Yes.
Evidence of meeting #3 for Bill C-2 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offender.
A recording is available from Parliament.
Evidence of meeting #3 for Bill C-2 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offender.
A recording is available from Parliament.
4:45 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
But if the crown does not make that application, whether the crown declares in open court that they're not going to make the application for whatever reason, there's nothing in this bill that requires the crown to make an application for assessment and remand.
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
You understand the bill correctly. That's correct.
4:45 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
Now, one of the points that you've made in response to questions from some of my colleagues is that there appear to be difficulties in terms of resources in some provinces, possibly in all provinces, that may influence the question as to whether or not applications are made, and if they are made whether they are continued to the next phase.
Would you not agree that resources aside, if we're talking about serious violent crime and sexual offences and we're talking about someone who has been convicted more than once--three times, let's say--it would be much more effective to ensure that the offender actually goes through the expert evaluation and assessment, that it would become automatic, rather than leaving it up to the crown to decide whether they're going to file the application?
4:45 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Well, as a former defence attorney, I would take every possible opportunity to attack the credibility of my adversaries.
I would have to suggest that the consideration of any automatic requirements for a crown to do anything in the criminal process is misguided. I think it would probably do a lot more harm than good. Overall, the potential for harm of the--
4:50 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
I'll interrupt you for one moment, Mr. Hoover.
How could it be misguided when it would automatically result in expert assessment and evaluation of the offenders' risks and dangers that they present or don't present to the community? How would that be misguided when you're ensuring that anyone who's been convicted three times, let's say, or it might be four times, automatically goes through that assessment?
4:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Again, we're talking about a relatively large number of individuals who would go through that particular threshold. We're talking about each of those individuals taking up a very large amount of resources. We're talking about what I would argue would not be a significant increase in the number of successful applications, if any increase in successful applications. In other words, you might get a lot more people in the door, but the court would not be designating, arguably, anybody else as a dangerous offender.
4:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Well, I would suggest that's the job of the crowns at the front end.
4:50 p.m.
Liberal
4:50 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I would suggest that at the front end it is the crowns' responsibility to consider whether or not they have a fair opportunity to--
4:50 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Mr. Hoover, you said that the studies haven't been done.
4:50 p.m.
Conservative
The Chair Conservative Rick Dykstra
Madam Jennings, I've let you go over your time. I was hoping we could finish an answer. But the time is up.
Mr. Kramp.
4:50 p.m.
Conservative
Daryl Kramp Conservative Prince Edward—Hastings, ON
Thank you, Mr. Chair.
Welcome, witnesses.
We've seen many occasions where...of course our judicial system is based on a lot of discretion and the give-and-take and the ebb and flow of the capacity of both crown and defence to negotiate the legal process to the benefit of everyone. My concern is this. Will any of this legislation as proposed affect the potential for either crown or defence to negotiate any other variants in the plea bargain system per se as it exists now versus potential changes? Will it affect it negatively or positively, or do we have the status quo?
October 31st, 2007 / 4:50 p.m.
Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice
Perhaps I could probe your question a little bit more.
The bill has several components. In the provisions with respect to impaired driving there are changes to the penalties, in the provisions with respect to serious gun crimes there are mandatory minimum penalties, and then in the dangerous offenders proceedings it's based on somebody who has already been convicted of serious violent crimes. So in that context, the negotiation of an outcome would perhaps have already occurred for the previous conviction.
Was there any particular context you're asking about?
4:50 p.m.
Conservative
Daryl Kramp Conservative Prince Edward—Hastings, ON
No, I'm basically suggesting that obviously it appears as though this will streamline some of the options that have existed in the past, that it potentially might close potential loopholes for abuse in that it's much clearer and more explicit. Would that be a fair assessment?
4:50 p.m.
Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice
In the context of the provisions with respect to the penalties for gun crimes and in the dangerous offenders context, we're dealing with very serious offences where the crowns are exercising their discretion in terms of what the appropriate charges are, and they would be making that determination at the front end rather than looking at lesser offences. So with the serious offences, I don't think there are the same concerns to avoid the serious penalties. Serious offences will result in serious penalties.
4:50 p.m.
Conservative
Daryl Kramp Conservative Prince Edward—Hastings, ON
Thank you.
I have just one other small point. I have not a concern but a thought regarding constitutional challenge.
I can recall that in minimum mandatories, when they were discussed in previous legislation and/or issues that have come forward, the Supreme Court ruled that a particular punishment might be unconstitutional if it was deemed to be too severe. As an example, there was a minimum mandatory sought for possession of narcotics and they were seeking ten years, and the court deemed it to be not acceptable because it went beyond what was expected; in other words, the crime wouldn't have matched the punishment. However, here there's a solid recognition that we are not dealing with misdemeanours, we are not dealing with common assault, we are not dealing with the summary conviction offences; we are dealing with the most serious, heinous crimes within our Criminal Code: rape, robbery, murder, manslaughter, extortion, kidnapping, etc. But the legislation as proposed still will come under intense scrutiny at the upper level, and justice delayed can be justice denied.
So how confident are you that the legislation as proposed will withstand, to the best possible degree, any constitutional challenge?
4:55 p.m.
Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice
We recognize that all legislation is subject to charter scrutiny and charter challenge. We've seen this since the days when the charter was enacted. All of our legislation has been challenged at some point at some level of court, and we're prepared to defend the legislation in all cases.
I might call on my colleague Ms. Besner to speak about the penalties in the bill with respect to firearms offences, because they have been very carefully tailored with the charter considerations in mind.
4:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
Just to elaborate on that point, the enhanced minimum penalties proposed in the bill with respect to firearm offences are very much tailored to specific offences that appear to be growing in terms of their problematic nature--the gangs and guns problem in certain urban centres--and only serious offences are targeted again. There are specific aggravating factors inserted into the bill--repeat offending is one example, and organized crime is another--and those elements were inserted into the bill to enhance its viability under the charter, if you will.
4:55 p.m.
Conservative
Daryl Kramp Conservative Prince Edward—Hastings, ON
So is there a presumption of guilt in many of these occasions? If you're in possession, obviously, of that weapon when you have committed the crime, is there a presumption under this legislation?
4:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
I'm sorry, I missed part of the question. Were you asking if there's a presumption of guilt?
4:55 p.m.
Counsel, Criminal Law Policy Section, Department of Justice
No, the evidentiary burden on the crown to prove all the requisite elements of the offence is not changed under this law.