Bill C-2 (39th Parliament, 2nd Session) Committee on Oct. 31st, 2007

[Douglas Hoover]

It's exactly the same as it is under the current procedure. It's exactly the same procedure you see currently. Basically it's at sentencing, although there is provision currently in part XXIV, dealing with dangerous offenders,that allows the crown to give notice if it intends to bring a part XXIV application but doesn't have the material before it. It has six months to bring the application, but that's rarely used.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Okay. That's all I have, Mr. Chair. Thank you.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Comartin.

Mr. Keddy.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Thank you, Mr. Chairman.

Welcome to our witnesses.

I have a couple of questions, but before I use my time for questioning, Mr. Chairman, I have a point on process. Yesterday there were a couple of comments made by the opposition parties about the “three strikes you're out” legislation in the U.S. Because this is a legislative committee and it's not a regular committee sitting in this House, I don't see how that pertains to this particular piece of legislation. I would like you to look into that and come back to our committee with whether or not it's pertinent to this discussion, because I really don't think it is pertinent to this discussion.

[The Chair, Conservative, Rick Dykstra]

Okay. Thank you.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

My first question will be on firearms-related offences.

As all Canadians are aware, there are tens of thousands of unregistered firearms in this country, most of them owned by law-abiding citizens who have never had a speeding ticket or been stopped for going through a stop sign. They're held by many rural and urban Canadians, but there are literally tens of thousands of them. My concern is that when this legislation comes into place--and I expect it will come into place and Canadians will support it--we will have created a group of people who, through no fault of their own, because they didn't register their firearms, suddenly become criminals under this new bill. Quite frankly, they're criminals under the existing legislation.

I'm wondering if there's been any thought or any process given to the idea of an amnesty. Amnesties work. We tend to have a firearms amnesty on an ad hoc basis every six, seven, or ten years. People turn in firearms that they're not using. That takes a lot of handguns off the streets. It would also be an opportunity for people to legally register firearms that haven't been registered so far.

I'm wondering if any thought has been given to that.

[Catherine Kane]

My colleague Julie Besner can answer with respect to the provisions of this bill that deal with the firearms-related parts, the penalties, and the bail provisions, but we're not in a position to comment on other measures that the government is exploring for initiatives that go beyond the scope of this bill. We're best confined to the scope of this bill.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

I appreciate that. I think I talked about that earlier.

My next question would be regarding the actual formula, if you will--for a non-legal term--to designate a dangerous offender. There is a very rigorous, encompassing process in place. For the benefit of the committee and for the benefit of Canadians who are watching this, could you go through the formula that will actually be in place to designate a dangerous offender?

[Julie Besner, Counsel, Criminal Law Policy Section, Department of Justice]

Do you want the firearms first?

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

I mean with firearms or with any part of the dangerous offender designation.

[Julie Besner]

Very briefly, to respond to the question of potential exposure of law-abiding people who own firearms for a legitimate reason and whether they could be targeted through some of the offence provisions proposed in Bill C-2, I can indicate that the offences that are targeted in this bill are the most serious gun crime offences contained in the Criminal Code. Simple possession offences without, for example, a registration certificate are not targeted in Bill C-2. It's very much tailored to target problems with respect to gangs who use firearms to commit offences and the more serious non-use offences like firearms trafficking and smuggling.

Is that a satisfactory response?

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

How would that firearms offence roll into a dangerous offender designation?

[Julie Besner]

The firearms provisions proposed in Bill C-2 and the dangerous offender applications are not tightly connected, except in the case of two new offences that are created under the bill. The offence of break and enter to steal a firearm or robbery to steal a firearm is going to be listed under the designated offences.

Perhaps my colleague Mr. Hoover can elaborate a little bit more on that and on your other broader question about the format for the application.

[Douglas Hoover]

Yes. Any of the firearm offences that have a minimum possible penalty of at least ten years open up the door for a potential dangerous offender application as long as they meet the remaining criteria for serious personal injury offence. All you have to do is take a look at the new offences created, and if there's a ten-year possible penalty, then it could possibly trigger a dangerous offender application.

As to the other question, do you want me to just go through how a dangerous offender...?

The first stage is that the individual is convicted of what can be typified as a serious personal injury offence or one of the three enumerated sexual offences. Once that occurs, the crown has to make a case to the judge that there's a reasonable likelihood of success of the application, and if that's the case, the crown has the authority to order a psychiatric assessment of the offender, which is a process that ordinarily takes about a month. A report is filed to the court and reviewed by the crown. If the crown is of the view that the potential dangerous offender application will be successful, they will file with the Attorney General's consent and a notice to the defence counsel of the intent to bring the application. Once that occurs, the hearing will proceed.

The hearing is based firstly on the criteria listed in section 753(1), which requires the crown to prove beyond a reasonable doubt that the offender has a certain pattern of brutality that is sufficiently dangerous, etc., and pointing to future risk. Once that finding has been made, as a result of the decision in R. v. Johnson in 2003 by the Supreme Court of Canada, the court then has ultimate discretion to refuse the indeterminate sentence and the dangerous offender application if in fact it is satisfied that a lesser sentence can manage the threat posed to the general public.

Thank you.

[The Chair, Conservative, Rick Dykstra]

You're just almost dead-on seven minutes, so nicely done.

Mr. Lee.

This is just a reminder that we are now in five-minute rounds.

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

Yes. Thank you.

I want to get back to a question I left on the table yesterday that we didn't have time to answer. It had to do with the dangerous offender provisions of the statute. I think there's agreement all around that the right to remain silent is a principle of fundamental justice. It's protected by the charter. If there's any argument about that from officials, I'd like to hear that, but I'll take it as a given that the right to remain silent is protected.

My question was whether or not that right to remain silent remained right through the conviction phase into the sentencing phase of a trial. That's the first question. If the right is there, then I'm going to suggest that these provisions may actually breach that charter-protected right because it imposes on that person a burden to rebut a presumption and they have to prove a negative, i.e., that they're not a dangerous person. These people hopefully are all dangerous once the crown attorneys make their decision, but in any event, the judge in this case will be looking at, to quote Mr. Keddy, someone who has attained the three strikes threshold.

So could you answer that, please, about whether or not this would breach the charter, if the right to remain silent is a protected right?

[Douglas Hoover]

The right to which you speak can be found perhaps in a couple of places. In section 11 there is a right not to be compelled to give witness against oneself during a proceeding. There is potentially a section 7 right--fundamental principles of justice--that applies perhaps more broadly and includes that right.

The Supreme Court of Canada in R. v. Lyons in 1987, which was the first post-charter challenge of the dangerous offender provisions, said that section 11 rights don't apply per se to dangerous offender proceedings, again because of the context of that provision. They talk about rights that traditionally attach to trial and to charge. The decision of the court there was that in fact the rights that were claimed by that particular individual could not be used as a shield against the dangerous offender finding. So I don't think it would fall under that one.

They then turn to analysis of section 7, the fundamental principles of justice attaching to the right to life, liberty, and security of person. They said what was important in the dangerous offender proceedings was not to perhaps transfer over these rights one by one as they might apply, but in the context of the overall proceedings to ensure fairness, to ensure that the offender had an opportunity to present his side of the story, to make sure there was not an arbitrary hearing, etc. The important thing is that the offender's right to silence is in fact maintained in these proceedings. He does not have to get up on the stand.

Well prior to that phase, recall that there is an impartial psychiatric assessment ordered by the court, which is often the basis of most of the arguments during a dangerous offender application, and in most cases, as a matter of fact, through legal aid there are subsequent experts brought on board by defence to counter any negative assertions by the crown's impartial witness.

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

It's worth noting that the Lyons case was decided under the old dangerous offender rules.

[Douglas Hoover]

Well, that's not exactly correct.

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

We're about to change the legislation here. So I'm asking you about charter applicability not to the old rules, the existing rules, but to the ones we're going to change them to, and the new ones impose a presumption on the person who may or may not have this right to remain silent.

Wouldn't you agree that it's not the old dangerous offender provisions we have to measure, that it's the new ones here? I'm asking you not to measure the charter acceptability of the old provisions, but rather the new one, where we've imposed on a three-time convicted person a presumption that they are a dangerous person, and the only way they can get out of that box, that presumption that the law is imposing, is to come forward and speak, and they have to deal with those issues. Now, that may be a very common sense thing to do. My question is, does that breach the right to remain silent, and is that right there? Have you, as a department, determined that the right to remain silent applies in the sentencing phase?

[Douglas Hoover]

Yes, we have. We've done our analysis. We've taken a hard look at this.

I can also point you to more recent case law. The Ontario Court of Appeal in R. v. Grayer, as a matter of fact, suggested that the right to remain silent in a dangerous offender proceeding is something that the offender can exercise, but to his detriment. When the evidence is there that he poses a threat of future harm to society and he chooses not to speak, chooses not to participate in any respect in the assessment process or in the actual hearing itself, then the court is going to make the determination, whether he speaks or not.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good day.

We met with you on two or three occasions during the various stages of the bill that we attempted to have passed during the last session. There is one point that interests me. As it now stands, all of these bills have been combined into omnibus legislation, but I would like to hear more from you about drug-impaired driving.

I have almost 30 years of experience in this field and virtually all of the cases that I dealt with involved driving while under the influence of alcohol. There was a reference to drugs in the Criminal Code, but it wasn't readily apparent. Even if a person had taken drugs, it was difficult to prosecute him.

What advantage is there to the bill now before us and how is it different? I think we can congratulate ourselves, and the opposition, for the progress that this bill represents. In Quebec, accidents caused by impairment—and we are not just talking about alcohol—are a serious problem. They occur every day.

I don't know who can answer me, but how is this bill different from the provisions currently in place? The public knows what to expect with alcohol-related incidents, but is not quite as clear on what happens in cases where drugs are involved.

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice]

It is a fact that once these provisions were included in the Criminal Code, individuals were in fact tried on drug-related offences. The problem has always been establishing proof of drug use. There are no devices available to detect the presence of drugs, unlike roadside breathalyzers. This issue has been under review for a number of years, at least since the 1999 report of the special committee. There are thousands of drugs that fall into many different categories and each drug affects people differently. There is no technical tool available to us to test for the presence of drugs that is comparable to the breathalyzer test.

We have found the new Drug Recognition Expert Program to be the most effective tool. I say the program is new because it is new to Canada. It has been in use in the United States and in other countries for about 20 years. Here in Canada, it has been used in British Columbia for the past decade or so. Under the program, if there is reason to suspect that a person is drug impaired, an examination by a drug expert can be ordered. A series of physical tests will be conducted, such as testing the person's response to light, taking his pulse and blood pressure, and so forth.

Based on his observations, the expert can say which type of drug was likely ingested by the individual and caused his impairment. The expert can then ask the individual to provide a sample of a bodily substance for analysis purposes. If the expert believes that the drug in question is cocaine and traces are found in the person's system, then the case goes to trial. So then, a person was observed driving erratically, an expert recognized the presence of a particular drug and an analysis was done.

Under the proposed new legislation, testing of this nature will be mandatory. Initially, roadside tests will be conducted to detect impairment, whether alcohol or drug related. The individual in question will be subjected to a series of physical tests, as prescribed by regulation. These tests are fairly well known and have been around for years. If the person fails the tests, but alcohol is not a factor, that is his blood alcohol level is below .08, he can then be ordered to participate in the drug expert recognition program. Failure to agree to participate in the program and to supply a sample of a bodily substance for analysis purposes will be deemed an offence.

What we're offering here is a tool to ensure the program's effectiveness. British Columbians quickly understood that it was not a good idea to make the test voluntary, because the hoped-for results were not achieved. Looking to the experience of the United States, we believe that the program will prove effective in detecting the presence of drugs, identifying drug impaired individuals and establishing sufficient proof in order to obtain a conviction. Obviously, the program's success will depend on the number of drug recognition experts. It will take time to train enough experts.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Yost. Merci.

Madame Freeman.