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

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, there was a statement earlier by the member's colleague that the only opposition to this bill by the other parties was the argument that they were in need of protecting the rights of the offender. If the members would look at the record, the member for Vancouver Quadra laid out some interesting possibilities which would be a bad outcome for all Canadians, and that is with regard to the constitutionality issues.

The member will know that should this bill pass and get royal assent and be proclaimed to become law, it can be subject to a charter challenge. That could hang up the law for years of very protracted constitutional hearings, which is a problem. The second is the ultra vires argument or the problem whether the federal government can tell the provincial government who to charge and with what to charge the individuals. This was also another constitutional matter.

I raise it for the hon. member that the arguments are not so much about what about the offender, but it could very well turn out that the legislation would never be operable until charter questions were dealt with in the courts, which maybe is an issue we can deal with now before we have the risk of falling into that protracted delay and having good legislation.

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

Mr. Speaker, I appreciate the comments from the member opposite. I take them, certainly, at face value. In terms of weighing this whole issue of whether it actually is constitutional, there are dozens of reverse onus provisions in the Criminal Code. I will provide a few for the member: bail provision, sex offender registry applications and, also, not criminally responsible. These certainly indicate that there is clear evidence that the reverse onus clause, certainly from a constitutional perspective, is open and possible.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, my colleague from St. Catharines is showing a level of optimism here that is not warranted when he says that he is looking forward to working hard to implement this bill. I have been listening to the opposition parties here and all three of them are opposed. This might be the first bill that I have ever seen that goes down at second reading, that does not even make it to committee.

I have a question for my colleague. What kind of flexibility are the Conservatives going to show that would garner some level of support from the other opposition parties? Without some generosity of spirit or some accommodating of the legitimate points of view that have been raised by all three of the other opposition parties, and put forward very respectfully, I might add, where are the Conservatives going to give and where are they going to move to ensure this bill does not die right at second reading?

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

Mr. Speaker, one of the fascinating pieces of information that I picked up while researching this legislation, in terms of how it is going to move forward, how we are going to work with each other, and how we are going to understand it, was indeed that part of the NDP platform. The member's party was in fact implicit and spoke directly to reverse onus. I would simply say to the member that in that context this bill addresses some of what his party was trying to get at during the election in order to form government, that is, to implement some form of a justice strategy. This reaches out to the exact area he and his party were trying to reach in terms of reducing crime in our country.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 753 asks that the following conditions be met:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Acting Speaker, Royal Galipeau]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Saint-Bruno—Saint-Hubert, Labour; the hon. member for Acadie—Bathurst, Minister of Public Works and Government Services; the hon. member for London—Fanshawe, Homelessness.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I listened with great interest to the 20-minute speech by the member from Quebec. I think he may be missing the point, and perhaps his whole party is missing a very serious aspect to this bill.

We are not talking here about a reverse onus in terms of the conviction for the offence. Indeed, what we are doing is giving the perpetrator yet another chance. All the member has to do is read the bill. I noticed in several sections, but it is in proposed section 752.01 where it says:

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--

We are talking about an individual who was charged and convicted. In other words, the crown prosecutor was able to prove that the individual was guilty, otherwise he would not have been convicted. The onus was on the crown to prove the conviction. The second time the individual appears, after he has served his two years or more, on a similar type of crime, again the crown proves that he is guilty and hence he is sentenced. He then comes before the judge a third time. The whole trial has to do with whether the person is guilty, and the onus is on the crown to prove it. The conclusion will be, if this bill is enacted, that that person just is not learning his lesson and he is a continued danger to society.

I would urge the member to read the offences that are being included here. We are talking of crimes as heinous as committing murder, discharging a firearm with intent; in other words, an individual fires a gun at someone and has the misfortune of missing, but still the individual is firing a gun at a person with the intent to murder. We are saying that for a person who has three of these offences, for the protection of society we are going to put that person in jail, but notwithstanding that, we will give that person yet another chance. If that person can prove to us that he or she is not a danger, we will listen.

I do not know how any member in this House can say that that is really tough, that we are getting too tough on crime. The NDP and the Liberals ran on a crime ticket last time just to try to gain a few more seats, and now that the election is over, they are arguing against a bill that is as soft as this one. I cannot believe it.

This legislation is reasonable. It is not a violation of the Constitution. The Constitution says clearly that the causes here can be given as pertaining to a just society. I would just urge the member and all members to think carefully before they vote against this bill. It is not nearly as onerous as they claim it is.

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

Mr. Speaker, I thank my hon. colleague for his question. I will respond with two points.

First, I would remind the House that the Bloc Québécois worked very hard to have the Criminal Code amended with respect to the proceeds of crime. It is possible to seize the house—or mansion—of someone who has made hundreds of thousands of dollars in drug trafficking. It is up to that individual to prove that their mansion was not purchased using the proceeds of crime. The Bloc Québécois achieved this.

I would have liked my hon. colleague to come to a court of law. Consider, for example, an 18 year old who discharges a firearm. That is one of the crimes. That young man is incarcerated for one year. At 22, that same youth is a member of a street gang and again discharges a firearm. He is imprisoned again and released at age 25. If he commits a third offence, any offence at all, his name will automatically be put on the list of dangerous offenders.

I have tremendous respect for my hon. colleagues across from me. However, their problem stems from the fact that, with this bill, they are sentencing the crime and not the individual who commits it. That is what the Bar reminds us and what judges will remember if this bill is enacted, which I hope does not happen. The crime must be dealt with based on the individual before the court, and nothing else.

[Geoff Regan, Liberal, Halifax West, NS]

Mr. Speaker, I listened with interest to the speech by my hon. colleague and to the questions from my colleagues opposite. In my opinion, it is important to put certain people in prison to protect the Canadian public and to punish offenders who repeat various offences. That is why Canada has some of the toughest laws in the world on dangerous offenders.

In my opinion, we need to have intelligent laws and intelligent approaches to criminals and criminal law.

As my hon. colleague said, many members of the Canadian Bar Association and the Canadian legal community have shared their concerns about this bill, especially when it comes to the issue of the Charter of Rights and Freedoms. Many of them have argued that this bill would be dismissed in court because of this concern.

In my opinion, it is not smart to create a risk whereby the part of the legislation on dangerous offenders may be completely dismissed. Does the hon. member agree?

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

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

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

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, this bill is talking about convictions for very serious, horrible crimes, and not one conviction, not two convictions, but three convictions.

My colleague from the Bloc Québécois talked about how he has been in practice for 25 years. God bless him, I expect most of the time it has been in defending these terrible people and naturally his whole knowledge is with respect to the criminal.

I listened to his speech very carefully. It was a good speech. I did not agree very much with it, but I listened to it very carefully. He never mentioned the word “victim” once. It was all about the rights of the criminal; it was all about whether these people are receiving a fair deal. These are after the convictions. We are talking about sentencing.

My question for the member and all the Bloc Québécois members if they are all going to take this position is, do they not care about the victim? The people whom I speak to in my riding care a lot about the victim. They are fed up.

[The Acting Speaker, Royal Galipeau]

The hon. member for Abitibi—Témiscamingue has 30 seconds to reply.

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

Mr. Speaker, I will try to quickly answer in 30 seconds.

In Quebec, we have the crime victims compensation act. I would like to remind my hon. colleague opposite that the Criminal Code, as indicated by its name, is there to punish a crime committed by an individual. Nowhere in the Criminal Code is there any mention of the fact that we have to protect the victims. The Criminal Code does not state in any section that the priority is to defend the victims. However, in the Criminal Code—

[The Acting Speaker, Royal Galipeau]

Order, please. The hon. member for Mississauga South on a point of order.

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