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

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I have to say that the government benches look pretty empty too.

I am waiting for the day when members of the Conservative Party and that government will be able to govern without having to mention the opposition parties. I wait for the day when the government will be able to stand on its own feet as a mature government and articulate public policy on its own merits, when it does not require reference to the Liberals this, the NDP that, and the Bloc the other. When is the government going to grow up and articulate good public policy from the floor in the House? That is what I am waiting for.

I note in regard to a lot of what the member was just referring to when describing the circumstances surrounding rape that those conditions also exist in the Criminal Code and allow the designation of a dangerous offender now.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Mr. Speaker, coming from a member opposite who calls our border officers wimps, I do not think he has a lot of credibility on criminal justice issues.

I can assure him that we have tremendous support for this legislation. He may be embarrassed at what his government has not done over the past 13 years and may want us to not refer to its failures going forward. We have no other alternative but to look at the problems that party has left with our society that we are here now to correct. I would encourage the member and his colleagues to support this measure.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, before I get started on this particular bill, I want to remind the minority government of neo-cons that in fact more people voted against them than voted for them. Sometimes that is just a little lost on members opposite. If we were to look at the polls today, even fewer would vote for them than voted for them during the election. The consequence of that is that the new minority government has to solicit the cooperation of the parties opposite.

I want to note that the government dropped 11 bills on the floor of this House and the Liberal Party consented to six of them. Like that, we consented to six of them, largely because they mirrored legislation that was put forward by the Liberal government in the last Parliament. Poor fellows, like they cannot take success. Is that not what it boils down to? They cannot take success. They got six free bills.

The Conservatives talk about being tough on crime. Well tough does not mean stupid on crime at the same time. This is one of those bills that is just plain stupid because it will not survive any kind of constitutional challenge. It is a classic.

The Conservatives whip up a fear, get people all wired about how dangerous it is out there, that the whole nation is just going down the tubes, and then put forward another dumb bill. Here we have one more dumb bill that somehow or another is going to save the nation from this massive crime rate.

I listened to the member for Wild Rose being rebutted by the member from the Bloc Québécois because the member for Wild Rose is absolutely convinced that we are in fact under a massive crime rate in this country. The statistics of course do not bear him out. They have not borne him out for the last decade, but that really does not much matter to him. It does not seem to much matter to the members in his party because they basically traffic in fear and smear. They get the population worked up about something that does not exist and then propose a solution to a problem that does not exist. They then run away from it because the crown attorneys, the defence counsel, the accused, the victims, and the judges will have to clean up the mess afterward.

[Some hon. members]

Oh, oh!

[The Acting Speaker, Andrew Scheer]

Order, please. I am having difficulty hearing the member for Scarborough—Guildwood. I think all hon. members would want to keep their questions and comments until after the member's speech, when there will be an opportunity to ask him questions or provide him with some comments. Let us allow the hon. member to continue with his speech.

The hon. member for Scarborough—Rouge River on a point of order.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I want to support you on that. There has not been a five second window since my colleague began his speech that the members of the government have not been yelling and interjecting. I simply ask for the courtesy to let the member deliver--

[The Acting Speaker, Andrew Scheer]

I thank the hon. member, but I think I did just mention that. The hon. member for Scarborough—Guildwood.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I appreciate the intervention on the part of the Speaker and my hon. colleague from Scarborough—Rouge River. Certainly, the hon. members opposite have no interest in dealing with facts or in dealing with the Constitution or in dealing with the Charter of Rights and Freedoms. For whatever else the Liberal Party stands for, it is the party of the Constitution and the party of our Charter of Rights and Freedoms.

Let me turn to the bill which, I submit, is deeply flawed. Members who might be watching this debate, and I cannot imagine why they would be, but maybe they are, should know that in the Criminal Code, as it presently exists, there is a dangerous offender section. It is section 753. It says:

--definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence--

That is evidence, gentlemen:

--establishing

(i) a pattern of repetitive behaviour--

(ii) a pattern of persistent aggressive behaviour by the offender--

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;--

That already exists in the Criminal Code. This bill does not change that. This bill stays with that standard of behaviour.

What is going to happen if this bill passes? First of all, a crown attorney is going to have to give a notice. He is going to give a notice presumably after two convictions. Right now there does not need to be two convictions. It can be done after one conviction, if it can be established that the individual is going to be a threat to society. In fact, an indeterminate sentence can be obtained based upon simply one conviction. The crown attorney is still forced to prove beyond a reasonable doubt that those elements of that individual's behaviour threaten society at large.

What will happen here is that the crown attorney is going to give notice. Think about that for a second. The defence counsel probably has someone who is a pretty bad person, probably has evidenced behaviour so much so that he or she has been convicted of at least two offences. That person is now looking at an indeterminate sentence, not a determinate sentence. In other words, throw the person away.

Now the defence counsel is going to say to himself or herself, “Well, we are going to fight this and we are going to fight this hard”. There are no deals and no convictions.

What will happen then? The defence counsel is in effect going to force the crown attorney to accept the plea to something lesser than possibly is appropriate under the circumstances. Now we are looking at an indeterminate sentence rather than a determinate sentence. Instead of the individual going away for an appropriate period of time on the apprehension that they may go away for a much longer period of time, the defence counsel will try and plead it down to something less.

Purists in the chamber may think that this is not very good at all. On the other hand, that is the way the court system works. I do not see that changing any time soon.

We will have a perverse consequence. In fact, the courts are going to get clogged, the crown attorneys are going to have to make deals that they do not want to make, and the courts, ending up clogged, are going to actually process fewer people who have been charged with offences.

The reaction of the crown attorney is either twofold. The crown attorney can either say, “Okay, let us bring it on and let us have the fight” or it is going to be, “Let us make a deal time”. Those are the two choices that the crown attorney will be faced with. The likelihood is that the crown attorney is going to accept something of a lesser plea because in fact the provinces are not going to be greatly more resourced in order to be able to deal with this legislation.

We can ignore that kind of advice on the part of the experts that come before or will come before the committee, or we can take it into consideration when drafting a piece of legislation.

The risk is that it puts the entire section 752 in jeopardy. One can go to the bank on it. It will be absolutely certain that if in fact this section were to pass, if in fact an individual were to be convicted under this section, this legislation would be challenged by defence counsel in court under a charter application. There is an absolute certainty of that.

We put at risk the entire section 752. The court might either strike this bill or it might strike the entire section. We again have an ironic consequence that we would lose the entire dangerous offender section and have nothing, which I do not think any party in this House would support that kind of consequence.

We are playing a high stakes game here with things that clearly are of serious consequence. I do not think hon. members need to take my word for it or anybody else in this chamber. They might actually listen to what other people who have expertise in this area actually say about it.

If I may take some time, I would like to reference David Paciocco, a professor of law at the University of Ottawa. He begins his speech by saying that the best that could be said about this bill is that it is an amalgam of unenforceable and constitutionally suspect provisions. It puts the burden of three strikes on the accused to prove that he or she does not pose that kind of danger that the dangerous offenders do.

In other words, it reverses the burden. We are reversing the burden on somebody who has to prove that they will not likely do this action. When we do that we, in effect, are having to prove a negative. If we are having to prove a negative, the courts that are constitutionally charged with reviewing this under the Charter of Rights and Freedoms will find it very difficult to accept that this is constitutionally acceptable.

The individual accused and convicted has to prove that he or she is incapable of restraining himself or herself, likely to cause death or injury in the future, have a substantial or general degree of indifference to the consequences of his or her behaviour, and be marked with an incorrigible brutality.

The professor goes on to say that, in effect, judges are forced to find that offenders pose the kinds of risks I just described not only in cases where there is a reasonable doubt but even in cases where it is equally probable that the offender poses no such risk. Therein lies the difficulty that this bill poses for those members in this party who actually have to read the bill in the context of the Constitution and in the context of how courts actually behave.

I listened to some of the rhetoric from the other side and I wondered whether in fact those members ever actually go to courts and actually see how they operate. Do they see what the dockets are like for these judges, some 200 or 300 cases on a docket at any given time? Do they realize that plea bargaining is in fact a way of life in courts and that we would have no justice system at all, that it would grind to a halt if in fact every section of the Criminal Code was constitutionally challenged? All we have done is raised a huge flag for defence counsel to challenge this constitutionally.

The professor goes on to say that if this were true, the provision would not only fail to meet the rational connection test, it would also fail to meet the ultimate balancing that is done under the proportionality test. The provision costs to the liberty interest of the convict would outweigh the benefits the provision would produce. In either event, section 1 would not justify the reverse onus.

The court is continually balancing the rights of the accused versus the safety and security of society. It is called the proportionality test, and it is a constant factor in any judge's mind. Does the sentence or the proposal for an indeterminate sentence weigh against the legitimate concerns for the safety and security of the larger society?

I hear the rhetoric about getting tough on crime. I respectfully submit to members opposite that they should get a little smarter on crime. They should not put legislation on the floor which will almost inevitably be challenged in the courts or which will almost inevitably see charter challenges from defence counsel.

I submit from our side of the aisle that there is no way we can support this legislation. It does not meet the proportionality test. It does not meet the constitutional test. We cannot reverse the onus in a situation of this kind. We are, in effect, saying to the courts that the person should be put away indeterminately and that person would have to prove they would not offend in the future. This is very poorly drafted legislation. It deserves to fail.

I would be interested in any questions that members opposite may want to propose.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I have listened to a great deal of what my colleague across the floor had to say. I may have spent more time in courtrooms than most lawyers have. One of the things I noticed during that 30 year career was the fact that lawyers continually challenged the law. I do not think we should be concerned about that.

He is fully aware that reverse onus provisions in the code already have been challenged and upheld as constitutionally strong.

The member talked about plugging up the courts. The courts do not continually deal with these people, but they deal with them enough times that we need to do something. We are talking about the worst of the worst offenders. They are not shoplifters or people who break windows. These people have run afoul of the law in the most heinous way. We should not, as a society, necessarily have to wait for them for a fourth, fifth or sixth time. This is a law that only makes sense to ordinary Canadians.

What do we have to fear if someone does challenge it in the courts, being that a lawyer's role is to continually challenge the law? We should not prejudge what the courts would say.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I agree with the member. We are dealing with the worst of the worst and, therefore, a very small minority of people. At any given time, there are only 21,000 people under Correctional Service supervision. Of those, about 8,000 are in some form of non-custodial supervision. We are dealing with a very small subset of a group of people. The commitment on the part of the Conservative Party during the election was to crack down on crime. In fact, it is cracking down on a very micro-subset of the worst of the worst.

I point out that section 752 has already been constitutionally challenged and has already been upheld in the courts. By putting this overreach into the courts is in fact opening up section 752 for an entire constitutional challenge. The risk he runs does not in any way commensurate with the harm that he wishes to address.

First, we are dealing with a micro-subset of a subset of a micro-subset. Second, he is putting at risk the entire constitutionality of section 752.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, during these remarks and prior remarks there was a suggestion that this legislation attempted to deal with the worst of the worst.

I have looked at the schedule of offences listed in the bill. While they are all criminal offences, they might not be classed as the worst of the worst. There are some 56 separate offences listed, not just the rape scenario mentioned by one of the members opposite. I agree a rape situation is an extremely serious offence and three of them in a row leads one to an obvious conclusion. However, the offences listed can include ordinary assault, an abduction of a child from Canada, which could be a parent leaving with the child without authorization, and robbery. I am not saying they are not criminal offences, but the members opposite described these offences as the worst of the worst.

Would my colleague care to comment on the list, given that we are dealing with a “three strikes and you're out” presumptive scenario in the bill?

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I think California has something of a parallel legislation and it is finding that it does not work. It catches a bunch of unintended consequences. My hon. colleague addresses one of the unintended consequences.

The members opposite think this is like three brutal assaults, therefore this person is unable to control himself or herself. This constitutes a danger to society and, therefore, the individual should be put away as a dangerous offender. However, by lowering the standard of the offence, effectively we are opening up the entire Criminal Code, within a certain realm, to people who probably the members opposite do no intend to have convicted as serious offenders. By reversing the onus, for instance two assaults and now a third assault, one may or may not be the worst of the worst. One may have other problems that get one there.

The times when I was in court, which I do not think were nearly as frequent as he was in court, a lot of the people convicted were people who had all kinds of other problems. Something in the order of about 70% of the offender population is functionally illiterate. A lot of them have serious mental health issues. What we are doing is designating a lot of these people as dangerous offenders, putting them away in an indeterminate fashion and letting them rot.

I do not see the argument that they hon. members opposite are making to support the bill. It is literally taking a howitzer to kill a gnat.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, coming from Winnipeg Centre, one of the most shocking things, when dealing with criminal justice issues or sentencing, is acknowledging the overrepresentation of aboriginal people in our prison system to date.

When I looked at the schedule of offences being contemplated for inclusion under the bill, it struck me right away that it will exacerbate the appalling social situation where aboriginal people are locked up at an alarming rate disproportionate to their size in the population.

Has my colleague given any thought to whether there was any cultural analysis given to the bill when it was crafted in that light?

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, the discouraging part is I do not think much analysis has gone into the bill. It is simply election rhetoric and reaction to that rhetoric.

The hon. member rightly points out that, particularly in Manitoba and Saskatchewan, aboriginal offenders are seriously overrepresented in the criminal court system. Frequently they have problems outside of simply criminal issues, whether it is mental health issues or other social issues. The hon. member would know all these things better than I would.

That was my point on the previous issue. The bill will catch a whole bunch of people whom not one person in the chamber thought would get caught. It is easy. An individual has two assaults. This individual is on the streets. The person has an alcohol problem or a mental health issue problem, et cetera. The Crown gives notice, the defence counsel, who is usually duty counsel and does not really know the offender, will try to do his or her best to do a defence on a reverse onus and our friend, on the streets of Winnipeg, is in an indeterminate sentence, which essentially is a life sentence, for what otherwise would have been maybe a two year or a four year conviction.

That is how it will play out. I think there is a significant chance of injustice as a consequence of that.

[Dave Batters, Conservative, Palliser, SK]

Mr. Speaker, the hon. member for Scarborough—Guildwood has stood in the House and referred to the bill as being stupid. I must thank him for this astute legal analysis. As proof of this point, the hon. member offers up the assertion that the bill might be found unconstitutional by our courts because it contains what is called the reverse onus.

Briefly, there is a list of provisions in the Criminal Code containing the reverse onus. They have either been unchallenged through the years or held to be constitutional. Examples of these are: section 515, bail provision; section 490, a sex offender registry provision; section 16, not criminally responsible provision; and section 487, DNA orders. I could go on. In other words, there are multiple precedents in the Criminal Code for a reverse onus provision.

Would the member for Scarborough—Guildwood would rise in his place and retract that statement?