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

[The Chair, Conservative, Rick Dykstra]

I appreciate the advice, Madam Jennings, but it's not a point of order.

We have four more individuals who have indicated they'd like to speak. I want to try to get everybody in, so I'm going to go to three-minute rounds, and I would ask that you really get at the question you want to ask.

Mr. Comartin, three minutes.

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

I have three questions, and I'm going to ask them all in order, and if you can be very succinct in your answers....

The first one is when Mr. Cooper was here--

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

I have a point of order, Mr. Chair.

All right. My friend has asked me not to make a point of order, so I won't.

I'm sorry, Mr. Comartin.

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

When Mr. Cooper was here last week he suggested that some amendments to part XXIV would be useful in prosecuting dangerous offenders. I don't know if you've had a chance to look at what he was saying, but do you have any comments as to whether they are valid or whether they would survive a Constitution or a charter challenge?

Second, there have been suggestions that we impose specific duties on the crown to bring dangerous offender applications under a set criteria, and then the countervail against that would be that it's constitutionally improper because that's the responsibility of the provincial governments.

The third one is to you, Mr. Rady. Do you know how much it costs legal aid on average to defend a dangerous offender application?

[Andy Rady]

I don't. There are certain hours--and I can only speak for Ontario--allowed for this sort of thing. I would think if we go to the current regime, where you have to have the accused show why they shouldn't be, they will be the kinds of cases that we call in Ontario “big case managed”.

If your documentation is that the crown needs 600 hours, I would think it's going to be more. It'll be a great burden on the legal aid system. I can't speak for the other provinces, but I would think it would be that way across the country.

[Evan Roitenberg]

As to tying the hands of the crown and saying that under certain criteria you must, putting constitutional considerations as to division of powers aside, absent political motivation, what possible reason could there be to dictate to a crown attorney, who knows his or her case, that he must do something because of set criteria? Allow a crown attorney to do their job, look at the case they have, and make the determinations accordingly. Absent some political gain, why would you possibly do that?

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

On the third question, the amendments Mr. Cooper was suggesting in terms of gathering evidence?

[Evan Roitenberg]

I haven't had the opportunity to fully peruse them, as they are afresh, and I think my answer would really run afoul of the time constraints.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Next on our list is Monsieur Petit. Monsieur Petit, you have three minutes.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you for having come here this morning.

My question goes to Mr. Rady or to Mr. Roitenberg. It is often said that we are trying to put in place a “three strikes law” such as they have in the United States. But there are 50 united states with criminal law that differs in almost all of them, as you can see from the different penalties they impose. We have a single system all across Canada.

Given that there has been a lot of criticism because of that method, have you, Mr. Rady or Mr. Roitenberg, been able to compare the American “three strikes” legislation with what we are proposing today? Since we are in the public eye here, can you tell me which state we are dealing with? Is it California's criminal law, or Vermont's? Can you tell me if either of you can compare or contrast them?

[Andy Rady]

To say I've done a study, no. California, obviously, has a three-strikes-and-you're-out law. Some states have. Laws, obviously, differ from state to state in the United States, plus they have their own federal jurisdiction.

All I can say is that anecdotally my understanding is that the Americans are trying to stray away from this because they've seen injustices that have occurred. Mind you, their three-strikes-and-you're-out laws can also be different. In some states you receive a sentence of life imprisonment if it's the third drug offence.

So it's difficult to compare with respect to this dangerous offender legislation. American comparisons may be a bit of a red herring because we view it as the basic principle of the reversal of the onus and our own fundamental principles of justice that we have in this country nationwide.

[The Chair, Conservative, Rick Dykstra]

Merci.

Mr. Murphy, three minutes, sir.

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

I'll talk very quickly.

There seems to be an awful lot that's canvassed here, but the principal job of this committee, I submit, with all due respect to all the members, is to find out whether this designation, this scheme, violates the charter or does not. Now, we were quite attentive and satisfied with the Department of Justice's opening salvo and Mr. Hoover's suggestion that the right to silence will not be deleteriously affected. I'm somewhat in doubt, frankly, after hearing from you, Mr. Roitenberg.

So I would urge people to take us through--not in these three minutes or minute and a half--the charter, section 7, paragraph 11(d), and section 1 might even apply. Draw analogies to the ATA, which we are about to study in this parliament. There are conditions where the liberty of bad people is affected because it's demonstrably justifiable, but this is too short for this.

In short, Professor Doob, on the opportunity costs, which you had half a second to talk about, of putting someone in jail for $90,000 a year, what could we do with that money to make society safer?

[Dr. Anthony Doob]

What I would like to see is a serious debate about how to make society safer so that you can invest in lots of things. The police would say that in certain kinds of circumstances we need more police resources. Schools would say that we need.... The fact is we're releasing thousands of people every day onto the streets with inadequate resources to try to reintegrate them into society. There are a wide range of things that have been shown to be effective. What we're doing, I'm afraid, is focusing on specific aspects of the Criminal Code for which there's no problem that's being corrected.

One of the most interesting things, sitting here on the dangerous offender legislation, is that people are talking about the solution, but nobody has actually suggested that there's a problem. So what we're doing here is wasting resources on increasing imprisonment, where what we could be doing for each person who is being put in a federal penitentiary for a year is taking that $94,000 and saying let's have a serious debate about whether that should be used for reintegration, whether that should be used for early experience, or whatever. That debate doesn't seem to be happening anywhere in Parliament.

[The Chair, Conservative, Rick Dykstra]

Thirty seconds.

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

Just on the use of psychiatric evidence, Mr. Rady, it is used now. There are court decisions that say it can be used against the accused. There is protection--I would say protection--or at least an element that there is a mandatory examination. Don't you see that this is justifiable in the sense that there are a number of tools already in the kit--we haven't talked about them--for the offender and his lawyer to use?

[Andy Rady]

There are tools that way. There used to be both a defence and a crown psychiatric examination on dangerous offender applications of their choice, and then the court made a decision. Frankly, I thought that was a fair system.

That's 15 seconds.

[The Chair, Conservative, Rick Dykstra]

Well done, Mr. Rady.

Mr. Keddy, to conclude, three minutes.

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

I don't think I can speak quite so fast, Mr. Chair.

I'd like to welcome our witnesses. It's a very good discussion here today.

I think part of what we're grappling with as parliamentarians is that we don't have a perfect system, we have an imperfect system, and regardless of how we change it, it will still be imperfect. There's no such thing as perfection here; it's a very elusive goal, at least in the Criminal Code and the court of law.

However, we do have a situation before us where we see an increasing amount of violence and violent crime. I think this is an attempt to try to deal with that.

I have two questions. The first one is on constitutionality. Obviously, as parliamentarians, we don't want to bring in changes to the Criminal Code that will be challenged through the Constitution and turned back. It's a waste of everyone's time, quite frankly.

The other question is to Mr. Charbonneau about the impaired driving test and the equipment, because it's problematic. Obviously, there should be some type of regular routine maintenance that would qualify all equipment to be in working order and the same. My real question is this. In matters where fatalities occur with impaired driving you can take a blood test, so what is the big deal about taking a blood test to look at alcohol levels in the blood versus blowing into a breathalyzer?

[Evan Roitenberg]

Would you like the constitutionality addressed first?

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

Sure. If you can do all that within 30 seconds, I will be impressed.

[Evan Roitenberg]

I'll do my best.

We've spoken of section 7 and the right to silence, of the principles of justice with regard to life, liberty, and the security of person, and of whether the reverse onus would satisfy those charter considerations. But what about paragraph 11(i), the individual being entitled to the benefit of lesser punishment if the punishment is changed in between the commission of the offence and sentencing? I think one could argue that if you, 15 years ago, were induced to plead guilty on a plea bargain for a sentence of two years, and now the law is being changed to add ramifications to that plea bargain that you had accepted then, never considering that the two years you accepted would come back to haunt you further down the road, you might be open to a challenge under that section as well.

I come from Manitoba, and in our jurisdiction there is a wealth of programming available within the federal system and very little within the provincial jails. I have individuals looking at an 18-month sentence who oftentimes will say, “I'd rather do my two years in a penitentiary than 18 months in the provincial jail, because at least there are programs for me.” A decision like that can now come back to haunt them because of these amendments.

So I think there are considerations within that framework as well.

[The Chair, Conservative, Rick Dykstra]

Thank you.

I'm sorry, Mr. Charbonneau, but you're not going to get a chance to respond. We are right out of time.

Ms. Jennings, while she didn't have a point of order, I think made a good suggestion, followed up by Mr. Murphy's suggestion, that if you do have issues or matters that you did not get the opportunity to respond to, the committee more than welcomes your written submissions. So if there were questions that you didn't get a chance to answer, or any comments coming out of today's meeting, we would certainly appreciate getting them. The clerk will ensure that each of member of the committee receives a copy.

Thank you very much for appearing this morning.

I want to suspend for just 30 seconds to allow our witnesses a chance to leave. I would ask that members stay in their seats, if they can, just based on the fact that we have the justice committee meeting immediately afterwards.

[The Chair, Conservative, Rick Dykstra]

If I could I get everyone back to the table, we have a motion we need to deal with.

We have a motion from Mr. Comartin that was duly presented in enough time to be able to be dealt with today. It was received last week, and I understand that each member of the committee has a copy. I do need to make a ruling on the motion itself, so I'll ask for a couple of minutes from the committee in order to do that.

Mr. Comartin, would you like to move the motion?

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

Yes, I would move the motion as presented, Mr. Chair.

Do you want me to speak to it or do you want to make your ruling first?