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

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Kramp.

Mr. Comartin.

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

Mr. Hoover, on the provisions with regard to presumption, when they are talking about prior offences it says “that the offender was convicted previously”. I'm going to use an example, because we have it in Windsor right now, of an individual who has committed a series of offences. He is HIV/AIDS positive and they are moving for a dangerous offender.... He committed all the offences, he was convicted of all the offences all at one time, and now they are applying. Would that trigger this section, or would he have to have been convicted of other offences two years ago or ten years ago? What does “convicted previously” mean?

[Douglas Hoover]

That's a fair question. Again, the way it's worded is to leave some discretion to the court. There is often a fine line between the nexus of one offence to the other. What we wanted to avoid was, in one sense, an individual who is subject to the presumption when there is a nexus between the offences, chain-of-events types of thing, but we did want to capture an individual who, for example, had a number of victims over even a short period of time. So it's worded to provide argument available to court from the crown that in fact in the particular circumstances of the case, the presumption will apply based on the fact that while close in time, if absent the nexus between the offences, then it would meet the prerequisite of three separate offences.

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

Let me just be clear. Under “convicted previously”, if the convictions are registered only seconds apart, literally, will that apply?

[Douglas Hoover]

I don't think so. That's certainly not the intent. If it's one of a series of events, then we would suggest, based on case law and jurisprudence, that in fact it would only be seen as one series of offences, not separate offences. In other words, if an individual commits a break and enter and commits assaults against two individuals, then that probably would be seen as one series of offences for the purposes of this. It wouldn't count as three separate offences.

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

So the presumption would not apply.

[Douglas Hoover]

It would not apply in that case.

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

Thank you, Mr. Chair.

[The Chair, Conservative, Rick Dykstra]

Okay. We have--

[Catherine Kane]

I'm sorry, there's also the added requirement in the presumption that you had to be sentenced to at least two years. So that would be the other basic criterion to meet the presumption.

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

I'm sorry, I'm not sure if there's a significance there. Given the same fact situation, the assault and the B and E all at one time, sentenced to two years, again, the presumption would not apply against him.

[Douglas Hoover]

No, not unless there was a significant nexus differentiation between the three offences.

Ms. Kane's point is that by adding a requirement that there be a two-year sentence, it perhaps lends the court to move away from those convictions that are part of one series of events, because the court would potentially tie those together as the intent of Parliament that there has to be sufficient differentiation between the different offences.

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

If you have a serial sexual abuser and the events, the assaults, occur over a two-year period and the convictions are all at one time, the presumption does not apply.

[Douglas Hoover]

No. In that particular case the presumption may well apply. If you have, for example, three different victims months apart, clearly the intent of these provisions is that the presumption would apply in that case, because there is no nexus between the different offences. In that case the actual sentencing court would be saying “Okay, for this offence I'm going to give you two years, for that offence I'm going to give you two years, and for that offence I'm going to give you two years, and then for the current offence I give you two years”. Clearly, the intent of this provision is that the presumption would kick in at that point.

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

We've had other legislation in the last year or two, or maybe three, that has dealt with this issue and that was more specific as to whether the application was there. Was that under some of the mandatory minimums? Why didn't we use that kind of wording?

[Douglas Hoover]

Again, just to--

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

Actually, that may be in this bill. I don't know if it's in the early part of the bill under the old Bill C-10.

[Catherine Kane]

The provisions that were in Bill C-10 have been replicated in this bill to clarify what is meant by a previous conviction, because there's an escalating scheme of penalties. It's very clear what does or does not constitute a previous conviction.

[The Chair, Conservative, Rick Dykstra]

I'm sorry, Mr. Comartin. We're into a bit of overtime here.

I do want to note that Mr. Moore will have the next five minutes. Mr. Ménard will have the five minutes after that, and then Mr. Bagnell. If we have any time left, we can have another speaker, but that's the order as we speak.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

Mr. Hoover, for Canadians who are watching and have been following this, there are a lot of terms out there with regard to dangerous offenders and long-term offenders. There may be some confusion as to what each of those means. We've talked a lot about dangerous offenders, but could you set out what it is to be a long-term offender and what it means to get that designation? Also, how will the changes in Bill C-2 impact on the interplay between someone who is a dangerous offender but is being treated as a long-term offender and someone who is being treated as a dangerous offender, and how will that interplay change after this bill comes into force?

[Douglas Hoover]

Okay. I'll try to be quick.

It's a complicated question in some sense because it's a complicated provision. Essentially, the dangerous offender designation has been around for quite a while. Originally, you could get an indeterminate or a determinate sentence when you had a dangerous offender designation, prior to 1997. The criterion for a dangerous offender designation was a habitual failure to control one's impulses regarding violent and sexual offending.

In 1997 we saw the introduction of the long-term offender provisions, which are also in part XXIV. They're somewhat married to the dangerous offender designation, because if a judge refuses a dangerous offender indeterminate sentence, he or she can in fact impose a long-term offender sentence. With the long-term offender sentence, you'll get the sentence you'd otherwise get for the predicate offence--for example, 10 years or five years--plus the court may impose up to 10 years of federally supervised long-term supervision orders. In that case, the National Parole Board, upon your release into the community, can set a list of conditions for you to abide by while you're living in the community. The conditions can be quite regimented and strict and, again, last up to 10 years, with the purpose of ensuring public safety and rehabilitation of the offender.

Under the new provisions, of course, what we're seeing is the big change toward reform since Bill C-27. That is, a breach of a long-term supervision order will enable the crown to bring you forward on the breach conviction instead of having to wait for an additional sexual offence or violent offence before they can rehear the indeterminate sentence option, as was the case prior to this.

Again, we're now seeing a large number of individuals, who would otherwise be designated dangerous offenders, being released into the community since Johnson, and that's the target audience for these new provisions. Again, if they are unable to control themselves under the watchful eye of the National Parole Board and Correctional Service Canada, it demonstrates a long-term problem beyond what the current long-term supervision order can manage. That being the case, if they are convicted of a breach, they're brought back before the court, and the court can reconsider the indeterminate sentence option.

[Rob Moore, Conservative, Fundy Royal, NB]

Something you said kind of struck home.

Is that what we're talking about here--someone who has met the criteria for dangerous offender but who, it's been decided, is going to be handled as a long-term offender? Time goes by, and they reoffend. That, in effect, is the difference this change is making under Bill C-2. It will mean not having to wait until this person commits another violent sexual offence before having a rehearing of the dangerous offender.

Is that what we're talking about here, the difference in our justice system's being able to have that here where it's obvious tougher controls are needed because the person has breached some pretty stringent controls, without having to wait for that person to victimize somebody? Is that the difference?

[Douglas Hoover]

Yes. Certainly I think that the concern expressed by provincial attorneys general was that individuals who, prior to the decision in R. v. Johnson in 2003, would otherwise have been designated dangerous offenders were not being designated dangerous offenders post-Johnson and were in fact being given lesser sentences. The difference, I think, was that pre-1997 you were a dangerous offender but you could get a determinate sentence. So there was a certain label, a certain watchfulness. Post-1997 you did not get the dangerous offender label at all; you were a long-term offender.

And now that we've had the opportunity to study the individuals who have gone in the post-Johnson world from being a dangerous offender to being a long-term offender, it turns out they are somewhat more difficult to manage under the long-term supervision order. I'm not suggesting that none of them can be managed. The courts have, in some cases, made the proper decision. And as Johnson says, it's a constitutional decision, something that's required. The discretion is required by the court in this case to determine whether or not a lesser sentence can manage the risk posed to the general public. So in that sense this is a very significant change.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Monsieur Ménard.