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.

[David Griffin]

There are two benefits of those amendments. First is the extension, obviously, the greater time period. I guess you could always debate what an appropriate period of time is or how long it would be, and it may depend on individual cases, but one would assume that if somebody has gone through that period of two years after the end of their warrant expires, it would become more difficult to prove that there's a need to continue that indefinitely. The fact that the person has been back in the community for two years seems like a reasonable period of time.

Also, there is expanding the different conditions that could be placed on some of these offenders when they're put back in the community. We were pleased to see those expanded in Bill C-27 as well.

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

Thank you very much for your explanation. I have a couple of other questions, if I still have time in my seven minutes. Goodness, I have four minutes left.

If Bill C-27 were adopted entirely now with no amendments, the prosecution would still have no obligation to apply for a remand and assessment order. If it's ordered by the judge, when the assessment order is filed, depending on the conclusions drawn within that assessment report, it provides the prosecutor with the possibility of applying for a dangerous offender hearing.

Under the current system, once an application for a dangerous offender hearing has been filed and the assessment has already taken place, if the Crown proves beyond a reasonable doubt that all of the statutory criteria for declaring the offender a dangerous offender have been met beyond a reasonable doubt, the judge must look to see whether or not the threat and risk the dangerous offender poses to the community can be controlled within the community.

I've also spoken with prosecutors, and they've basically said that as a result of R. v. Johnson, the courts are more and more requiring the prosecution to prove a negative so the individual is not declared a long-term offender: the risk and control cannot be controlled in the community for X, Y, and Z reasons. So Liberals are looking at the possibility of bringing an amendment that would place the burden on the offender to prove that he can be controlled in the community, and therefore the long-term offender designation is appropriate.

We believe that would not be a problem constitutionally, because the criteria for designating the person as a dangerous offender has already been proven by the Crown beyond a reasonable doubt. We believe that would be more effective than the amendment the government is bringing, which says neither party bears a burden in the matter.

If it's not something that the CPA has had an opportunity to look at, I would appreciate your looking at it and getting back to us.

[Tony Cannavino, President, Canadian Police Association]

Thank you very much, Mr. Chair.

I don't know if this is the last meeting before the break or whether we're going to have more during June and July. We hope you have your break.

The Canadian Police Association welcomes the opportunity to appear before the Legislative Committee on Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

The CPA is the national voice for 56,000 police personnel serving across Canada. Through our 170 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages, as well as those working in our largest municipal cities, provincial police services, members of the RCMP, railway police, and first nations police associations.

Our goal is to work with elected officials from all parties to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.

For over a decade police associations have been advocating reforms to our justice system in Canada. In particular, we have called for changes to bolster the sentencing, detention, and parole of violent offenders.

The Canadian Police Association has been urging governments to bring an end to Canada's revolving-door justice system. Chronic and violent offenders rotate in and out of the correctional and judicial systems, creating a sense of frustration among police personnel, fostering uncertainty and fear in our communities, and putting a significant strain on costs and resources for the correctional and judicial system. We welcome the changes introduced in Bill C-27 to strengthen provisions dealing with dangerous and long-term violent offenders and sexual predators.

Bill C-27 makes the following amendments to the Criminal Code of Canada. First, an offender convicted of a third violent or sexual offence, a primary designated offence for which it would be appropriate to impose a sentence of two years or more, is presumed to be a dangerous offender and may therefore be subject to incarceration for as long as the offender presents an unacceptable risk to society. A recognizance to keep the peace may be ordered for a period that does not exceed two years in the case of a defendant who has previously been convicted of a violent or sexual offence. The conditions of a recognizance to keep the peace in relation to a violent or sexual offence are broadened to include participation in a treatment program, wearing an electronic monitoring device, or requiring the defendant to observe a curfew.

Currently, applications for Dangerous Offender designation are infrequent, as Crown Attorneys perceive the thresholds and onus to be high. A dangerous offender designation automatically provides for an indeterminate prison sentence in a penitentiary. While not eligible for statutory release, a dangerous offender will be eligible for day parole after four years' imprisonment and for full parole after seven years.

After that time, the Parole Board must reassess the offender's file every two years. Dangerous offenders who are paroled are subject to parole for the rest of their lives. If the Parole Board determines that they continue to present an unacceptable risk for society, they could stay in prison for life.

Bill C-27 does not alter the sentencing and parole provisions. An offender may appeal the dangerous offender designation.

In the interest of time, I will refrain from explaining the process of a dangerous offender application since it is well outlined in the Library of Parliament's legislative summary and in our brief. However, I would like to point out that the Supreme Court of Canada has rendered several decisions that uphold the dangerous offender applications process.

In Mack in 1988, the Supreme Court of Canada held that the standard of proof beyond a reasonable doubt applies only where the issue is the guilt or innocence of the accused.

In Lyons in 1987, the majority of the Supreme Court of Canada was of the opinion that the right to be presumed innocent did not apply in the context of a dangerous offender application.

In Lyons, the Supreme Court of Canada held that imprisonment for an indefinite period was not cruel and unusual treatment.

In Lyons, the Supreme Court of Canada held that the rules governing dangerous offenders did not violate section 9 of the charter, protection against arbitrary detention or imprisonment.

The Supreme Court of Canada held in Johnson in 2003 that before considering finding that an offender is a dangerous offender, the judge must consider whether the risk presented by the offender can be adequately controlled in the community and thus whether it would be appropriate to apply the long-term offender rules. The court said the imposition of an indeterminate sentence is justifiable only insofar as it actually serves the objective of protecting society.

Bill C-27 does not alter this situation. The court retains discretion not to make a dangerous offender finding in a case where another sentence would adequately protect the public and impose a less severe sentence, such as a long-term offender finding, or impose a sentence for the underlying offence as described in subclause 3(2) of the bill.

The CPA would, however, support an amendment to this provision that would require the onus to rest with the accused to establish that the public would be adequately protected by either a finding that the offender is a long-term offender, or a sentence for the offence for which the offender has been convicted. We submit this is consistent with the reverse onus for the dangerous offender designation for repeat offenders.

The CPA supports Bill C-27, with the proposed amendments, as a reasonable and proportionate approach to repeat violent offenders who present a significant threat to reoffend.

One, the dangerous offender amendments contained in Bill C-27 deal specifically with offenders who have already been convicted of a number of serious offences.

Two, in order to protect society from violent repeat offenders, it is necessary to impose a reasonable limit on the offenders' rights and freedoms.

Three, Bill C-27 provides protective measures, as previously mentioned. Bill C-27 does not alter the regime that applies to long-term offenders other than with respect to the assessment process. Bill C-27 amends the assessment process for both dangerous and long-term offender consideration.

The CPA would support an amendment to Bill C-27 that would address breach of long-term offender supervision orders. Currently a conviction for the criminal offence of a breach of a long-term offender supervision order, punishable by up to 10 years' imprisonment, cannot lead to a dangerous offender application by the crown prosecutor. The CPA would support the inclusion of the criminal offence of breach of a long-term offender supervision order in the list of designated criminal offences found under clause 1 of Bill C-27 definitions. If adopted, this would ensure that a long-term offender who is found guilty of breaching his supervision order could become subject to an application for a dangerous offender hearing.

The CPA has long been on record concerning the problem of the release of high-risk offenders in the community at the time of warrant expiry. The high-profile release of Karla Homolka and Clermont Bégin brought significant public attention to this issue.

Current mechanisms are inadequate to adequately address the protection of the public from persons who are identified to pose a significant threat to society, who are about to complete their full sentence without a successful parole period, and who were not designated as a dangerous offender at the time the sentence was imposed. While the CPA would support the creation of a process that would enable such a designation to be reconsidered prior to warrant expiry, this poses significant charter concerns.

Recognizances to keep the peace have been utilized, to some extent, to maintain supervision and preventive restrictions on individuals who are identified as presenting such a risk.

Bill C-27 deals only with those recognizances that deal with certain sexual offences in respect of a person under the age of 14 and with serious personal injury offences.

Bill C-27 extends the maximum period of recognizance for these offences from 12 months to two years, and it expands the scope of conditions that may be imposed by a judge in these cases. The CPA supports the proposed amendment set out in Bill C-27 with respect to recognizance supervision.

In conclusion, Bill C-27 is a proportionate and justifiable measure to protect Canadians from repeat violent offenders and safeguard communities. The Canadian Police Association supports the bill and urges Parliament to amend and pass this bill without delay. The CPA also supports the dangerous offender proposals contained in Bill C-27, with the proposed amendments, as a reasonable and proportionate approach to repeat violent offenders who present a significant threat to re-offend. The CPA would support an amendment that would require the onus to rest with the accused to establish that the public would be adequately protected by either a finding that the offender is a long-term offender or a sentence for the offence for which the offender has been convicted. The CPA would support the inclusion of the criminal offence of breach of a long-term offender supervision order in the list of designated criminal offences found under Clause 1 of Bill C-27. The CPA also supports the proposed amendments set out in Bill C-27 to extend the maximum period for a recognizance for these offences from 12 months to two years, and expand the scope of conditions that may be imposed by a judge in these cases.

Thank you very much.

[Lorne Goldstein]

As a practitioner, not a researcher, I can't speak across the board or for different communities. I can only tell you what I've read in the case law and with regard to the practice I have.

I can indicate from case law—and I'm certainly referring now to R. v. Neve as one of the cases that jumps to mind—that when we're looking at aboriginal offenders and other things and young women caught up in the system, Bill C-27 and the reversal of the onus would have a wholly detrimental effect on anyone who was in any way classically marginalized at the beginning of the process. Aboriginals, people of any kind of ethnicity, people who are not the linguistic majority in their communities, and anyone who's marginalized at the beginning is going to find themselves hopelessly lost when the onus is placed on them and they are acting and not reacting, with the balance of their lives as the stakes in the game.

I'm happy to send you any material I can find in respect to that first part.

[Lorne Goldstein]

The honourable member says he trusts the crown discretion and goes on to talk about applications falling through the cracks. I fail to see where Bill C-27 advances us in that regard. He further states that applications would look the same. If the applications are going to look the same and be the same, then why table this aspect of Bill C-27 at all?

If they're going to be the same, let's exist with the system that is presently working. If the honourable member is worried about applications falling through the cracks, he can speak to the crown attorneys about creating a policy. But he need not table legislation in Canada's Parliament to make sure they're doing their job.

[Lorne Goldstein]

Thank you.

I trust the discretion of the crown, insofar as it has been exercised for literally hundreds of years, to engage in a process that is then reviewed by a judge and to which there is an adversary, the defence bar. I cannot say the same in a situation that has never risen to date, which is the power to engage in a process that reverses everything onto the defence bar. In other words, it's not the discretion of the crown to commence an application that he knows will tax his office, the police, and the court, to prove what they have to prove. If Bill C-27 passes, the discretion will be whether or not to task me, the accused, with all of that.

It's not the same discretion by any means, because one has the price of the effort as a balance, and under Bill C-27 it's whether or not to engage in the process. That latter discretion is much too broad, in my respectful submission.

[Lorne Goldstein]

I believe you are, yes. If the crown is seeking a dangerous offender designation in the first instance, or even contemplating one, the number of times that that crown needs to exercise his or her discretion is of no comfort. Whether this is the first or second time, before or after the assessment, prior to the application—

I see nothing in Bill C-27 requiring a threshold. The way the system exists now—and I wanted to say this at the very beginning, when the first question was posed—it works. Cases are identified, crowns make applications, judges sit in judgment, and people who are dangerous are designated dangerous offenders. Those who fall below that threshold are designated long-term offenders.

I'm not happy to say, but in the cases I've done, I've lost in some instances. Why? Because there was evidence, and I had recommended against an appeal. Why? Because it was appropriate.

So the tinkering that Bill C-27 seeks to do serves no purpose, as far as I'm concerned, from a legal perspective. From a political perspective—and I don't want to comment on the political perspective—I can see where it might have some efficacy. But from a legal perspective, it does nothing except create potential for charter scrutiny, and create an almost unbearable burden on the defence. This will deplete the legal aid resources and quite probably create a very invasive situation to prior victims and other people in the community who will be touched by such a broad defence onus.

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

Yes. This follows the question that my colleague Mr. Murphy asked.

As it stands right now, the crown has the discretion—and we're very concerned about the whole issue of the reversal of presumption—to make an application for remand and assessment. Once the assessment report is filed, and copies given to both the crown and the offender's counsel, the crown then has to make an application for a dangerous offender hearing.

So in the case you're talking about, I don't believe that even if the crown exercised his or her discretion to apply for the assessment, it would appear with the convictions that you're using. The assessment report would come back and not support that the offender is a dangerous offender, given the examples that you gave.

At that point, the crown would have to exercise his or her discretion again to file the second application of a dangerous offender. I'm talking about if Bill C-27 becomes law.

So you might want to rethink your example, because it's not automatic. Even with my concern about the reverse presumption, I still want to have solid fact. I don't think your example is a good one, because there's no mandatory assessment on third conviction.

Once the assessment happens, if the crown exercises his or her discretion to make an application for remand and assessment, and the judge believes there are reasonable grounds that the offender might be a dangerous offender, the judge orders the remand and the assessment. Once the report comes in, the crown again has to exercise his or her discretion to apply for an application.

Am I correct?

[Professor Ian Lee, Professor, Carleton University, As an Individual]

Thank you very much for inviting me here to speak today and to testify today.

I just want to bring to your attention that I'm not a lawyer; I'm not trained as a lawyer. I'm a professor at Carleton University in the business school. However, I did my doctorate in political science in Canadian public policy and my minor field was political philosophy. So I'm much more interested in the logic of the public policy and the underlying values expressed in that. That's the level at which I am focusing.

What I'm presenting today is based on an article that's being published August 1, in just over a month. It's the annual edition of How Ottawa Spends, published through McGill-Queen's University Press. My article is entitled “Righting Wrongs: Tory Reforms to Crime and Punishment—Locking Them Up Without Losing the Key?” The article really focuses on Bill C-9, Bill C-10, and Bill C-27.

One of the premises of the article is that Bill C-27 contemplates incapacitating violators of human rights—that is, repeat, violent, dangerous offenders—because I make the assumption in the article, following the late Dean Lederman from Queen's Law School, that criminal justice concerns human rights and that, as in his famous phrase, the most fundamental human right is the right to be left alone in peace. So violence against a human being is a violation against their human rights. That's the premise that drives through the entire article.

I have some background information in front of you. Some of it you'll be familiar with. I have the principles of sentencing reproduced from the Canadian Sentencing Commission because I think it's clear that the second-last, the incapacitation, is the basis for Bill C-27. I testified last fall before the justice committee, and there was some debate about the amount government spends on prisons, so I put that in the slide, showing that the government spends a very small amount—it's about $1.7 billion annually. I also have the crime funnel there, just as background, and we can talk about that later.

However, one thing I did want to bring out before I talk about the California example as a case study—essentially three strikes and you're out—is I did provide data from Statistics Canada and I called it “the industry of crime”. I have the data there, showing that—this is 2003 data—the annual data cost of crime is about $80 billion and the victims carry the burden of about 65%, so about two-thirds. This is something that is quite serious and people don't always focus on that.

I also have the stats, again from Statistics Canada—and I'll come back to this—showing that the majority of victims of violent crime are under 30 years old, while most of the people who analyze crime, such as academics, criminologists, and parliamentarians who pass the laws, tend to be middle-aged, affluent, middle-class people who aren't bearing the price. They have the lowest levels of victimization. There's something that I want to bring up later on that issue.

I have some stats in there about the average offence, the average length of sentence, and the changing profile of the federal offender. Of all offenders now in a federal penitentiary, 75% are there for violent crimes. I noticed that in the previous debate you were debating what the number of annual designations were under dangerous offender, and I have the chart on slide 18 showing that it was a low of eight in the last 20 years, and peaking at 29 in 2001. So there's a very small number of people designated under the dangerous offenders. Of course I have the overall incident rate of violent crime per 100,000.

I'm very aware of the fact that I only have a few minutes, so I just want to pick up on a couple of things dealing with rehabilitation and recidivism and then deal with California, and then I guess we'll go to questions.

I do have some interesting data from the Correctional Service Canada showing the rehabilitation metrics for the last five years, and these are the number of offenders in our federal prisons who are completing their rehabilitation programs. It's only about 60%, which means four out of ten—40%, almost half—of all offenders are not even completing their rehabilitation programs. I did discuss this more extensively in the article, because it points to some serious problems. In terms of the recidivism, my colleague here suggested that there aren't stats. CSC, in the 2005 report, estimated that 36% of all federal offenders will be convicted with a new crime within two years of being released from a federal penitentiary. So that's there.

I'll just finish up now on California, because I know this subject has been debated in the media. I think your committee has discussed it, and I would like to suggest to you that there's an enormous amount of misinformation and disinformation about the California three-strikes laws.

I think I read that one member of Parliament said someone could go to jail for stealing pizza three times in California. This is false. This is absolutely false. Jennifer Walsh was a district attorney in California, in Los Angeles. She went back to school, to Claremont College, got her PhD, and wrote her thesis on this. She has the data in there. There's an amazing set of empirical data.

There are two things about the California law. Two of the strikes must be for a designated serious felony, a violent act. The third crime that can trigger the life sentence can be any felony, but she actually wrote an article called “In the Furtherance of Justice”, because the California law has a sentence saying that the judge or the DA cannot count the third offence if it was not a violent offence.

As it turns out, in her thesis she found that 98% of all the people being convicted under California's three-strikes law are in fact going to jail for really violent, vicious acts—murder, attempted murder, rape, and so forth. They are not going to prison for life for stealing bubble gum. That's a great urban myth in our country. It feeds into, I suppose, the anti-Americanism in Canada that I talk about in my classes.

So I really want to put that on the table, into the debate today. You have the data from California showing the impact of ten years of three-strikes. Regarding violent crime only, it collapsed; it went down by half. This wasn't a mistake. This has been studied over and over. Jennifer Walsh has done, I think, the most empirical research on that. So the data is there.

Finally, I just want to conclude, because I'm probably going to be out of time any minute. I'm arguing, and I argued in my article in “How Ottawa Spends”, that if Bill C-27 passes, it will incarcerate the worst human rights violators in our country, those who violate the human rights of the most vulnerable members of our society. Those are defined by Statistics Canada as people who are young, female, and with low income. If we're not concerned about that, then maybe this bill isn't such an important bill. But if we are concerned with the rights of the most vulnerable members of our society, it's something we have to take heed of.

I just want to close by reminding everyone that the late Prime Minister Trudeau, who was a political scientist, by the way, did say that societies are judged by the way they treat their most vulnerable members. When we don't incarcerate these violent people who are preying on young, female, low-income, vulnerable people, we are not looking after those people.

Thank you.

[Lorne Goldstein, Barrister, Webber Schroeder, As an Individual]

First off, if I may, I thank the chairman of the committee for the opportunity to speak to this important piece of legislation.

The brief that's before this committee was actually prepared as an article for the Criminal Lawyers' Association, to be published in their newsletter. Please accept the article in that light.

Permit me to set out the limits of the evidence I'll be giving today. I did not come prepared to speak at large to the constitutionality of this piece of legislation, although I would certainly be happy to return to do so.

As I said in the article, and as I'd happily expand on if you have any questions, it's my opinion that this provision, these amendments to the Criminal Code, are subject to significant frailties, perhaps not under section 11 of the charter, but under sections 7 and 12. I note of course that most of the comments from the preceding witness refer to the presumption of innocence. That of course is enshrined in section 11. My greater concerns are with respect to sections 7 and 12, but I did not come prepared today to expand on that at large with an analysis of Lyons and Johnson, etc.

Today, what I hope to speak to are the practical applications in respect of this legislation. The chill effect is the way I've characterized it in the paper, and I'll be talking about that very briefly and then I hope to answer all of your questions as completely as possible.

I know of course that this committee is well aware of the history of this legislation, dating back to 1947, but of course there's preceding legislation dating back to the previous century in other countries. We have a great deal of experience, then, with respect to this type of preventative detention legislation.

As I say, dangerous offender legislation is considered to be one of the very few pieces of law that provide for preventative detention. That is to say, not detention or incarceration for wrongs done, but detention and incarceration for wrongs that may be done, wrongs that are predicted to be done. The sentencing provisions allow for incarceration, detention for wrongs done. But only this piece of legislation—only part XXIV and the bail provisions—contemplate putting a person in jail for things that we believe they may do. That concept, the concept of putting someone in jail for something that they may or may not do at some point in the future, is reprehensible to a fair-minded society. It is entirely un-Canadian. It is, however, necessary in certain circumstances.

In some circumstances, the nature of the individual justifies the concept of preventative detention. The most common of this, indeed, contemplated in every single charged individual, is the concept of bail. Under section 515 of the Criminal Code of Canada, a person can be detained in jail pending the disposition of their case. This is preventative, since it detains not as punishment nor as correction, but it incarcerates to prevent flight or the commission of a further offence, or in the tertiary ground, if the offence is such that the conscience of the community requires it.

There should be no comfort for this committee in the fact that the bail provisions permit preventative detention. You see, in the bail situation, the period is necessarily finite. The passage of time is governed by section 11 of the charter, which makes both reasonable bail a constitutional right and the reasonable time for trial, so we know that the bail is coming to an end. At the end of this case, the person will either be released back into the community as acquitted or sentenced. This is not the case for part XXIV of the Criminal Code. Indeed, we look further and we see that where the bail is such that the person has been incarcerated, there is a detention order and the trial is delayed, there's an entirely separate section dealing with a detention review. I note, for your consideration, that the detention review is a crown onus, even if the person is incarcerated and a detention order is made by a justice of the peace or a judge, for the detention review the onus rests on the crown, even in the situations where the onus had earlier rested on the accused. That is how seriously we take the concept of preventative detention.

Part XXIV is not preventative detention as a form of punishment; it is a preventative detention for unknown acts, things that we think the person will do.

It's very important to look behind the legislation at the way in which these dangerous offender hearings occur. People from the National Parole Board testify; people from Correctional Services Canada testify; psychiatrists and psychologists testify. These medical experts do so with a view towards predicting the recidivism of the individual, and we always get into this wonderful game: What is the statistical probability of this person recidivating? If they do recidivate, will it be violent or non-violent? If it is violent, what scale will it be on? Is it the simple push, or is it the homicide that everyone fears? When will this person recidivate? Within the seven years, within the fifteen years, within the lifespan of that person? None of these answers are available by any of the psychiatrists, by any of the CSC or National Parole Board personnel. None of these answers are available at all. The preventative detention under part XXIV is for something the person may do, or may not do, at some future point.

What Bill C-27 seeks to do is strip the criteria that I've just set out for you from the process. If Bill C-27 passes, and the person has these preceding offences, and the onus shifts on him, now the National Parole Board does not testify; Correctional Services does not testify; a psychiatrist may or may not testify. The judge is left with nothing but this presumption.

How does the judge then satisfy himself that this person is a risk? Is he a risk because of the legislation? Has the legislation taken the place of the doctors who testify and the statisticians who can explain the patterns of behaviour? The criteria are what have saved part XXIV from charter scrutiny in the past, because the person has the right to respond; the person has the right to full disclosure; the person has the right to his own psychiatrist; the person has the right, not so much to the presumption of innocence—because he's been convicted—but to a fair trial proceeding. Bill C-27 takes away the fair trial proceeding.

As I indicated earlier, I'd be happy to talk about section 7 and the fair trial rights, cruel and unusual punishment, but for today I would turn to part three of the article that I provided to the committee, which is what I've titled “The chill effect”. This is going to be more of a pragmatic approach to what happens when you're in a dangerous offender proceeding.

I've had the privilege of appearing for the defence either as lead counsel or co-counsel in ten of these proceedings. I've met with, dealt with, all of the experts who were called in these matters, both by the crown and by the defence, and of course with the offenders themselves. I've had the opportunity, then, to look at Bill C-27 from the perspective of how this is going to impact upon my job. While I realize that the crown attorneys have been consulted, and the Department of Justice has done its analysis, the people who are actively engaged in defending these applications do not seem to have been mentioned in any of the honourable minister's recitations of those with whom he's consulted.

If the onus is reversed, it suddenly becomes my application. One of the things that I'm going to set out for you today—and take your questions on, of course—is how I would go about executing my obligation on what would become my application to try to keep my client out of jail for the rest of his natural life.

I present for you a hypothetical situation at the second paragraph. I chose a very interesting, I hope, charge, and that's a sexual assault. Unlike in the United States, where offences are graded—you have first- and second-degree assault, first- and second-degree battery, etc.—in Canada we've chosen to characterize offences more broadly. So a sexual assault, for instance, under section 271 of the Criminal Code of Canada could be anything from a simple touching—colloquially referred to as groping, if you will—to what had been in the old code referred to as a rape. That's how broad section 271 is.

In the example that I've given, of a sexual assault trial, which might have been a plea—

[The Chair, Liberal, Bernard Patry]

It's meeting number 3 of the legislative committee on Bill C-27.

Pursuant to the Order of Reference for Thursday April 5, 2007, the committee is considering Bill C-27, an Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

Today we have, as individual, Mr. Lorne Goldstein,

who is a barrister from Webber Schroeder, and Mr. Ian Lee, a professor at Carleton University. Welcome, both of you.

We'll start with Mr. Goldstein, please.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Chairman.

Thank you, Madam Jennings.

Of course we look very carefully at the constitutionality of all the provisions of Bill C-27. As I indicated in my opening remarks with respect to the change of presumption, it's very narrow in the sense that it's only at that third conviction. It's after the individual has already been found guilty. As I indicated to you, the indication we have from the Supreme Court of Canada is that, among other charter protections, the presumption of innocence is not offended at the sentencing stage. I'm confident, having looked at this, that changing the onus as to who has to prove what at the dangerous offenders application is drawn narrowly enough from a narrow group of offences that it would withstand that scrutiny.

You indicated that if there was a problem with that with other sections in the dangerous offenders...it seems to me this is a refinement of that. Again, we not only had a look at that in terms of its constitutionality, but we codified the provisions and the remarks and directions of the Supreme Court of Canada in the R. v. Johnson case, so I'm prepared to believe, in terms of the advice I have received, that this will withstand a constitutional challenge.

You referred as well in your comments to why we don't bring an amendment with respect to those out on long-term offender designation who have breached the terms of their release. I guess I fairly briefly indicated to you that there may be some constitutional issues. Of course that's very important any time there are constitutional issues, but in addition to that, this is the subject of a number of discussions between the federal Department of Justice and our provincial counterparts. While I'm very sympathetic to making sure individuals who don't live up to their court-ordered sanctions are meted out with the proper response, I would ask you, rather than going ahead with an amendment at this time, to withhold that. Let's get this part of it through and we'll continue to follow up in the other area.

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

Thank you, Mr. Chairman.

Thank you, Minister, for your presentation.

We Liberals have a few concerns about the reverse onus clause in Bill C-27. At present, the burden of proof usually rests with the Crown when a hearing is conducted further to an application to declare a person a dangerous offender. Further to your bill, the burden of proof will now rest with the offender who has been convicted of a minimum of three offences.

Firstly, has this provision been put to the proportionality test set out in section 1 of the Charter?

Secondly, if the bill is eventually adopted and passed into law and down the road, someone challenges the reverse onus clause, if the court were to find the challenge well founded, would this put all, or part, of the dangerous offender regime at risk?

Thirdly, why does the violation of a long-term supervision order not automatically result in a hearing to declare the offender a dangerous offender? The fact of the matter is that many offenders have already been declared dangerous offenders at a hearing on the basis of prima facie evidence presented by the Crown. However, because of jurisprudence, the judge is required to assess whether the risk and threat that this offender represents can be controlled in the community by means of supervision orders.

Can you explain to me why that is? The Liberals are very tempted to bring in an amendment which would ensure that violating such an order would allow the Crown to request a hearing to declare the offender a dangerous offender.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much, Mr. Chairman.

I'm pleased to be here with Mr. Doug Hoover from Justice Canada. He has been looking at this piece of legislation and this particular area of law for quite some time. He is an expert in the area and I'm pleased to have him join me today.

I'm pleased to have the opportunity to come before this legislative committee to talk about some of the significant reforms to the Criminal Code, in particular to section 810.1 and section 810.2, the peace bonds; and to part XXIV of the Criminal Code dealing with dangerous offender provisions.

This bill was tabled last October as a response to the concerns of Canadians and all provincial and territorial governments that the existing provisions of the Criminal Code that target the most dangerous and high-risk offenders in the country required some changes to respond to the emerging issues in the courts. The government indicated previously that it was committed to reforms in this specific area, as we believe that repeat predators sometimes escape dangerous offender designations and are then released into the community without adequate supervision and management.

This bill tackles the problem by giving prosecutors the tools they need to achieve dangerous offender designations against offenders who clearly present the threat of serious injury to the general public. It also toughens the peace bond provisions in the Criminal Code that allow attorneys general to place strict conditions on individuals released into the community, often after serving their full sentences, even though there is clearly a high risk of their reoffending violently or sexually.

I wish to emphasize that these reforms were in large part based on ongoing consultations with our criminal justice partners in the provinces and territories. Most of these measures were the subject of extensive review and recommendation by senior justice officials from every jurisdiction in Canada. At the same time, we have taken every step to ensure that the constitutional rights of individuals are protected. In my view, this bill achieves a proper balance between the rights of Canadians to be safe from violent and sexual offenders, and the fundamental rights of an accused facing a lengthy prison term.

As I indicated, Bill C-27 focuses on reforms in two areas of the Criminal Code, which I would like to explain in greater detail.

First, this bill introduces a number of important amendments to section 810.1 and section 810.2, peace bond provisions that impose conditions on high-risk sexual and violent predators released into the community. The maximum duration of these conditions will be doubled from 12 months to 24 months. This reform will allow police to avoid having to return to the courts to renew peace bonds in the appropriate circumstances. This will give police and justice workers a much greater degree of flexibility in the long-term ability to monitor and supervise these individuals.

The bill further enhances society's ability to control these individuals under peace bonds by making it clear that a court has the ability to consider and impose any reasonable conditions necessary in the circumstances to ensure the safety of the general public from future harm. The bill also stipulates that a number of specific types of conditions are available that many courts in the past have refused to consider. These include electronic monitoring, medical or psychiatric treatment, residency conditions, and drug or alcohol prohibitions. These new provisions respond to a number of recent court cases that had the effect of limiting the range of conditions under the current wording of section 810.1 and section 810.2. Bill C-27 will therefore improve the way we manage the risk to the general public posed by individuals in the community.

The second major area of reform that Bill C-27 targets is individuals who are at the highest risk of offending sexually or violently, to ensure that they are not released into the community unless and until they can demonstrate that they no longer pose a threat to public safety. The bill accomplishes this by giving crown prosecutors the tools they need to secure dangerous offender designations against these individuals, which result in an indeterminate sentence of imprisonment with no opportunity for parole for seven years.

The reforms also encourage crown prosecutors to be more vigilant in using the dangerous offender sentencing option.

Bill C-27 accomplishes these objectives through four significant amendments to the dangerous offender provisions in part XXIV of the Criminal Code.

First, crown prosecutors will be required to consider and declare in open court whether they intend to bring a dangerous offender designation whenever an individual has been convicted of a third prerequisite violent or sexual offence. This amendment ensures that the dangerous offender provisions will be used more consistently in all jurisdictions.

I note that since the bill was tabled, some provinces have expressed concern that this amendment would fetter prosecutorial discretion in sentencing decisions. Therefore I wish to emphasize that this amendment does not force a provincial prosecutor to make the actual dangerous offender application. It requires only that the Crown consider and indicate to the court whether they have considered the dangerous offender option.

If the reform went so far as to make the hearing automatic, in such cases the provinces would have a very strong case that the bill intrudes on their traditional and important discretion to seek appropriate sentences.

Secondly, section 753 is amended so that any offender convicted for a third time of a short list of serious violent or sexual offences will be presumed to fully meet the dangerous offender criteria. The onus will then shift to the offender to rebut that presumption. This change will make it easier for crown prosecutors to obtain dangerous offender designations in the very worst cases of violent and sexual misconduct. I believe this provision will withstand any constitutional change, as the presumption does not go to the issue of presumed innocence, given that this offender has already been found guilty.

While the Canadian Charter of Rights and Freedoms protection regarding the right to be presumed innocent is a basic right entrenched in paragraph 11(d), it does not extend to the offender once found guilty. This view is consistent with the Supreme Court of Canada decision in Regina v. Lyons, where the court held that the right for a trial by jury does not extend to a dangerous offender hearing as, again, the individual subject to the dangerous offender application has already been found guilty.

Thirdly, section 753 is amended to codify the need for the sentencing judge in every dangerous offender hearing to consider whether or not there is a lesser sentence available that can adequately protect the public. This amendment is required to properly respond to the landmark constitutional decision of the Supreme Court of Canada in the case of Regina v. Johnson.

As it currently stands, there are varying interpretations of that decision being applied in different jurisdictions, resulting in confusion and uncertainty and what amounts to a handicap against crown attorneys in some provinces in dangerous offender hearings. This amendment will ensure that prosecutors in all jurisdictions are not necessarily handicapped due to varying interpretations of the principles in Regina v. Johnson. Consistent with that decision, this amendment will stipulate that when the requirement to consider whether a lesser sentence can protect the public is applied, the burden is in fact not on either the Crown or the offender.

Finally, the bill introduces two amendments to section 752.1 to provide procedural relief regarding the filing of part XXIV psychiatric assessments. These amendments are intended to respond to specific concerns that forensic psychiatric resources in many jurisdictions are often stretched thin by the requirements of dangerous offender hearings. By extending the time periods for the filing of the mandatory psychiatric assessment under section 752.1, crowns will be better able to meet the prosecutorial requirements of a dangerous offender application.

Before I conclude, Mr. Chairman, I would like to address concerns that have arisen recently in regard to this bill.

I'm aware that a number of jurisdictions have requested an amendment to allow for a dangerous offender rehearing when an individual who has been found to meet the dangerous offender criteria, but who was sentenced as a long-term offender, breaches a condition of the supervision order. I would note that on this issue my officials are currently engaged in consultations with senior officials from all provinces and territories to identify a viable and constitutional methodology that can be supported by all attorneys general across Canada.

So while I'm supportive of that process, I am aware that there are a number of concerns that must be considered, not the least of which are some serious constitutional issues, such as the potential paragraph 11(h) charter challenges, regarding the right not to be punished twice for the same offence. Having said that, it is imperative that we continue to move forward with Bill C-27 while we continue to develop options to address the new and emerging views of the provinces and territories.

In closing, I wish to thank honourable members for allowing me the opportunity to come before you today. I would be pleased to respond to any questions you may have, as time permits.

[The Chair, Liberal, Bernard Patry]

Good morning. This is our second meeting.

This is the Legislative Committee on Bill C-27. Pursuant to the order of reference of Thursday, April 5, 2007, we are studying Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

Appearing in front of us now we have the pleasure of having Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada; and from the Department of Justice, Mr. Doug Hoover, senior official. Welcome to both of you.

Mr. Nicholson, please give your introductory remarks.