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

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you very much, Mr. Chairman.

Ms. Schurman, if you'll allow me, I would invite you to pick up where we left off. Those issues are of great concern to me.

I greatly appreciated Mr. Harris' hyperbole. But you realize that hyperbole is not the Conservatives' biggest trademark. It was said, in so many words, that the bill was drafted by one of the greatest legal minds; it's no secret that it was a tribute to Mr. Hoover. I don't object, but please understand that it is not enough, and we need to be apprised of the legal opinions. But I share your unbridled enthusiasm for the professionalism of the public service.

That being said, I would like you to continue. You stated clearly that you have concerns regarding arbitrary detention. If these provisions were challenged, there is jurisprudence. There are concerns.

Let us continue with section 7. How can we reconcile that, and which provisions of the bill are most at risk as far as section 7 is concerned?

[Isabel Schurman]

As far as section 7 of the Charter is concerned, you cannot be deprived of your liberty, unless it is in line with the principles of fundamental justice. But what certain provisions of the bill say is more or less that you will be jailed for an indeterminate period of time, except if you will never be a threat in the future. So the onus is on the person to prove that something will never happen in the future. Of course, that is a fairly bizarre burden of proof.

Section 7 was at issue in the 1987 Supreme Court ruling in the Lyons case. In this ruling, the reason why the process was upheld was because the burden of proving that someone was a dangerous offender fell to the Crown, which had to prove this beyond a reasonable doubt. This was a key point in the Lyons decision at the time.

The Supreme Court even ruled that the fact that the Crown was not obliged to give notice that it would call for a dangerous offender hearing did not violate the Charter, but that it might be grounds for a person to withdraw their guilty plea.

But as far as section 7 is concerned, it was at issue in the Lyons case, as it is in the current legislation. What we have now is constitutional and it works. So then why start something which might provoke a debate which will go on for years before prosecutors can actually use it?

[Réal Ménard, Bloc, Hochelaga, QC]

You are touching upon an interesting point because there are very few witnesses, and I must say that the minister did not answer the question.

How is it that the current system does not work? We were told that it took about 600 hours to prepare a case. But the minister really did not tell us how the current system is broken; after all, under this system over 300 people were declared dangerous offenders.

It seems that we were told that crown prosecutors were reluctant to work on these cases, that they were hard to prosecute. So is it necessary to create a whole new system? Have you also received indications the system is broken?

[Isabel Schurman]

It might be a little dangerous to start from the premise that the system doesn't work, because what we want, and what your colleagues today say they want, is something which will only be used exceptionally. So if a country like Canada wants something which is absolutely exceptional, given our crime rates, we should not have such a high number of people who are declared dangerous offenders each year.

But I agree that there is a real problem with resources. In some situations, a crown prosecutor might think he can argue a case, but will not do so because he might not be given enough freedom or time to prepare a case for court.

[Réal Ménard, Bloc, Hochelaga, QC]

What resources are lacking?

[Isabel Schurman]

Prosecutors don't have enough money or staff. Yes, I am convinced that this problem exists, but I also believe that we must not necessarily take for granted the fact that the system is broken. We are talking about an exceptional measure which should remain so.

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

However, Ms. Schurman, if the onus is reversed and if a person is found guilty of a third offence, the reverse onus kicks in, and it will be very difficult, and very costly, for legal aid to argue that the person should not be declared a dangerous offender. Other witnesses have told us that it would be extremely difficult—and you have said so yourself—to prove this. Trying to prove that a person will not commit a crime in the future is to impose a negative onus. It is almost impossible to prove such a thing.

[Isabel Schurman]

Yes, and legal aid costs are also an issue. Further, as you say, the fact that a person may succeed in presenting this evidence with the support of experts, and everything else, does not affect the process. I imagine that the process will remain long and difficult in most cases. Perhaps the reverse onus is a way to shorten the process, but I'm not sure it will produce the desired results.

[The Chair, Conservative, Rick Dykstra]

Madam Freeman.

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

Do I have a minute left?

[The Chair, Conservative, Rick Dykstra]

We can get you on the list, but we have to turn it over to Monsieur Petit.

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

Thank you.

Thank you for being with us this afternoon. My questions will mainly be for Mr. Pichette and Mr. Pecknold.

For the last hour or hour and a half, we have only been discussing the reverse onus, but the bill also contains provisions on mandatory minimum sentences, the age of protection and impaired driving. You mentioned earlier—and this drew my attention—that you already have statistics on Montreal homicides, including others. If we are to amend the Criminal Code, it is because we want to solve a problem, or at least prevent a problem from happening again and again.

A little earlier, you told us about statistics related to homicides carried out by street gangs. Do you have other statistics, or data, on impaired driving for the province of Quebec, for example, which might guide us and tell us if we're heading in the right direction?

[Pierre-Paul Pichette]

Unfortunately, Mr. Petit, I do not have any statistics which I could reliably present to you now. However, I've been listening to the discussion for over an hour and I will take the liberty to repeat the position of the association. As my colleague, Mr. Pecknold, said earlier, we believe that the Criminal Code is already very complex. I would encourage you to place yourself in the position of the citizens you represent and we are called on to protect. For these people, the situation is already very complex. I would invite you to ask yourselves whether the average citizen would understand what we have just talked about.

I understand that the law is important and that the rights of inmates are also important, but can't we just for a moment stop and think about the victims? Can't we try to see how citizens perceive the fairness of the legal system, and ask ourselves whether they feel a person who has been found guilty has received an appropriate sentence?

I mingle with Montrealers on a regular basis, and I can humbly tell you that in many cases, they wonder why people who have committed crimes I would qualify as being violent receive such light sentences, or why repeat offenders of crimes against citizens—such as break-ins or vehicle theft—are walking the streets.

I understand that we need a debate on the provisions of the bill, but I encourage you to question the way you are going about it. What will the average citizen remember of the discussion we're having today?

[The Chair, Conservative, Rick Dykstra]

Thank you.

Mr. Comartin.

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

Thank you, Mr. Chair.

Mr. Jones, the Callow case—the balcony rapist, as he's more commonly referred to—highlighted problems with when we should perhaps bring applications for dangerous offenders and don't. But it also highlighted the failure in the system to have mechanisms available to deal with someone who is of great concern to cause further risk to society when they are released.

Has your agency looked at what would be useful legislation to provide that structure or infrastructure, and what resources would be necessary to deal with someone like that who was coming out after an extended period of time and at least potentially posing a risk to society?

[Craig Jones]

Thank you for that question, Mr. Comartin.

The society is driven by very high-quality evidence, most of which you're probably aware is produced here in Canada, on how to reduce recidivism and reoffending. And from our standpoint, the more emphasis we put on security or building prisons or—with respect to my friends here—law enforcement, the less resources are put into exactly the kinds of treatment programs that produce results.

I will direct a comment to Mr. Harris, who has absented himself for a moment. Bill C-2 does not stand in isolation. Bill C-2 stands in the context of the new national anti-drug strategy, and these things have a tendency to combine.

With respect to Mr. Harris' observation, from our standpoint, when I looked at the text of the national anti-drug strategy, I looked in vain for the words “evidence-based” or “harm reduction”. Here are two concepts that are endorsed by every expert body, from the World Health Organization to the Canadian Medical Association, and they were nowhere to be found, and that signals something to Canadians. I think the message is we're not interested in the evidence; we're interested in ideology.

Now I'm going to defer to the legal experts on the evidence base for the case you're referring to, but our persistent complaint is that we don't fund treatment programs adequately, given what the evidence says about their success in creating safer communities.

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

Professor Schurman, on the same issue, have you analyzed what additional legislation would be useful in terms of providing an extension when a person comes out under those circumstances?

[Isabel Schurman]

I'm not aware enough of what happened in that particular case to be of any real use to you on this one. But there are certainly possibilities in terms of amendments that can be made to the Criminal Code in keeping with the way the code is now drafted that don't need to be sweeping amendments that would bring in the types of clauses the Supreme Court has already told us to be very careful of. So I'm sorry I can't be more helpful to you on that one.

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

Okay.

In your presentation you also indicated that you had additional information with regard to the U.S. experience and the greater incarceration of people there. If you want to take this opportunity to add any additional information, it might be helpful to the committee.

[Isabel Schurman]

One of the things that the United States is seeing--and I agree with my colleague here who spoke about it--is that they are pulling back from mandatory minimum sentences in several states because they have come to the conclusion that they cost a fortune and don't work. The cost-benefit analysis doesn't check out.

One of the things they talk about in the U.S. now is costs related to aging prison populations, in which people are jailed for indeterminate periods of time, and costs related to people being incarcerated when they're younger. Often the young people being incarcerated are men between 18 and 35 years old. Often they are fathers. There is a huge societal cost to the incarceration of parents. Children suffer from emotional and economic problems. There have been studies done by the Urban Institute Justice Policy Center in Michigan indicating that the social cost to the children of people incarcerated, because of the incidence of depression and dysfunction, is huge. These are some of the things they are seeing in the United States.

Also, there is the fact that the fraction of money spent on prisons, as I mentioned earlier, can be more helpful in other areas in terms of reducing crime.

The 18- to 35-year-old male example is a good one because anybody who works in the justice system knows that there are many, many instances of people who, for four, five, or six years, have a period of delinquency and then turn out to be very fine, law-abiding citizens.

Now under this law, with the combination of the mandatory minimum sentences, we might catch some of those people in this net, even though your colleagues on the other side of the table say all they want to catch are the most exceptional criminals. The fear is that we'll catch those people, and it's far more than what we're really aiming for.

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

In terms of the—

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin, I'm sorry, your time is up.

Mr. Kramp is next, and then Mr. Lee.

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

Thank you.

Ms. Schurman, you mentioned a word that struck me a bit, and that's “cost”, whether it's a cost to the prison system or whether, as Mr. Craig Jones has stated, it's the cost to deal with a serious criminal. I would really like to remind you, and everybody watching this hearing as well, of the enormous cost that seems to be ignored here, and that's the cost to victims. There isn't a person here who doesn't know at some point somebody in life who's been victimized. We could all imagine if it were our sister or our brother or a parent or a sibling or a friend or a neighbour, and we've seen that. We've seen the horrendous impact—lives ruined, families ruined, communities ruined. So we have to strike a balance here.

Over two-thirds of the public are demanding some sort of protection that does not exist at this particular point. They need the balance back in. This is what they're telling us. We're suggesting that we have to find a way. The amendments to the Criminal Code are not a panacea, granted, but they are a component that's been designated as being part of the problem. Sure, the social root causes, etc., are paramount. Rehabilitation is crucial.

When we get talking about the dangerous offender portion of this in particular, I'd like to ask a couple of questions to either Mr. Pecknold or Mr. Pichette.

Possibly, just from your life experiences in the judicial field, in the police, have you found that if you have a violent offender...? Do you think there's any chance of their ever reoffending again, or are they just a one-time Charlie? Have you ever found that they only offend once and that's it? Is that what you've found, or have you occasionally seen some who might reoffend again?

[Clayton Pecknold]

I'll answer that this way. If there aren't people offending and reoffending, why do we need chronic offender units? Why do we need integrated sexual predator units that follow sexual predators who are on warrant expiry or who are under some sort of supervision and are reoffending? We are responding to those threats because we have to. We have chronic offenders. We have repeat offenders. We have some concern that their sentencing and their progressive sentencing does not meet what they're up to and what they're doing and the harm they're inflicting on society.

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

Does the public deserve to be protected from people who are admittedly a serious problem?