I'd like to thank you all for the opportunity to come back and speak with you again.
I will limit the comments I'm making now to what was Bill C-27, given that the invitation I received indicated that this is of particular interest to you. Should anyone have questions on other parts of Bill C-2, I will try to address them.
The most troubling part of Bill C-27, which is now part of Bill C-2—Actually, there are two most troubling parts. First, it's not necessary. It doesn't cover any situation of dangerousness that the present law does not already cover. The second very troubling aspect is twofold. The removal of judicial discretion is disturbing, and it's a disturbing theme reoccurring in numerous criminal law bills. A second part of that is the reverse onus provisions contained in Bill C-27. These provisions will not survive a constitutional challenge if we rely on Supreme Court of Canada jurisprudence over the last 20 years.
The bill resembles a kind of U.S. three strikes legislation. Although there are clear differences, copying the U.S. model, even a loose copy of it, is neither necessary nor workable.
As the present law stands, the crown “may” apply for an assessment to have someone declared a dangerous offender and the judge “may” order the assessment. The trigger is the conviction for a serious personal injury offence. The present law in that category includes all indictable offences with sex or violent components, all conduct that endangers individuals, even including psychological violence. It's vast coverage that we already have. Once the report comes back in the present law, the judge must be convinced beyond a reasonable doubt that there was a serious personal injury offence, threats to others based on certain evidence—repetitive behaviour, aggressive behaviour—or evidence that the incident was of such a brutal nature.
Constitutionally, the deprivation of liberty will require proof beyond a reasonable doubt when that deprivation is to be for an indeterminate period of time. In fact, the burden at this stage is one element that saved the present articles from being declared unconstitutional in the past. Currently an application can be made at the time of sentencing, or even six months after sentencing, or even after that if new evidence comes to light. With the present law the way it is, we don't have to be letting dangerous offenders escape the claws of the law, if you will.
Currently, if the evidence is not enough to meet the dangerousness category, the individual may fall into the subcategory of long-term offender where there's substantial risk but a reasonable possibility of eventual control. This allows us to recuperate those we can when there's a real chance that we may do so.
A key sentencing principle in Canada is the use of less restrictive sanctions, when possible, to meet the goals of sentencing. That's why the case of Johnson in 2003 decided that when a judge is facing a dangerous offender hearing, he or she must look at whether the person could actually be a long-term offender, whether the long-term offender designation is enough. The present law gives us everything we need.
Part two of my representation is that the issues of the removal of judicial discretion and reversal of burdens are very troubling. Presently if a judge is convinced, by evidence, of dangerous offender status or long-term offender status, the code mandates that the judge “shall” give a certain sentence—indeterminate in the case of dangerous offender, others in the case of long-term. So there is no discretion to the sentence once the judge decides that you are a dangerous offender. But there is discretion; the judge does retain discretion in ordering a report to make an assessment, and the crown must prove the allegations they are making. In the new system, the judge will have to order the report, and the crown will have nothing to prove when the presumption applies.
Even though the crown has a burden to prove a certain number of things—the crown must prove, yes, the conviction and the elements of dangerousness as put out in the code—it should be noted that the crown has not been held to a burden of proving absolute hopelessness before someone is declared a dangerous offender. In some cases treatment was shown to be possible, but the person was still declared a dangerous offender. I'm referring to Pedden in British Columbia in 2005.
The crown right now can prove behaviour that would constitute dangerous offender behaviour without having to show the person had prior convictions. You can have someone determined a dangerous offender today based on the one incident he or she was convicted for.
The existing likelihood of future behaviour through the accused's failure to control his or her impulses is what the crown must prove. Brutal conduct can be one incident, and we saw that in the Ontario Court of Appeal in Langevin. Conduct has been interpreted to mean things such as sexually sadistic writings. Even writings could be considered conduct under the present law in some circumstances.
It is worth noting that removing judicial discretion and removing the burden on the crown would remove two important protections for individuals before the courts. Such a system is not likely to pass constitutional muster. The case of Lyons in 1987 upheld the present system because there was room for crown discretion and because the burdens were adequate to protect the rights of the person before the courts.
Speaking of judicial discretion, it's important for you, I think, as a group to realize that judges are not heard here. They don't come and speak to you because of their obligation of discretion
—obligation of discretion—
The application of sentencing principles requires proper weighing of a lot of different elements. Mandatory minimums in removing discretion, as we see here, tie the hands of judges and will keep them from coming to very just results.
My colleague spoke about the U.S. experience with mandatory minimums and sentences. They have in fact targeted the economically disadvantaged, the minorities, not to mention those with learning disabilities and lower education. We've already seen a disproportionate incarceration of first nations people in this country. Will this law exacerbate that situation?
I'll skip over speaking about the U.S. situation, but should anyone have questions, I have some comments on it.
Taking away the judicial discretion leaves a situation in which the threat of the dangerous offender application with an impossible burden for the accused person is going to put huge power into the hands of some crown prosecutors. Will it be used to force guilty pleas: “If you plead guilty, I won't make the application”? Is this a coercion that we want to see in our criminal justice system?
Those who are trapped will be the economically disadvantaged, minorities, and native offenders. How many times will the threat result in a plea to something else to avoid the application, and how good is that for us? We won't know what crime was actually committed. Before we even get to the dangerous offender application, lawyers will be trying to avoid the two-year mandatory minimum sentences on earlier offences, because every time you chalk up another two-year mandatory minimum, you're running the risk that the next time around your guy is going to be a dangerous offender. Will this just skew the entire system? It's a question that has to be asked.
Under the new system, there are 25 designated offences. They include assault, pointing a firearm, and what have you. Mandatory minimums may mean that many of these designated offences are going to become two-year offences, regardless of the objective seriousness of them. Is the youth with a drug problem who goes out with friends and commits two separate robberies really a dangerous offender because the two were committed in the six months of his life when he had a drug problem? Prior convictions for two designated offences with two two-year prison terms will trigger the crown's request for dangerous offender status.
Of the 12 primary designated offences—take a look at them--sexual assault was everything from a touch to something very serious. Discharging a firearm with intent has a mandatory minimum. We're looking at going back to old articles in the primary designated offences. You have all the old articles. How far back are we going to go? A conviction with two years twenty years ago is going to be conviction number one and a mandatory minimum a year ago is going to be number two, and then you're a dangerous offender. How real a portrait is that of the dangerousness of that person? The crown request will be triggered in these cases, and in these cases, for the primary designated offences, there is the reverse onus.
The new law includes that the reverse onus for primary designated offences and, arguably, that list of offences will be seen as arbitrary. Sexual assault is a broad category. Hostage-taking seems pretty dangerous, but hostage-taking is only a designated offence. Will that pass a constitutional test for arbitrariness? The arbitrariness will be key to the constitutional challenge.
Those in the primary designated category are the only ones to whom the first reverse onus is going to apply. There is a manifest unfairness that at the same dangerous offender hearing some people will benefit from the ordinary rules because the first reverse onus doesn't apply, no matter how violent and how disgusting their crime was, because they have no record. Yet other people will have a reverse onus and a burden that they can't possibly hope to meet in some circumstances. So under the operation of the presumption for the list of 12 selected offences, for no particular reason, because they're not even selected according to the fact that they're all punishable by the same maximum, this limited group of people, or offenders, if you will, would lose the benefit of the ordinary rules. The inequality will be key to the constitutional debate.
Mr. Chair, I will go rapidly now.
The justification and jurisprudence showing the need for reverse onus is exceptional. I have a number of comments to do with reverse onus and with what would pass constitutional muster, and I will keep them for questions from people here.
At the dangerous offender hearing, the reverse onus will raise other questions. The accused will attempt to prove he's not a danger. He'll bring experts. The experts will have interviewed him. The crown can't compel him. How is the crown going to contest that evidence? These are practical problems that no one has really properly considered.
Likewise, when there's a second reverse onus, and that is when the court finds that the accused is a dangerous offender, the court must decide in favour of indeterminate detention unless satisfied that something lesser would protect the public. This second reverse onus is also unnecessary, and we don't seem to have compelling evidence to show that dangerous offenders with priors are not being picked up by the system.