Bill C-471 (Historical)

An Act to amend the Criminal Code and the Corrections and Conditional Release Act (sexual assault on child -- dangerous offenders)

Criminal Code

[The Acting Speaker (Mr. Bélair)]

The House will now proceed to the taking of the deferred division on the amendment to the motion for second reading of Bill C-471, under Private Members' Business.

(The House divided on the amendment, which was negatived on the following division:)

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

Mr. Speaker, I rise today to conclude the debate on my private member's bill, Bill C-471.

If enacted, the bill will amend section 752 to section 761 of the Criminal Code, automatically making anyone convicted of two or more sexual offences against a child a dangerous offender. The onus will be on the individual designated a dangerous offender to provide the grounds or arguments against such a designation. Furthermore, the private member's bill would amend the Corrections and Conditional Release Act restricting release.

Under Bill C-471, the National Parole Board shall not grant parole, unescorted temporary release or statutory release to an offender who has been designated a dangerous offender under subsection 753(1.1) of the Criminal Code, unless the board has first received at least two medical expert opinions following thorough psychiatric assessment of the offender.

The assessors must be of the opinion that the offender, if released, is not likely to commit another offence and will not pose a threat to persons under the age of 18 years.

This private member's bill was prompted by the fact that our current law does not, in my opinion, deal appropriately with those who pose ongoing risks to society, especially to the most vulnerable of society, our children. My private member's bill was also prompted by a Supreme Court of Canada ruling last September, which makes it harder for the courts to declare someone a dangerous offender.

In a nine to zero decision, the Supreme Court justifies that no matter how many crimes an individual commits against innocent people, lower court judges must pay attention to the possibility of rehabilitation, rather than hand out indefinite sentences for those who have already shown they plan to follow on and continue in a life of violent crime.

As a result of this precedent setting ruling, on March 31 a Toronto judge rejected a dangerous offender application for Ronald Roberts. This career criminal was convicted in August 2002 of severely beating a fellow patron in a pool hall. He had 30 previous convictions over 19 years, including two sexual assaults at knifepoint.

On April 2, Douglas Donald Moore hung himself while in jail on charges of 11 sexual offences against children. This sexual predator is believed to have also killed 15 year old René Charlebois, Robert Grewal and Giuseppe Manchisi.

Moore was a monster. He sexually assaulted four boys in 1986, a 12 year old boy in 1988, then fled parole and sexually assaulted a 14 year old boy in 1991.

After serving only four years of an eight year sentence, Moore was eligible for statutory release in 1995. The National Parole Board refused to release Moore because it believed he was a high risk to public safety and that he would reoffend. However, 18 months later he was released after the parole board claimed he had become a positive role model after taking sex offender treatment.

Since his release in 1997, it is believed that Moore assaulted numerous children and killed at least three people.

Moore was a habitual child molester, who virtually every expert would agree could not be cured. Studies show that neither punishment nor rehabilitation can help many child sex offenders. Experts tell us that the least likely offenders to be rehabilitated are sexual predators, especially pedophiles. In fact they state:

Repeat sex offenders are more than twice as likely to commit further sex offences, much more likely to violate conditional release conditions and more likely than other offenders to reoffend with a non-sexual offence.

This information is fully supported by a number of studies that repeatedly indicate that sex offenders have one of the highest recidivism rates of any criminal group. An estimated 40% of sex offenders reoffend within five years of release.

As well, research indicates that offender treatment programs have shown limited results. In fact practitioners in the field of sex offender treatment do not claim ever to cure sex offenders, but rather to manage the risk of reoffending.

With regard to Douglas Moore, an article in the Hamilton Spectator said:

Why would a man with his history not be subject to a dangerous-offender hearing, to let a court decide if he should be detained indefinitely?

The answer goes on:

Responsibility lies with the federal justice department and provincial Crown attorneys and judges.

After September 2003, the responsibility for child molesters freely roaming the streets rests with the Supreme Court of Canada. Earlier this month many other cases came forward.

I believe the only way we can achieve the measure of protection, protection for the most vulnerable members of society, is to automatically make all those convicted of two or more sexual assaults against a child dangerous offenders. The only way to stop these sadistic predators is to keep them behind bars. Repeat child sex offenders should be incarcerated until there is absolutely no doubt that they will not reoffend.

I implore all members on all sides of the House to support my private member's bill.

[Hedy Fry, Liberal, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I rise today to speak against Bill C-471 regarding dangerous offender designations for repeat sexual offenders against children. This bill proposes to impose mandatory dangerous offender designations against any offender who can be shown to have had a previous conviction for a predicate sexual offence against a child.

My colleagues who spoke on this matter a few months ago have indicated that this particular provision poses a serious problem from a constitutional point of view. I also note that some members opposite have argued that there is no constitutional problem, as the provision allows for the respondent to rebut the presumption that he or she should otherwise be designated a dangerous offender.

While this is an attempt to respond to the obvious charter issues this provision raises, I cannot agree that it in fact overcomes those specific issues cited by the Supreme Court of Canada in the leading cases of R. v. Lyons and R. v. Johnson.

These cases discussed the ability of the Crown to impose an indeterminate prison sentence while remaining within our Constitution. Our Constitution has entrenched in it fundamental principles of justice. The court made it clear that if the Crown seeks to impose an indeterminate sentence in order to protect society in addition to the regular sentence available for the specific crime the accused is convicted of, then certain principles had to be followed.

In the first place, the burden must be on the Crown to prove that the individual before the courts is in fact a clear danger to commit a violent offence. Second, if that burden is met within the specific requirements of the dangerous offender provisions, the Crown must also meet the burden of demonstrating that the particular risk posed to society by that particular offender cannot be managed by any other method available, in particular the new long term offender designation in section 753.1.

In effect, the Supreme Court of Canada has established that if the Crown is unable to satisfy the sentencing court on the evidence that the risk of serious re-offence cannot be managed by the less onerous long term offender designation, then the dangerous offender application cannot succeed.

Finally, the Supreme Court stipulated that even if the Crown meets those burdens, the sentencing judge must retain discretion to refuse to permanently jail the offender. Without this discretion, indeterminate incarceration is simply not viable under our charter of rights.

If we look at the bill, we see that it is inconsistent with these clear principles laid down by the Supreme Court in Lyons and Johnson. The proposal in Bill C-471 requires a judge to impose the dangerous offender designation. There is no discretion. The bill says “shall,” not “may”. The provision that the judge can refuse the application if the offender satisfies a reverse onus is almost certainly not adequate in this regard. As I see it, this proposal does not meet the principles enunciated by the Supreme Court of Canada in Lyons and Johnson.

The objective of the bill is not only to automatically jail indefinitely anyone convicted for a second time of specific sexual offences against a child under the age of 18, but to also make it much more difficult for such offenders to be granted parole.

However, this is already so. Under the current provisions of Part XXIV of the Criminal Code, an offender who is designated a dangerous offender is not entitled to a parole hearing until the seventh year of incarceration. This position was significantly toughened by our government in 1997.

Before that, dangerous offenders could apply for parole after only three years. It is now seven years. The reason for the change was, among other things, to prevent the inconsistency in parole applications between someone sentenced to a 10 year imprisonment for the same offences but who was not designated as a dangerous offender.

Bill C-471 seeks to establish a very specific set of criteria for a very specific group of dangerous offenders. Under the proposal, the National Parole Board would have one set of statutory rules for current dangerous offenders and another set for this particular group of sex offenders.

The National Parole Board is an independent administrative tribunal with a legislative mandate under the Corrections and Conditional Release Act. To make decisions about the timing and conditions of release of offenders into the community, board members are required to make decisions in regard to the specific factual circumstances of the individual case, guided by the law, policies and Canadian court precedents in coming to their decisions.

There are a number of principles in the Corrections and Conditional Release Act that direct the work of the Parole Board.

The paramount principle, in considering a parole case, is the protection of society. In doing their case by case analysis, board members are required,by law to take into consideration all available information that is relevant to the case.

Therefore, the National Parole Board currently has in place a policy that dictates that at least one sessional assessment by psychologists and psychiatrists is required for all dangerous offender parole applications. Such assessments provide critical information about the mental state of an offender and other characteristics and factors that may raise the risk of reoffending. Therefore, the psychological assessment that Bill C-471 asks for already occurs.

The member for Crowfoot is asking for more than one assessment. I am not sure why. There is no doubt that an assessment is an important piece of the puzzle in parole applications for dangerous offenders, but it is certainly not the only piece. An assessment is only one element of the comprehensive analysis that board members must, by law, undertake in reviewing each case.

As I mentioned above, the current system ensures that public safety is paramount in all cases, including dangerous offender cases. However, by putting an overly important and restrictive emphasis on the psychological assessment alone, I believe a dangerous precedent could be set, and the National Parole Board may feel compelled to release an offender if the assessments indicate any chance of success in the community, even though there may be other factors that dictate against release.

I believe it is critical that the National Parole Board remains an independent administrative tribunal operating at arm's length from the Government of Canada. The legal authority within which the National Parole Board operates is clearly set out in statutes, including the Constitution Act, the Canadian Charter of Rights and Freedoms, the Criminal Code of Canada, the Corrections and Conditional Release Act and its regulations and other legislation.

In making quality decisions regarding conditional releases and pardons as well as recommendations in clemency cases, the board's primary objective is the long term protection of society. The National Parole Board's mandate ultimately requires that public safety can best be achieved by timely and supervised conditional release and through the effective administration of sentences. However, while the board is autonomous and independent, it is also accountable for its actions to Parliament and ultimately to all Canadians.

The board is headed by a chairperson who reports to Parliament, through the Minister of Public Safety and Emergency Preparedness. The minister does not and should not give direction to the board in the exercise of its decision making powers regarding the conditional release of individual offenders. It would be the same as the Minister of Justice dictating to judges who is guilty and who is innocent and how sentences should apply, and that is absolutely unacceptable.

The independence of the National Parole Board helps to ensure the impartiality, objectivity and integrity of the parole decision making process. There is no political interference in decision making in individual cases and there should not be. It seems to me that the restriction being proposed regarding conditional release for dangerous offenders in Bill C-471 would unnecessarily fetter the case by case discretion which the board now uses to make decisions.

The Parole Board, under current law, cannot release dangerous offenders unless they can determine that they do not pose an undue risk to society. In the rare cases when dangerous offenders are granted parole, they are subject to intensive supervision for the rest of their lives. The fact is that a very few dangerous offenders are paroled and in the vast majority of cases, only when they are quite elderly. In the rare cases where these offenders are paroled, they are subjected to rigorous reporting and supervision conditions for the remainder of their lives.

In summary, I do not believe these amendments to the Criminal Code would be constitutional. Nor do I believe that the amendments in Bill C-471 would be effective in enhancing the protection of children. As such, I respectfully decline to support the bill.

[Eleni Bakopanos, Liberal, Parliamentary Secretary to the Minister of Human Resources and Skills Development (Social Economy)]

Madam Speaker, I appreciate this opportunity to take part in the debate on private member's Bill C-471 introduced by my colleague, the hon. member for Crowfoot. As has been previously mentioned, the purpose of this bill is to protect children from repeat sex offenders. This protection is to be enhanced by amending the sentencing provisions in the Criminal Code.

Obviously, our government is just as concerned as the Canadian public about protecting our children from sexual predators. But as for the arguments that the courts of this country are too soft on these offenders, that their current sentences are not severe enough, that sex offenders ought to have their basic rights withdrawn, that these predators get released without any concerns about children's safety, I have been hearing them for years from the other side of this House. They may get great press coverage, but they do nothing for public safety, as I have already said.

The Criminal Code states that the fundamental purpose of sentencing is “to contribute to respect for the law and the maintenance of a just, peaceful and safe society”. The objectives of sentencing in the Criminal Code include denouncing unlawful conduct, deterring those who would commit offences and promoting a sense of responsibility in offenders in acknowledging the harm they have done to victims and to the community. The most vulnerable victims in our society are our children, as has already been said.

Canada is totally opposed to the use of draconian measures like the death penalty or the various forms of “three strikes and you're out” legislation, which would call for life sentences with no chance for parole. Our legal system has always respected the discretionary power of judges to adapt their sentences to the severity of the offence, the offender's behaviour, and the risk that offender poses to society.

A judge who has taken into consideration all the facts and all the testimony on the circumstances of the offence and the situation of the offender is in a better position than the members of the opposition to bring down a sentence that is appropriate to each case.

The recent Speech from the Throne confirmed that the protection of children continues to be a key priority for the Government of Canada. As a part of this renewed commitment to protect children from sexual predators, the government has reinstated the former Bill C-20, now Bill C-12, regarding the protection of children and other vulnerable persons.

This legislation proposes criminal law reforms that would provide increased protection to be given to children against abuse, neglect and sexual exploitation. It would strengthen the child pornography provisions by broadening the definition of written child pornography and narrowing the existing defences to one defence of public good.

Bill C-12 would also create a new prohibited category of sexual exploitation of young persons resulting from the existence of such factors as the age of the young person, the difference in age and the degree of control or influence exerted over the young person.

Bill C-12 would increase the maximum penalties for offences against children and would make the commission of an offence against any child an aggravating factor for sentencing purposes. It would also facilitate testimony by a child and other vulnerable victims and witnesses.

These changes would build upon amendments that have been in force since July 2002 for protecting children from sexual exploitation through the use of new technologies. These amendments addressed the communication of child pornography through the Internet and created a new offence of luring that made it illegal to communicate with a child on the Internet for the purpose of facilitating the commission of a sexual offence against the child. The changes also simplified the procedure to prosecute Canadians who sexually exploit children in other countries.

Another example of our focus on the protection of Canadians from sexual predators is the reinstatement in the House of Commons of former Bill C-23, now Bill C-16, the sexual offender information registration act, as was mentioned by my hon. colleague who first presented it in the House. That proposal seeks to establish a national sex offender registry requiring sexual predators to report to police agencies on an annual basis, which will allow rapid police investigation through an address searchable database. Under the proposal, failure to register would be a Criminal Code offence with serious penal consequences.

The February 2 Speech from the Throne also indicated a new commitment by the government to do more to ensure the safety of children through a strategy to counter sexual exploitation of children on the Internet. Under the lead of the Minister of Public Safety and Emergency Preparedness, we are working with our federal, provincial and territorial, private sector and international partners in the development of a strategy to coordinate and enhance our efforts to counter child sexual exploitation on the Internet.

Certainly I would be remiss if I did not point out that in 1997, when I was the Parliamentary Secretary to the Minister of Justice, the dangerous offender provisions of the Criminal Code were amended to toughen up the provisions against the most violent sexual predators.

The private member's bill before us today seeks to amend these provisions to go after repeat sexual offenders against children. Really, that is exactly what the 1997 amendments did. Individuals who are declared dangerous offenders by the courts are now subject to a mandatory indeterminate sentence. The 1997 amendments also included a provision that permits judges to impose a long term offender designation resulting in up to 10 years of community supervision after serving a penitentiary term.

Moreover, in 1997, we also toughened up the conditions for recognizance under section 810, particularly by adding section 810.2, a new category dealing with serious personal injury offences. Section 810 has been very useful to the police in protecting vulnerable persons—even when there was no conviction, or even charges against a potential sexual predator likely to attack children.

I would also like to say a word about the 1993 Criminal Code amendments that created a potentially life-long order of prohibition, prohibiting convicted sexual offenders from frequenting daycare centres, schoolyards, playgrounds, public parks and swimming places where children are likely to be seen.

The order also prohibits these offenders from seeking or continuing any employment, whether remunerated or volunteer, in a capacity that involves being in a position of trust or authority. Another provision was added to permit an individual to obtain a peace bond—a protective order lasting up to a year—if he or she fears that another person will commit a sexual offence against a child.

In closing, I want to insist that all efforts have been made in order to protect Canada's children.

While recognizing the validity of the concerns of the hon. member for Crowfoot with respect to sexual predators on children, I simply do not believe that his proposal would improve the existing provisions.

Moreover, the latest reforms now before Parliament will translate into changes in our laws to give our children even better protection.

We also are doing everything we can for the safety of Canada's children. It is for the sake of our children that we have to stop scaring them with the worst, most heinous crimes cited in the House. In fact, sexual predators are not the majority of criminals but the minority, and thank God that is the case.

[Randy White, Canadian Alliance, Langley—Abbotsford, BC]

Madam Speaker, I would like to make a number of comments on Bill C-471, which gives dangerous offender designation to individuals with two or more convictions. It is high time we look seriously at this. I am glad to see the Bloc is looking at it very carefully as well.

It is unfortunate the government is taking the position it is. If I heard the members right, their concerns are somewhat concerning in and of themselves. Scaremongering was mentioned, and it is a standard comment from them when they do not like what they hear about what goes on the courtrooms. That is unfortunate because some of the examples put forward my colleague, the member for Crowfoot who developed this bill, were absolutely accurate.

Some individuals in my riding are not necessarily nationally renowned for their misdeeds, but they have created some serious problems, and I will mention one of them. This is not in any way shape or form scaremongering. It is reality in our communities. Perhaps some of the folks on the opposite side have similar concerns, but it does not appear so.

Also, another government member said that this went too far. This does not go too far at all. In fact it gives a very reasonable approach to something that is a growing concern in our country.

The bill actually does something else that I like. It does not provide release provisions for serious sex offenders. We do not see UTA and ETA, that is unescorted temporary absence or escorted temporary absence, or parole. We do not see these people out on the street. When they are out on those types of releases, that is usually when the second, third and fourth crimes occur.

One wonders what one is supposed to do when constantly we hear about repeat offences from sex offenders who are the most difficult to rehabilitate. It is well known that better than 40% of sex offenders recommit other crimes. What is one to do if we cannot keep them inside? Continuously releasing them time after time creates more victims. These individuals go back into the pen and they wait for their time to get out. They go before the parole board and give what I call “the big four”: that is, the reasons why they should get out such as, “I found Jesus, “I have a woman”, “I am sorry for what I did”, “I have taken all the courses and now my time is coming up so let me out”.

That is exactly what happens in a parole board hearing. The unfortunate part is that these individuals do not have to take any courses. They do not have to do anything in prison. They can sit there and wait until their time to get out.

In fact not too long ago I was in a sex offender's cell in one prison. I found all four walls and the ceiling coated with pictures of women in various poses of pornography. I could not even see the paint on the walls or ceiling. Now this individual is probably out again and has probably reoffended. My colleague is trying to prevent that kind of scenario.

I want to talk for a moment about something that I suppose colleagues across the way will say is fearmongering, which it is not. It is reality in my community. I want to talk about James Armbruster who had 61 prior convictions. One of those convictions was raping his grandmother. James Armbruster, who I believe was 45, had been out time and time again. Every time he was released, he damaged somebody else's life. Imagine how many times he has done that. He has had 61 convictions against him.

Not too long ago he went from maximum to a community release centre. He did not cascade down to medium and minimum. He was released directly to a release centre. He was there six days, walked out of the system, sexually assaulted a lady and robbed a store.

When I went to the courtroom to listen to the hearing, I could not understand why crown counsel would not bring a dangerous offender designation for this individual. I found out later that they were too darn busy. They had a lot of files, a lot of things to do, which took a lot of time, and they felt he would likely go in for a long time this time. That was conviction number 63.

As it turned out, because of the complications of the law today, this individual, who was incarcerated, was out on a form of release and his full sentence, his warrant expiry, was not up, so the crime that he had newly committed got tacked onto the crime for which he was currently committed. Therefore, he received virtually no extra time. He will be out very shortly. He will be on my streets and he will commit another crime.

Surely, after 20 convictions, one would think the lawyers and judges would probably say that they should stop that. After 30, 40 or 50 convictions, one would think someone would say that we could not continue to allow the person to get out of prison. After 61, now 63 convictions, we will still let him out. This fellow is a dangerous sex offender. He will repeat his crime. My colleague is trying to prevent that.

This is not an isolated case. I could go through a litany of stories like this, having seven federal prisons, unlucky for us, in the immediate area. I know my colleague from Red Deer has a case like this or more. Colleagues in the House, every one of us, have cases like this.

We have to decide how we are going to stop it. Simply leaving it up to the courts will not get the job done. It is much like a sentencing grid today. The reason why people want sentencing grids is because the job is not getting done in the courtroom. We want some way of directing the courts as to what should happen to offenders, in particular, sex offenders.

Bill C-471 is well worth supporting. I think every one of us in the House could stand and give an example of it, and it is not fearmongering. It is the reality out there. It is not going too far. It is going to the distance where we have to protect society and not the sex offender.

We are running out of options. There are far too many sex offenders walking our streets and far too many going back into prison and going through the roundtable of law courts just because we are letting them out time and time again.

In conclusion, even with the national sex offender registry, for which I wrote the legislation, we ended up in the House with the government giving options for that. Even though someone commits a designated sex offence, the government wants to leave open options for the crown to apply, for a judge to use discretion and for criminals to appeal the fact that they will be put on a sex offender registry. Bills like C-471 are coming forward because the options do not work. They work in favour of the offender. What we are working toward are laws that favour the law-abiding citizens in our country.

I ask the government to have another look at this because I am sure that people on this side, the opposition, are all pretty well in support of it.

I might add this. There is an election coming pretty soon, and people like my colleague from Crowfoot and I and many other justice individuals like us in the House are going to make sure things like this do get into law, so it is one way or the other. How about it?

[Richard Marceau, Bloc, Charlesbourg—Jacques-Cartier, QC]

Madam Speaker, it is with great pleasure that I speak on behalf of the Bloc Quebecois on Bill C-471, tabled by my colleague and friend from Crowfoot. The bill will amend the Criminal Code and the Corrections and Conditional Release Act (sexual assault on child--dangerous offenders).

The objective of the member for Crowfoot is to substantially toughen up the legal framework with respect to sexual offenders who assault children.

Members from all parties in this House know how passionate and determined I am about protecting young people, especially children. As you know, Madam Speaker, I have had the opportunity to express my point of view many times, including during the last session, during consideration of Bill C-20 to protect children and other vulnerable persons from sexual exploitation, which resumed last week with Bill C-12.

I cannot emphasize enough how preoccupying the safety of children can be. As legislators, we have the moral obligation to make such protection the best and most effective possible. All victims of sexual exploitation end up deeply affected and scarred for life. This is especially true of children.

Children are the people who are dearest to us, of course, but they are also the most vulnerable. It is our moral, political and philosophical duty, and our human responsibility as legislators who make the laws that apply in cases like this, to provide and ensure that these dear little ones, these children and grandchildren we all have, are protected as effectively as possible.

Seen in that light, the bill before us this morning takes on particular importance and requires the utmost vigilance regarding its legislative objectives. I remind the House and those listening to us that this text amends the Criminal Code to provide that, if a court is satisfied that an offender has had two or more convictions involving sexual assault on a child, the court must find the person to be a dangerous offender unless the offender can satisfy the court that he or she should not be so designated.

Thus, we are faced with a serious reversal of the burden of proof. As a lawyer myself, I am particularly reluctant to support such a provision. Nevertheless, I sincerely believe that the safety of children should take precedence over the rights of a known criminal, and that, because of this, the proposal by the hon. member for Crowfoot should be further studied by the Standing Committee on Justice.

I want to emphasize this part of the position of the Bloc Quebecois and to qualify our support for the bill, because of a decision by the Supreme Court in R. v. Johnson. A judge would be obliged to declare a defendant a dangerous offender without having to do a case-by-case analysis.

In this, there is a risk of overzealous action that I, as an individual, am ready to assume. But as a legislator, I cannot ignore this reality. Therefore, I suggest that we also examine this important and contentious element in greater depth in the Standing Committee on Justice and that we ask witnesses and experts to appear before the committee.

The bill will also amend the Corrections and Conditional Release Act in order to severely restrict parole in certain cases. Under our colleague's bill, anyone designated a dangerous offender, under the circumstances I indicated earlier, would not qualify for parole, unescorted temporary absence or statutory release unless no fewer than two independent psychiatrists are of the opinion that the offender is not likely to reoffend or pose a threat to children.

This major statutory amendment deserves very close consideration. I still believe that the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness should hear from a number of witnesses and experts so that it can reach the most equitable conclusions possible.

Given the importance the Bloc Quebecois accords to child protection and the protection of all members of our society, we will support Bill C-471 at this stage. On several occasions, I mentioned the importance of strengthening the legal framework with regard to sexual predators and child abusers. The Bloc Quebecois' stand on this is extremely consistent and has sound reasoning behind it. Our support for this bill at second reading is based on this. This responsible attitude also requires that the legal framework be adequately, but carefully, amended.

Consequently, I invite my colleagues in the Bloc Quebecois and the other parties to support Bill C-471 at second reading, but I want my colleague from Crowfoot and the other members to note that this support is not without reservation. We will have to re-evaluate our position on this bill in accordance with the work of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

I assure my colleague of my utmost cooperation in this important work, which I hope will be done in committee, because our number one priority when debating such a bill is, naturally, the protection of the children we hold so dear.

[Sue Barnes, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am pleased to speak to Bill C-471, an act to amend part XXIV of the Criminal Code regarding dangerous offender designations and the Corrections and Conditional Release Act, introduced by the hon. member for Crowfoot.

The objective of the bill is to jail indefinitely anyone convicted for a second time for any one of three specific sexual offences against a child under the age of 18: section 271, sexual assault; section 272, sexual assault with a weapon, threats to a third party or causing bodily harm; and section 273, aggravated sexual assault.

The bill would require new criteria for these specific offenders to be granted parole, specifically requiring at least two psychiatric assessments indicating the risk posed by the offender, and with both assessments indicating that there was no risk of reoffending.

The bill proposes to meet these objectives by amending the dangerous offender provisions of the Criminal Code, specifically section 753, regarding the establishment of new mandatory criteria for judges to consider in dangerous offender applications against this specific group of offenders. The bill would add a new provision to the Corrections and Conditional Release Act establishing mandatory criteria parole hearings regarding these specific offenders.

I commend the overall objective of the bill of enhanced security for children from sexual predators. I do not think anybody in the House would do otherwise. As stated in the Speech from the Throne earlier this month, this is also a priority of the government and has been for the past decade.

However, I do not believe that the bill would accomplish what it is setting out to do, that is, to enhance child safety. I would like to examine how the scheme proposes to operate and in so doing clearly demonstrate why I believe it simply will not work.

The heart of the bill is the proposal to amend section 753 of the Criminal Code. This particular provision defines the criteria that a judge must consider to designate a convicted offender as a dangerous offender. The proposal in Bill C-471 seeks to dramatically change the way a particular class of offenders is designated as dangerous offenders.

This proposal would make dangerous offender designations automatic where the defendant has had two or more convictions for the enumerated sexual offences where the victim was a person under the age of 18. That is what the member for Crowfoot indicated when he introduced his bill on October 6, 2003, and again this morning in his speech.

I must submit that I have serious concerns about this proposal. The bill says quite clearly that individuals convicted of a sexual offence listed in subsection 752(b) where the victim was under 18 years of age is subject to this new provision if they had a previous conviction under the same offences. Again, these offences are for sexual assault, committing a sexual assault while carrying, using or threatening to use a weapon, and aggravated sexual assault.

As I understand it, these specific offences are currently listed in subsection 752(b) in order to define the term “serious personal injury offence”. I note that these provisions are there to do exactly what the member for Crowfoot wants, that is, to make dangerous offender designations against sexual offenders easier. It seems to me that it is working.

At last count, of the 200 designated dangerous offenders since the last major revision to part XXIV, proclaimed August 1, 1997, over 90% of the designations were for sexual offences, and the vast majority were for the three listed offences, I believe about 80%. I would also point out that the Crown success rate for such applications is extremely high, over 90% in most provinces.

Right now there are over 340 dangerous offenders in the corrections system. Of those, over 90% are sexual offenders. About 80% of sexual dangerous offenders are there because of a section 271, 272, or 273 offence. Clearly, the current provisions are hitting the mark. These are the offenders that the provisions target and with great success. The bill seems to imply that this is not good enough.

Under the current provisions, one of the prerequisites for making a dangerous offender designation is that the defendant must have committed a serious personal injury offence with the criteria being defined in subsections 752(a) or (b). That is, if the offence was one of the listed ones in subsection 752(b), then no further inquiry by the court would be needed regarding the serious personal injury offence requirement.

The court must then turn to the test outlined in subsection 753(1)(b). This requires the court to satisfy itself that the Crown has met the prerequisites of proving that the individual, by his conduct, has shown a failure to control his sexual impulses and, further, that there is a likelihood that he will cause injury, pain or other evil to others in the future as a result of his failure to control his sexual impulses.

I would emphasize that the prerequisites for a dangerous offender designation for individuals convicted of the listed sexual offences are already significantly less stringent than for all other offences. Specifically, I would point out that if the Crown were to seek a dangerous offender designation for an offence other than the three mentioned in subsection 752(b), the first step for the Crown would be to meet the burden of establishing that the offence was a “serious personal injury offence” as defined in subsection 752(a).

This would require, first, that it be an indictable offence with at least a maximum penalty of 10 years and, second, the Crown must prove, under subsection 753(1)(a), that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons. Subsections (i) through (iii) provide the criteria which the court would use for making such a determination.

I make these points and I know they are technical, but they are important points. I make these points to clearly demonstrate to the House that part XXIV of the Criminal Code already makes dangerous offender applications against individuals committing the listed sexual offences easier than non-sexual offenders. That is not in fact my primary concern with the bill. Far from it. My real concern lies with the mandatory imposition of the dangerous offender designation.

I would draw the attention of the House to subsection 753(1), which states that the court may impose the dangerous offender designation on the offender if the Crown satisfies all of the criteria I have mentioned above. This is the same for both categories of offenders, the designated sexual offenders and all others. This wording provides the court with discretion on whether to impose the designation. It is there for a reason and that reason is critical to the constitutionality of this provision.

When we lock up any individual, we are depriving that individual of his or her liberty, but we do so for specific reasons and we only do so where we provide due process and protection of fundamental rights of the individual. Since 1982 that right has been clearly entrenched in the Constitution by section 7 of the Charter of Rights and Freedoms. I would point out that even before 1982 those fundamental rights existed and were in fact vigorously protected by the courts.

Since 1982 that right has been codified and entrenched. The Supreme Court of Canada has had a lot to say about how section 7 interplays with the desire to protect society from habitual and violent offenders. The leading cases on this are the decisions of the Supreme Court in Regina v. Lyons 1987 2 S.C.R. 309, and more recently Regina v. Johnson, 2003 S.C.C. 46.

In Lyons, the court made it clear that Parliament could indeterminately imprison offenders in order to protect Canadians from harm, but if and only if the charter rights of these individuals were protected. In Regina v. Johnson, the Supreme Court reviewed the provisions as they are now and again found them to be constitutional. However, it emphasized, as it did in Lyons, the importance of the discretionary aspects of the provisions as a fundamental method to ensure that the rights of these offenders were protected.

Both of these cases provide an exhaustive examination of the constitutional viability of part XXIV, both before and after the 1997 changes. Both cases emphasize the discretion afforded the courts in refusing to impose a dangerous offender designation as a critical aspect of the viability of the scheme.

The bill before us today simply goes too far. It says that the court shall have no discretion and if there are two convictions it is automatic. I simply cannot support the bill regardless of the laudable objectives--and I know my colleague has put a lot of work into the bill--of protecting children. I simply do not believe the courts would uphold it. It would be irresponsible to amend the Criminal Code knowing that it would be unconstitutional. Along with the fact that part XXIV already successfully targets these specific offenders, I submit that this proposal does not merit the support of the House.

In theory we must envision the constitutional aspect. The Constitution is real and not just theory. The constitutionality of our laws is very important.

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

moved that Bill C-471, an act to amend the Criminal Code and the Corrections and Conditional Release Act (sexual assault on child--dangerous offenders), be read the second time and referred to a committee.

Madam Speaker, it is a pleasure to rise in debate on my private member's Bill C-471. If enacted, the bill would amend sections 752 to 761 of the Criminal Code, automatically making anyone convicted of two or more sexual offences against a child a dangerous offender.

With Bill C-471, the onus would be placed on the individual designated a dangerous offender to provide the grounds or arguments against such a designation.

Furthermore, Bill C-471 would also amend the Corrections and Conditional Release Act, restricting the release of the offender.

Under Bill C-471, the National Parole Board shall not grant parole and shall not grant unescorted temporary absences or statutory release to an offender who has been designated a dangerous offender under section 753 of the Criminal Code, unless the board has first received at least two opinions following thorough psychiatric assessment of the offender. The assessors must be of the opinion that the offender, if released, “is not likely to commit another offence” and “will not pose a threat to persons under the age of eighteen years”.

This private member's bill was prompted by the fact that our current laws do not, in my opinion, deal appropriately with those who pose ongoing risks to society, especially those who pose ongoing risks to the most vulnerable of our society, our children.

To illustrate this point, I would like to refer of the case of Walter Jacobson. Over a 40 year period, this sadistic pedophile was convicted 60 times and yet was never classified as a dangerous offender. Jacobson, who is currently incarcerated for a series of sex related crimes in Kingston and surrounding area, including the violent rape of a 16 year old girl, is scheduled for parole in March 2005. The last time this rapist was paroled, he went out and reoffended.

Why was an application designating Jacobson a dangerous offender never made? The offences for which he was convicted in 1999 were convictions dealing with criminal harassment, uttering death threats and making indecent telephone calls to young, teenaged girls.

These offences did not entitle the Crown to seek to designate him a dangerous offender because these particular offences do not carry a maximum sentence or a maximum term of at least 10 years.

Offenders can be designated dangerous offenders, which permits indefinite sentences, only if they are convicted of a serious personal injury offence and they are a danger to the life, safety or the physical or mental well-being of others. The offender must be facing a sentence of 10 years or more to be deemed a dangerous offender.

Jacobson was not designated a dangerous offender because, as one paper said, and I quote:

--the sad fact is Jacobson isn't the problem. He's the symptom of a justice system that does not know how to deal with repeat child sex offenders, how to rehabilitate them or what to do with them when their sentences are up.

Experts tell us that the least likely offenders to be rehabilitated are those offenders who are sexual predators, especially pedophiles. I will quote another document:

Repeat sex offenders are more than twice as likely to commit further sex offences, much more likely to violate conditional release conditions and more likely than other offenders to reoffend with a non-sexual offence. However, treatment programs for sexual offenders are sorely lacking.

Financial figures from a few years ago showed the federal government spending approximately $98 million to incarcerate sex offenders and only $2 million a year on treatment programs....It is the norm, when it should be the exception, that convicted sexual offenders return to communities without any counselling or rehabilitation therapy.

I know the Liberal government recognizes and agrees with those findings regarding sex offenders because the statements I just finished reading were statements from an old document entitled “Liberal Perspective on Crime and Justice Issues”. It comes straight from a Liberal document.

The information given was fully supported by a number of studies that repeatedly indicated that sex offenders had one of the highest recidivism rates of any criminal group. An estimated 40% of sex offenders go out and reoffend within five years.

As well, research indicates that offender treatment programs have shown limited results. In fact, practitioners in the field of sex offender treatment do not claim to cure the sex offender but would rather suggest that they would do their best to risk manage the offender.

In light of that information I would strongly suggest to the House that if we are going to err at all we should err on the side of caution. I believe that when there is any doubt at all that pedophiles will reoffend, we need to keep them incarcerated and behind bars. The only way we can achieve this measure of protection, protection for the most vulnerable members of our society, is to automatically make all those convicted of two or more sexual offences against a child to be automatically deemed dangerous offenders.

Another case to illustrate my point and substantiate the need for the legislation is that of Karl Toft, a name that is well-known in the country. Karl Toft, who perhaps is Canada's worst ever pedophile, was released over a year ago into a halfway house in Edmonton after serving 11 years of a 13 year sentence in prison.

After his arrest in 1991, Toft denied abusing boys over the 20 year stint that he was a guard at Kingsclear Training School in New Brunswick. However, later, when much came to light, he plea bargained a deal for a 13 year sentence, pleading guilty to 34 charges that included sexual interference, sexual assault and buggery.

As the years passed, Toft's count of victims rose. It rose to 80 victims and then to 100, 150 and finally to 200. However to date 233 compensation claims for sexual and physical abuse have been settled since Toft's incarceration. One victim believes that the 233 cases are only the tip of the iceberg, claiming that that this sadistic pedophile, Karl Toft, abused approximately 700 young wards of the province. Yet Karl Toft, who is scheduled for full parole in the very near future, has never been deemed a dangerous offender. That is a sad indictment on our system.

Another pedophile who has never been deemed a dangerous offender was Martin Dubuc of Laval, Quebec. This career sex offender was first convicted in 1986 for molesting boys on a hockey team that he coached. After serving his time in prison he did not let a lifetime ban on coaching in Quebec stop him. He simply changed locales, changed communities and became a coach and eventually president of a minor hockey association in southwest Montreal. This individual then slithered his way into the school system becoming a substitute teacher until he was arrested and pleaded guilty to threatening several boys aged 10 to 13.

The case of Dubuc is but one chilling example of how predators with long criminal records weasel and worm their way into positions of trust and authority solely for the purpose of bringing harm and victimizing children. The only way to stop these sadistic predators is to ensure they are held behind bars and that the protection of society remains our guiding principle.

How many more children will be victimized before the government takes account? How many more children will be victimized before the government wakes up and does something about repeat offenders like Karl Toft, Walter Jacobson, Martin Dubuc, Clifford Olson and Paul Bernardo, all of whom have never been deemed dangerous offenders? It is amazing.

How many more children's lives will be destroyed before the government realizes that there is only one way to keep our children safe? Repeat child sex offenders should be incarcerated indefinitely until there is absolutely no doubt or very minimal risk to putting them back out on the streets.

I implore all members on all sides of the House and in all parties to support my private member's bill which is without precedence.

Recently voters in a Swiss referendum backed the introduction of what is being deemed one of Europe's harshest laws on violent criminals and pedophiles. Under the proposals it says that “extremely violent and dangerous criminals who cannot be treated successfully with therapy” would be locked away for life “unless scientific findings show they have been cured or are no longer dangerous”.

In Switzerland the referendum vote was actually initiated by a victims' support group called Light of Hope which was founded by two sisters, one whose daughter was abducted, raped, choked and left for dead. However, under the Swiss system of direct democracy, anybody can initiate a referendum as long as the proposals do not violate the law. What has to happen in Switzerland is that there has to be a petition or a referendum made and 100,000 signatures have to be collected within 18 months.

Although some legal experts have argued that the proposal may violate the European convention on human rights if the laws were strictly interpreted, the sisters went out and collected 195,000 signatures from supporters of the law.

I would argue that what I propose may be similar in nature. I argue that this would be well accepted by the Canadian public, and I also would argue that it would withhold any type of challenge.

I would say that for the sake of the children, of society and the safety and security within our communities, we should support this type of legislation and this bill. I again ask all members of the House to support and vote for this bill, a bill that is solely for the purpose of keeping our children safe.

[Kevin Sorenson, Canadian Alliance, Crowfoot, AB]

moved for leave to introduce Bill C-471, an act to amend the Criminal Code and the Corrections and Conditional Release Act (sexual assault on child--dangerous offenders).

Mr. Speaker, I thank my colleague from Yellowhead for seconding my private member's bill, which I believe to be an important.

If enacted, my bill will amend section 752 to section 761 of the Criminal Code automatically making anyone convicted of two or more sexual offences against a child a dangerous offender.

I brought my bill forward for the sake of the children of the country. I believe that the laws in existence today do not deal appropriately with those who are obviously ongoing risks to society. We need laws that more properly reflect some of the bleak realities of the world, of society and of our country. I believe my private member's bill is one that would reflect that.

(Motions deemed adopted, bill read the first time and printed)