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

[Réal Ménard, Bloc, Hochelaga, QC]

I simply want to be certain that I've understood correctly. I think it's important as we move forward with our work. Therefore, I will take up the questioning where Ms. Jennings left off.

Fundamentally, the provisions of the bill are not automatic in nature, strictly speaking. If I look at the list of 12 primary designated offences, I see that the new obligation created involves disclosing the intention of invoking the provisions of section 753.

Am I wrong in saying that the crown will never be required to take legal action or obliged to invoke these provisions? There will never be a situation where it will be compelled to declare a person a dangerous offender.

What is new here is that in the case of primary designated offences, if this provision is invoked, then the burden of proof is reversed, that is the onus is now on the accused. No one in the judicial system will be required to invoke these provisions, either under the primary designated offence regime or under the secondary designated offence regime. This doesn't jibe at all with what the Conservatives are saying, but I'll come back to that later. I just want to be sure that I understood correctly.

[Douglas Hoover]

I can't speak for the Conservatives, but certainly from the departmental perspective that is correct. There is no mandatory or automatic nature to these provisions.

[Réal Ménard, Bloc, Hochelaga, QC]

I have a second question for you. It's important to mention that, because it's somewhat different. Far be it for me to indulge in partisan politics. I'm completely incapable of doing that, although you seem rather skeptical.

The second thing I'm counting on a great deal is getting a realistic picture of dangerous offenders before this committee wraps up its work. To my mind, it makes every difference in the world knowing that of the 384 designated dangerous offenders, 333 are part of the prison population. We need to have an idea of the number of offenders who were declared dangerous offenders after a first, second or third offence and of the type of offence they committed.

How is the primary designated offence scheme different? With the secondary designated offence scheme, the presumption does not shift. At least, that's what you seemed to be saying earlier. I must have misunderstood you. Regardless of whether we're dealing with the primary or secondary designated offence scheme, when a third offence is committed, the reverse onus provision applies. Is my understanding correct? Basically, what is the difference between the primary and secondary designated offence schemes?

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

[Editor's note: Inaudible]

[Réal Ménard, Bloc, Hochelaga, QC]

I don't mean from an academic standpoint, Mr. Petit. I think you've understood the issue on both levels.

[Douglas Hoover]

The last part of your question I think I understood. If I misunderstood the earlier part, you'll have to forgive me.

If I have this right, you're wanting to know the difference between the designated and the primary list, the impact of those two lists. Is that correct?

[Réal Ménard, Bloc, Hochelaga, QC]

That's right, from the standpoint of the evidence and in terms of the consequences for the accused who is designated a dangerous offender.

[Douglas Hoover]

Again, on the designated list, if there are two prior convictions from the designated list plus, in the crown's opinion, the third conviction is for a serious personal injury offence, then the only thing that does is require the crown to declare his intent on whether or not he has considered a dangerous offender application. Again, that's not binding on the crown or the court. There is no automatic. It's not leaning to a presumption. All it does is make sure that the crown has fully considered the part XXIV option.

Second, there is the primary list, the 12 offences. If there are in fact two prior convictions from the primary list that received at least a two-year sentence as well as the current conviction--the predicate conviction is from the primary list--and the court would otherwise give it a sentence of two years, then the presumption shifts from the crown, which is ordinarily beyond a reasonable doubt, to prove the dangerous offender criteria in section 753(1), and goes back to the defendant. He must prove that he does not on balance meet the criteria of a dangerous offender.

[Réal Ménard, Bloc, Hochelaga, QC]

It's clear as far as the 12 primary designated offences are concerned. We understand that in the case of a third conviction, the burden of proof shifts to the accused and there is an obligation on the part of the crown to declare its intent. However, I thought there was a second set of offences because our notes mention a total of 42 offences. I was under the impression that there was a second set of offences called secondary designated offences. That's what I was getting at with this question.

[Douglas Hoover]

That's not applicable at all to the--

[The Chair, Conservative, Rick Dykstra]

Mr. Hoover, I'm sorry.

We've used up your time, Mr. Ménard.

Mr. Lee.

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

Let me say that my scrutiny of these provisions doesn't mean I don't want to support the bill. We over here do want to support the bill. We just want to make sure it's as good as we can make it.

My question here concerns the procedure that will be in place for the convicted person if there is to be a dangerous offender designation. The way the presumption operates here now is that it will presume the person has met any of the conditions in paragraphs 753(1)(a), 753(1)(a)(ii), 753(1)(a)(iii) or 753(1)(b). There are all kinds of different particulars there. There's repetitive behaviour. There's a pattern of persistent aggressive behaviour. There is brutal nature. There is the sexual impulses part. There's a whole list of particulars.

In a normal, non-presumed hearing, those things will be set out by the prosecutor to say, “We think you are one of these categories or more”. If there's a presumption, the bill contains no mechanism that would provide the convicted person of the particulars on which the crown relied upon. In other words, it just says, “You're one of those dangerous offenders. Now, prove you're not.” The convicted person has no particulars with which to start and to disprove the presumption.

So I'm suggesting to you that procedurally we have a serious weakness here, where a convicted person is going to say, “I've got no particulars and I have to rebut a bald presumption and I'm unable to do it.” I think it is a very serious weakness and I'd ask you to respond to that and on whether or not you think we may be able to fix this, if you think it's a problem, before the bill gets through the process here.

[Douglas Hoover]

Once again I could assure the honourable member that we have taken a close look at the potential charter attacks on this provision. I would suggest that yes, it is correct that ordinarily the burden is on the crown to prove the criteria in proposed subsection 753(1), as you laid out. However, again we are suggesting that it is viable to provide to the crown the shift in burden to the defendant because in the first case, this is a narrow list of offences. This is 12 of the most serious offences that there are in terms of violent and sexual offences.

Second, these offences are in fact the triggering offences for most successful dangerous offender applications. Therefore, there is a sufficient narrowing nexus toward the finding of dangerous offender when you've had three of these convictions, all of which have received a significantly serious sentence of two years or more. As such, it's reasonable to impose the burden of proof back onto the defendant, because what we're suggesting is that in this particular situation--which will not be the majority of cases before the courts for dangerous offender proceedings--the offender has shown by his own past conduct that he meets these prerequisites.

Finally, I would suggest that again, consistent with the decision in R. v. Lyons, there is still considerable procedural protection provided for in the dangerous offender protections. Primarily you can find these right from the beginning in terms of the discretion of the court not to allow the psychiatric assessment to go forward if there's no reasonable likelihood of success. The Attorney General's consent is still required for this instance. Once the presumption is in place, the offender has full opportunity to rebut on balance, in which case the burden in the very real sense shifts back to the crown.

Finally, we have the Johnson test whereby the court, regardless of the finding on dangerous offender, has to consider whether or not the offender can be managed under a lesser sentence. Again, as you already suggested, and I agreed, the defendant has the full right to silence. He does not have to put himself on the stand. He does not have to bring forward further evidence.

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

What is it exactly that the convicted person would have to prove here in order to rebut the presumption? If you were acting for a convicted person and you walked into one of these hearings where there was presumption A, B, C, D.... There isn't going to be an A, B, C, D; you are simply one of those DOs.

Can you tell me what you would try to prove in order to rebut? What exactly are you trying to rebut?

[Douglas Hoover]

Typically, as the crown does, I get the same information in the disclosure package, which includes the filed psychiatric assessment. Typically, in all dangerous offender applications, the routine is that once I get that assessment, that is going to dictate what I do next with my case. If the assessment indicates strongly one way or the other that my case is either good or bad, then I have to act on that. If it says that it looks as though the expert assessor is suggesting that in fact I am a dangerous offender, that I meet the criteria, that I can't be managed, I'm going to go out and find another expert with my legal aid ticket to rebut that evidence.

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

But in this case, sir, no one found that you met any one of the specific criteria. The presumption simply says you met all of them or one of them. What is it that the person would have to rebut?

Thank you. I'll leave it there.

[The Chair, Conservative, Rick Dykstra]

You have ten seconds for an answer.

[Catherine Kane]

I would suggest that it's the same criteria that you are deemed to have met that you will be obliged to rebut, depending on the circumstances. The assessment will indicate the nature of the factors that make you considered to be dangerous. It may not be a pattern of behaviour. It may be one of the other criteria that are set out in paragraph (a) or (b). It's not both that need to be proven. Whichever you are deemed to have met will be what you are required to rebut if, on the basis of the evidence, you can rebut that.

[The Chair, Conservative, Rick Dykstra]

Thank you, Ms. Kane.

I just want to wrap up. We've gone about one or two minutes over time, but I think everyone was able to get in the questions they wanted.

I want to sincerely thank the ministry representatives for being here today. It's been very thorough and well done. I appreciate it. We'll let you escape for the day.

Perhaps we'll suspend for one minute, and then we'll come back and finish up a couple of housekeeping matters.

[The Chair, Conservative, Rick Dykstra]

Could we have everybody back?

There are two things we need to do. First, I want to let folks know that we do need a motion to go to the internal board with regard to our budget issue. Let me read it out.

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

It's routine.

[The Chair, Conservative, Rick Dykstra]

This is just routine.

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

Can I move that we just de-televise? We don't need this.

[Some hon. members]

Agreed.

[The Chair, Conservative, Rick Dykstra]

All right. We will suspend the television for now, just to complete.

I appreciate your aggressiveness, Mr. Lee, to get this completed here, but first let me read the motion before you move it: that the budget in the amount of $45,850 be adopted and that the chair be authorized to present it to the Board of Internal Economy.

It is moved by Mr. Lee.

(Motion agreed to)