Thank you.
I do accept that the judicial discretion piece of this legislation has been successfully reconstructed, rebuilt, reinserted into the bill, and that's a good thing.
The part that has concerned me is charter compliance, with specific reference to section 7 of the charter and the principles of fundamental justice, the right to remain silent. That continues to bother me. I accept that we're in a grey area, and I appreciate the previous remarks of Mr. Hoover as well as Mr. Cohen's remarks today. They've done their very best to grapple with that, but I just want to lay out my core concern, and perhaps you can address it.
Principles of fundamental justice include the right to silence. I'm assuming the right to silence would prevail throughout the entire criminal procedure, including the point at which the person is sentenced. I include a DO—dangerous offender—procedure as well. If I'm wrong, I'll stand corrected, but at this point I have no reason to believe that a person's right to remain silent in a criminal procedure wouldn't exist at any point during a criminal procedure, particularly the part where the person's liberty is potentially taken away.
In the normal course, where there is the right to remain silent, we would look to the crown to paint a picture of dangerousness such as would entitle the state to further constrain the liberty of the subject. In this particular case, the way the statute is drafted, the crown does not have to paint a picture. Yes, there is an assessment report that predates the hearing, but the crown doesn't have to paint the picture because the statute creates a presumption that the person is dangerous. So the crown doesn't have to paint the picture any more. There is simply a mathematical formula that says the person is presumed to be dangerous.
I am suggesting that is a practical removal of the right to remain silent, because not only does the subject have to face a presumption based on a mathematical formula that foists upon him or her the status of dangerousness, but they're forced to prove a negative. The subject has to come out and say “I'm not that. Whatever you think I am, I'm not that.” Forcing someone to prove a negative in the face of a mathematical presumption to me says we have practically removed the right to remain silent in a criminal procedure, and that is my concern.
I'll just leave that with you now and see if you can address my concern that the subject has practically lost the right to remain silent and is “DOed”, if I can use that as a verb, by a mathematical formula in which the crown doesn't have to paint the picture and doesn't have to face the burden of doing it.