic or mandatory on a third conviction and, two, it does not make the breach of a long term offender order an automatic trigger for a dangerous offender hearing.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Mr. Speaker, I am pleased to stand today and speak to Bill C-27. The constituents of Newton—North Delta are fully aware of my full support of any legislation that punishes violent or sex offenders, which is why I will be supporting the bill at second reading.

However, my colleagues and I have serious concerns about the constitutionality and the strength of this bill.

Since being elected, I have consistently supported legislation that is both tough on crime while supporting an activist social agenda that seriously addresses the causes of crime.

I support tougher sentences so that those who commit serious crimes do serious time. However, at the same time I support creating more social programs, which include child care spaces as well; all efforts aimed at poverty reduction and substance abuse; and any legislation that will help take guns off our streets. We must strike a balance between the two to be effective. We must try to see the big picture.

These changes cannot be debated in isolation, as the government does. With this legislation being debate today, before the accused can be found to be a dangerous offender, we must ensure that the offence is not an isolated occurrence. We also must establish that the pattern is very likely to continue.

Even after this, the court still has the power not to designate the offender as dangerous or to impose an indeterminate sentence. However, the dangerous offender section that we currently have in this country, which has put 360 dangerous offenders behind bars, is charter-proof and is working.

In fact, the former Liberal government 1997 created the long term offender designation. This was targeted at sexual and violent offenders because many sexual and violent offenders required special attention even if they did not meeting the criteria for a dangerous offender. This was a necessary change because, as of June 2005, we had 300 offenders under the long term offender designation in Canada.

The Liberal Party strongly supports real efforts to protect Canadians and punish offenders who represent threats to the safety of our communities across Canada. However, any changes that we make to the current system must be done in a manner that would not jeopardize the victims' rights.

Changes proposed should not back up the courts. If there are charter challenges, the courts could be jammed for years. Our amendments to Bill C-27 are not designed to weaken the bill, as the official Liberal critic spoke earlier in favour of this, but to make it stronger and effective, which can only be done by being non-partisan. By doing that we would ensure that the criminals are sentenced and put away as fast as possible.

We would like to introduce provisions that allow crown prosecutors to seek a dangerous offender hearing if someone currently considered a long term offender violates any term of the supervision order. This would toughen the law from its current version and keep career criminals off the streets.

There is no reason we cannot have mandatory dangerous offender hearings following a third conviction for serious crimes. This would be more effective than the current reverse onus provisions in the bill. Once again, this would toughen the bill from its current version. It is not efficient if the reverse onus legislation cannot pass a constitutional challenge. We just back up the appeals process by doing that.

I would now like to focus on the issue of the constitutionality of Bill C-27. The bill has proposed sections on which legal experts have big questions with regard to their constitutionality. The bigger problem with many of the reforms in the bill, as many of us know, is that the administration of justice falls within provincial jurisdiction. It is beyond the jurisdiction of the federal government to impose statutory duties on provincial prosecutors. We cannot step in and control how justice works in the provinces and regions, particularly where those duties are meant to influence the prosecutor's discretion.

In the view of the legal experts, that could make a significant part of the bill unconstitutional and, by making this unconstitutional, we are putting victims at risk.

Unfortunately, I predict that rather than working with the Liberal Party to fix these problems, the Conservative Party will instead try to say, with its usual bluster, that we are gutting the legislation and being soft on crime.

I would say, first, that this is an issue that the citizens of Canada expected a far more serious dialogue from their elected representatives; and second, that if the Conservative Party tries to push this legislation through without taking the very serious concerns raised with respect to the charter, not only will this demonstrate that it is soft on charter rights, it will potentially put the entire section of the Criminal Code, which it is seeking to amend, in jeopardy.

What does that mean? It means that more victims will get shortchanged. I can tell the House that when I speak to my constituents of Newton—North Delta, that is not what they want. They want a real, effective crime prevention strategy but that is not what they are seeing in the present government's agenda. They want to toughen the laws to keep the violent and career criminals off the streets.

It is not just my constituents of Newton--North Delta. All Canadians are looking for tougher measures to stamp out crime, but not flawed legislation that puts this aim in jeopardy.

I hope the justice committee will work in a diligent and bipartisan manner to ensure that this flawed legislation is amended to take into account the concerns of my constituents, Canadians and the legal experts across the country to make the toughest and most effective crime legislation in the country.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Mr. Speaker, I thank my hon. colleague for his vote of confidence in the bill but I do have some problems with his criticisms of the bill.

Ancaster—Dundas—Flamborough—Westdale is part of the amalgamated city of Hamilton. In Hamilton we have a secure release facility where some of the most dangerous offenders are housed.

Years ago, one of those dangerous offenders walked across the road to a shopping mall in downtown Hamilton, one of these places where the member previous to that member spoke about one of those unusual stories happened, and repeatedly stabbed a young woman. It took the crown attorney in Hamilton almost two full years, under the existing legislation, to build a case to finally have this man labelled a dangerous offender and put him away.

It is necessary for us to have this reverse onus so that our crown attorneys have the capability of building the case required in order to accomplish this with what both the last two Liberal members said, effective law enforcement legislation.

What does the member mean by lack of effectiveness when this would clearly give a tool to the crown attorneys to put these dangerous offenders away much more effectively?