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

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

My question is for Mr. Hoover.

Mr. Hoover, I would like some clarification on clause 43 of the Bill. The provision in question reads as follows:

43. The Act is amended by adding the following after section 753:

753.01(1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1) [...]

Subsection 753.3(1) of the Criminal Code says this:

An offender who is required to be supervised by an order made under subsection 753.1(3)(b) and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Clause 43 goes on to describe the procedure followed, while subsection 753.01(5) says that an offender can be sentenced for an indeterminate period.

Could you explain to me how these two provisions work, since they don't appear to say the same thing. I would imagine that you have a very clear explanation for me. It's just that clause 43 refers to subsection 753.3(1) which provides for a term of imprisonment not exceeding ten years for refusing to comply with an order, while at the same time, it creates a new subsection covering all kinds of other offences and providing for a sentence of detention of an indeterminate period. The two provisions do not seem to jibe with each other... unless you have an explanation for me.

[Douglas Hoover]

This provision in fact is the authority for the reconsideration of the individual who was previously given a dangerous offender designation but given a lesser sentence from the original hearing, so if the individual subsequently is convicted of a breach of the long-term supervision order or of a subsequent serious personal injury offence, this is now the provision that Crowns will use under part XXIV after the assessment or even prior to the assessment. So once the court is able to determine that there was the prior conviction, this is the procedure that's laid out. Specifically proposed subsection (5) is the determination of the sentence issue. It provides to the court the direction that they must use in deciding whether or not the individual should now receive an indeterminate sentence or a lesser sentence.

Maybe you could draw my attention to any particular issues you have with proposed section 753.01. Was it proposed subsection (1) that you were concerned about?

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

This is a new provision, one that was not included in Bill C-27. Was it in fact included in Bill C-27, or is it new to Bill C-2?

[Douglas Hoover]

This is part of the new reforms that were not in Bill C-27. Again, this one was the addition. If you recall the discussion last year, one of the concerns of the provincial attorneys general, which was also stated in committee, was the lack of ability to bring an individual back for reconsideration after the original hearing.

This one gives effect to that new reform, so that if an individual is given the long-term offender supervision order and breaches that order and is convicted of the breach, he's brought back to the court, and the crown no longer has to demonstrate again that he is a dangerous offender because the designation is already there. All they have to do is argue before the court whether or not the individual can be managed under a lesser sentence than the indeterminate one.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I understand.

I would like you to explain something else to me. Clause 43 of the bill refers to subsection 753.3(1) of the Criminal Code which says that when an offender, without reasonable excuse, fails to comply with a supervision order, that offender is liable, under subsection 753.1(3) to imprisonment for a term not exceeding ten years. The provision in question already refers to a possible term of imprisonment, while the new clause mentions additional sentences. That's what I do not understand.

[Douglas Hoover]

I'm not sure where you're reading that from, and so you might want to draw my attention to it, because I can't quite find it in the provision itself.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Consider the actual wording of clause 43:

43. The Act is amended by adding the following after section 753:

753.01(1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1) [...]

Subsection 753.3(1) concerns a breach of a supervision order...

[The Chair, Conservative, Rick Dykstra]

Madame Freeman--

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

... and the offender is already liable to imprisonment for a term not exceeding ten years.

[The Chair, Conservative, Rick Dykstra]

--you have really only about ten seconds left.

[Douglas Hoover]

Proposed subsection 753.3(1) is the breach. That's the conviction for a breach. So if you're convicted of the breach, then you come back under this provision. What this provision does is it does away with the part of the hearing where you have to prove he's a dangerous offender, because that's already done. The only part you have to prove here in terms of the sentence is under proposed subsection 753.01(5).

So proposed subsection 753.3(1) brings you in for the breach. That, I think, is where you are looking at that.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

Thanks to all of the witnesses for being here today and for the different areas of expertise you bring forward. We appreciate that. It definitely adds value to our discussion.

I wouldn't want anyone to come here, sit here for two hours, and not get to say anything, so I'll ask Ms. Morency a question.

There have been a number of high-profile issues—I certainly don't ask you to comment on any case that's ongoing—regarding people who are travelling to different jurisdictions to basically prey on young people. I guess you'd call them child sex tourists or something to that effect. I'm wondering if you could comment a bit on the changes that were in Bill C-22 on raising the age of protection that are now incorporated in Bill C-2 and on the impact that might have on people. Maybe you can comment on whether or not people in the past did see Canada as somewhat of a destination, and on what impact this would have.

I do recall some testimony from the last Parliament that dealt with the sophistication of groups of older individuals who were seeking out young people for these types of relationships, and how they used the Internet to further their exploitation. Could you comment a bit on whether that message is going to be getting out there to those groups, and also on Canada being a destination in that regard?

[Carole Morency, Acting General Counsel, Department of Justice]

As you've said in the question, the reforms proposed by Bill C-2 reintroduce what was in Bill C-22, basically increasing the age of protection from 14 to 16 and maintaining the age of protection at 18 for acts related to the sex trade or prostitution. The Criminal Code already prohibits, since 1997, child sex tourism. In other words, if a Canadian resident or citizen goes abroad and engages in one of the enumerated child sex offences--any of the offences that would apply under the new age of protection--they could be convicted here in Canada for committing that offence abroad, as if the offence had been committed here in Canada.

Right now the way the law works is that if the offence is committed against a person under the age of 14, the existing child sex tourism provision would enable a Canadian prosecution here for that offence, provided that the offender wasn't convicted for that same incident abroad in the country where the offence was alleged to have been committed. Raising the age of consent from 14 to 16 will protect youths here, 14- and 15-year-olds, against sexual exploitation by adults. Similarly, it will raise the age at which the child sex tourism provisions will apply. So for whatever the offence would have been here in Canada, if the new age of protection is 16, for the child-specific offence, the child sex tourism offence would apply to that.

Certainly the justice committee heard testimony from some of the police witnesses about the sophistication of some adult predators, particularly in terms of using the Internet to try to lure young persons for the purposes of committing a sexual offence against them or exploiting them. Again, raising the age of protection will better protect youth against that kind of conduct on the Internet.

Some of those witnesses did say that they have seen, through some of the exchanges the undercover police have seen, references to Canada's age of protection being lower. Perhaps that is an attraction for some predators from outside of the country. Certainly there have been reported cases where somebody has been coming from, say, the United States to meet up with someone they've met on the Internet to follow through on the Internet luring, and they've been caught at the border. That evidence has been provided to the justice committee.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Conservative, Rick Dykstra]

Thirty seconds, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Oh, thanks. We'll just go on, because that wouldn't allow a very full answer. I have no further questions.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Comartin.

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

I'm fine. Thank you.

[The Chair, Conservative, Rick Dykstra]

Okay.

Ms. Jennings.

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

Right now, under the current dangerous offender system, the crown is not obliged to make an application for assessment and remand on first conviction, second, third, tenth conviction, twenty-fifth conviction. Under the proposed amendments from this Conservative government that we find in Bill C-2, has that changed? Is the crown obliged...? Is an application for remand and assessment for a dangerous offender designation mandatory at any number of convictions of violent or serious crimes that are designated?

[Douglas Hoover]

No.

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

No. So when we hear that this is three strikes and you're out, that in fact has no connection to reality. There is nothing in Bill C-2 that obliges the crown to apply for a dangerous offender assessment and remand and file that application after a third conviction, for instance?

[Douglas Hoover]

A third conviction on the designated list will trigger a requirement by the crown to declare in open court whether he has considered fully the part XXIV application sentencing option. In addition, a third offence of the primary list will in fact shift the onus of proof to the offender on balance of probabilities to demonstrate that he does not meet the criteria.

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

If the crown makes the application for remand assessment.