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

[The Chair, Conservative, Rick Dykstra]

Pursuant to the order of reference of Friday, October 26, 2007, we are dealing with Bill C-2, an act to amend the Criminal Code and to make consequential amendments to other acts.

I first want to welcome all of our MPs back from a week in their ridings, and to a reinvigorated committee to continue our work on Bill C-2.

I welcome our witnesses who are here this morning. We certainly appreciate the efforts that you all have made. I know that this committee was formed in fairly short order, and we certainly appreciate the fact that you've been able to put time into your schedules to be able to join us here and present your perspective on the bill. We obviously have something to learn from that this morning.

I know that we've only been away for a week, but let me make a couple of gentle reminders in terms of timeframes. Each group has ten minutes to make their presentation, whether an individual or a group. It's up to you to divide your time. If you are dividing your time with your colleague, certainly that is your decision to make. It's your time to do so. I would just respectfully ask that if you keep an eye on me, I'll try to give you a warning when there's about a minute left in your presentation, so you know that you can work towards wrap-up.

The way the questions will move is the first round of questioning will begin with the Liberal Party for seven minutes. Each party will have a seven-minute allocation. Once we get into subsequent rounds, they'll be five-minute time-allocated question and answer sessions.

I again would ask if you could just keep a bit of an eye on me in terms of being able to make sure that we get as many questions in as possible and that we stay as close to our timeframes as we can.

With that, I would like to ask the Canadian Council of Criminal Defence Lawyers, Mr. Rady and Mr. Roitenberg, to please start.

[Andy Rady, Director, Canadian Council of Criminal Defence Lawyers]

Thank you.

Good morning to all. I'm here along with Evan Roitenberg on behalf of the Canadian Council of Criminal Defence Lawyers. I want to thank you all for allowing us to attend and be witnesses this morning. I'm going to make a few brief opening remarks and then Mr. Roitenberg will continue.

For those of you who aren't familiar with our organization, we are a council of defence lawyers from across Canada, including the territories, of 17 persons. We represent criminal law associations in all of the provinces; they all have a member on our association. So we respond on matters of national interest to the defence bar as a whole. We've been doing this since 1992, and we've appeared before this committee and other committees over the years.

Bill C-2 consisted of five other bills in the previous Parliament, and we've already made representations on those: Mark Brayford from Saskatchewan on Bill C-32, Bill Trudell on Bill C-35, Mr. Trudell and myself on Bill C-10, and Mr. Roitenberg was set to speak on Bill C-27 before Parliament dissolved.

It is our position that the current system of dangerous offender legislation in the Criminal Code works and need not be changed. We have concerns with Bill C-2. Our concern is that if society is going to seek to lock someone up indefinitely, the burden must in all cases be on society to show that this should occur. In other words, we're talking about what we call the reverse onus provision of Bill C-2 with respect to dangerous offenders.

It is our position that this new section really provides a false sense of security and nothing else to what we already have, which is a very careful system, because dangerous offender designations result in perhaps the most draconian penalities that we know in our law. We are concerned as well that what the burden-shifting does is place it on the defence and on the accused person. One of the things that appears not to have been considered is the effect this is going to have on legal aid plans throughout the country. Obviously, if the convicted person is going to have to try to demonstrate why they should not be declared dangerous, the kinds of resources they are going to require from legal aid plans are going to be very high. We're concerned that there isn't a corresponding amount of funding for that.

We also have some concern with respect to the fact that it would appear that aboriginal offenders represent--at least a few years ago--21% of all dangerous offender designations. This is not reflective of the overall aboriginal population. Again, that may have to do with a cost situation in terms of being able to defend dangerous offender applications. One of the things we read indicated that it takes the crown approximately 600 man-hours to put one of these together. If that burden shifts to the accused, we're going to see more dangerous offenders simply because they're not going to have the resources to meet this reverse onus test.

Mr. Roitenberg.

[Evan Roitenberg, Director, Canadian Council of Criminal Defence Lawyers]

Thank you.

There are a couple of glaring difficulties in the legislation, as I see it right now, as well as concerns that we have on behalf of our organization. To echo Mr. Rady's comments, including those on resources, the constitutionality of the reversing of the onus is another concern.

A further difficulty with reversing the onus is that you're not simply reversing the onus onto the accused because there have been three predicate offences. You're raising the bar that the convicted person has to meet. Right now under the Criminal Code of Canada, any kind of aggravating feature of a sentence has to be proven beyond a reasonable doubt by the crown. What you're going to be doing now in the most aggravating circumstance is shifting the burden to the convicted person, but not just saying to them, “Because of your three predicate offences, we're going to have a prima facie case that the crown has met its burden”. We're not just doing that. We're not saying to the accused, “Now it's your turn, if you wish, to try to raise a reasonable doubt as to the dangerousness”. We are now saying to that convicted person, “You have to go beyond raising a reasonable doubt and prove on a balance of probabilities the negative--that you're not dangerous”. In many cases that will actually be an impossible test to meet. Philosophically, proving a negative is extremely difficult, but in a situation like this, where you're sapping the resources and putting, as Mr. Rady has alluded to, the onus on the defence and on legal aid plans to provide those resources, you're making it a next-to-impossible test.

Another concern that we have is that the net is being cast far too wide. For example, if you look at some of the primary designated offences, some that leap to mind--assault causing bodily harm, assault with a weapon, and robbery--are very widely defined offences. Certainly they capture within them very dangerous offences committed by very dangerous people, but they also capture within them offences that aren't overly dangerous per se when you get down to the basic factual underpinnings of the offence. What you have, practically speaking, is a situation where sentences in this country do not decrease, so if an individual has received a sentence of two years for an assault causing bodily harm or for a robbery, the next time they are before the court on a similar type of sentence they're not going to receive a lesser sentence; they're going to receive one on par or greate. So even though the factual underpinnings of the new sentence have not become of greater concern, the individual is looking at a sentence within that frame or worse, and therefore is going to be on a slippery slope to being caught within these three predicate offences. That is of concern.

Another concern arises when we get to the presumption of a dangerous offender, under proposed subsection 753(1.1). You are then in a situation where the court is being ordered to make the finding of dangerousness and impose the most severe sentence--an indeterminate sentence--unless the accused can show why or how they can be managed with a less onerous sentence. But there's no standard prescribed within the section, nor is it stated who has the burden within that framework. So you have made the finding of dangerousness as mandated by the changing of the “may”--the permissive--to the “shall”, which is part of Bill C-2 as well, and then you are not offering any guidance as to who has the burden of professing what should be the appropriate sentence once the finding of dangerousness has been made and on what burden. You're not only placing the burden on the accused earlier, but you are leaving it open and vague in the secondary stage regarding what finding needs to be made.

The concern goes further when you get into concerns such as the right to silence, which I know has been discussed at this committee on prior occasions. There have been answers offered such as the example of the Ontario Court of Appeal's R. v. Grayer decision, which shows that while clinging to the right to silence is something that an individual subject to a dangerous offender hearing can do, that individual does so at their own peril.

That's all well and good to say in the confines of a crown-must-prove dangerous offender, but once you reverse the onus onto the accused, you are mandating that if they in any way, shape, or form assist the fact-finder in determining what the appropriate sentence is, they give up their right to silence. That is a further concern.

[The Chair, Conservative, Rick Dykstra]

Completed? Thank you.

We will now hear from an individual, Mr. Doob.

[Dr. Anthony Doob, Professor, Centre for Criminology, University of Toronto, As an Individual]

Thank you very much for inviting me to appear before you.

At your request, I'll focus most of my specific remarks on the aspects of the bill that deal with dangerous offenders. But I will place those specific remarks in the context of the concerns that I have with the bill as a whole.

I'm a criminologist, and for the last 35 years have carried out research on a number of different aspects of the justice system, most notably, in this context, on sentencing, imprisonment policies, and public attitudes concerning the criminal justice system. More recently I've been examining the pretrial detention process here in Ontario.

I would like to start, however, by explaining how I approached my analysis of the various aspects of Bill C-2. My starting point is not different from what I expect to be that of everyone in this room. I would like to be able to support policies that would be effective in reducing crime, in particular violent crime, in our communities. The rate of violent crime is, at the moment, relatively stable, which provides, I think, an ideal time for developing rational and effective approaches to crime.

The second general principle that guides my thinking on some aspects of this bill is that sentences should be proportionate to the seriousness of the offence and the offender's responsibility for that offence. Most of the research that I have seen on public attitudes concerning sentencing would suggest that my views on this issue are widely held. I don't expect that many of you would argue against proportionate sentences.

It is in the context of these two concerns--effectively addressing violence in our society and handing down punishments that are proportionate to the seriousness of the crime--that I examine Bill C-2. It largely fails to address crime effectively and fails to ensure that sentences are proportionate to the harm that's done.

The title of the proposed act, the Tackling Violent Crime Act, makes a statement and a promise. The minister referred to the desire to tackle crime and make our communities safer as the primary justification for the bill. Similarly, the preamble of the bill talks about “enacting comprehensive laws to combat violent crime and to protect Canadians”. Although the preamble suggests that the laws would ensure that violent offenders are kept in prison, it is notable that there is not a reference to fair and proportionate sentences that focus on the harm, on what the offenders have done.

Let me give some examples of provisions in this act that have little to do with protecting us from violent crime. The mandatory minimum penalties for firearms offences have been discussed extensively. I won't spend much time talking about them here. But perhaps the most patently absurd mandatory minimum sentence provision in this act is related to the third impaired driving offence, moving it from a minimum of 90 days to 120 days. Aside from the added but minor incoherence that this provision injects into the overall sentencing structure of the Criminal Code, this provision will do nothing to reduce the likelihood of impaired driving. The suggestion that there is some group of people who would be deterred by a 120-day sentence but not by a 90-day sentence is certainly something that most people would question. More importantly, as long as you--you as the Parliament of Canada--suggest ineffective solutions, the motivation to do something effective is blunted.

Similarly, the bill has provisions creating reverse onus provisions at bail hearings for certain firearms offences. These provisions imply that crown attorneys are either ineffective or unmotivated when faced with a case involving an offender with a serious offence involving firearms. The proposal ignores the fact that in the context of stable or falling violent crime rates, the number of people detained in provincial institutions now awaiting trial rivals--and in some provinces, like Ontario, dramatically exceeds--the number of people who are serving sentences. There's no systematic evidence that I've been able to find that suggests that these aspects of our laws need such change.

If provisions such as these are merely ineffective, what's the concern? I remind you of my starting point. We have a relatively stable rate of violent crime at the moment. By advocating provisions like those contained in the bill, you successfully avoid anything the Government of Canada might do that would be effective in reducing violent crime in Canada.

Bills such as this one imply that the solution to serious crime in Canada lies in small changes in the criminal law. In effect, the message you give is that you have addressed the violent crime problem. In fact, there's almost nothing in this bill that will have any impact on violent crime. So not only are you distracting yourselves from changes that will have long-term positive impacts on our society, but you are doing things that will use resources that could be better spent on measures that would address crime.

Second, as I have suggested, you are at best ignoring the principle of proportionality in sentences. The changes in the dangerous offender provisions in the Criminal Code, then, can be seen in this context: as provisions that, by definition, move us away from sentencing offenders for the wrongs they have committed, and that suggest to Canadians that the criminal justice system is capable of doing something that it cannot do with any degree of accuracy--identifying those who might, in the future, commit serious acts.

I'll start with the problem of prediction, a central feature of this legislation. The legislation is designed to incapacitate people who are seen as dangerous to our communities for periods of time that are longer than what they deserve given their offences. Most of those who have been designated as dangerous offenders would have been given very long sentences on the basis of proportionality. Simply put, the proposal is that more people be sentenced not for what they have done but for what we think they might do in the future. The changes you are considering might be seen as an attempt to take some of the worst penitentiary inmates and try to ensure that they would be designated as dangerous offenders because they might offend in the future.

Let's look at our ability to predict future offending. One study of penitentiary inmates divided those being released into five groups according to their measured risk. The worst of these groups, about 22% of them, were followed for a period of three years after they were released, and about half of them did not end up back in federal custody within that three-year period. Said differently, a prediction model, which was the best Correctional Service of Canada could come up with, such as the dangerous offender provisions would have made the wrong decisions for most of these worst-off offenders.

You might be saying to yourself, so what? They've done something bad, and under the proposed set of amendments, they would have to do bad things three times before they would be presumptively considered to be dangerous offenders. The problem with the provisions is that they imply that this group of offenders is responsible for a substantial portion of crime. This, however, turns out to be a myth. Violent crime is unfortunately much more widely distributed than most people think.

When you look at these offenders, what you find is that the worst offenders in our system, those who are released from penitentiary on statutory release, are responsible for a minuscule amount of crime. But by addressing the problem of violence in our society as you have in this bill, you keep suggesting repeatedly in this bill that these kinds of changes, these relatively small changes, will have a large impact. We know that they won't, and unfortunately the suggestion that's being made is that they will.

So let's go back and look at the bill. It states, of course, that for a person who's committed a primary designated offence for which it would be appropriate to serve a two-year sentence, the dangerous offender status can be presumed unless the contrary is proved on the balance of probabilities. Implicitly then, it makes a prediction about this offender's future, a prediction that we know is seriously flawed. What this means, of course, is that the person who has two previous convictions of assault causing bodily harm or robbery, as was suggested, that gave him a penitentiary sentence in large part because of an extensive record for perhaps property crimes is in jeopardy of dangerous offender designation. A third fight or minor robbery in which someone is hurt puts him in the category of being a presumptive dangerous offender. Given what he has been convicted of, we now tell him that he must prove that the presumption has not been met.

My concern is twofold. First, given that the offender has just been convicted of a serious violent offence, how exactly will he or she prove to the court on the balance of probabilities that he or she is not dangerous? Stated differently, it's a presumption that effectively cannot be successfully rebutted. And of course this offender is facing an indefinite sentence that will be first reviewed in seven years, a sentence that would be almost certainly, in the case I've just described, not proportionate to the offence itself. In addition, once again, it implies that this is going to keep us safe from dangerous people.

In terms of the benefits of incapacitation, we have to remember that the dangerous offender provisions only protect us to the extent that a person who would normally have received the regular sentence now is incarcerated for longer. But our hypothetical offender will of course be in penitentiary for quite a few additional years. Is this the best we can do in order to reduce violence in our community?

[The Chair, Conservative, Rick Dykstra]

Mr. Doob, I would just ask you to finish up. You have about ten seconds.

[Dr. Anthony Doob]

Yes.

What we know is that the cost of keeping that offender in our penitentiaries is approximately $90,000. What we have to ask is whether that $90,000 is best spent on this or on other kinds of measures that this Parliament therefore is ignoring.

Thank you very much.

[The Chair, Conservative, Rick Dykstra]

Thank you.

I want to apologize to Mr. Rady and Mr. Roitenberg. You're the first presenters who have finished under the clock. You caught me off guard a little bit. Congratulations.

We do have a third witness. They're presently in transit; they should be here just before the end of your presentation.

I would ask Ms. Joncas and Ms. Pate to go ahead.

[Lucie Joncas, President, Canadian Association of Elizabeth Fry Societies]

Thank you for inviting us.

It is CAEFS' position that the proposed new legislation is not only unnecessary, because all the behaviours the government professes to be addressing with this omnibus bill are already addressed by the current Criminal Code and are in effect, but we're not fooled by the sorts of smoke and mirror approaches aimed at creating a public impression that the government is responding to public need when in fact they are creating or perpetuating a false impression that there's a need for such repetitive or more harsh laws. The measures being proposed are unnecessary and a waste of hard-working taxpayers' money to use public and government time and resources to develop new laws when the moneys could be better spent on services that will benefit all Canadians.

We don't accept yet more focus on longer and more punitive sentences at the expense of public education, health care, and social services. The government must stop using prisons as a substitute for mental health services, public housing, or shelters for women escaping violence.

We object to the government misleading the public as part of what the Prime Minister has described as a game of politics.

I would like Ms. Pate to address something that we're very concerned about, and that is the detention conditions and how the dangerous offender provisions might affect women.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

My focus, as my president, Maître Joncas, outlined, will be on the dangerous offender provisions specifically and the potential impact of what's being proposed.

The only surviving young woman who was declared a dangerous offender at one point was supposed to be with us. Her name is Lisa Neve. She was declared a dangerous offender at the age of 21. She then spent six and a half years in prison, until her dangerous offender designation was overturned. When it was overturned, the judges who overturned it determined that she was essentially labelled a dangerous offender on the basis of what she said, what she thought, what she wrote about what she thought, and not about what she did.

I suggest to you that with these provisions, more young women would face that situation. She was a young aboriginal woman, who I have known since she was 12 years old. The reason she is not here today is because her family asked her not to come and publicly expose the family yet again to what has happened to her even since she's been out of prison. She's been out over eight and a half years. She now works with young people; she mentors young people. She's doing very good work. Some of you, I know, have heard her speak in other contexts. But even when it's a positive story about her, her family is hounded. They have had to move several times as a result of the media attention, even though she is no longer declared a dangerous offender.

The first woman declared a dangerous offender committed suicide in the prison for women in Kingston. Since then, there have been others who have been threatened with a dangerous offender designation. These cases we have intervened in, and we will continue to do that. One such young woman who was fearful, who had been told she might likely face a dangerous offender designation, died on October 19 in the prison for women in the Grand Valley Institution in Kitchener-Waterloo. She was a young woman who, at the age of 19, had been transferred into the adult system, again on the basis of much of what she said, what she threatened, what she yelled, and in some cases what she did--although our examination of her record shows that most everything she did that might be considered violent actually occurred in a prison setting.

We actually now are accumulating more cases like this, where we're seeing individuals come in on relatively minor charges and based on the conditions of confinement they are subject to, the treatment they receive in those prison settings, they are accumulating charges.

Another young aboriginal woman started on a three-year sentence is now doing over 25 years. This young woman started, her family reports, at the age of 15. She was throwing crab apples at a postal delivery worker, which is obviously not something anybody wants to face, but it's not something as a result of which they anticipated six years later receiving their daughter home in a body bag.

I first met this young woman, and she looks like this. I saw her through a meal slot in a segregation cell in one of the prisons. When I first tried to meet her, I couldn't; I was denied access, as were lawyers who tried to meet with her. We now know that part of the reason we were denied access appears to have been that she had been assaulted. That was before she was in the prison where she eventually died.

I encourage this committee to really examine the violations that the Canadian Human Rights Commission has cited Canada for, that the United Nations Human Rights Committee has cited Canada for, that we have tried to raise with the current Minister of Public Safety, who has not met with us, and that we have tried to raise at every senior level of government, and certainly with the Correctional Service of Canada. We have requested that the human rights violations and charter violations that we have cited be investigated. If they have been, we are not aware of the results of those investigations, even though we have requested them. Before Ms. Ashley Smith died, she asked us to request them. Before she died, in the last release of information we received from her, she was not even permitted to have a pencil to sign that release of information. We had to get a correctional officer to verify that she wanted us to look into this information.

I strongly urge you to look at the conditions of confinement that young woman was in, without anything in her cell save a security gown. There was not a mattress, not a blanket, nothing else in her cell for, as far as we can tell, approximately one month. I last saw her on September 24 of this year in that segregation cell. You know that four officers, possibly more, will be charged in relation to the treatment she received at the hands of corrections.

We have urged this committee in the past--it was not this particular committee, Mr. Chair, so I don't want to in any way intimate that it was you to whom we had spoken--to fulfill the mandate of ensuring that human rights are protected in this country. We urge this committee, before you go to clause-by-clause on this bill, to actually go to the prisons and see the conditions of confinement that individuals who receive these designations will be subjected to. I will take you to see the conditions of confinement in the women's prisons. You have an obligation, I would suggest, as parliamentarians who are implementing this legislation and who are going to be voting on it, to actually see the results of what you will be doing. I would encourage you to come with us to see those conditions. I would encourage you to exercise your right as parliamentarians to have access, and to also seek access to the men's prisons. It's been some time since I worked in the men's prisons, but I would suggest that if you look at the issues outlined by the correctional investigator, most recently in the deaths in custody outlined in their annual report, there are many issues with which you should be very concerned.

We consider the regimes under which women are serving their sentences right now, under what's called a management protocol, to be unlawful. I encourage you to examine that. I encourage you to see what it's like to see disembodied groups of eyes every time you go to a prison, and then what it's like when you actually see people being denied access to their counsel, being denied access to us. And it's our legislated mandate to go and provide that opportunity for individuals to have their needs met.

I encourage you, I urge this committee, urgently, to examine the conditions of confinement that those who will be subject to the dangerous offender provisions certainly, and likely some of the others, will be subjected if and when this bill is passed.

Thank you.

[The Chair, Conservative, Rick Dykstra]

You still have about a minute and a half, if there's anything else you want to add.

Thank you.

To our fourth witness, welcome. I understand you had a little bit of difficulty getting in this morning. I certainly want to welcome you to the committee.

You now have ten minutes to make your presentation. The other three groups have already presented. Afterwards we'll turn to members for questions.

[Richard Prihoda, Lawyer, Association québécoise des avocats et avocates de la défense]

I would like to thank the committee on behalf of the Association québécoise des avocats et avocates de la défense, and to express my own thanks, for giving us the opportunity to offer our point of view on certain parts of BillC-2.

Our association believes in the supremacy of the Constitution, in the rule of law, and in the separation of executive, legislative and judiciary powers. It believes in our justice system that is based on the presumption of innocence and that requires the state to establish guilt beyond a reasonable doubt, after a fair and equitable trial, before an independent and impartial judge who is knowledgeable of the law and of the realities of his community.

We do not have a great deal of time today to cover all the significant changes that Bill C-2 would bring about and that we would like to comment on. We have therefore prepared a short document that highlights some of our concerns. This document will be distributed in due course.

I now refer to the amendments that deal with mandatory minimum prison sentences. In a word, we are suggesting that you amend the Criminal Code to list the aggravating factors that would result in more severe punishments, and that you not deal with mandatory minimum sentences.

With regard to the amendments dealing with the age of consent to sexual activity, there seems to be a contradiction between, on the one hand, the Young Offenders' Act that requires everyone to be accountable for his or her actions from the age of 14, and, on the other, the fact that a person of the same age is not able to consent to a non-exploitative sexual act.

I would like to take some more time today to speak to you about the amendments dealing with conduct when a person is impaired by alcohol or drugs. Bill C-2 makes significant changes in this area. Presently, section 254 of the Criminal Code allows peace officers who have reasonable and probable grounds to believe that a person has committed an offence to require that person to provide a breath sample in an approved instrument. Furthermore, under section 258, the Crown can make certain legal presumptions to facilitate the prosecution's work. Persons arrested under section 254 must comply and must provide the required breath samples if the samples are collected in an approved instrument.

The Alcohol Test Committee recommends approved instruments to Parliament. This committee—and I will shortly provide you with documentation—also conducts exhaustive tests before recommending to Parliament that an instrument be approved. After these rigorous tests and as the result of the committee's recommendation, Parliament accepts an instrument. This same committee makes recommendations to police services and to provinces, who are responsible for maintaining the devices and for all the programs that have to do with breathalyzers such as training, the courses given to qualified technicians, and so on.

In Canada, laboratories of three kinds are responsible for advising provinces and police services on matters of forensic science. These are the RCMP laboratories that serve eight provinces, the laboratory in Ontario, and the forensic laboratory in Quebec. It is important to understand that programs are not uniform across Canada. Maintaining these devices remains the responsibility of police services.

In one recent case, we found that there was no maintenance program for the Intoxilyzer 5000C devices used by police in Montreal. They were purchased in 1996. They are repaired if they malfunction, but, if they do not, their performance is not checked.

That goes against the recommendations of the Alcohol Test Committee that advises Parliament. So, the Montreal police is not following the recommendations of the Alcohol Test Committee, nor those of the manufacturer, concerning the maintenance of the devices.

After my remarks, Mr. Jean Charbonneau will provide you with more explanation of the legal and technical considerations. Though the case is not over, the legal community in Montreal has concerns for natural justice when these devices are used.

If BillC-2is passed in its present form, the situation will be even worse, because it removes our ability to present evidence to the contrary, as we can today. The Supreme Court of Canada has held that, given that it is possible to present evidence to the contrary, the presumptions of the Criminal Code are reasonable.

Our position is that if the bill is passed in its present form, it will no longer be possible to present evidence to the contrary, and the presumptions will be almost impossible to contest. It is almost impossible for an accused to show that the device was not working properly on the day when he provided samples. We will then be in a situation where thousands of people will provide samples, because they have no other choice. There will be a presumption of guilt and it will be almost impossible to present evidence to the contrary if the bill is passed in its present form.

We may present evidence showing that the device was possibly not reliable, or that there were perhaps errors on the day when our client provided samples. But the Supreme Court of Canada's 2005 decision in the Boucher case defines evidence to the contrary. The definition does not include speculative evidence. We can show that the device is not reliable and that its results cannot be relied on today. But since this is not sufficient evidence to the contrary, we cannot present it, and we certainly will not be able to after Bill C-2 is passed.

Furthermore, the present situation...

[The Chair, Conservative, Rick Dykstra]

Mr. Prihoda, you have about two and a half minutes left. Did you want Mr. Charbonneau to speak?

[Richard Prihoda]

Yes. Thank you very much.

[Jean Charbonneau, Expert witness, Association québécoise des avocats et avocates de la défense]

First, thank you for hearing us today. Our apologies for being late. Unfortunately, we were directed to another building; that is why we were late.

I am not a lawyer, but I am an expert witness. I am called upon to testify in impairment cases all the time. So I am well aware of BillC-2.

The problem I see with this bill is that we must first understand that when breathalyzers began to be used at the end of the 1960s, they were a compromise. A breathalyzer does not show alcohol levels directly. It uses statistics to establish a credible level of blood ethanol.

There are a number of problems linked to the use of a breathalyzer. Even under our present legislation, there are people who, at levels close to the legal limit, are not guilty. Because their physiology does not match the calibration of the machine, they would be found guilty without question if they were not able to present evidence to the contrary.

Even at present, generally speaking, defence counsel and expert witnesses are fighting to ensure that police forces are subject to checks and balances. Determining blood alcohol levels indirectly already creates prejudices in the minds of the public. Not only are we fighting that, but you will also notice that, in the Criminal Code, while it is a crime to drive with more than 80 mg of alcohol in the blood, there is nothing that requires police forces to maintain and check the reliability of the machines they use. The Alcohol Test Committee and the Canadian Society of Forensic Science have made recommendations, but we have realized that in a number of cases—we have just gone through one with the Montreal police—people did not care in the slightest.

If a bill like C-2 is passed, with no requirements and no mechanism to force police to make checks, because of a desire to put teeth into the bill, you have to realize that it will be just about impossible to contest. Scientifically, in my opinion, it will be impossible, for all practical purposes, for people who fail a breathalyzer test when they are arrested to show that the machine was not working. At most, you could show that its reliability was in question, but it is almost impossible. A blood test should be taken at the same time as the breath sample. This is very important to understand because we are not talking about a direct measurement. It does not measure the blood directly, it calculates.

I will stop there, because I am being told that the time is almost up. When breathalyzers were introduced, the Criminal Code even provided for keeping the sample, as is done with blood, so that the accused would be able to have objective evidence to the contrary. That was never put into effect, and it is certainly not provided for in Bill C-2.

[The Chair, Conservative, Rick Dykstra]

Merci, Monsieur Charbonneau.

Madame Jennings.

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

Thank you, Mr. Chair.

Thanks also to all the witnesses who agreed to appear at such short notice, and, in spite of that, made presentations dealing with several very important matters.

Ms. Pate, I made a careful note of your request for the committee to go to the prisons where those designated dangerous offenders, both male and female, are incarcerated.

My next question is for the Canadian Council of Criminal Defence Lawyers. Given your presentation and your analysis of the provisions in Bill C-2 that deal with the dangerous offender system, I would like to know if your association considers the provisions to be constitutional, that is in conformity with the Canadian Charter of Rights and Freedoms.

[Andy Rady]

If I may, I think that with the first case that comes up like this you're going to see a charter challenge, and that's a charter challenge that will probably go all the way to the Supreme Court of Canada. And I would think that whatever lawyer gets that first case will be chomping at the bit to bring a charter challenge on it.

It's an unclear area. It's not the same as a reverse onus in terms of the finding of guilt. Because the penalty is so severe and the consequences are so severe, you can be completely assured that it will be challenged under the charter.

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

Are you aware that the Bill C-27 that was brought before the House of Commons and that the justice committee had begun to examine last spring is not identical to the Bill C-27 we find in Bill C-2? The government did bring amendments, particularly on the issue of the sentencing, and it has, as we call it, restored the court's discretion in terms of sentencing. So it's not just an indeterminate sentence.

[Andy Rady]

There's no question that it brought back what was the old regime prior to what we have in the Criminal Code now, where the judge finds dangerousness and then determines whether it's an indeterminate or a definite sentence. The difficulty is that that doesn't change the issue of the reverse onus. If you're presumed to be dangerous after the three strikes, so to speak, the onus is still on the accused to show why they may not get an indeterminate sentence.

So I don't think that changes the argument in terms of constitutionality. Certainly it provides for potentially what one might think is a lesser penalty, but the test is still the same. It's a reverse onus on the accused on the balance of probabilities.

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

But when the judge had that authority previously, was not the burden...? I'm trying to understand this. I'm not a criminal lawyer.

Previously, if the judge had the authority to order an indeterminate sentence, or to order a long-term offender supervision order, or to order a sentence that an individual found guilty for a third time of the same kind of offence would have been liable for, was it not at that point that both sides had to bring evidence for one or the other option?

[Andy Rady]

The onus was always on the crown to establish what the sentence should be. Here there's the presumption of that first finding, which is the dangerousness. There used to be a second part of the test, which was then to determine the sentence. Well, here there's a presumption of dangerousness, and the reverse onus is with respect to that finding, not with respect to the sentence. So there still would be a judicial discretion, but it's the onus on getting around the finding of dangerousness that has now shifted to the accused, where in the past that burden was on the crown.

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

Okay. Thank you.

If there's time left, I will share it with Mr. Bagnell.

[The Chair, Conservative, Rick Dykstra]

You have two and a half minutes.

[Larry Bagnell, Liberal, Yukon, YT]

I wanted to pursue the same line of questioning with both the criminal defence lawyers and with Mr. Doob.

First of all, reverse onus already exists in the code in practice. Secondly, these changes that Ms. Jennings talked about make it at least more comfortable for me. The crown does not have to pursue dangerous offender; they just have to make sure they've considered that option. And secondly, the judge can determine what sentence there should be.

Do you not think that either the crown attorney or the judges, for whom I'm sure we all have great respect, would use those provisions to ensure that the provision of proportionality was not abused, and that a proportional sentence was provided, and indeed, that if a dangerous offender hearing wasn't required the crown attorney wouldn't proceed with it?

Perhaps we could start with Mr. Doob and then the criminal defence lawyers.