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

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

I will give the floor to Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like to talk about the issue of the right to remain silent. Out of 11 witnesses, if I exclude the minister and his officials, six have challenged the constitutionality of the bill, and this includes criminal law professors. You will therefore understand why we are just a little bit worried. The right to remain silent will no longer be able to exist in its integrity if the bill is adopted, given that the reverse onus compels the accused to defend himself. We could obviously say that the individual will refrain from defending himself, but if we use the same logic, there is no longer any constitutional guarantee.

You should know that we are very concerned. I fully agree with Mr. Lee's line of questioning. The right to remain silent is being challenged and, in addition, we have been told that the bill is incompatible with guarantees pertaining to arbitrary detention and article 7, the right to life, security and everything that corresponds to that.

How can you make us feel comfortable about the issue of arbitrary detention and section 7? I have other questions I would like to ask later on, if I have time.

[Stanley Cohen]

First, on the suggestion that you've had a number of witnesses who suggested that the bill is unconstitutional, I haven't followed your proceedings or read the blues or anything like that, but I am not surprised that people would come with a different point of view and suggest that there is a constitutional issue that will result in litigation and a constitutional challenge. I would suggest that this is not an issue. None of the issues that you have raised are straightforward. It's not science. We cannot say ipso facto that because there is an infringement there is necessarily going to be a court striking down or not sustaining the legislation.

What I would be curious about is the way in which these individuals have addressed the question, because they have found that there is a violation and they would then have to pass on to the second question, of whether or not the legislation can be capable of reasonable justification in accordance with the standards that govern a free and democratic society. That, I believe, is where much of the—

[Réal Ménard, Bloc, Hochelaga, QC]

The people who said that are, in my opinion, just as competent as you are. You spoke about your background as a professor, but the people who appeared before us were professors from McGill or the University of Toronto and I feel they are at least as competent as you.

[Stanley Cohen]

I'm not doubting that they are, and maybe they have greater competence than I have. What I have attempted to get at here is simply the question that reasonable people at this stage, when considering legislation, will assess the legislation in a certain way. When I say that the legislation is not manifestly unconstitutional and is capable of a credible and reasoned defence, I am saying that if the government presses ahead with the legislation, as it is determined to do, it will have a good case to present in court, and the arguments that will be presented are capable of being accepted by the courts.

To address your larger questions about section 9, section 7, and the others, this is the history of dangerous offender legislation. If we look at Lyons, which again is the fountain, the locus classicus in this area, you will find not only sections 7 and 9; you'll find sections 11 and 12 of the charter being invoked and dealt with quite comprehensively and extensively in the course of the challenge to what was then relatively new dangerous offender legislation.

[Réal Ménard, Bloc, Hochelaga, QC]

I simply want to be reassured that in the federal-provincial-territorial conferences of ministers responsible for Justice—moreover, I know that there is one underway right now and I will be tabling a motion to obtain information about what was discussed there—the provisions that we are about to adopt, if we are in fact going to be voting on them, have already been more or less agreed to.

Is that what you are trying to tell us, Mr. Hoover? Are you trying to tell us that the five bills that we may be voting on have already been examined by this forum, namely the federal-provincial-territorial conference of the ministers of Justice?

[Douglas Hoover]

I think the answer is fairly straightforward. They've certainly considered many issues that are in the bill, and there are other issues that aren't in the bill that they've discussed. There are various opinions at that table. I'm not sure which provision you want me to talk to in particular, but the bill is certainly discussed on a regular basis. All legislation that is going to impact on the administration of justice by the provinces is of concern to them, not just this one.

[Réal Ménard, Bloc, Hochelaga, QC]

Moreover, as for the former Bill C-27 and the specific provisions on dangerous offenders, do you feel that this was something that was truly wanted, or something that people were lukewarm about or had categorically rejected? Are we dealing with a bill that is really wanted, which one province may be lukewarm about or has come out and rejected categorically?

I know that you are always uncomfortable when you hear references about love, but this is just a figure of speech.

[Douglas Hoover]

I think strong desire was expressed, both publicly and during meetings of senior officials, for reforms that specifically respond to the Johnson problem, as the minister stated on June 5 in his testimony and most recently again. Johnson created some conundrums in interpretation in each jurisdiction, and great concern was expressed that we address those. For the most part, provinces are very supportive of the legislation as it currently stands--maybe not all provinces 100%, but at this point we have not received, regarding C-2....

You're asking about Quebec? Again, I am uncomfortable speaking for any particular province. I would say overall there's a strong consensus that this bill is necessary.

[The Chair, Conservative, Rick Dykstra]

Monsieur Petit.

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

Thank you, Mr. Chairman.

Good morning, Mr. Hoover and Mr. Cohen.

I would like to go back to the questions raised regarding the right to remain silent. You were very clear about the point that the right to remain silent is not necessarily something that is guaranteed by the charter, but which has resulted from various Supreme Court decisions made over the past 20 years.

My question will be a little bit more focused. In the Criminal Code, since you work with the Criminal Code, there are some presumptions. There are already some presumptions. Presumption counters what we refer to as the right to be presumed innocent and the right to remain silent, because we are presuming that you are guilty, for example and it's up to you to prove the opposite.

With respect to receiving stolen goods, when we talk about theft and receiving stolen goods, we have used the presumption for more than 50 years, ever since the code has existed. Has an attorney ever attacked this issue? Since the charter came into existence, has there ever been an attack that demonstrated that presumptions in general—and I am not only referring to this presumption—would violate inalienable charter rights? That is my first question.

I also have a related question, which is also a comment. We often see, when we go to court, the crown attorney present a notice of prior conviction in order to obtain an additional conviction. A presumption is made. We are already indicating that we will be seeking more severe fines, a longer prison term. We are already presuming something. This has never been questioned, at least, personally, I have never seen this being overturned or quashed by the Supreme Court of Canada.

I would therefore like to know whether or not the question put by Mr. Lee, of the Liberal Party, was relevant. I would also like to know whether or not Criminal Code presumptions have ever been questioned or overturned by a ruling of the Supreme Court of Canada.

[Stanley Cohen]

I'll try to break your question down into parts. You began with some statements to the effect that in a way we were creating a presumption of guilt. Guilt, of course, is not part of this particular exercise. We are already past the point of guilt. We've established three convictions here. Any presumption that presumes guilt would, in my view, be manifestly unconstitutional, and those kinds of presumptions are not presumptions that have been advanced in the Criminal Code or elsewhere.

We're talking about reverse onus provisions. As to the question about how one addresses the justifiability of reverse onus provisions, the determining question is whether the presumption itself, the reverse onus, is justifiable. Basically this stems from the Supreme Court of Canada decision in Oakes, which is the leading decision on section 1 of the charter, and basically that court case says that facts that are not rationally open to an individual to prove or disprove cannot be justified. A rational connection has to exist between the proved fact--in this case we're dealing with three convictions--and the presumed fact. The presumed fact has to do with the linkage between those convictions, those designated offences, and dangerousness.

You asked the question about whether these provisions have been upheld in the jurisprudence. Reverse onuses and mandatory presumptions are treated the same and they can constitute a reasonable limitation that is justifiable under section 1 of the charter, and the courts have dealt with this in many cases: the Whyte case in 1988 dealing with care and control of a motor vehicle; the Holmes case, also in 1988, dealing with possession of housebreaking instruments; the Keegstra case dealing with the wilful promotion of hatred; the Chaulk case dealing with the presumption of sanity; the Downey case dealing with association with prostitutes; and the Pearson case dealing with reasonable bail.

These are cases, but this is not to suggest that there are not also cases where the courts have found constitutional infringement. These kinds of cases do throw up litigation, and no one is denying that a statutory provision that creates a reversal of onus will not throw off litigation.

One of the complicating factors, for those who choose to challenge this legislation, will be overcoming the idea that this is not an issue going to guilt and innocence and therefore does not fall within section 11 of the charter dealing with the presumption of innocence; but rather they will have to find shelter, if you want to call it that, under section 7 of the charter, and that may lead to a different kind of consideration.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Cohen.

Just so we can wrap this up—Mr. Harris is next, Mr. Bagnell has a question, Ms. Jennings has one, and Mr. Comartin—I would ask each of you to be as quick and as concise as you can be. I know this is pretty provocative stuff, and we're getting a long way, but we do need to try to finish up by 11:15. Then I have just a couple of comments concerning our process next week....

It may be 11:17, Mr. Comartin.

Mr. Harris.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Thank you very much, Mr. Chair.

I have two quick questions. I want to go back to some of my comments yesterday regarding the similarity that I see—not as a lawyer, as I'm not one—between a parole hearing, an application for parole, and the reverse onus that is in that process and the reverse onus we're talking about now.

Mr. Cohen, you just made a statement in which you stated that two things, proved fact and dangerousness, are present within the reverse onus system in the dangerous offender designation process. I would suggest that in a parole hearing, those two principles exist as well: proved fact, the person is in jail, it's been proven, the person has been judged guilty; and second, dangerousness is something that's considered in the parole application. Is it safe? Is it dangerous or not to society to let this person out at this time? So while the circumstances may admittedly be different, we are dealing with a very similar process.

It is my understanding that in the reverse onus, as it applies to a parole application, someone who's incarcerated must prove to a parole board that they are worthy to be let out. That's a reverse onus.

Has that ever been challenged? Has that successfully passed the Constitution or charter test, so to speak? I would assume it has, since it's still in existence. Am I correct in assuming that?

[Stanley Cohen]

I would have to get back to you on that. I don't profess to be an expert in the validity of or at least the history of challenges to the parole system. I do note that under this statutory arrangement, there is of course a safeguard that there will be eligibility for parole within the system.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

I realize that, but this is an application to get out early, in which case the incarcerated person must prove that they're worthy to be let out ahead of the--

[Stanley Cohen]

I see the analogy you're drawing there.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Okay.

Secondly, it's my understanding that in regard to Mr. Lee's concern, the right to remain silent, if someone is appearing before the parole board they also have the right to remain silent if they so choose. Considering that this process, this privilege, still exists, and has for many years now, somewhere along the line someone must have thought about whether this had passed a charter or constitutional test. It must have, because it's still being used.

If either of these things, the reverse onus or the right to remain silent in the case of a parole application, were at some time proven to not pass the constitutional or charter test, I would doubt very much that they would still be used today. I would suggest that because of the similarity between the reverse onus and the right to remain silent, certainly it's similar enough to assume that we're on safe ground on this.

[Stanley Cohen]

Just to draw a circle around this, once again we are into a situation where we consider what the charter guarantees actually apply to. Sections 11 and 13, which are the self-incrimination and presumption of innocence provisions, are all formulated in terms of charged with an offence. The case law may very well have something to say on that. I'm not going to point one way or another on that. Section 7 definitely has its application to look for the....

The courts are looking for fair procedure and for fundamental justice.

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell, very quickly.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

The public watching this must find it bizarre that the department has a process that has determined it's not manifestly unconstitutional when a majority of our esteemed legal witnesses have said it is.

I have just one short question. The points they bring up are related to the arbitrary detention and the Constitution, because they'll be arbitrarily detained if they can't somehow prove they're not going to offend again. And how would they prove that?

Second of all, they say it offends the proportionality principle in that of course he already has a sentence for each of the three crimes. So the additional detention would be non-proportional to the crimes.

[Stanley Cohen]

Arbitrary detention, of course, is something that will have to shake out in any litigation challenge.

Manifest unconstitutionality is something that basically says it is on its face manifestly unconstitutional.

I would challenge any of the experts you've had before you to suggest that this legislation is manifestly unconstitutional. I would assume that the experts who have been here have testified that in their view, in a properly constructed challenge to the legislation, they are capable of coming up with credible arguments that would convince the court—and I'm sure they can feel certain about this—that the legislation is unconstitutional, or at least that some aspects of the legislation are unconstitutional.

I understand where they're coming from, and I don't think they would be dismissing it off the top of their heads as manifestly unconstitutional.

I'm sorry, I didn't mark down the second part of your—

[Larry Bagnell, Liberal, Yukon, YT]

It was about proportionality.

[Stanley Cohen]

Proportionality is an issue that, of course, comes into the section 1 justification question, the justifiability of the legislation. When looking to whether or not this is a proportional response, the courts will have regard to a number of factors. Certainly they're going to look to the tailoring that goes into the design of the legislation.

You have heard lots of testimony from my colleagues and others about what has gone into the legislation and the safeguards that are built into it. Just to repeat some of them, the person is presumed innocent at trial of the predicate offence; the court can refuse the crown application for an order for an assessment; the assessments are by a neutral party and can provide evidence sufficient in itself to overcome the presumption; there is a prior consent that is necessary from the Attorney General; there is a requirement of notice of the dangerous offender application; the offender is entitled to full disclosure of the crown's case and has full rights of participation, notwithstanding that there's no need to testify; there is a court discretion to refuse indeterminate detention.

And, of course, there is parole review, which was very central to the consideration of Mr. Justice La Forest in the Lyons case. The Lyons case should be revisited.

[The Chair, Conservative, Rick Dykstra]

I'm sorry, Mr. Cohen. We're a bit over time here. I want to allow you the time to get your points in, but Ms. Jennings has a question and Mr. Comartin has, and then we're going to finish up.