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

[Douglas Hoover]

I don't think it's that they're not in a position. The crowns clearly are in a position to make the application from the outset, but to understand fully the context...I think in many jurisdictions the resources of the court, of the Crown, are stretched somewhat thin. There is often very much a revolving door issue in remand throughout Canada and I guess there is overburden--

[Réal Ménard, Bloc, Hochelaga, QC]

What resources are we talking about here? Resources to secure some expertise? What type of resources is the crown lacking?

[Douglas Hoover]

This precedes the assessment. The first stage, prior to an assessment, is that the crown has to bring an application to the court under part XXIV for a dangerous offender proceeding. So the first step is that they apply to the court and they argue before the court that the individual has a threshold conviction--either a serious personal injury offence or one of the three sexual offences designated. Then the crown is applying for the psychiatric assessment.

But to get there, I guess what I'm suggesting is that the crown has to make the decision right at sentencing that that's what they're going to do. I think the concern was by some provincial attorneys general, by the federal attorney general, that in some cases the crowns were unable to turn their attention to this adequately for a number of reasons, I guess, so the crown declaration is specifically not to bind the crown to--

[Réal Ménard, Bloc, Hochelaga, QC]

Why?

[Douglas Hoover]

It's to make sure that in every case where there is a history of violent or sexual offences, the crown has at least considered a part XXIV application and says so on the record. It's not to bind the crown. It's not to tie him or the court to a dangerous offender application either way; it's just to make sure that in the cases where there seems to be some suggestion of violent sexual history or a pattern, the crown has at least considered this option.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm having trouble understanding. Let's say I'm the federal prosecutor, I have the Criminal Code in front of me and I'm told that there must be a risk of re-offending. Three criteria are spelled out in the Criminal Code. I realize that there are certain nuances that must be drawn between the provinces and the crowns, but I'd like to know why a finding isn't made, for example, or why an application isn't filed with the judge. Could it be that prosecutors have too many documents to fill out? I don't quite understand why matters do not proceed to the next stage.

[Douglas Hoover]

I think the real issue that the crown declaration tries to get to is just to ensure that the first stage of inquiry is thoroughly examined by the crown prosecutor. I think the concern was that that's not always done. And again, those reasons are varied. It may not always be the same.

I can also suggest, for example, that the national flagging system, which is fairly young throughout Canada, is attempting to resolve this administratively by making sure that for those offenders who are migrant in nature--in other words, he may be convicted in Ontario the first time, maybe in Manitoba the third time, and in B.C. the fourth time--the crowns in each of those jurisdictions are aware in fact that this individual has this past and, if they are convicted again, that they're flagged for a part XXIV application. I think this is pretty much in the same vein as that effort.

It's important that there is a comprehensive approach to the management of high-risk offenders coast to coast, and if you have one jurisdiction that is perhaps less vigilant than another, it tends to break down. So this tries to make sure we have consistency in all jurisdictions.

[Réal Ménard, Bloc, Hochelaga, QC]

With your permission, I would like to ask one last question.

[The Chair, Conservative, Rick Dykstra]

You've got a few seconds.

[Réal Ménard, Bloc, Hochelaga, QC]

Are there dangerous offenders who have been designated as such under the Criminal Code following a first serious offence? Would it be possible to have breakdown of the number of offences? According to our figures, there are 384 such offenders, 333 of whom are in the prison population. Do any such cases come to mind?

[Douglas Hoover]

Yes. Technically you only need to have one conviction as the long as the crown is able to establish that there was a pattern of violence. You can in fact tender evidence during a dangerous offender proceeding that goes outside of a conviction. In other words, you can have a number of witnesses come and testify that the individual had done a number of other violent offences even though they weren't charged or convicted. I think you will find, to my knowledge...and again, there are a couple of such dangerous offenders already. Although it is a rare circumstance, it can happen.

[The Chair, Conservative, Rick Dykstra]

Thank you very much, Monsieur Ménard.

Mr. Comartin, the floor is yours.

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

Thank you, Mr. Chair.

Just to pursue this a bit more, let's take the case of the balcony rapist. That blew up this past summer. So he gets 20 years; obviously they treat it as a very serious offence and he's convicted of multiple offences all at the same time. Now we're 20 years down the road and he's released without reasonable control on him.

In fact situations like that, has anybody ever gone back and looked at the crown's conduct in not applying for dangerous offender? Have there been any case studies on that? I would think, Mr. Hoover, that would be done at attorney general offices at the provincial level. Have there been any studies done on that, and if so, are they public?

[Douglas Hoover]

Without being too facetious, I think there's a lot of analysis of that in the press and in the political world. We don't tend to want to comment too much on specific instances that are before the courts, and this one is certainly in that category.

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

No, just so I'm clear, I'm not asking you to comment on that one. I'm using that as an example.

Have there been any cases where the attorneys general across the country have gone in and looked at the process that occurred where they didn't apply at that time--

[Douglas Hoover]

That's fair comment. Certainly I think that is exactly what we have been doing since 1995 with the high-risk offender working group, which is a committee of senior justice officials from across the country. Its works first culminated in the 1997 changes to the Criminal Code that brought in the long-term offender. I think most experts would agree that this has been a highly successful program in managing the risk of offences to Canadians.

Post-Johnson, the same committee has been working hard to identify resolutions to the problems created by that decision in the lower courts. This bill is the fruit of a lot of that labour.

I would also suggest that, again, every time something like that happens, there are certain pressures on Justice Canada to take a look to see if it might trigger further analysis or a further issue that we're concerned about.

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

So when that analysis is done, is it made public? Are there reports we can look at that will tell us why applications weren't made? I think that's what Mr. Ménard was getting at, and I share his concern: why is the application not made under the existing law?

[Douglas Hoover]

Certainly in any given case, normally the transcripts and the decisions are public record and can be obtained by any individual who wishes to study them.

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

Mr. Hoover, I'm looking for a summary of that. Given the time constraints the government has us under at this point, there's no way we're going to be able to go back and go through those transcripts.

[Douglas Hoover]

No. To be fair, though, in that particular instance that was under a previous set of laws. I think the original case, the original decision, was in 1978. The long-term offender designation was not available. I would suggest that in that particular case, had that happened today, it would have been quite a different outcome. Most likely a part XXIV application would have been sought. Even if a dangerous offender designation was not successful, you probably would have seen a long-term offender designation.

Again, we do take a look at these as they come in. Have we actually done studies? The point of my answer is that we do undertake studies. There are reports of the working group, for example, that have been released publicly. One was in 1995, just prior to the 1997 one. The high-risk offender working group also published a report, I think, on the sex offender registry, which was released a number of years ago and resulted in Bill C-16, passed by the House of Commons a few years ago.

Again, its work right now in relation to this bill is still being vetted among the provinces, but that may be released at some point as well.

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

Could I ask you to provide the clerk with both those reports? What was the first one again?

[Douglas Hoover]

The high-risk offender working group task force report on dangerous offenders was in 1995, and in I believe in 2002 was the report of the high-risk working group on the sex offender registry.

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

Okay.

With regard to the amendment you've made in Bill C-2 from the previous Bill C-27, just quickly, with regard to being able to treat the breach of the long-term offender conditions, are we going to be able to do that at any time? That is, once the breach occurs, how long do we have before we have to apply? Are there time limits, and if so, what are they?

[Douglas Hoover]

The designation by the court that occurs now, under this proposed reform, lasts for the life of the offender. So the offender has in fact been found to be a dangerous offender. If the offender breaches a condition and is convicted of the breach of a long-term offender supervision order, then he is liable for this subsequent hearing. If the offender serves out his sentence and his LTSO, beyond the life of that, and commits another serious personal injury offence and is convicted, then he is also liable for the abbreviated hearing, where the crown will not again have to prove the section 753.1 dangerous offender criteria.

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

What I'm asking, though, is how much time the prosecutor has to make the application for a dangerous offender.