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

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

Thank you.

[The Chair, Conservative, Rick Dykstra]

You can have two minutes and a half, up to two minutes and forty-five.

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

So precise. Thank you.

Thank you very much to both of you, Mr. Cooper and Mr. Muise, for coming before this committee in such short order and for taking time out of your Halloween celebrations to refresh your memories on Bill C-2.

Mr. Cooper, you mentioned that there are very serious difficulties for crown attorneys in attempting to put together a dangerous offender case, in terms of collecting all of the records that would be documentary evidence presented to the judge; and that there is absolutely no coherent policy governing record-keeping across Canada, across the various institutions that would be expected to have evidence that would be useful in a dangerous offender hearing, whether it be the individual police services, the courts themselves, the prisons, the penitentiaries, or the halfway houses. Someone who has been repeatedly convicted of the kinds of crimes that could lead to a dangerous offender may at one point have been out on parole, may have been in a halfway house, may have been ordered to go into a detox centre, and so on. There is no comprehensive policy for record-keeping for the kinds of offences that could lead to a dangerous offender hearing.

You've said that section 760 should apply in every case, regardless of whether the sentence applied is a provincial sentence--i.e., two years less a day--or a federal sentence, two years and more.

Do you also believe the federal government has a role, or should be playing a role, in trying to encourage the provinces as well to develop a comprehensive policy in terms of record-keeping for institutions that come under them, such as the police, for instance? Federally we could require certain things of the RCMP, but not necessarily of the municipal and provincial police, of the provincial prisons, for instance, of the halfway houses, the transitional houses, etc.

Is that something that you think would go a long way, not just for dangerous offenders but simply for prosecution of anyone being charged with serious crimes?

[The Chair, Conservative, Rick Dykstra]

Mr. Cooper, I'm just going to let you know that you have about twenty to thirty seconds to answer that question.

[Terrance Cooper]

It would be difficult to deal with all crimes, but if we targeted.... I target the worst offenders who offend against the most victims in the worst conceivable ways. That's my interest group.

If we were able to concentrate our efforts in those regards, and if we kept these statistics as well as we kept hockey statistics, my job would be a lot easier.

[The Chair, Conservative, Rick Dykstra]

Very good.

Thank you, Ms. Jennings.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

I would also like to thank our witnesses. I enjoyed Mr. Muise's testimony very much, as I always do. We had an opportunity in the past to exchange ideas with him. Mr. Cooper's testimony provided some newer information.

I think you should consider submitting a brief. This is the type of information that we need to get from an actual practitioner.

To follow up on what Ms. Jennings was saying, I have here in front of me the text of section 760. Basically, what amendments are you looking for? Are you prepared to put forward the text of an amendment to the committee? If you are, you can forward your proposal to our clerk who will then circulate it to all members.

After you have answered my question as to how you would like to see section 760 amended, I would like you to elaborate further on your proposal. You talked about the 600 hours spent preparing a case at the risk assessment stage, that is 300 hours of police preparation time and 300 of crown preparation time. Could you elaborate on your proposal and talk to us about the risk assessment instruments available to practitioners such as yourself?

Let's start with section 760. Fundamentally, what are you looking for in the way of amendments?

[Terrance Cooper]

Thank you very much, sir.

I will in fact take you up on the opportunity of drafting something and sending it to the clerk if that's all right to deal with that. In fact, if I can just leave that as my answer to that question, I'll get back with something more thorough. I'm not a legislative drafter, and I wouldn't know how to begin to approach that task.

In a nutshell, however, if the section did apply on a broader basis, it would be incredibly useful to begin with.

[Réal Ménard, Bloc, Hochelaga, QC]

Broader application of this provision to all offences liable to more than two years' imprisonment? What would you like the scope of this provision to be? Without actually suggesting a legal wording, what would you like to see this section encompass?

[Terrance Cooper]

If the section encompassed all of the designated offences listed in Bill C-2, that would go a long way to satisfying the needs that I have as a practitioner.

I did indicate at the outset, but I should reiterate, that I'm not representing the Attorney General of Ontario. I'm just representing a practitioner who does a great deal of work in this area.

I should indicate that it's valuable to all parties involved, not just the crown. Defence counsel don't want us to bring the police report forward as the best evidence, because the individual may have been convicted on facts that were diluted quite a bit in a plea negotiation, and that is the evidence that should be brought forward to the court. We find the best evidence we can find. It's in the interest of the offender, as well as the crown, as well as the expert in the court to bring forward the best quality of evidence. It has all been in our hands once as members of the administration of criminal justice, but we haven't retained it properly.

[Réal Ménard, Bloc, Hochelaga, QC]

That's the question that interests me, the one that I put to the minister, to Mr. Hoover and to all ministry officials. In my opinion, it would be interesting to have a look at the administrative documents mentioned in part XXIV of the Criminal Code at least once before we vote on this bill. When you put together a case, what evidence must you present? Even though each case is understandably unique, give me an example of the type of evidence, or records, that you must present?

[Terrance Cooper]

For the court documents, sir, we need certified copies of the information or indictment. We need certified transcripts. We need the exhibit list and all the documentary exhibits that went with it. All of that material, as well as the police materials, is relevant to the court process. It goes far broader than that, and I'll start to answer one of your other questions, if I may, briefly.

I'm reading from a book called Without Conscience, by Dr. Robert Hare. Dr. Hare is the creator of a PCL-R, psychopathy checklist-revised. It's a risk assessment instrument that is used throughout the world, and it's probably the leading risk assessment instrument. In fact, it forms the basis for many of the other risk assessment instruments.

For example, there has to be consideration given to how the individual was behaving at the point in time when he was reaching puberty. Dr. Hare indicates that these factors--and I'll go through them very quickly--are relevant: repetitive casual and seemingly thoughtless lying; apparent indifference to or inability to understand the feelings, expectation, or pain of others; defiance of parents, teachers, and rules; continually in trouble and unresponsive to reprimands and threats of punishment; petty theft from other children; apparent persistent aggression, bullying, fighting; and it goes on with sexual precociousness, vandalism, bedwetting, fire-setting, and cruelty to animals.

That's the information we have to gather about one individual as a child. When the individual is an adult, such things as glib and superficial personality, egocentric and grandiose character, lack of remorse or guilt, lack of empathy, deceitful and manipulative shallow emotions.... And I've just covered half the list for the adults.

[Réal Ménard, Bloc, Hochelaga, QC]

Would you agree to allow the clerk to make a copy of this excerpt and to have it translated? Not that I recognized anyone from this checklist of factors, Mr. Chairman, but I think it would be useful for us to keep this particular instrument in mind.

[An hon. member]

[Editor's note: Inaudible.]

[Réal Ménard, Bloc, Hochelaga, QC]

Don't insult me, Mr. Petit. You know how sensitive I am.

Perhaps the clerk could arrange to have this excerpt translated... That's all.

[Terrance Cooper]

It is not a requirement that a dangerous or long-term offender be a psychopath, but it doesn't hurt.

In addition, there are many psychopaths who do not have criminal records. There are psychopaths, I'm sure, who are crown attorneys, judges, police officers, and politicians. It doesn't necessarily imply criminal traits.

[Réal Ménard, Bloc, Hochelaga, QC]

Can you name any parliamentarians?

[Terrance Cooper]

I can't help you with that.

Do I have any time left?

[The Chair, Conservative, Rick Dykstra]

You have about 45 seconds.

[Terrance Cooper]

On the 600 hours, 300 for the crown, 300 for the police, we begin this by going to the national flagging system and asking if they have any file material. We then go to the Correctional Service of Canada if the individual has a federal criminal record. In Ontario we go to the MCSCS, which is the Ministry of Community Safety and Correctional Services, to find out if he has any provincial record, and that would include the probation records, for example. Then we look for CAS records, school records, police records across Canada or outside Canada. As you can see, the information-gathering process is very daunting.

We've streamlined much of it simply by building relationships with these different ministries, with the federal and provincial ministries. So that's brought us forward, probably shaved at least a hundred hours off every case.

[The Chair, Conservative, Rick Dykstra]

As Mr. Comartin is not in attendance yet, I will give him some time when he does get here.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Since our party is the most left-of-centre in the House of Commons, could I not have his time, Mr. Chairman?

[The Chair, Conservative, Rick Dykstra]

You're an excellent negotiator, Monsieur Ménard, but not today.

Mr. Kramp.

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

Thank you, Chair, and welcome to our guests.

If I might just take this opportunity, Mr. Cooper, of course I'm from the riding of Prince Edward--Hastings and chair of the eastern Ontario caucus, so quite naturally a lot of your responsibilities fall in close proximity to a lot of concerns in our particular region. And let me say right now that in my normal course of responsibilities there's a lot of interaction, as you would expect, among crowns and defence and justices. As a matter of fact, I attended a retirement for Justice Byers just a short while ago, and without exception, your region has an unbelievable reputation for effectiveness and efficiency. It's one of the very few regions where there is not a huge backlog, simply because the work is performed very well. So let me thank you on behalf of not only my colleagues but all of your partners in the judicial process. Obviously you're able to work together very effectively as a team, and I think we all win on account of that. So let me take this opportunity to thank you very kindly on their behalf.

The one thing that did disturb me a little bit--and of course we're not necessarily exposed to some of these statistics unless we're asked--is 32 outstanding LTOs in the eastern region. Could you give me a brief summation of how long it's taken to gather these people? And where do you see us going? How many DOs would you pursue in a year or over the course of five years? Do you anticipate any change in this pattern as a result of Bill C-2?

[Terrance Cooper]

In the 32 that are outstanding at the moment, I'm counting dangerous offender applications, long-term offender applications, and breach of long-term supervision order cases as well, because all of these require the same amount of work.

In terms of the breach of long-term supervision order applications, the Kingston crown attorney's office, with I think nine counsel, has eleven cases. Two of them are individuals who didn't get out of the supervision of the Correctional Service of Canada. These are pending cases, so I'm not going to mention names. One was in a halfway house when he allegedly sexually assaulted another inmate in the halfway house. He was already a long-term offender, so obviously we have to move on, take the next step, and have him declared a dangerous offender. Another individual, similar, only he didn't even get to the halfway house. He was in Kingston Penitentiary, in the maximum security area, when he allegedly assaulted somebody quite severely.

The unique situation in Kingston generates an awful lot of individuals dealing with breach of long-term supervision orders. I think the highest sentence in Canada was just issued in Kingston for a breach of a long-term supervision order, a three-year sentence.

So Kingston explains about a third of our work. The city of Ottawa, of course, is a fairly large city, and that explains another third of our work. The remaining third is scattered throughout the region. There's been an aberration just recently in the Perth office, where we've had so many.

What we're seeing come forward in higher numbers now are domestic assault, domestic violence individuals who have done this time and time again with a series of partners. We see those cases coming more and more into the system. For some of these individuals, it's shocking, when I examine their files, that it's taken this long to catch up with them, so to speak.

Up to that point, it's mostly been.... A large number of our offenders are pedophiles, and another large number are adult sexual offenders; they sexually offend against adults.

So in a year, of the 32, I would expect we'll deal with perhaps a third or half of that number in the course of a 12-month period. As to an increase in the number, I don't know that this is going to be the case with Bill C-2, because my standards are higher than the three-offence section of the Criminal Code to begin with. So I don't know that this will bring anything additional to my plate in terms of reviewing these.

I should say that we try to identify these cases at the bail hearing stage, because it takes so many.... That 600 hours is over a period of six or eight months to collect this information. You send out a letter, you send out a subpoena, you wait, you read the material you receive, and that causes you to send out more subpoenas and more letters. So it takes a long time to deal with this many cases.