Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 15th, 2007

[Douglas Hoover, Counsel, Criminal Law Policy Section, Department of Justice]

On your first question as to whether we had more than 48 hours' notice to put a bill together, clearly we did.

On the second question regarding how the issue of including the breach of LTSO evolved, I first heard of that issue in November 2004, when it was raised by the Ontario Attorney General. It was in fact tabled officially in January 2005 for consideration. The FPT high-risk offender working group has been tackling that issue for some time.

As you'll recall, in testimony before this committee on June 5, the minister confirmed he was awaiting the deliberations of the FPT working group and consideration by FPT justice ministers, and that he was hoping to come back this fall with inclusion of such a provision. That work was for the most part completed over this past summer and a recommendation was discussed thoroughly. In fact the fruit of that labour is as you see in the bill before you. So there has been extensive consultation, which has been going on for some time, to achieve not only a viable model but one that will work in all jurisdictions.

I think the question raised by Mr. Cooper, for whom I have great respect, is his particular perspective. He was not here as an official speaking for the Ontario Attorney General; he made it clear he was speaking on his own behalf. Prior to our exploring that further and jumping in with any type of conclusion--I think he proposed a specific amendment to section 760--we would want to consult fully and broadly with the FPT partners. We haven't done that work, and it wasn't raised by the Ontario Attorney General officials during prior consultations.

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

When were you told to put these five bills together into one?

[Douglas Hoover]

That was not a decision of mine personally. You would have to address that perhaps to other officials. Again, my responsibility is lead counsel on the dangerous offender legislation.

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

When was the decision made to make that amendment on the supervision order?

[Douglas Hoover]

Again, I would refer you to the statements of the minister, back on June 5.

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

But when he was here, I think the rest of the members of the committee who were sitting at that time were left a very clear impression that it was not coming in Bill C-27, that it was going to be further down the road. That was certainly the impression I was left with.

[Douglas Hoover]

I think the clear statement of the minister—The question of whether he would allow a motion to Bill C-27 was put, as I recall, and his response was that if it was at that moment, we weren't ready because there were still consultations going on, but that he was hoping—and I believe he actually stated—that the fall was when we were hoping to have those consultations completed.

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

I'd have to go back. That is not my recollection.

Let me go back to—

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin, unfortunately you're going to have to save that one.

Go ahead, Mr. Kramp.

We have a point of order.

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

It is maybe a point of privilege, really.

We were told by Mr. Cooper that he was going to submit an amendment. I haven't seen that. The question to these gentlemen would be whether he's been told not to do that.

[The Chair, Conservative, Rick Dykstra]

I'll allow an answer to that. I'll call it a point of privilege, and we'll get a response.

[Douglas Hoover]

I have no authority whatsoever over Mr. Cooper and I have not discussed whether he should or should not submit such an amendment. The first time I heard of such a proposal was when he made that statement here. I have not seen any proposed amendment. I don't know what stage he's at or in what form it would come. I have no knowledge of that, I'm sorry.

[The Chair, Conservative, Rick Dykstra]

The clerk has informed me that we'll check it. It's her understanding that he may have sent something; we just have not had a chance to bring it forward yet. We certainly will.

Go ahead, Mr. Kramp.

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

Thank you, Mr. Chair.

To our witnesses, thank you again.

One of the great prides we've always had in Canada has been our capacity for judicial discretion, whether it's to the crown or to the judiciary itself. We've had various witnesses before this committee who have suggested, in particular with the dangerous offender legislation, that this would remove the opportunity for due discretion capacity by either crown or judiciary, both prior to the actual designation and in the sentencing process. I'd like your opinion on that.

In addition, could you walk us through this process again, so that we can clearly understand the allowances and provisions that are there for judicial discretion?

[Douglas Hoover]

Well, the first obvious opportunity for judicial discretion is at the time the crown applies under section 752, when the crown may have to make argument to the court that in fact the predicate offence is a serious personal injury offence. If the judge finds it does not meet the section 752 criteria, at that point he can rule under his discretion that it does not meet the threshold and it can't go any further.

The next opportunity for discretion, if it passes that initial threshold, is that the crown must apply under section 752.1 for a psychiatric assessment. The judge has discretion at that time to stop the application there if the judge is of the view that it's not likely to result in a dangerous offender designation.

Once the assessment is returned and filed with the court, the crown then has to seek and obtain and table in writing the Attorney General's consent. If that is done, along with notice to the defendant, then it goes into the hearing phase. At that point the final exercise of discretion of the court is first of all whether the offender meets the dangerous offender criteria; then, per the decision in R. v. Johnson, even if the offender does meet dangerous offender criteria, the court of course may refuse the indeterminate sentence if in fact a lesser punishment is available to manage the risk posed to the general public.

Under the new provision, all those discretions are retained. Even in the circumstances of the presumption kicked in by a third sufficiently serious predicate offence, the judge still has the discretion, if the offender is able to rebut the presumption, to refuse the designation.

In either case, if the designation is made, then again the qualification of the Johnson principle is very clear: the judge retains final discretion to not impose the indeterminate sentence if the risk to society can be successfully managed under a lesser sentence.

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

Thank you. That was my only question.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Kramp.

Mr. Lee, go ahead for five minutes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

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.

[Stanley Cohen]

I appreciate the concerns you're voicing. I would imagine that any time a reverse onus comes up in any part of criminal procedure, there is a similar kind of concern that arises in the sense that an onus that's cast upon the affected party obliges them to answer in some way. Answering directly by testifying is something that perhaps one can see as a violation of a right to silence. I don't believe that in reverse onus cases when a person is called upon to answer, it is necessarily characterized that way in the jurisprudence, but from, let's say, a psychological or a tactical point of view, I understand the point you are getting at.

I would say this about the right to silence. The right to silence is not expressly mentioned in the Constitution. It has emerged in the case law under section 7. I know that you have been referred to the Hebert case in relation to section 7 and its relation to the right to silence. More recently, just two or three weeks ago, the Supreme Court, in a case called Singh, which dealt with the case of repeated police questioning while an individual was in custody, ruled in an expansive way, suggesting that the right to silence did not prevent the police from repeatedly questioning an individual in the face of new evidence and new circumstances that called for questions that required an answer.

I see the chair is looking at me as though I'm answering too hard.

[The Chair, Conservative, Rick Dykstra]

Yes. Maybe you wouldn't mind taking another 20 seconds or so.

[Stanley Cohen]

I will try to wrap up.

I would suggest that—

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Chairman, on a point of order, this is probably the one core area that is almost predetermined to come up later in the courts, so it would be really helpful to have Mr. Cohen's full—

[The Chair, Conservative, Rick Dykstra]

I recognize that, Mr. Lee, and I'm trying to provide a little leeway here to get at this.

[Stanley Cohen]

I will try to wrap up.

I would just say that the Singh case deals with the right to silence and it also makes some observations on the relationship between self-incrimination and the right to silence. It's worth looking at.

It also refers to the case of White in the Supreme Court of Canada, which deals extensively with the ambit of self-incrimination protection.

I would suggest that this one quote taken from Singh, which actually draws on White, is germane. This is Mr. Justice Iacobucci:

I begin this inquiry by asserting that any rule demanded by the principle against self-incrimination which places a limit on compellability is in dynamic tension with an opposing principle of fundamental justice. That is the principle which suggests that, in a search for truth, relevant evidence should be available to the trier of fact. Obviously, the Charter sanctions deviations from this positive general rule. Sections 11(c) and 13 stand as obvious examples. The question is whether we need another exemption and if so, why?

I think that has to be examined and shaken down in terms of the Grayer case, which you've been referred to, which indicates that an individual is able to lawfully resist any mechanisms that might seek to enlist his cooperation. No separate proceedings are contemplated here, and the right to silence, in effect, can be successfully asserted, albeit at the peril of the individual.

[The Chair, Conservative, Rick Dykstra]

Thank you.

Madam Freeman.