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

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

Okay, thank you.

This committee and various committees on justice have heard from many witnesses on both sides of the coin on this issue. We've heard testimony that has stated that when a person has a conviction, on many occasions that has not been their only offence. Someone mentioned an average. I could not be quoted as being deadly accurate on this, but it might be 10 to 15 offences that an offender might commit during the course of getting a conviction. That varied, naturally, depending upon the offence, and I would certainly understand that.

Taking that into the context, we have a conviction. We finally have a difficult conviction through the diligence of defence counsel doing their job adequately. We have a conviction for a violent crime. This is the Violent Crime Act we're talking about here. Who knows how many victims, but obviously we have a victim at a bare minimum here. We go through that and the person does their time, and that's our system; we all respect the legalities. Now we have it happen again and we have a repeat of the entire situation. Once again, who knows how many victims there have been through all of this, but we have another conviction for the same situation, or similar. Now we have a situation where that person goes ahead and serves their sentence and has gone through our system and hopefully would have been rehabilitated and hopefully would have got the attention needed to rehabilitate, but nonetheless comes out and now is alleged to have committed another offence.

Upon conviction, do you not think it is reasonable...? Our job is to provide a reasonable balance. Putting the human side on you, rather than the defence lawyer side of this particular case, because, as you said, we're all citizens here, is it not reasonable to expect, after all of these offences, the hurt, the heartache, the trauma, the victims, that the offender should have some sense of responsibility to act in a responsible manner for himself? Is it not reasonable to affirm how and why that person should be designated as such after that many offences? Is that not a set of reasonable balances?

[Andy Rady]

I would say it is not. Usually sentences, as has been indicated, increase from one time to another. We do have the provision to declare that person dangerous, but again, just to say that because it's a third conviction....There are different degrees of dangerousness, and the prosecutor can assess that on a particular case. If they determine this is a case for a dangerous offender application after the two, it can be their onus to show why there should be a dangerous offender application, the way we have it now.

The difficulty is that we have robbery, and there are different levels of that. We have different levels of assault. We have different levels of dangerousness and how incorrigible certain offenders may be. The other difficulty is they may have committed two offences when they were 20, one when they were 23, and now they are 35, and the next thing you know, they have had so many years when they have rehabilitated, but according to this they are deemed dangerous. That would be one where a prosecutor might use discretion otherwise.

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

Okay, thank you.

Don't take this the wrong way. Please don't take offence to this, but while I certainly understand defence counsels' concern and responsibility for respecting and representing the valid interests of the criminals, I continue to believe that we, as parliamentarians, have an absolute responsibility to the general public, to the citizens of this country, to provide protection. I would almost consider that may be one of our primary responsibilities.

Do you not believe that we, as legislators, have a duty and a responsibility to balance this?

[The Chair, Conservative, Rick Dykstra]

We're pretty much over the time limit here. I'm sorry.

Thanks for your comments.

Madam Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

First, I would like to thank you all for the exceptional quality of your presentations.

Before asking Ms. Joncas my question, I want to say that, in 2006, there were 333 dangerous offenders in our prisons, of whom 21% were Aboriginal. That number concerns me a great deal.

Ms. Joncas, you mentioned that this bill is quite useless, that all the situations are already dealt with in the Criminal Code and that it is a waste of resources. Could you expand on that? We have heard the opinions of the other witnesses, but not yours. Could you tell us more?

[Lucie Joncas]

I would like to confirm that, yes, 20% of dangerous offenders are Aboriginal. They are significantly overrepresented in the prison population. They make up 3% of the population, and, in the case of the women, above all in the west, they can represent over 50% of the prison population. This is a great concern for CAEFS. I think that the Criminal Code presently meets the needs of Canadians and I must repeat my confidence in our current justice system. In my opinion, prosecutors, judges and counsel for the defence do an excellent job. That people come from outside Canada to study our way of doing things is proof enough. Canadians are very well served in my view.

Mr. Moore spoke of a safeguard, and of each person's right to be respected in the determination process. Nothing in this bill provides for vulnerable people to be represented by counsel. You are trying to pass an approach whereby the burden of proof is reversed, but nowhere are you making it possible for these people to have representation.

The Criminal Code already requires a judge to appoint a lawyer when a person is incapable of facing trial. But nothing in these proposals protects the accused in proceedings of this kind. I repeat that, under section 718.2 of the Criminal Code, the prosecution has to prove an aggravating circumstance beyond reasonable doubt. This proposal goes against these principles. It has been debated, and I really feel that there will be constitutional challenges if the proposal is passed as it stands.

This proposal is not helpful, in my view. Prosecutors are certainly not asking for this kind of thing. The applications are heard at present. As you mentioned, quite a lot of people are designated dangerous or long term offenders. Not only do I not see the use for this request to modify the Criminal Code, but I also consider it dangerous particularly for vulnerable populations like Aboriginals, like women, and like those who, while not necessarily being incapable, are still not the best equipped to fight their way through the justice system.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you. I am going to let...

[Réal Ménard, Bloc, Hochelaga, QC]

Can you go back to the discussion that you began earlier? Would you or would you not like to see us, as an opposition party, make amendments to the Criminal Code during the clause-by-clause study that would require police offices to have ways of maintaining or checking their devices?

[Jean Charbonneau]

It is essential in order to protect the public. Otherwise, parliamentarians and society are going to have to live with the consequences. If you want to have a law that is objectively the same for all, go for zero tolerance. Then the system will no longer be able to make a mistake in one case and be right in another. As it stands, there are no provisions for police forces to look after breathalyzers. As a result, police forces have no duty towards the people whom they stop and ask to blow into the device. That is for sure. We see it every day in our job.

Recently, we had a case that took 33 days of proceedings to finally discover that the police had done no maintenance and had not checked the device when it was repaired, not the first time, nor three or four times a year afterwards. Yet the device was getting older and less accurate with time. No values were checked other than the 100 mg. Now, under the Criminal Code, if a person blows more than twice the legal limit, the judge must impose a harsher penalty. If we choose to be repressive—that one was a choice that society made—objective measurements must also apply.

In this case, you are taking away any possibility for people to defend themselves, but, given that some physiological factors prevent a blood sample being taken, you are not requiring police forces to be sure that the result they get is realistic.

[The Chair, Conservative, Rick Dykstra]

Thank you, Monsieur Charbonneau and Monsieur Ménard.

Mr. Harris.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Thank you, Mr. Chair.

Just for the record, Mr. Chair, I think it's important to state, in the case of Mr. Charbonneau and Mr. Doob, that they are of course expert witnesses and probably called many times to testify, and judging from their presentation, likely in almost all cases on the side of the defence attorneys. I think it's important to say, in particular with Mr. Charbonneau talking about the breathalyzers, that for every argument he puts forward, there will be expert witnesses in our country who will testify that certificate evidence is as accurate and pure and should be given an even higher consideration in a court of law when it comes to impaired driving trials, etc. So it's important to say, just to get it on the record, that there are expert witnesses who testify repeatedly on both sides of a trial, and that's the case we have here.

[The Chair, Conservative, Rick Dykstra]

On a point of order, Madam Jennings.

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

Thank you, Chair.

It's my understanding that Maître Prihoda and Monsieur Jean Charbonneau are here as representatives of

the Association québécoise des avocats et avocates de la défense. They are speaking for the association, not personally. Mr. Harris' comments are out of order because these witnesses are not here as individuals, but as properly designated representatives of an association.

[The Chair, Conservative, Rick Dykstra]

Thank you for your point.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

I appreciate that. On that point of order, Mr. Chair, I made that point lest someone viewing this today come to the understanding that there is only one position given by an expert witness that is valid.

[The Chair, Conservative, Rick Dykstra]

Okay, thank you. Your time has started again.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

I hate to sound a little cynical, gentlemen, particularly those of you who are engaged primarily in the defence side of the law. I understand that you are here primarily to present that side of opinion on this bill, and you've done it quite thoroughly. And Ms. Joncas and Ms. Pate, you've represented your particular area of advocacy very thoroughly.

I go back to a comment my colleagues made regarding the concern for victims and the safety of our society here. I have to ask the question. I'm not a lawyer; you gentlemen are, and you may find this a little simplistic, but I have to ask. In your understanding, in your comprehension of justice, in your grasp of how we are to respond to people who have demonstrated evil and people who have demonstrated good, where in all of this, in your minds, do the protection of society and the rights of victims of crime come into consideration? That's what we as legislators have to grasp, what two-thirds of Canadians have solidly said, that the justice system is not working for them when it comes to dealing with violent crime. They want it fixed.

These are victims of crime. These are law-abiding citizens who feel threatened in their own communities, in their own homes, in their own streets. They're worried about their safety. Victims are worried about the government responding in some manner that gives the appearance that justice is being served.

Where does this all come into it, in your arguments against Bill C-2?

[The Chair, Conservative, Rick Dykstra]

Ms. Pate, would you like to respond to this?

[Kim Pate]

I know you asked the gentlemen to speak to this, but I would like to speak to this because I think the presumption that we come without any knowledge or understanding of victims is misleading. It's cynical. I have a daughter who is growing up without a grandfather because he was murdered. I have friends, family members, who have been severely victimized in the way you are suggesting we would not have any appreciation of.

So I would ask you, sir, to please refrain from presuming that because we come with a perspective that doesn't accord with yours, we have no lived experience.

I would like to then address your--

[Dick Harris, Conservative, Cariboo—Prince George, BC]

In your presentations--I'm referring to your presentations--there was no mention of victims or the protection of society. That's what I was questioning. Why did you not--

[Kim Pate]

In fact, there was mention of victims. I mentioned a woman who was assaulted while in prison. I mentioned a woman who died partially as a result of the treatment she received in prison. We know that a full 90% of the aboriginal women in prison and approximately 82% of the non-aboriginal, the rest of the women in prison, are people who were first identified as victims, often of physical and/or sexual assault. So please don't presume that.

I want to come back, though, to something that was raised. We've been talking about a lot of hypotheticals. Let's go back to the case of Lisa Neve. She was declared a dangerous offender. It was because of an armed robbery. But let me explain the context of the armed robbery, which, picking up on Mr. Lee's question, had she not testified, would not have come out. It was considered--not that she supports it at this stage at all--as street justice. She was responding to someone having beaten up a friend of hers and caused her to miscarry. The robbery was the removal of clothing--

[The Chair, Conservative, Rick Dykstra]

I'm sorry, Ms. Pate, but we have four more folks who would like to ask questions, and somewhere between a quarter to and ten to we will need to suspend to be able to deal with a motion that has been put on the--

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

I have a point of order.

[The Chair, Conservative, Rick Dykstra]

Madam Jennings, on a point of order.

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

I'm not contesting that we need to.... I would just ask that when witnesses are not able to respond in full to what it is they feel they need to give to the committee because time is running out, if you could simply propose to them that they provide their full response in writing to the committee, through the chair and--