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

[Dr. Anthony Doob]

My concern is that the whole dangerous offender regime is preventive detention. If we were satisfied with a proportionate sentence, we wouldn't need a dangerous offender designation at all. We have the dangerous offender designation and procedures in the Criminal Code at the moment, but I think I would go back to what was just said, which is that under Bill C-2 as I read it, when the court has found the person to be a dangerous offender, yes, there are those choices, but to read proposed subsection 753(4.1), “the court shall impose a sentence of detention in penitentiary for an indeterminate period unless”, so that there's still a presumption in favour of an indeterminate sentence. So yes, there's the choice, but the judges by this point have already in effect gone past proportionality; they've said they're going to sentence this person for a sentence they don't deserve on the basis of their previous convictions and this particular offence. So I think we're past proportionality, and we're into preventive detention.

[Larry Bagnell, Liberal, Yukon, YT]

And if you add to that--

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell, we'll have to perhaps get your question in on the next round. We're on to the next questioner.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chair.

I have four or five questions. I will start with the Canadian Council of Criminal Defence Lawyers.

I would like you to talk to us a little about the list of offences. You told us that the net was being cast too wide. In anticipation of possible amendments during clause-by-clause study, could you please tell us specifically, with concrete examples, if we should withdraw some of these offences. How should we rework the list?

You also told us that, in clause 53, the question of the burden of proof was not clear. The Crown has to provide its opinion of the danger posed by the offender. But when the time comes to determine the penalty, it is not clear who has the burden of proof. Could you talk about this again, so that if we propose amendments during clause-by-clause study, we will have a clear understanding of the matter?

I was very intrigued by the case law you cited. Could you give us the reference so that we can look it up for ourselves? I am referring to the possible incompatibility between, on the one hand, the requirement for the person to defend himself in order to prove his innocence when a dangerous offender designation is made and, on the other hand, a decision of our courts on the right to remain silent.

These are my three questions for you. I have two others for Mr. Charbonneau, the expert witness.

[Evan Roitenberg]

Thank you.

First, regarding the offences, if you look at the primary designated offences, I don't think it's necessarily a situation of removing those that are offered there. It's a question of looking at the practical aspects of what offences are there and the effect they might have within the confines of the three predicate offences leading to a reverse onus. I think we can all agree that there are certainly assaults with a weapon or assaults causing bodily harm or robberies or kidnappings that carry with them an extreme level of dangerousness, but if you look at, practically, assault causing bodily harm as an offence or assault with a weapon, you can have offences within the confines of those sections as defined and convictions that are not dangerous and are not as serious as others. If you remove from consideration the factual underpinnings of the offence and simply go from the conviction and sentence received to a presumption of dangerousness, you're completely missing the point. That's why I think the net is cast too wide. It's not the presence of the offence; it's the fact that you are ignoring the factual underpinnings that gave rise to the conviction that I see as problematic.

You mentioned the case law that I referred to. You will recall that Mr. Douglas Hoover testified before this committee on October 31. He's a lawyer with the Department of Justice, in policy, and he was answering questions. I believe he was answering a question from Mr. Lee regarding the right to silence and the effect that it may or may not have within the sentencing milieu. Mr. Hoover answered the question in relation to a case called Grayer from the Ontario Court of Appeal. Grayer was a decision, I believe, in 2003 that dealt with the question of whether or not the dangerous offender provisions and the mandating of the individual meeting with the state psychiatrist or the state authorities to prepare the report and the need for him or her to testify at the hearing or give evidence at the hearing infringed on their right to silence. The Court of Appeal stated—and I paraphrase, of course—that it might be an infringement of the right to silence per se. An individual can give up that right or stand by that right, but they do so at their own peril. If they don't wish to provide evidence at the hearing in the face of the evidence that the state has mustered, then the chips may fall where they may. That case, of course, was decided within the framework of the state having to prove dangerousness.

What I'm suggesting to this committee is where you move to the reverse onus, you are in effect mandating that that convicted person give up their right to silence, because if they don't, the judge sentencing will be lacking any evidence other than the presumption that would exist under subsection 753(1)(1.1).

[Réal Ménard, Bloc, Hochelaga, QC]

So this is one more argument supporting the contention that these provisions are not constitutional. Eventually, if there was a court challenge, this second argument could...

Tell us about the burden of proof in section 753. I also want time to ask Mr. Charbonneau my questions and there is no way to get around our chair about that.

[Evan Roitenberg]

I will simply say, in answer to your question, yes, it would be an additional ground of unconstitutionality.

As far as your other question, if I can just say it briefly so you have time left, when you get to the stage where a finding has been made of dangerousness, you then move to the actual sentencing stage, which is, what do we do with the person? According to the amendments, what we would have then is a further presumption for the indeterminate sentence, unless it can be shown that the individual can be managed in the community. What's not prescribed within the legislation is on what standard one would have to prove that the individual could be managed within the community. Would it be raising a reasonable doubt? Would it be on a balance of probabilities? It doesn't state who has the burden, but obviously it would be the accused because the state would simply like to maintain the presumption once they get to that stage. So that's where the further problem comes in.

[Réal Ménard, Bloc, Hochelaga, QC]

Great. I think that I still have a little time, Mr. Chair. A minute? OK, thank you.

Are you going to suggest concrete amendments in your document that we will read once it becomes available? I assume that it will be in both languages. Basically, you are saying that, under the Criminal Code, police officers have no requirement to maintain the devices that can lead to a person being convicted or not. I would like to know what you suggest as an amendment. Do you have one to propose to us yourself?

[Jean Charbonneau]

At the moment in Canada, the Highway Safety Code, whether in Quebec or in other provinces, has standards for the use of detection devices. As I mentioned, in the 1960s, an accused was at least allowed to provide a sealed sample so that it could then be tested, as is done with a blood sample. With people whose level of impairment has caused injuries or death, the blood sample is usually put into two vials, one for the defence and one for the prosecution.

Breathalyzers provide, I repeat, an indirect measurement which is bound to give false positives from time to time because it is simply that, one measurement. These days, you can base evidence to the contrary on the person's credibility, but that will no longer be possible if the bill becomes law. In addition, the police have no requirements to maintain or check the devices. For a breathalyzer, there is only one control test, and even it can vary with different scientific approaches. This is 100 mg of alcohol per 100 ml of blood. With other values, we have no idea about the device's performance. But the Crown will have the presumption of accuracy that is, for all intents and purposes, impossible to challenge. If you want to show that the device is not working, you will have no scientific way to do so.

[Réal Ménard, Bloc, Hochelaga, QC]

Would you like an amendment to the code?

Mr. Chair, now I know that you are a child of Mike Harris' common sense revolution. I thought you might be able to let me have just a minute more.

[The Chair, Conservative, Rick Dykstra]

I actually did grant you an extra 35 seconds, Mr. Ménard. And I'm actually a son of Peter Dykstra.

Mr. Comartin.

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

Thank you, Mr. Chair

Thank you to all of the witnesses for being here.

Mr. Rady and Mr. Roitenberg, Mr. Cooper, who is a crown prosecutor, was here the week before last, and he described the system as one in which when he brings his application he's really proving long-term behaviour that's antisocial, leading the court to an inevitable conclusion that this person will continue to remain violent and a threat to society.

By inserting, as we have here, the reverse onus to a list of specific charges, are we changing those criteria? Will the courts begin to simply say that someone has committed these three offences, that they've been designated as violent offences whether they are in fact or not, and then will they move away from the behaviour test and move to just a rigid formula that says these are the three?

[Andy Rady]

I think that will occur because all the crown has to show is that it's the third offence in those cases, and then the burden shifts to the accused to go and show that he didn't have...or he's not dangerous for whatever reasons. That might be very difficult. There's this presumption of three convictions against him, and now he's going to have to marshal the kind of evidence he can to show that he shouldn't get an indeterminate sentence for the following reasons, and that he's not dangerous. I think that's going to be a difficult situation as well from a resource standpoint.

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

With regard to resources, in the paper on the weekend there was a case that was heard last week in Ontario, I believe, in which a person was not designated as a dangerous offender because the correctional services do not have the ability to treat a person who has fetal alcohol syndrome. A large number of the people who are in long-term incarceration suffer from that condition.

Ms. Pate, I may want to ask you about this as well. Is it possible that we're going to be faced with a number of these types of cases for other types of medical conditions, for which we will not be finding the dangerous offender designation even under existing legislation because of that kind of problem--that we do not have the resources in the prison system to treat the people?

[Andy Rady]

I think that might be a bit unusual. In the cases that I've done--and I've dealt with some dangerous offender cases--it's generally well known that no matter what the problem is, the person is warehoused. The reason for that is the presumption that they're not going to get out perhaps ever, or for a long time. So resources are given to those with shorter cases. That may be one that has fallen within the cracks. I think it's a difficult situation when we don't have the resources for people in the penitentiary. We're really not there trying to make them better, especially when they've been designated as a dangerous offender.

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

Mr. Rady, if the state intentionally does not spend the money to provide those services, we then have the courts saying, “If you are not spending the money to provide those services, we're not going to find these people dangerous offenders.” That's a risk we're faced with right now because of this decision.

[Andy Rady]

That may be a risk because of the decision. The difficulty is that the initial test for dangerousness really has nothing to do with resources. That may come into more whether one applies an indeterminate sentence--

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

Well, no, it very much has to do with resources. If the resources are there in society to treat the person, then they can very well make the determination that dangerous offender should not apply.

[Andy Rady]

That's right, because they may be treated when they're in jail, and if they're treated in jail then they may not be so incorrigible that they can't be released at some time. That's where it comes into it, I believe. The question is on resources, the resources now on both ends of the spectrum, from the point of view of both the crown and the defence in terms of fighting the cases. Then, if you have more people in there, there will have to be some resources for the prison system, because as we all know, our prisons are going to get busier than they've ever been.

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

And if we don't provide those resources, our judiciary is going to start making determinations.

[Andy Rady]

I would think so, because that will be raised by the defence.

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

Going back to you, Mr. Roitenberg, with regard to a charter challenge and the argument that other parts of the code provide for reverse onus, so use the organized crime sections in terms of confiscating assets, is that a valid analogy with the type of reverse onus we're putting in here?

[Evan Roitenberg]

Generally speaking, if you start from the perspective that reverse onuses prima facie fly in the face of the charter, they can often be shown, and have been shown in other charter challenges on other sections, to be necessary in the circumstances: what they are trying to accomplish justifies the imposition of the reverse onus. But in a situation like this, I think it would be hard to justify when there's absolutely no good reason for doing it in the dangerous offender setting.

If an individual is a danger, allow the prosecution to call its case, prove its case, and have the appropriate designation made by the court. To simply cut corners in a situation where it's the individual's third time, what's the purpose behind it? It's not as if we have prosecutors or individuals across the country screaming and yelling that we have an un-meetable burden here as prosecutors. That's not the case. It's being done for expediency and nothing more.

In the case of organized crime, where you have the reverse onus--there have been challenges to it, and there will continue to be, I expect--there is a situation that's being justified by the government that we have no other way of proving certain things, therefore we have to resort to the reverse onus. But that's not the case here.

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

I'm looking, I guess, for an academic, for somebody who's actually written extensively on the reverse onus. Are you aware of anyone who's a constitutional or charter expert specifically on this?

[Evan Roitenberg]

Not off the top of my head. I think some have come out on other provisions, but nothing touching on this, since it's so relatively new.