Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 14th, 2007

[Isabel Schurman]

First, I am concerned that there are two reversals in the bill. The first reversal concerns a person who has twice been convicted in the past for a primary offence. For that person, there will be a reverse onus which will force the judge to declare this person a dangerous offender, unless the person can prove otherwise. Of course, the bill spells this out much more clearly than the way I have just explained it.

The other reversal is that once a judge has declared a person a dangerous offender, the judge may not consider any other type of sentence except for an indeterminate one, unless the person who has been declared a dangerous offender can show that another sentence is appropriate.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm sorry, but I did not quite understand. If a judge rules that the person must be designated a dangerous offender, what can that person do or not do?

[Isabel Schurman]

My understanding is that, under the bill, a judge must impose a sentence of an indeterminate period of time. But there are two other options which the judge could not choose, except if the person being convicted convinces the judge that one of the two other options would be appropriate.

[Réal Ménard, Bloc, Hochelaga, QC]

That's the Johnson case.

[Isabel Schurman]

Let's say it's a variation on Johnson.

The problem related to these reversals is not the fact that at the sentencing stage a person is not presumed innocent anymore. I read from testimony given before the committee assuring you that this was constitutional because the presumption of innocence was gone and the person had been found guilty. That's not where the problem lies.

The problem is related to sections 9 and 7 of the Canadian Charter of Rights and Freedoms, which deal with arbitrary detention, and the fact that each person has the right to life, liberty and security, and cannot be deprived thereof, unless it is for reasons of fundamental justice. Those are your two problems; this is where the bill will fail to stand up to a constitutional challenge.

To withstand a constitutional challenge, it will have to be shown that the objective is important, the change is necessary, that the current law is lacking, and that the new law is the least intrusive option which infringes the least on a person's rights. This will not be possible, and the burden of proof will be borne by the Crown and government lawyers, because the party which wants—

[Réal Ménard, Bloc, Hochelaga, QC]

If I may, I'll just go back a bit to make sure I understand.

[Isabel Schurman]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

I want to discuss this before we talk about section 1 and the test.

Why don't you think that this will be acceptable from the perspective of arbitrary detention? Tell us precisely why. We are very concerned, so much so that the Bloc has tabled a motion calling on the government to table every study and legal opinion on the matter. I can't image the government not doing so; that would destroy me. We will vote on the motion later on, but tell me exactly why arbitrary detention would be an obstacle here.

[Isabel Schurman]

It specifically refers to the Supreme Court's 1987 ruling in the Lyons case.

[Réal Ménard, Bloc, Hochelaga, QC]

Does the bill infringe the provisions on arbitrary detention?

[Isabel Schurman]

In the Lyons case, the current provisions were challenged, but they held up because the crown prosecutor had discretion to go ahead or not, and the judge had discretion, amongst other things. I'm trying to remember—it's been a while since I read the entire decision—but there was judicial discretion, the burden of proof was fair in the circumstances. The burden of proof did not lie with the accused, and the prosecution had to prove beyond a reasonable doubt—

[Réal Ménard, Bloc, Hochelaga, QC]

Was section 753 challenged in...?

[Isabel Schurman]

That's correct.

[Réal Ménard, Bloc, Hochelaga, QC]

Fine. I remember that it was a question on an exam two years ago. Any how, that's another issue.

[Isabel Schurman]

In Lyons, it was also argued that section 7 was infringed upon; this section deals with a person's right to life, liberty and security, and these are principles of fundamental justice.

[Réal Ménard, Bloc, Hochelaga, QC]

All right. If the new system is adopted, when a judge is about to declare a person a dangerous offender, there will be no more judicial discretion for sentencing.

[Isabel Schurman]

Two things are at play here. The first reversal is even more troubling. It affects a person convicted twice of a primary offence. When that person appears before a judge, the judge has no choice but to declare the person a dangerous offender, unless the person convinces the judge otherwise. That's the first reversal.

[Réal Ménard, Bloc, Hochelaga, QC]

But the Crown must ask for the designation; there is no choice. Therefore, the judge has to make a decision.

[Isabel Schurman]

That's correct, but when the designation is asked for, it is granted, unless the person can show he or she should not be designated a dangerous offender. But how can a person prove they will never do something again?

[Réal Ménard, Bloc, Hochelaga, QC]

If the Crown asks for the designation, it is automatically given. But we did not get the same answer from the officials.

[Isabel Schurman]

When the Crown asks for an evaluation, under the new bill, the judge must order one. When the evaluation is complete, if the Crown is able to show that the person before the judge has twice been convicted for the same primary offence, and that person is in Court again for the same type of offence, the judge must declare that person a dangerous offender.

[Réal Ménard, Bloc, Hochelaga, QC]

Was that the conclusion of the evaluation?

[Isabel Schurman]

Yes.

[The Chair, Conservative, Rick Dykstra]

Monsieur Ménard, we're just over seven minutes. It breaks my heart, as you know, to tell you that your time is up, but your time is up. We'll have to turn the floor over to Mr. Comartin.

[Réal Ménard, Bloc, Hochelaga, QC]

You are so sensitive that you are like a rose in a field of poison ivy.