Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 13th, 2007

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

Okay, thank you.

Ms. Pate, I want to go back to the issue of what's available in the prisons with regard to dangerous offenders, and to ask specifically about women. In the case last week that I just spoke about, it was a male person charged. Are we faced with the same problem with the women, I think 18 or 20, who have been subject to the dangerous offender designation?

[Kim Pate]

Actually, there have only been two women subject to a dangerous offender designation. There are none currently, but there are a number of long-term supervision orders.

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

Right, the rest are long-term.

[Kim Pate]

Part of it is that we have intervened in those. Of those who have been designated, though, the challenge is that the context is often determined by those who we're also relying on to determine what resources are available to meet the needs of that individual. So when the needs of the individual are being determined by the very prison system where they've accumulated most of their charges, I think there have to be some obvious questions about the validity of a reverse onus in that context.

In terms of the prison conditions, though, and the issue you've raised, our experience is that those who are seen as having the most challenges end up in the most austere and, I would argue, also some of the most brutalizing, conditions. That's part of why I've urged the committee to go and see those conditions.

The reality is that even the most well-intentioned of correctional staff, whether they be senior or junior, know that in fact they have no ability to actually monitor individuals, other than in camera cells, in isolation, in some of the most inhumane, dehumanizing situations. Arguably, if our concern is for public safety, certainly we wouldn't be putting them there. Our organization is not arguing for more resources in that context. In fact, we need to see more resources in the community, because the fact that women, particularly women with mental health issues, are the fastest-growing prison population is indicative of the problem of trying to inject into a prison setting.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thanks to all the witnesses for appearing.

I want to take some issue with a couple of points that were made. The assertion has never been made that somehow Bill C-2 is the be-all and end-all to fix everything that ails the criminal justice system. As a matter of fact, our government recognizes that there's a lot of work to be done in the criminal justice system, and that the solution to preventing crime--I think it was Professor Doob who mentioned this--is going to be multi-pronged. But I would hope that there would be some acknowledgement.... We've acknowledged that there have to be resources and that there has to be support for youth at risk. We've acknowledged that there have to be resources for prevention, including police. But we also acknowledge that there have to be some changes with the Criminal Code.

After hearing from witnesses, I'm left a bit with the impression that the Criminal Code must be absolutely perfect as is. That would be the impression I was left with--that it needs no changes whatsoever. I think that if we ask Canadians, and even those of us in this room, surely the Criminal Code does from time to time need to be revised, need to be amended in ways that better protect Canadians, which is our fundamental priority.

I have two questions. First, the mention of proportionality has come up numerous times in relation to what was in Bill C-27 and now in BIll C-2 are the dangerous offender provisions.

I think there has been some confusion mixing up what is proposed in this legislation with what is contained in other jurisdictions and which is known as three strikes rules, where for a relatively minor crime someone could get a mandatory punishment. In my view, proportionality is fully respected in this legislation. Number one, it deals with the most serious of offences, the designated offences that are set out. Number two, it specifically targets recidivist behaviour--those who have repeatedly committed these crimes. Numer three, all of the safeguards that one would expect in a modern justice system are in place--safeguards with crown prosecutors, safeguards with defence, the availability of defence counsel, and safeguards with discretion on the part of the judge.

Numerous attorneys general provincially have called for some changes that are made in this legislation. I'm wondering if someone from the criminal defence bar wants to comment on the difference between what is proposed in this legislation and what is in the United States system.

I'll leave it open, because I know we don't have a whole lot of time, but I heard a lot of mention of the offender. All witnesses here today mentioned the offender, but there was not one mention of victims. I believe fundamentally that victims have to play a role in what's happening in our justice system. We've had victims who have said that our justice system is not doing enough to protect them. One way we protect people is that when someone has shown repeat behaviour, and time and time again they have committed the worst acts, the worst acts that are set out in our Criminal Code.... They have not only committed them once, they've committed them twice, committed them several times, recidivist behaviour. Society has told us and Canadians are telling us that it is proportional to limit their rights to protect society.

If everything is looked at through too narrow a scope, we miss the big picture. The big picture is that we want to protect Canadians who want to protect their rights.

I would like some comment, perhaps from the Elizabeth Fry Society, about the stage at which we look at the new victims every day in our system.

[Andy Rady]

If I could just begin, we've had the Criminal Code for a long time. Obviously, the Criminal Code needs amendments from time to time when things are found to be problematic in it.

The question that this legislation isn't answering is that we've had this same Criminal Code, and we've had dangerous offender provisions for a long time, and we're not disputing that we have them. Why is it then that now we need them? What is the code not doing? Why has society changed such that we arguably have more gun crime? That's the question that has to be answered. It's not the Criminal Code's fault or the laxity of the Criminal Code, because those sections of the Criminal Code have always been there.

Deterrence is another debate for another time. If deterrence worked so well, we wouldn't have such a murder rate in the United States when they have the death penalty in Texas. I think we have to be careful about judging that.

Your other comment was about the dangerous offender situation in terms of availability of defence. I think that's going to be a problem here. We're not saying that people who are habitual criminals, who are dangerous, shouldn't be locked up, perhaps indefinitely. That's not what we're saying, because we're citizens of the community as well. We're saying that the burden should be on the state. The state has to prove guilt beyond a reasonable doubt, in most cases. We do have some reverse onus, but if we're going to seek to lock someone up indefinitely, as a society, then that burden should be on the society to do that. It can be done, and it has been done, and we do have dangerous offenders. It shouldn't just be based on some mathematical example that says this is your third conviction for more than two years, so you're now designated dangerous unless you can show otherwise.

We won't dispute a lot of things--

[The Chair, Conservative, Rick Dykstra]

Mr. Rady, we have about 20 to 30 seconds for Ms. Pate to respond. I just wanted to give her enough time.

[Kim Pate]

Thanks.

I think you're well aware that we work with women who are victimized, as well, not just women who are criminalized in the system. It's certainly a concern for all of us that those needs be met.

There's also a concern that this type of legislation is being introduced on the backs of victims as though it will solve those issues. In fact, we know, from what we've seen in other jurisdictions where these kinds of measures have been brought in, that it actually sucks resources out of the very areas that most support victims: social services, health care--particularly mental health services and supports--counselling services, and assistance there. It also sucks resources out of the very supports that provide interventions before someone gets involved in the system, which actually prevent there being victims.

That pretext is absolutely the concern of our organization. It's why we raise the fact that if in fact these issues were being addressed by this kind of legislation, we would not see women being the fastest-growing prison population at the same time crime rates are going down.

[The Chair, Conservative, Rick Dykstra]

Thank you, Ms. Pate.

Mr. Lee.

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

Thank you.

In our continuing effort to hit the nail on the head here on charter issues, I'll ask a question to any of the witnesses who wishes to make a quick answer.

If the right to remain silent as a principle of fundamental justice recognized by our law is, in fact, a right, and if that right has existed in a criminal law framework where the state has always had to prove, usually beyond a reasonable doubt, whatever had to be proved, and if the right exists right through the criminal justice procedure from the time of investigation, charge, trial, and sentencing, then doesn't this new presumption practically remove that right to remain silent? Because if you do remain silent, you're done--you're a dangerous offender, subject to a judge relying on the assessment report or some fair-minded crown attorney determining otherwise.

What I want one or more of the witnesses to say--just yes or no--is whether that change in the presumption practically removes for a convicted person the right to remain silent. Are we not looking at a brick wall here as legislators in trying to legislate the removal of what up to now has been called and styled as a right?

[Evan Roitenberg]

The short answer is yes.

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

It's a bit of a leading question, but....

[Evan Roitenberg]

I appreciate it, because it tells me where you want to go.

The short answer is yes, but you've actually alluded to something else. You've talked about being subject to a fair-minded judge looking at the assessment report. The assessment report, in that context, almost becomes immaterial, because the assessment report is filed--that's how you get into the hearing--and if in fact the individual is looking at the third predicate offence, then the presumption kicks in regardless of what that assessment report happens to say. So the answer is yes, it does remove the right to silence.

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

Anyone else?

Okay, I have another question that follows up on that. It's procedural. It has to do with, once the presumption kicks in, how it's worded in terms of the law--not the practice, because we've heard the practice is actually fairly fair. I can't say that across the country, but the witness we did have here, Mr. Cooper, outlined the procedure, and the practical steps that were taken in these DO procedures seemed pretty fair. If the presumption kicks in--and there are four ways you can be found to be a dangerous offender in the statute--how does the convicted person know which ones of the four he or she is found to be dangerous on? Is our law deficient procedurally in failing to require sufficient particularity as to what type of dangerousness we're dealing with here? I realize the practice is out there, but what if the practice varies from the statute? We're just legislators. Is our law deficient procedurally in failing to demand sufficient particularity of what the dangerous might be, especially in the face of a presumption?

[Evan Roitenberg]

With regard to the legislation, regardless of whether the presumption kicks in, there still has to be, in essence, documentation as signed by the attorney general of the province particularizing that you are sought to be declared a dangerous offender for the following reason. So even if there is the presumption, that does have to be particularized procedurally by the legislation. That's not affected by the amendments.

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

Okay, thank you. That's helpful.

[The Chair, Conservative, Rick Dykstra]

You have 30 seconds left, Mr. Lee.

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

Do you have a 30-second question, Mr. Murphy?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Doesn't this somewhat clear up the problem with the Johnson case? Isn't some this some housekeeping because Johnson had some incongruity as the legislators saw it?

[Evan Roitenberg]

Johnson wasn't incongruous with the legislation. What the court said in Johnson is we are going to hold off making a declaration of dangerousness because we don't want to impose the indeterminate sentence. What this legislation does to a degree is clarify that, because it allows you to make the declaration of dangerousness and then determine within the framework what the sentence will be. The problem is with determining what the sentence will be, based on onus and standard.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you.

[The Chair, Conservative, Rick Dykstra]

Mr. Kramp.

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

Thank you very much, all of you, for coming here today.

I have a number of questions if I have an opportunity and the time to get through them here.

To the defence council, Mr. Rady, you made reference in your remarks earlier today that these are “draconian penalties”. That was the terminology used. Do you not really think that the primary offences we're talking about here--rape, robbery, murder, manslaughter, extortion, kidnapping--are draconian crimes? These are not misdemeanours.

[Andy Rady]

Well, the difficulty is that some of the crimes include assault or assault causing bodily harm. Bodily harm can be a black eye. You're probably not going to get two years in penitentiary for that, but it's broad. So is robbery. There are different sorts of robbery. When I used the word “draconian”, it was a strong word. There probably is no greater punishment that we have than being declared a dangerous offender with an indeterminate sentence--even the first-degree murder conviction for life and no parole on 25.

The fact that there's parole after seven years for dangerous offenders is a bit of a myth. It rarely happens. They're put in; they're going to have that designation forever. So there's very little chance of getting out. More people convicted of murder would be released on parole than this. That's why I used that word. It's a very harsh punishment and probably deservedly so in many cases. The only point I think we're trying to make is that it has to be the state that puts it there, not the accused.