Bill C-2 (39th Parliament, 2nd Session) Committee on Nov. 20th, 2007

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I just want to make sure I am clearly understanding you. Clause 41 of C-2, as it now stands, replaces section 752.1 of the Criminal Code by a new section, which is section 752.01. That new provision is the provision that will now make it mandatory for the crown, upon a third conviction of a serious personal injury offence that is also a designated offence—a third conviction with at least two years' imprisonment—for the prosecutor, to advise the court as to whether or not he or she, on behalf of the crown, will be seeking an application for remand and assessment. It has absolutely nothing to do with the section of C-2 that creates the reverse presumption once that application is made.

[Catherine Kane]

That's correct.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell, do you have a question, or are we moving to the vote?

[Larry Bagnell, Liberal, Yukon, YT]

No, I have a question.

Mr. Comartin, are you understanding that's just taking away the declaration of the fact that they have to declare whether or not it's going to be a dangerous offender?

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin.

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

I was going to ask to summarize this because I did miss part of the point I wanted to make on this section.

I don't agree entirely. Clearly, what triggers what requires the explanation from the prosecutor is whether they fit into the category of a designated offence. The other part of this that's offensive, Mr. Chair—and I haven't made this point yet—is the constitutional balance of power between the provinces and the federal government and who has authority to do what. The prosecutor is under the administration of justice. That clearly is a provincial responsibility. We're imposing federal jurisdiction in the provincial area. There's going to be a double challenge on this. There's going to be a challenge based on the powers in the Constitution between the provinces and the federal government, and there's going to be a challenge, I believe, on the charter as well.

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell, one more time, and then Madam Jennings.

[Larry Bagnell, Liberal, Yukon, YT]

I think this is one of the good things about the bill, so it doesn't fall between the cracks, so the prosecutor either says he's going to proceed or he's not, which makes sense to me, so I'll oppose the amendment.

[The Chair, Conservative, Rick Dykstra]

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I have to disagree with my esteemed colleague, Mr. Comartin, that by virtue of requiring the prosecutor to advise the court whether he or she intends to make an application for a remand and assessment, somehow this will, one, lead to a court challenge by the provinces, and two, such a court challenge would be successful.

In fact, it does not at all go to the actual meat of the issue, which is whether or not an application should be made. That remains in the confines of the provincial jurisdiction. This in no way impedes the authority of the provincial attorney general to make the determination that, yes, an application should go forward or, no, an application should not go forward for whatever reason. All it does is require that the decision be made known to the court. That's all.

Right now, under the current system, there is no obligation for the prosecution to advise the court that it will be seeking such an application. Many experts who deal with the dangerous offender system, including defence attorneys, have pointed to the fact that it is a weakness of the system. I have had the opportunity to discuss this with not all the provincial attorneys general but several of some of the most populous provinces, and they had no issue with the requirement to advise the court of the intention to seek or not to seek an application.

Therefore, I will not be supporting the amendment NDP-8.

(Amendment negatived)

[The Chair, Conservative, Rick Dykstra]

On amendment NDP-9.

Mr. Comartin.

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

Thank you, Mr. Chair.

I won't go into this in great detail. You've heard my arguments with regard to the lesser offences that have been included in the primary list. What I'm attempting to do here is to say that if we're going to leave those offences in, which has now been decided by the committee, then what we should do is make it very clear that it has to be a serious offence and so increase the number of years. So it has to be one of these listed designated offences, and they have to have received a sentence of five years rather than two years. That would move us away from the petty repeat criminal to one who, if you're getting five years almost certainly, Mr. Chair, you in fact have moved yourself into the dangerous offender category, especially if it's the third offence.

[The Chair, Conservative, Rick Dykstra]

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'd like to hear from the parliamentary secretary on NDP amendment 9.

[Rob Moore, Conservative, Fundy Royal, NB]

The government is not going to be supporting the amendment for a number of the reasons I expressed earlier. We feel that when you look at both the triggers to these provisions and the fact that for what Ms. Jennings had earlier characterized as a non-serious happening...a person wouldn't receive at least two years for something that was non-serious. We have to look at both the primary designated offences and then, finally, that it is definitely a serious offence that triggers the crown declaration. I think when we look at those offences that are set out, no one would argue that they are not serious.

In fact, someone has to have been arrested, tried, convicted, and sentenced to two years or more, once, then again, and then convicted of a very serious offence the third time convicted before these provisions are triggered.

I should add that I'm told that in 95% of the instances involving some of those offences to which Mr. Comartin has made mention, in 95% of those cases, a sentence of less than two years would be rendered. We're talking already about someone who has committed on the more serious scale of those offences.

We feel what's included is the appropriate threshold. If we're going to go with five years, are we really protecting the public if we're going to limit it that greatly to someone who's committed offences where they've already been convicted twice and sentenced to five years? The two-year provision does not capture, in my opinion, what Mr. Comartin has termed petty criminals. This is definitely geared towards more serious cases.

[The Chair, Conservative, Rick Dykstra]

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I just want to make sure, in my own mind, how this will operate.

Given that we have just defeated the NDP-8 amendment, then should clause 41 be adopted without amendment, in a case where an offender who is convicted a third time of a serious personal offence that is also a designated offence, and for which the sentence for the two previous convictions were a minimum of two years, the crown would have the discretion to look at the actual case and determine that, for instance, this is a petty criminal.

Yes, they were convicted, for instance, for assault, and possibly assault of a police officer, and received two years on the first conviction. But the actual assault was a barroom brawl and the bodily harm was, let's say, a broken nose. In the assault on the police officer, let's say someone standing on the corner hailing a cab, actually in the street, got stopped by a police officer. The police officer wanted to identify them to issue a ticket, because according to municipal regulations, one is not allowed to be in the street, as one is interfering with circulation, even if it's two o'clock in the morning and there's not a car on the road. The individual began arguing with the police officer and the argument escalated. The police officer decided to put that individual under arrest, the individual was not complying and was moving around, and in that moving around possibly hit the police officer. That's assault. But because they had previous convictions of a variety of sorts, including one that was two years, or got, again, a two-year or a 30-month sentence, and now, sometime later, they are convicted a third time of a serious personal injury offence that is also a designated offence, the prosecution will still have the opportunity to look at the facts of the previous conviction and say, okay, I have the power to make an application to advise the court that I will indeed be seeking an application for remand and assessment. But the actual facts of this case do not show that this particular offender, notwithstanding the fact that he—and I'll say it's a male—has been convicted three times now of serious personal injury that is also a designated offence and has received a minimum of two years on each of those convictions.... In fact, most reasonable Canadians, good heads of family, would look at that and say this is not a dangerous offender. This may be a habitual offender, but this is not someone who represents a high risk of dangerousness to the public health and safety of the community.

So by virtue of the fact that the government, in all its wisdom, has left the discretion to the crown, the prosecutor, to seek that application or not, the NDP-9 amendment is not required.

[Rob Moore, Conservative, Fundy Royal, NB]

Your last sentence was what I was going to say.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So you agree with me.

[Rob Moore, Conservative, Fundy Royal, NB]

I agree that there is—

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Oh, my God!

[Rob Moore, Conservative, Fundy Royal, NB]

I don't agree with everything you've said all day, but I do agree on the point that there is the discretion. As a matter of fact, that discretion is required under section 9 of the charter, as per the Lyons case. So it's required that prosecutors have that discretion, and I think your fears should be addressed by that fact.

So there is discretion in place there. We can all contemplate, as Ms. Jennings just did, those types of scenarios, but the fact remains that the prosecutor would still have that discretion.

I think that addresses your comments.

[The Chair, Conservative, Rick Dykstra]

Mr. Keddy.

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Thank you, Mr. Chair.

Mr. Chair, I wasn't sure where Ms. Jennings was headed with her intervention. I was listening carefully to her intervention, and when she finally did get to the end, I was there with her. So now that I know where she's headed with that....