Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 1st, 2007

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Thank you.

Mr. Muise, in your role as an advocate on behalf of victims in particular, are you aware, over your long history as a member of the police force and now of course in your current position, how many LTOs have actually breached the conditions of their supervision orders?

[John Muise]

Do I have numbers? No, I don't. Mr. Cooper may or may not be able to help with that. You know, we--

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

It would be beneficial to our committee to have an idea, and as well, building upon that, not only the number of people who might have breached their conditions but also how many have reoffended and committed sexual offences.

[John Muise]

I don't have actual numbers. What I can tell you is that the requests by a number of provincial attorneys general is directly related to that particular issue. You have these people who many of us believe are dangerous offenders, but in light of Regina v. Johnson, they are on LTO orders, including some people who have, for instance, 24-hour protection beside them, shadowing them as they go about being LTOs and things like that.

I think I would answer your question by saying that Bill C-2 and the new amendments that have been included as a result of the concerns raised by the provincial attorneys general are going to respond to those very offenders who are inclined to commit new serious personal injury offences, sexual offences, and in particular and significantly those who are going to in some way breach their LTOs, their long-term offender orders. The very kinds of people who are out there as LTOs and are prepared to breach, and do breach--those are the ones who will go on to reoffend in a serious way, because we're talking about that small minority.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Thank you very much.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Kramp.

Mr. Lee, five minutes.

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

Thank you.

I wanted to ask Mr. Cooper--and this is just a hypothetical question--where you have a busy crown attorney, would he or she, do you think, in a certain situation be more disposed to entering into a plea bargain where the accused was coming up close to this threshold or might in fact get to this threshold and the counsel for the accused saw it and knew this could be pretty heavy timber? The counsel for the accused would try to negotiate a plea bargain, would offer a plea of guilty in return for a commitment not to proceed with the DO application. That's hypothetical. I'm not questioning the bonafides of all of our crown attorneys, but in busy courts with heavy schedules sometimes they just might go for the guilty plea and dispense with the DO application.

Do you think that hypothetical question has any practical validity?

[Terrance Cooper]

I can't say that it doesn't, of course.

We have very strict policies in Ontario that we are not to bind the Attorney General. We are never to undertake, for example, to pursue a long-term offender designation as opposed to a dangerous offender designation. When the consent of the Attorney General is required, we take instructions from our client, the Attorney General.

In all other situations, frankly, we are the local minister of justice. But where the Attorney General's consent is required, as it is in many different parts of the Criminal Code, perhaps three dozen times, we take instructions. We don't bind the Attorney General's hands by agreeing to something that would bind his or her discretion if we make an application.

Now, the decision as to whether to make an application to begin with is the trial crown's decision. What we've done in the east region, and probably the reason we have so many of them, is we've tried to reduce the barriers to trade, so to speak. We've raised the awareness among crown attorneys in the east region as to what is involved in one of these hearings. We've tried to do an enormous amount of case law research so they don't have to climb that learning curve every time. We've developed forms and precedents that make the paperwork a lot easier.

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

My second question has to do with what Mr. Bagnell raised earlier. When a crown attorney makes a decision to make a DO application, does that crown provide some kind of a bill of particulars? Does the application contain specific references to any of the four subsections described by Mr. Bagnell, 753.1(a)(i)(ii)(iii) or (b)? Can I just ask you if specific reference is made to any one of those sections when preparing the DO application?

[Terrance Cooper]

Eventually, yes. The application--

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

If in fact there is a specific reference made in your normal DO application to one of those subsections, then the follow-up question from me is, what happens when there's a presumption that all of the subsections have been met and are presumed to have been met? That's what this new provision does provide, that there's a presumption that all of them have been met. How does the offender know which of these particulars he would be expected to rebut in dealing with the presumption?

[Terrance Cooper]

There's a requirement existing currently, in part XXIV, that notice be given to the offender, of course, before we proceed. In the course of the notices that I prepare, and that I urge other crown attorneys in my region to prepare, is a comprehensive notice, which indicates what we are relying upon specifically. Of course, it's only required that we prove one of those disjunctive tests, but quite often it's the case that we're relying on three. Normally, the brutal nature doesn't arise. As I said before, I've never seen that one arise. But the first two that precede it and the one that follows it are often in the same case.

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

If you were a defence counsel and you were trying to prepare the full answer in defence to what ensued after the application of the presumption, how would you, as defence counsel, know which particulars to deal with?

[Terrance Cooper]

I would ask for particulars from the crown, and the crown would no doubt be ordered to give particulars.

[The Chair, Conservative, Rick Dykstra]

I have to move to our next questioner.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Mr. Cooper, you talked about the national flagging system in conjunction with information gathering to assist you with presenting evidence in court. Could you elaborate further on the flagging system and talk to us about the instruments available to the various parties in the area of risk assessment.

The clerk will photocopy the document that I requested from you, and that will shed some light on the subject for us. However, I'd like more information about the process used to assess how dangerous a person is, his risk of re-offending and his inability to control his impulses. You seem to have some tools that either the defence or the Crown can use and I'm curious to know more about them.

[Terrance Cooper]

Yes, sir. Dealing with the national flagging system, the national flagging system works like this. If an individual is flagged, the crown who was prosecuting that individual for the most recent offence gathers certain information that is readily accessible at the time, such as transcripts, the court information, and that sort of thing, and submits them to the national flagging system. In Ontario we have an individual who runs that system. The current individual is Howard Leibovich. The national flagging coordinator is in Saskatchewan, Dean Sinclair.

In any event, the materials submitted to these people and the offender's name are put on the CPIC system, indicating that he or she is flagged. That means that when that person is re-arrested for anything, there will be a hit on the CPIC system alerting the investigating officer, or whoever queries the individual, that this Terry Cooper has been flagged and there is material in Saskatchewan or Toronto or wherever relevant to him, and that is accessible to the crown that's doing the prosecution.

[Réal Ménard, Bloc, Hochelaga, QC]

I see. I wonder if my understanding is correct. If an individual has already been declared a long-term offender or a dangerous offender, it is possible for the Crown, for the judicial system, obviously... However, this is not the same thing as having a sex offender registry. Who has access to this type of information? Does this apply to those who have been declared a dangerous offender or a long-term offender, or does this apply to all other offences as well?

[Terrance Cooper]

I frankly don't know a lot about the sex offender registry. I have passing knowledge of it, so I can't comment on that too much. I could find someone who is an expert in that field and have them testify here, if that is of some assistance to you.

In terms of the flagging system, the initial conception was anyone who was getting close to a dangerous or long-term offender application would be flagged. So you need a pattern of behaviour. If the pattern is just a little bit shy, as it sometimes is, and we don't have quite enough to establish the pattern, then for that person we'd gather up the information that was available at the time and put it in the flagging system. So the next time that person is arrested, regardless of where it is in Canada, whether it is in Prince Edward Island, where there are nine crowns, or in Ontario, where there are 800, the crown doing the bail hearing would within a day have all the information they could conceivably need to deal with that particular offender.

[Réal Ménard, Bloc, Hochelaga, QC]

But is this system administered by the Correctional Service of Canada, by the Department of Justice? Who is responsible for this information?

[Terrance Cooper]

It's a federal system. I'm not sure where the responsibility lies. I'm sorry, I can't narrow the ministry for you.

[Réal Ménard, Bloc, Hochelaga, QC]

I understand.

[Terrance Cooper]

In terms of how the assessments are used, as I mentioned, the psychopathy checklist is one of the central instruments, and this book is available at Chapters. I know they have at least one copy a couple of blocks from here, because I tried to pick it up the other day and I didn't get around to it.

The other ones have different acronyms: SORAG, VRAG, STATIC-99. There is a number of different risk assessment instruments that psychiatrists and psychologists use to predict risk, and they are designed for a specific situation. Some deal with sex offenders, some deal with domestic assault situations, and some, such as the PCL-R, just deal with psychopathy generally. This information is considered by experts.

Another point I wanted to bring up is that there is a slight change in the wording of the psychiatric assessment in the new bill that indicates the court would designate the individual. With the current wording, what we do in Ontario is the crown retains one expert and the defence, virtually invariably, retains another expert. It's been incredibly useful for the courts to have two perspectives brought forward. The only time we don't see a defence expert is if the report comes back and it's not favourable and then it never sees the light of day. Those are the rules, and that's fair.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, could we ask the researchers to prepare briefing notes for us on the national flagging system? These notes could be distributed to members to ensure that everyone understands clearly the process involved.

Thank you very much.

[The Chair, Conservative, Rick Dykstra]

That's fair enough.

Mr. Comartin, you were in the five-minute rounds, but based on our arrangements this morning in terms of starting, you obviously have your seven minutes to use.