Evidence of meeting #6 for Bill C-2 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was going.
A recording is available from Parliament.
4:15 p.m.
Conservative
4:15 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
Thank you to the witnesses for being here.
We've had a number of—well, when it was C-27—evaluations of how many additional applications would come before the courts. We've seen numbers as low as five and as high as fifty.
Of the three groups that are here, has anybody done an analysis of how many additional applications—not successful ones but how many additional applications—are likely to come if the legislation passes under its present form?
4:15 p.m.
Executive Director, John Howard Society of Canada
My understanding is it's been climbing pretty steadily since 1997.
November 14th, 2007 / 4:15 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
The numbers have gone up to about 20 a year now, and it was running substantially lower than that at one time.
Professor Schurman, in terms of the constitutional charter issue, I've been asking everyone, is there one expert in the country, especially on the reverse onus issue, that the courts will pay attention to or who would be best able to reflect what the courts are likely to do with the inevitable challenge that's coming? You can put yourself in that category if you want, but I'm looking for—
4:15 p.m.
Professor, Faculty of Law, McGill University, As an Individual
I wouldn't be so immodest. As to whether there is one expert on reverse onus, it's a very specialized part of constitutional law generally, so what you need is someone who is at the same time a constitutional law specialist and a criminal law specialist. Perhaps what I can do is just give that one some thought and give you the name, if I think of one, of someone who would really be the expert for that type of thing. It's most likely that in the Supreme Court of Canada decision in Lyons, they referred to writings by people whose opinions they respected at the time. As long as none of them have been named judges, you might be able to get them here in front of the committee, but many of them have been. I was thinking of Yves-Marie Morissette at the time, but he's been named, so I can't tell you offhand.
4:15 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
All right.
You made a reference to the ability to bring applications, even after the two time limits that were specified there. The initial one has to be brought at the time of sentencing and the other one six months after, or if new evidence is coming forward—But you opened up—and I know there's another provision—the possibility of bringing an application at an even later date. Could you explain the circumstances around when that occurs?
4:20 p.m.
Professor, Faculty of Law, McGill University, As an Individual
As the law is now, the application can be brought more than six months after the sentence if it is shown that relevant evidence that was not reasonably available to the prosecution at the time of the imposition of the sentence became available. So if the prosecution finds out after the fact something that would have been important, if you will, in their decision to make or not make this application, they can go back, even after the six months. It's rare, but the point is the law allows for it now. We don't need to change the law in order to have that possibility. It's already there.
4:20 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Does the likelihood of that section being used open up the door for more applications to be made on the basis of the amendments that are being proposed now?
4:20 p.m.
Professor, Faculty of Law, McGill University, As an Individual
I don't know. I don't know if that would change—
4:20 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Okay, but if it were used, then the reverse onus again would be applicable. So if there were the discovery of new evidence, maybe in cases that have already unfolded over a long time, and the evidence came forward, they could still apply the reverse onus?
4:20 p.m.
Professor, Faculty of Law, McGill University, As an Individual
I don't see anything in the proposed amendments that precludes that.
4:20 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I have one final question, again for Ms. Schurman. Are we at risk, by having set this fairly rigid criterion—the three offences—of having a change in attitude at the courts, or perhaps of having the prosecutors say they're not going to bring anything based on past behaviour, misbehaviour, misconduct, egregious as it is, unless they also meet the three-conviction test?
4:20 p.m.
Professor, Faculty of Law, McGill University, As an Individual
It's interesting you raise that, because I think one of the things you can foresee happening is that legal counsel will plead that if the legislator saw fit to amend, to bring in the necessity of a prior conviction, then the legislator really doesn't want dangerous offenders to be designated very often unless they have prior convictions. That's the kind of logic that we can foresee will be pleaded. You raise it, and it's an important point.
I think something else that's sort of connected to that is that you can't underestimate the combined effect of this piece of legislation and the mandatory minimum sentencing laws, because you're going to see prosecutors who are going to sit there and say, “Wait a minute, this 20-year-old has two priors for which he got two years, and because of the mandatory minimums, I can't go ahead with this kind of thing.” You're going to see people who aren't going to be applying the law strictly as it's worded in this bill because it won't be fair. We'll be relying heavily on prosecutorial discretion, and what about in areas of the country or in certain communities where the prosecutors just refuse to use that discretion? So that's a bit troubling as well.
4:20 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Mr. Pichette, do you have any idea of the number of cases in Canada in which you would have people who, as one of the charges, commit assault causing bodily harm, maybe of a fairly minor nature, and they get two years because it's a repeat offence, and then they've got a B and E with intent, so they get another two years or better because they've got a previous offence, and then they commit a serious, violent act? Can I suggest there are at least thousands of those cases in the country every year?
4:20 p.m.
Co-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police
Mr. Comartin, I could say that you are entirely right. However, if I may, I will tell you about typical cases we have to deal with in Montreal, and then I will show how they generally relate to crimes committed by street gangs.
In 2006, out of 42 homicides committed in Montreal, 12 were directly related to street gangs. These were very violent crimes. In 2007, that is, beginning on October 31, out of 37 homicides, 14 were related to street gangs. As for attempted murders, there were 42 of them in 2006. Beginning October 31, 2007, there were 45 of them. I am just referring to crimes committed by street gangs. I am not including all similar crimes committed in other situations. To come back to your question, I would say that for us, it is significant.
4:25 p.m.
Conservative
The Chair Conservative Rick Dykstra
Mr. Comartin, your time is used up, sorry.
Mr. Moore, seven minutes.
4:25 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Mr. Chair.
Thank you to all the witnesses. I have a couple of questions for you.
To the Canadian Association of Chiefs of Police, thank you for your testimony and for the message you've brought, that correcting what's wrong with the justice system isn't going to be solved by any one component, because many components go into that. We are certainly hearing that message. There is what's needed for resources and what's needed in the area of technologies. Of course, most people believe also that the Criminal Code plays an important role in keeping our communities and streets safe. So thank you for bringing that message.
To Professor Schurman, a question. Hopefully we are all operating from the premise that our justice system should, as one of its main components—the primary component, I think—be about keeping communities safe, keeping Canadians safe, protecting innocent Canadians from those who would do harm against them. Do you think it is ever appropriate to have an indeterminate sentence, a sentence where someone could potentially not be back on the street?
4:25 p.m.
Professor, Faculty of Law, McGill University, As an Individual
First of all, let me reassure you that we all—not just not those around the table but all the judges in this country, the prosecutors, defence counsel, and the people who appear in court daily—are very concerned with the justice system being a system that keeps Canada safe.
I would say to my colleagues at the end of the table that many of us have been pleading openly, for years, that there be more resources for police for the detection of crime and apprehension. Studies have shown and evidence has shown that this is the place where we're going to deter crime the most, in the certainty of apprehension and the fear of being brought before the courts.
Also, concerning my colleague beside me, the Americans have discovered, and we should be listening to them, that for every $1 million they're spending in prisons in California and Florida, they can in fact reduce crime 15 times the amount they're presently doing if that $1 million goes into education or into drug abuse programs.
As far as whether it's ever appropriate, our Supreme Court of Canada said so in Lyons, that, look, we have this provision, and it's appropriate as long as it's very exceptional, very clearly defined, and it makes sure the person's rights are very protected before the courts. The Supreme Court of Canada said it: this will be appropriate but in the most exceptional of situations.
4:25 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you for that.
I think this bill is dealing with the most exceptional situations. Bill C-2, with respect to dangerous offenders, is dealing with what could be termed the worst of the worst offenders in Canada. There was some reference made to someone who may have had what's termed “less serious” crimes. That's not what this bill is going to target.
I think we're all aware, at the end of the day, that there is still a tremendous threshold and there are tremendous safeguards, including our Constitution, that will protect all Canadians from this being too broad in scope. But at the end of the day, we have a situation where there are individuals who have shown, unfortunately, no desire whatsoever, and no ability, to be rehabilitated even though they've had maybe dozens of contacts with the justice system. These are people who commit very serious offences like the ones set out in this bill—the primary designated offences, for example, which are perhaps the worst imaginable offences. What we've said is that we have to act to protect Canadians from those who have shown no desire to be rehabilitated and are committing the worst offences.
To the Association of Chiefs of Police, in a way these are rare individuals, fortunately, and the dangerous offender provisions would apply to the very worst offenders. From your experience or through your representation, I'm wondering if you could tell me what are some of the challenges in dealing with the most high-risk offenders, the most dangerous offenders in Canada, as opposed to those who, although they have committed serious crimes, don't fit into this category. I'm speaking specifically of the recidivist nature.
4:30 p.m.
Co-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police
We support constitutionally valid provisions that allow for the continued incarceration of the most serious of offenders. We support that, and we work with the prosecutor service to try to make that a reality. When the Johnson case came out, we were a bit concerned about the impact that would have. I'm not aware of any study that showed the impact of it.
Incidental to that question, I have before me a study the Vancouver police did with respect to their chronic offenders program. They operate a program to deal with the prolific offenders in the community. Oddly enough, in a sample group they studied, they found that sentences for chronic offenders were falling in terms of their period of incarceration over time. They were surprised to see this, and they brought this to the attention of the Department of Justice.
We have a big problem with that group. Beyond the most serious of the serious, we have these offenders who are committing property crimes and other violent and non-violent crimes on a continuing basis in our communities. Pick your target; any one of them is—
4:30 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
You're aware of individuals who have been designated as dangerous offenders. Perhaps there are individuals who should have been designated dangerous offenders but weren't in the past.
I would like your comment on this. I know there are plenty of people who line up to protect the rights of the accused, and rightfully so. We have a system where the rights of the accused are fully protected. But from what we've heard in the testimony of some individuals, it's not a question of will they reoffend, it's a question of when will they reoffend. Despite best efforts, despite resources, despite in some cases having someone who basically tails them almost day in and day out, some people will reoffend.
Am I out of time?
4:30 p.m.
Conservative