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

[The Chair, Conservative, Rick Dykstra]

I call our meeting to order this afternoon. Pursuant to the order of reference of October 26, the committee will now resume its study of Bill C-2.

I want to welcome our ministry officials. Thank you for the attendance today in terms of being able to deal with some of the issues we may not have been able to finish up with yesterday, after the minister's presentation.

I just want to make a couple of comments on what I'll term housekeeping items that we will need to do, or should do, after we've had our ministry folks complete their presentation to us. I'd indulge the committee for probably three or four or perhaps five minutes after we're finished with the witnesses in order to finish up a couple of housekeeping items.

I would also note that we did plan to have the ministry here for an hour. If we had witnesses following that, they would be here for the second hour. In fact we do not have any witnesses who were able to make it today. We do have witnesses on schedule for tomorrow morning. If we want to use this opportunity to extend the time and try to work through any questions we have with the ministry--this was a request, I know, from both Mr. Comartin and Madame Jennings--the ministry folks have agreed.

We certainly thank you for your time. I would like to turn it over to you to begin.

[Réal Ménard, Bloc, Hochelaga, QC]

Will the meeting continue until 5:30 p.m.?

[The Chair, Conservative, Rick Dykstra]

Just give me a minute, Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Am I to understand, Mr. Chairman, that we will continue sitting until 5:30 p.m.? I propose that we continue to hear from ministry officials until 5:15 p.m. and then, that we dispense with our technical matters between 5:15 p.m. and 5:30 p.m. Could we agree on how we plan to proceed? Are colleague okay with this proposal? Would this be amenable to Ms. Jennings?

You are not paying attention, Ms. Jennings. We're quite the pair, you and I.

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

I would like to publicly apologize. I was focusing on another rather important subject. However, your proposal is equally important.

[Réal Ménard, Bloc, Hochelaga, QC]

Ms. Jennings, look me closely in the eyes and let's talk.

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

I'm looking closely at you.

[Réal Ménard, Bloc, Hochelaga, QC]

Would you like us to continue hearing testimony from ministry officials until 5:30 p.m.?

[The Chair, Conservative, Rick Dykstra]

There's a lot of love in the room here today, and I really appreciate that. It's warming me up inside. It's just unbelievable.

I think Mr. Ménard has a very good recommendation, that we go until we've exhausted our questions, or 5:15 p.m., and then allow officials to leave. We'll complete our committee business in the last five or ten minutes.

Very good. Thank you.

Ms. Kane.

[Catherine Kane, Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice]

Thank you.

Good afternoon. I'm Catherine Kane, acting senior general counsel in the criminal law policy section.

I would like to introduce my colleagues and briefly indicate their areas of expertise with respect to Bill C-2. As you know, Bill C-2 is a compilation of bills that were in the previous session of Parliament. My colleagues are the subject matter experts on those bills.

We have not prepared an opening statement or presentation. The minister provided the overview yesterday. We are here as a resource to answer any questions you may have. I would also suggest that often as the committee progresses in its work, questions arise. You may also want to have officials for questions towards the end of your proceedings. We could make ourselves available at the end of the committee's work as well.

With me is Greg Yost, counsel in the criminal law policy section responsible for the impaired driving provisions of Bill C-2.

Julie Besner is counsel as well. She is responsible for the gun-related provisions, the penalties for firearms and the provisions with respect to bail for firearms offences. Those were formerly in Bill C-10 and in Bill C-35.

Doug Hoover is responsible for the dangerous offender reforms that were formerly in Bill C-27, in addition to the new reforms that are in Bill C-2.

Finally, my colleague Carole Morency is senior counsel with the criminal law policy section and responsible for the age of protection provisions formerly in Bill C-22.

I can certainly act as the master of ceremonies or whatever to direct the questions. I may be able to answer a few myself, but you have the experts here.

[The Chair, Conservative, Rick Dykstra]

Thank you very much.

We'll start with Madame Jennings.

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

Thank you, Mr. Chair.

Thank you very much for being here today.

I do have a couple of questions concerning the dangerous offender section of Bill C-2. First, are there any women who have been declared dangerous offenders? Secondly, how many women, if any, have gone through a dangerous offender hearing? Thirdly, how many women over the last five years, given their convictions, could potentially have been subject to an application for remand and assessment? And has any gender-based analysis of this particular piece of legislation, this particular section of the legislation that the government has brought forth, been done? We already know that there's an disproportional number of aboriginals, for instance, who are swept up in our justice system who are represented in the correction services, and that pertains to women as well.

I'd like to know if you're able to provide us with this information, and if you're not, why not.

[Douglas Hoover, Counsel, Criminal Law Policy Section, Department of Justice]

I can confirm that to my knowledge there has been a successful DO application brought against a woman. I know of one. There may have been others, but I can't confirm that.

As to current dangerous offenders in the system, we can undertake to contact Correctional Services and make those inquiries on your behalf and get back to you if they're not appearing directly as a witness.

At Justice Canada, we have not done a gender-based examination of part XXIV applications. I would not be qualified to respond as to the number of potential applications that could have been done over five years or any of the other questions, except to confirm that I know of one woman who has been successfully DO'ed once.

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

Do you know or have the information as to how many women, given their convictions over the last five years, could potentially have been subject to an application for remand and assessment for dangerous offender designation? Are you able to provide us with that information?

[Douglas Hoover]

I have the same answer on that: no, we haven't done that analysis. I think there's a potential for that type of analysis to come forward, because certainly we'd have to cross-reference the number of women who have been convicted of a sexual offence over a given time period. Through the help of current Statistics Canada tracking of convictions, you could do that. We haven't done it. We could again check with Public Safety Canada to see if they've done any type of analysis on that.

That type of review would take some time, because there's a pretty large body of information that would have to be reviewed by analysts and researchers and put together.

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

Is there any specific reason why such a study has not been conducted by the Ministry of Justice?

[Douglas Hoover]

I can only suggest that from my perspective it is not specifically an issue. The number of women who have been subject to dangerous offender applications is quite low. There's a very small handful. I know of one as being successful.

If there were a concern that women were somehow being treated differently, then I guess we could take a look at it, but no one has made that suggestion to me. Certainly in my work over the past number of years there's no evidence to suggest that there is a discrepancy based on gender in terms of the application by prosecutors of this provision.

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

Thank you.

In terms of the number of people who have been convicted of offences, let's say over the last five years, that could have led to an application by the crown for remand and assessment for a dangerous offender hearing and possible designation, do you have the figures as to how many offenders could have been subject to such an application over the last five years? How many actually were subject to such an application?

[Douglas Hoover]

I don't have numbers. Again, we can make the inquiry. No, it's not something that I have at my fingertips.

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

Do you know if the information exists in a form that could be brought before this committee? To me, it's elementary that if that kind of system exists, one would want to determine whether the law is being used in all of the cases where it could potentially be used for application for remand and assessment. If it's not in a significant proportion of cases where potentially it could be, then why is it not?

[Douglas Hoover]

I can certainly answer the question in terms of why we don't and why it may not be applicable.

If you consider again the threshold for remand for assessment, it's not exactly a hard test. There are soft criteria that a judge has to consider to determine whether it meets the criteria of a serious personal injury offence. The base threshold for that--where you would start--would be at least a 10-year possible sentence. You'd potentially have to look at every single individual who was convicted of that prerequisite offence. Then you'd have to look at each and every decision of the sentencing court to determine whether in the court's mind.... And you'd have to step into the shoes of the court, which is virtually impossible. You'd have to go through the transcripts from over five years, meaning for probably over a hundred thousand cases. The amount of resources it would take to do that would probably not really justify the exercise.

Overall, I would suggest, as has been said many times by the Supreme Court of Canada, that the dangerous offender application is to be used in the rarest of circumstances for those offenders who show no prospect of rehabilitation, for the purpose of protection of society. Because of that, the number of actual applications is, by its nature, going to be very small relative to the total number of offenders before the court. In the vast majority of cases, the sentencing scheme provided for in the Criminal Code is satisfactory to manage the risk posed by most offenders. In the rare instance where the sentencing scheme is not, the dangerous offender proceedings are there to provide for an alternative sentence--the indeterminate sentence--to ensure public safety.

Again, while I can see why you're asking the question, the type of review you're asking about would probably be somewhat impractical and really would not assist in determining whether there's an appropriate policy in place.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Hoover.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I'd like to take up where Ms. Jennings left off. I must admit that my understanding of the issue is somewhat muddled and I hope you can clarify things for me, Mr. Hoover.

Perhaps we did not agree with the proposed increase in minimum sentences in Bill C-10, but at least the proposal was clear. It was a matter of judicial philosophy and one could be either for or against the recommendation.

I don't quite understand and I would like you to explain where the problem lies for the prosecutor, who as we understand is often the crown. Why are the current provisions of the Criminal Code inadequate? Why does the government feel the need to put forward a list? You talk about primary designated offences, but as I understand it, there is also a list of secondary designated offences.

What is the problem, if I am a crown prosecutor and I want to invoke these provisions in the case of a dangerous offender? You told Ms. Jennings that the criteria were overly stringent, but could you be more specific? Don't be afraid of referring to administrative realities, because that will be a determining factor in whether or not we choose to back the provisions taken from the former Bill C-27. Administratively speaking, where does the problem lie at this time for the prosecutor trying a case in a court of law?

[Douglas Hoover]

Again, a couple of problems have been identified in ongoing consultations with provincial senior justice and territorial officials representing the provinces' and territories' attorneys general.

To begin with, the crown declaration is addressing the issue that in not every case are the crowns able to put their minds to the issue of whether this particular offender merits a dangerous offender application. I don't think the issue is one of necessity in some jurisdictions or that the issue is one of resources in other jurisdictions. It tends to vary.

What we do know is that statistically there seem to be variances in the prevalence of the use of the dangerous offender provisions from province to province and territory to territory. That being the case, I think the policy behind this was in fact to not force crowns to bring a dangerous offender application in a certain situation but to make sure they've addressed their minds to whether this individual deserves or merits a part XXIV application, and to make that intent clear on the record in the court.

[Réal Ménard, Bloc, Hochelaga, QC]

I want to be certain that I understand clearly the first part of your response. You say the crowns are not in a position to make a dangerous offender application, but why is that? As I understand it, voir-dire comes into play. We're talking about a professional, in this case, a psychiatrist, at least in the case of Quebec. Why aren't the crowns in a position to make such an application? What is the problem?