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

[The Chair, Conservative, Rick Dykstra]

I'm going to call this meeting to order.

Pursuant to the order of reference of October 26, the committee will now resume its study of Bill C-2.

I know that Mr. Ménard advised me just prior to the start of the meeting that he has a point of order that he would like to make.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

[An hon. member]

[Inaudible--Editor].

[Réal Ménard, Bloc, Hochelaga, QC]

I don't want to rush you. I know you are very sensitive.

[An hon. member]

[Inaudible--Editor].

[Réal Ménard, Bloc, Hochelaga, QC]

No, don't go slow. Don't push your luck.

I'm somewhat disheartened, Mr. Chairman. I appreciate that you are new to this position and that you want to serve the committee well. However, you have to understand that you cannot tell colleagues that the committee is not sitting at 5:30 p.m., and then turn around and call a meeting for 7 p.m., and again for 9 a.m. the following day. Members had already rearranged their schedules. Two colleagues who normally would be in attendance are not here.

In my opinion, it would have been preferable for us to rearrange our schedule and prolong the meeting. I respectfully submit that members need a minimum amount of lead time to rearrange their agendas when the need to do so arises, and it is not your prerogative to randomly ask them to do so.

The witnesses are here. I know that there was no bad faith on your part, but when members are informed that the committee will not be meeting at 5:30 p.m., you cannot turn around and call a meeting for 7 p.m. The witnesses took the trouble of coming here. I hope this does not become a habit. Out of three scheduled committee meetings, two have already been rescheduled. We are prepared to work with the government, but we expect to be treated with a modicum of respect.

I realize that you are new to this job and that you are eager to learn the ropes. We will let it go this time, even though proper procedure wasn't followed. I will not table a motion to adjourn, even though we would have liked to see things proceed differently.

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell, on the same point of order.

[Larry Bagnell, Liberal, Yukon, YT]

Yes. I agree with the point generally. In fact, I found out because I ran into you in the hall this morning, but I would say that in an emergency situation, I like things to move. Perhaps the clerk can call members on their cell phones and get agreement that way, but there's no way that a lot of us would have been in our office at nine o'clock even to find out about this. All of us have a BlackBerry or cell phone, and in an emergency like this I would be happy to come if I actually knew. We can't know through an e-mail to our office, because our offices aren't necessarily open that quickly, so to me it would be an acceptable alternative in such emergency situations to make things go and make it easy for the witnesses.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Ms. Jennings.

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

Thank you, Chair.

I have to say that I agree with Mr. Ménard on the point that he's raised. I think I can safely speak on behalf of my Liberal colleagues when I say that we do appreciate the efforts to try to make this committee work smoothly and to get through the work that we have all agreed needs to be done on Bill C-2 in order to properly report back to the House as per the instructions of the motion.

So I would suggest, as my colleague Mr. Bagnell has done, that those of us who are prepared to provide our cell phone numbers to the clerk do so, and that those of us who are also prepared to provide our personal BlackBerry e-mail address do so. I would also suggest that in future, prior to a notice being sent out, the members be contacted to see if they would be available. If there are enough members so that we have quorum, then accordingly a notice could be sent out. Members would be called and BlackBerried to let them know that this was happening.

I had made other plans for this morning, and luckily my assistant actually went into our office e-mail account yesterday evening fairly late, saw the notice, and immediately BlackBerried me so that this morning when I got up and checked my e-mail, I saw that--oh, my God--we were going to be meeting at nine o'clock. Then I had to scramble to change my agenda in order to be here.

So the process needs to be worked on a little bit, because I know everyone here is of good faith, we do want to get through this, and we want to do it in a proper fashion so that nobody feels as though we're being bousculé.

I don't know the word in English.

I appreciate the efforts you're making to try to get the committee to work well together.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Keddy.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Not to belabour this, Mr. Chair, so that we get on with our business of the day, I think Mr. Ménard's point is a good point. Perhaps we can all give our cell numbers to the clerk. However, I would also want to bring up the point to the Liberal members, and to all the opposition members, that we do have a timeframe on this bill. This is not an ordinary committee. It's a legislative committee. It doesn't work like ordinary committees work. We also have to take into consideration the return date of November 22. We have a very narrow window of time. Everyone is aware of that.

Certainly, Mr. Chair, we also as parliamentarians have a responsibility to our witnesses. At the last meeting, you said you would try to get witnesses if you could. Obviously you were able to arrange for the witnesses, and therefore we're meeting.

Mr. Ménard's point is a good point, and I would say we simply follow that. But if you have to change the time, I think you have to have leeway to change that time. It's our job to either be here or to have someone replace us.

[Réal Ménard, Bloc, Hochelaga, QC]

No. You have to understand that you are not at liberty to reschedule meetings, unless an emergency arises. If you do so, you will not get the opposition's cooperation. This needs to be made clear. If an emergency arises, you can reschedule a meeting. Otherwise, you cannot do that and convene a meeting on 20 minutes' notice. We appreciate that you are new to the job. Therefore, I suggest we get the meeting under way, but understand that this is the last time we will accept a scenario like this.

[The Chair, Conservative, Rick Dykstra]

I want to thank all members for their input this morning, and I certainly appreciate the way in which it was delivered.

I will in fact make the commitment to folks that, number one, if we can get cellphone numbers from any individuals, those numbers will belong to just the clerk. In fact, I won't even have them. They will be with the clerk.

The point I will make is simply this. The clerk and I are quickly becoming fast friends, because we're speaking on an almost hourly basis to ensure that we can deliver our meetings to the committee in obviously as professional a manner as we can and to make sure that we have quality witnesses, as we do this morning. We did contact folks by e-mail last evening, and in fact also by phone to offices. I know that all of you didn't necessarily get those messages. Mr. Comartin isn't here this morning, and I obviously will endeavour to listen to what he has to say as well.

I do make the commitment to you that, in future, if we do have a change, as we did yesterday, we will contact you directly, not just to inform you about the decision but to find out if it works for you. But I appreciate the comments and the vein they were delivered in.

I would like to get started. We have a couple of witnesses this morning and they have come from different parts of the province.

I certainly want to welcome both Mr. Muise and Mr. Cooper this morning.

As you are the first outside witnesses we've had presenting, I want to quickly outline the procedure. You'll both have ten minutes to deliver your opening remarks. The process we will work with then is that there will be a round of questioning. We have an order that we will go through. The first round of questioning will be seven minutes in length. The second round and the following rounds will be five minutes in length.

I'll try to give you a little bit of a wave when you get close to the ten minutes. I'll also give you a similar-type indication in the seven- and five-minute rounds so that you will be able to finish your comments.

I know that the committee asked me, when we started to put together the committee and the process we were going to use, that we try to keep as strictly to those timeframes as we can. I'll ask all committee members to do likewise, and that when I do look over and make mention of time, we try to stick to that. We're going to try to accommodate everyone and give everyone the opportunity to ask specific questions.

With that, I'd like to turn it over to Mr. Cooper to begin, with Mr. Muise to follow.

[Terrance Cooper, Assistant Crown Attorney, Counsel to the Director of Crown Operations - East Region, Ontario Ministry of the Attorney General]

Good morning, everyone.

My name is Terry Cooper. I am currently counsel to the director of crown operations for the east region, Province of Ontario, Ministry of the Attorney General.

I began my career in the administration of criminal justice as a police officer in 1975, which I continued for about seven years in the city of Kingston. After seven years of continuing post-secondary education, I resumed at a lower salary as a crown attorney for the Province of Ontario, and I've been there ever since.

For the last five years, I've been immersed in dealing with part XXIV of the Criminal Code, regarding dangerous offenders and long-term offenders. At the moment, I manage approximately 32 cases that are outstanding in the east region of Ontario. That's the ten crown attorneys' offices from Belleville and Picton to Pembroke to the Quebec border. One crown attorney in the Perth office, for example, has three of these cases pending herself, so these have come a long way from what we used to have when I began my career in the crown attorney system in 1990.

I am not here as a representative of the Ministry of the Attorney General per se. I am not here to comment on policies from my minister's perspective. I am here as a practitioner who has been involved in many of these cases at every conceivable level, and I have a great deal of experience where the rubber hits the road, so to speak, on how to manage these cases. I would like to share with the committee the practical process involved in assembling a case for a part XXIV application, because it might not be what you think. Indeed, in every part XXIV hearing, I make opening remarks to the court to explain the process in some detail, and even judges who have heard these things once have asked to hear them a second time on a second hearing in which they are involved.

Bill C-2, which, I must admit, I read for the first time last night while I was handing out chocolate bars, contains a number of provisions that will assist me as a practitioner, a few that are neutral, and at least one that may prove to have some unintended consequences that could potentially cause some difficulty.

There is also something I would like to address, and which is the biggest single obstacle to the crown putting forth a part XXIV application, and that is the collection of evidence and the preservation of evidence. Section 760 of the Criminal Code, one of the last sections in part XXIV, addresses some preservation issues but not all. I'd like at some point to be able to comment on that and on the fact that none of the mechanisms of search warrants, production orders, and subpoenas is designed to gather evidence related to sentencing at the pre-conviction stage, and that's what we need to do to move these cases forward for the benefit of everyone involved--the offender as much as the crown, and of course the court.

In every part XXIV hearing, the crown must deal with two things, the first of which is the pattern of behaviour. I mention behaviour because that's the word that's used in the Criminal Code. It's not a pattern of convictions; it's a pattern of behaviour. I have had two cases in the east region in which individuals have been declared long-term offenders, one of whom had never had a traffic ticket, so far as I know, in his life. Another one had no previous convictions, although he was convicted for a number of historic sexual offences at the predicate offence.

Frankly, that first step is the easy step. I've never had difficulty bringing a case to the court for which I didn't have that pattern-of-behaviour evidence well in my briefcase before we went. I very strongly emphasize the gatekeeper role that is my responsibility in managing these cases, and my supervisor's responsibility. After that process, it goes to our head office, where a number of lawyers examine the case before it gets to the deputy attorney general and the attorney general of the province. There are countless safeguards involved in these prosecutions as we bring the matter forward. Probably an average of 200 years of prosecutorial experience goes into the consideration of a single case when you consider the prosecution experience of the trial crown, of me, of my supervisor, of the three lawyers at head office who examine it, and then you go upstream to the assistant deputy minister, the deputy minister, and eventually the attorney general himself or herself.

The second step that is involved in every part XXIV hearing is the assessment of the risk posed by the offender and the method of designing something to manage that risk in the community or in prison. Right from the start of this process, we're planning on the exit strategy for the offender. How is the offender going to be managed in the community--if the offender can in fact be managed in the community. That's the very first thing we consider when we embark on one of these proceedings.

The first step, the pattern of behaviour, is very easy. The second step occupies all of my time. The preparation and time involved in one of these cases is approximately 600 hours, including 300 hours of police preparation time and 300 hours of crown preparation time. In the course of the last year, I've been able to trim probably 100 to 200 hours off that simply by building relationships with other members of the administration of justice so that I can obtain records quickly.

I should indicate that we're always interested in obtaining the best possible records for the judge to consider and for the expert to consider. The judge is required by statute to review the assessment report submitted by the expert. The expert in turn will indeed use actuarial instruments to assess the risk posed by a particular individual. The risk assessment instruments in turn depend on a wide variety of materials that far exceed the four corners of the criminal conviction.

So the evidence-gathering process takes a considerable amount of time. We begin with the end in mind, with the expert's needs in mind, because the expert's needs are the court's needs.

The issue of record-keeping, as I mentioned at the outset, is the central problem for us. The administration of criminal justice in Canada is somewhat flawed at almost every level when it comes to preserving evidence within its control. The police shred information. The crown's office doesn't retain information in an accessible way. The courts dispose of information routinely. Worse than that, they don't do it in any predictable pattern. The National Parole Board doesn't keep the audiotapes of its parole board hearings indefinitely. Only the Correctional Service of Canada seems to have a relatively good record at file retention.

The national flagging system is one place we go to as one of our first stops. The national flagging system was designed for a crown counsel to supply certain file information for an individual who is not quite at the stage of being declared a dangerous or long-term offender. That information is retained centrally--or provincially, but accessible from anywhere in Canada.

As I mentioned, section 760 of the Criminal Code is not the subject of Bill C-2, but it has the strange requirement that it doesn't.... It requires the following of the court in every case in which it finds an offender to be a dangerous offender or a long-term offender:

a court shall order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.

Curiously, it doesn't deal with the situation where the court makes the determination that a determinate sentence, a numerical sentence, is necessary. The court is not given any direction under section 760 for that scenario.

In fact, I would submit that it would be appropriate that section 760 apply to cover the evidence in every case where a designated offence is tried and the person is convicted of one of the listed designated offences, regardless of the sentence imposed. Even if it was a provincial sentence, it would be valuable to me as a practitioner to have that information preserved and retained by the Correctional Service of Canada so that it's accessible when we come to the next hearing, because that's always a difficulty.

The other suggestion I would make is that certified copies of informations and transcripts be made, not simply copies.

That still doesn't begin to cover the wide range of human behaviour that we need to acquire information on. Even in terms of criminal convictions, we often find evidence related to break and enter counts and to dangerous driving counts where, for example, the individual has used his car as a weapon to try to run down his estranged wife. We still have a lot of searching to do, but if the designated offences were preserved, it would bring us a long way toward being able to properly present one of these cases in court when the time arises.

As I mentioned at the outset, neither the traditional search warrant, the general warrant, or a production order are designed to assist in the collection of evidence related to sentencing before conviction.

An amendment or an addition to part XXIV, to the effect that, notwithstanding any other portions of the Criminal Code, these mechanisms apply for the collection of materials relevant to the behavioural history of an accused person before or after conviction in relation to whom the prosecutor intends to make an application under subsection 752.1(1), would be of immeasurable assistance.

[The Chair, Conservative, Rick Dykstra]

Could I ask you to wrap up in about ten or fifteen seconds?

[Terrance Cooper]

I think I've just wrapped up.

Thank you very much, sir.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Muise, go ahead, please, for ten minutes.

[John Muise, Director, Public Safety, Canadian Centre for Abuse Awareness]

Thank you, Mr. Dykstra.

My name is John Muise. For those of you I haven't met before, I'm a recently retired 30-year veteran of the Toronto Police Service, where I've spent six of my last seven years on secondment to the Ontario Office for Victims of Crime, where I provided policy advice to a succession of attorneys general in the province on issues around criminal justice reform, public safety, and support for crime victims. I then returned to the police service, where I spent my last year at the homicide squad in charge of the major case management section and the retroactive DNA section that we formed arising out of legislation that was passed shortly before Karla Homolka was about to get out of jail after serving her 12 years.

I note that because part of being in charge of the retroactive DNA section provided me the opportunity to look at hundreds and indeed thousands of criminal records of serious offenders. It gave me a slice of the kinds of offenders that would be captured by this bill, particularly as it relates to the legacy Bill C-27 section.

I'm currently the director of public safety at the Canadian Centre for Abuse Awareness. We're a not-for-profit charitable organization. I provide consultation support to the organization with respect to the issues that relate to abused children and other people at risk. I do these kinds of things, like coming to committee, and try, where possible, to assist in having legislation changed to enhance public safety.

I appeared previously on Bill C-10, Bill C-27, and Bill C-35, which are all part of this bill. I submitted briefs at the time, and I suspect they've all been translated appropriately. As was the case with Mr. Cooper--although I read the bill last night for the second time, and I did that between serving candy to children--I don't have a brief today, and I apologize for that. In any event, I'm familiar with it. What I'll do is, for the most part, speak to the new sections of the bill that have come up in Bill C-27, in particular, since the introduction of the previous bills.

In addition, I would add that although I didn't testify on Bill C-22, it's probably one of the most important bills for our organization, with regard to the age of protection. We are the Canadian Centre for Abuse Awareness and Child Abuse. At the time I happened to be halfway around the world and unable to attend the hearings when they were scheduled.

I'll briefly go over some of my comments on the original Bill C-27. I referred to a number of cases. I made the point about whether Bill C-27 was fair and arbitrary, and about whether it was the least restrictive or intrusive measure possible in light of the purpose of the bill. I made the point in the brief that yes, indeed, I believed it was. I believe it is. I think the amendments that have been included, I understand at the urging of a number of provincial attorneys general, are good amendments.

I'll say right now that the bill as currently written in Bill C-2 is one that the CCAA does support. CCAA encourages all the members of the committee, once you have done your due diligence, to pass it at your earliest opportunity. I fundamentally support it, and our organization believes that children and others at risk will be protected.

To focus on who some of these offenders are as that relates to the Bill C-27 section, for the most part these offenders will have numerous and varied convictions, likely over a number of years, with a large majority of them being sex offenders.

A recent case that has been in the news and for which much of his criminal history is a matter of public record is the Paul Douglas Callow case. He was also known as the balcony rapist. Mr. Callow has a record dating back to the early 1970s that includes a number of convictions for property and violent crimes, including break-and-enter and assault. Mr. Callow also has a conviction for loiter by night--being a peeper--on his record. He has a rape conviction, a historic offence--that is also, in accordance with Bill C-27, a primary designated offence--for which he was sentenced to four years in prison, and an offence for which he was subsequently recommitted as a mandatory supervision parole violator. We now call that statutory release. Then again he was sentenced in 1987, which is his most recent conviction, for five counts of sexual assault, and those were the balcony rapist convictions. Of course sexual assault convictions are primary designated offence applicable. He was given a total of 20 years in prison. Mr. Callow served every single last day of that sentence and was released, to much public scrutiny and fanfare, and was put on a section 810 order, which applies to sexual assault offenders, in the Vancouver area.

There are more than a few people who are wondering why he wasn't declared a dangerous offender at the time of his conviction in 1987. Be that as it may, he wasn't. I suspect there was a plea negotiation. Quite frankly, the sentence, in the context of the criminal law here in Canada, was a pretty good one.

The important thing for this committee to recognize is that it will be the likes of the Paul Douglas Callows that will end up being captured by the legacy Bill C-27 provisions of the current proposed Bill C-2. If he went out and committed, for instance, another sexual assault of any kind and the judge saw fit to provide him with a sentence of two years or more, the old Bill C-27 section would kick in. And this is an offender for whom the crown would have to declare whether he or she was proceeding, and it would fall within the realm of the contemplated section.

Are there other Paul Douglas Callows out there? Absolutely. I don't think there's any doubt about it. And those are the kinds of people who would be captured, much like the current and ongoing dangerous offender sections of the Criminal Code. I think about 85% of those who are dangerous offenders--and I understand we have between 350 and 400--are sexual offenders like Paul Callow.

The end result, particularly in light of the kinds of offences that have been designated PDO, primary designated offences, will be that we are going to capture more people like Paul Callow. Keeping in mind that it is three separate convictions where somebody does penitentiary time of two years or more--in the main, offences that are sexual or sexually based or sexually based against children--at the end of the day, those are the kinds of people who are going to be captured. In essence, we'll capture more dangerous offenders than we already do. I understand there have been estimates of potentially 25 more a year across the country. I'm guessing. I suspect that is probably sort of a best guess. I suspect that it's not far off.

From my reading of the many criminal records that I did review when I was in charge of the retroactive DNA team, my recollection is there are not a lot of people who have two separate sexual assault convictions and are going on for a third. If anybody is worried about capturing hundreds and hundreds of people and making them dangerous offenders, I just don't see that happening. In any event, however many it is, with the new amendments to the legislation we see that the judge, in making a declaration of dangerous offender or not, is still going to have the option of saying “I am going to sentence you to an indeterminate sentence” or “I'm going to sentence you to a determinate sentence with an LTO, long-term offender order after that” or “I'm going to sentence you to just a determinate sentence without an LTO order”. There is a good fit with the new amendments.

I would add that the amendment that responded to the concerns of the provincial attorneys general, which, in effect, brings somebody back and says, hey, what are we going to do with you now, is a positive amendment and will assist in identifying those who just can't stay out of trouble.

One last thing I would like to point out is that I did not testify on Bill C-22. There was one section that was added to the definitions. I'm not talking about the transition section. I'm talking about the section that was added with respect to people who got married and there was an exemption for the age of consent. I understand that was around concerns with folks in the territories. Although, of course, we support this legislation, and we support it going forward, I can tell you that if all of you could see fit to remove that particular amendment, it would be a really good thing. The specific reason is this. When people in places like Bountiful, B.C., cotton on to this, it will be a recipe for...I can't be any more blunt than this: “Girls, come on down and get married because the law is allowing us to continue to get married.” I ask you to think about that.

I'm happy to respond to questions.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Muise. Your point, I'm sure, will engage a couple of questions along the way to allow you to detail it a bit more.

Mr. Bagnell, for the first round of seven minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I only have one question for Mr. Cooper, but just before that I will make a couple of comments.

Thank you for the Bill C-27 amendment, the good amendment on the long-term offenders. I have to compliment our critic who proposed that and got the attorneys general to agree to it, and the government agreed. It's an excellent amendment. Of course, on the age of protection, on October 26, 2006, and March 14, 2007, we offered to fast-track that, so that actually could have been law now.

That being said, Mr. Cooper, I agree with your point that the collection, storage, and retrieval of data and statistics need a lot of improvement. We've learned that in committee, but that's not what my question is about. Our critic made the good point yesterday that in this law there could be 100 dangerous offences and an application never has to be brought, but the Attorney General does have to say whether he reviewed that option. My question is not about that either.

My question is about what Mr. Lee raised yesterday in committee, and that was this. If you can put yourself on the other side for a moment, on the defence side, with all the data you mentioned you had collected and the effort you have to make to make your case under the existing system of proving they are dangerous under one of the various categories, (a), (b) or (c), I believe, in the Criminal Code, you pick one and use your data to prove that. Now the onus, if the application is actually brought, will be on the criminal. Mr. Lee's question was how would you then proceed as a defence lawyer? Which of those categories are you going to try to defend? The onus would have been on the prosecutor to prove you are a dangerous offender. As a defender, where are you going to start in your defence? Under which category? All categories? What would you do to try to suggest that you are not a dangerous offender?

[Terrance Cooper]

Thank you, sir.

Two of the categories are distinction without a difference. When you review the wording of subparagraphs 753(1)(a)(i) and 753(1)(a)(ii).... I have never encountered a case that would satisfy the wording of one yet not satisfy the wording of the other. Those two disjunctive tests are really a distinction without a difference. They both deal with patterns of behaviour, repetitive behaviour or persistent aggressive behaviour. They amount to the same thing in law in the cases I reviewed.

The third, subparagraph 753(1)(a)(iii), deals with brutal behaviour, and that is a test that is so high that I have never personally encountered it. Of course, it would likely be covered by the other two as well, although it could conceivably be a one-off situation.

The test in subparagraph 753(1)(b) is strictly dealing with sexual issues, so that is a distinction, although that quite often could blend in with either subparagraphs 753(1)(a)(i) or 753(1)(a)(ii) above it because it could be part of a pattern of repetitive behaviour or persistent aggressive behaviour, etc. The end result is you're dealing with risk posed by the offender, and the risk can be manifested in any number of ways. Every side deals with it.

I should pause to say this. The work I do with dangerous offenders is not adversarial. In fact, when I do the initial opening remarks, the trial crown is always there, and they sometimes look at me like I am the defence counsel because I insist on presenting everything to the court in an objective, dispassionate manner; the issues here are so important to the court, to the offender, and to society.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Lee, was that satisfactory? Do you want to follow up on that answer at all? Because it was your point.

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

No, it doesn't really.... In my view, it does not, no.

[Larry Bagnell, Liberal, Yukon, YT]

Okay.

I'm going to give the rest of my time to Ms. Jennings.