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

[The Chair, Conservative, Rick Dykstra]

The love is in the room.

[Some hon. members]

Oh, oh!

[The Chair, Conservative, Rick Dykstra]

I apologize. The chair shouldn't do that, I know.

All those in favour of amendment NDP-9?

(Amendment negatived)

(Clause 41 agreed to on division)

(On clause 42)

We now have Liberal amendment 1.

Mr. Lee.

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

Thank you, Mr. Chairman.

Throughout the hearings we have raised the issue of charter-proofing and the charter acceptability of this, and while I believe there are very serious reservations under the charter in terms of principles of fundamental justice—the right to remain silent and the shifting of the burden here with the presumption—I do accept that the government has viable arguments that they would put forward to uphold the section as compliant with the charter.

However, that is the substantive part. There's a procedural piece here, which I may have identified that causes me concern in this section, and that pertains to what happens when the presumption is used. Up until now, in a dangerous offender hearing, the crown—and protocols have been developed to do this—provides the whole chapter and verse, and there's an assessment that the offender has access to. If we adopt this presumption, what happens if the procedure that's used adapts to the new provision with the presumption so that as the application is made, the crown simply says, “Because of the presumption, you are a dangerous offender because you've been convicted of serious crimes three times”? We therefore are relying on a presumption that you are a dangerous offender without specifying which of the four subclauses, which of the four criteria, that list the threshold of dangerousness apply.

The crown may do it now and the government may say we do that routinely, but we are about to adopt a new provision that allows a presumption, imposes a presumption, without providing that the offender will be clearly provided with the particulars of what aspect of dangerousness would apply to him or her.

My amendment merely adds a provision that says the presumption will apply, and, to use my words, “after the prosecutor has informed the offender in writing of the criteria to be used by the court in making its finding, unless the contrary is proved”, etc., continuing with the wording. So my amendment does not alter what would happen, except that it does explicitly require the prosecutor to particularize, itemize, and inform in writing what component of dangerousness—which of the four, any of the four, or two or three of the four—will apply to the offender so that the offender will have the ability then to rebut the presumption. Don't forget we're dealing with a presumption. They have to be able to rebut, and you can't expect the offender to rebut all four. He or she has to know with precision what in their past conduct has given rise to the allegation of, in this case a presumption, of dangerousness, and I don't think the court will accept that a prosecutor can say, “You've been convicted of one, two, three, four offences. We have a presumption. You're dangerous. You've got to be. You're dangerous because the Criminal Code says you are. Now you have a chance to rebut it.” Where does the offender work from there?

So could I ask for a comment from the department or from the parliamentary secretary?

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin.

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

Before we proceed on this, quite frankly I would be supportive of this, but given your ruling on what's within the scope of this bill, I'd like to know if in fact you have looked at this as to its admissibility in terms of its scope.

It seems to me to be completely contrary to the reverse onus or the presumption that we've built into the legislation. As I see it, all the prosecutor has to do is say, “You've committed one of these three offences that have these penalties; it's up to you now to prove why you shouldn't be a dangerous offender.” This is imposing a duty on the prosecutor that flies in the face of that.

[The Chair, Conservative, Rick Dykstra]

To your point of order, I have in fact reviewed and taken a very close look at this, and it is in order.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I would have liked...

[The Chair, Conservative, Rick Dykstra]

Sorry, Monsieur Ménard, I don't mean to interrupt. Mr. Lee did ask a question to the officials, so I would like to give them an opportunity to respond and then turn the floor over to you.

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

I appreciate the nature of the motion, and I think I understand fully what you're attempting to do.

Again, with something like that, prior to the Department of Justice advocating such an approach, I think we'd want to consult fully with stakeholders who are on the front line of the administration of justice, to ensure that it worked as intended. My concern at first, with the limited time I've had to look at this, would be that, for example, in the substantive body of subsection 753(1), this type of codification of what I believe is already occurring under the common law and requirements under the charter as well might better be placed, if it were required, in the more procedural sections preceding section 753, or, for example, in the AG consent section, which is after section 753.

But overall, I would suggest that in fact there are current requirements on the crown, required in common law and by charter jurisprudence, for full disclosure prior to the hearing actually occurring. Typically, this occurs with the seven-day notice and AG consent being filed with the court. Again, typically we're confident that if that didn't occur, defence would have a strong case to force the crown to disclose prior to any argument on section 753 merit.

So, again, I do appreciate the intent here, but I would suggest, number one, that before being confident that this worked as intended, we would have to fully consult, and number two, it's most likely that this is already required, for the most part, by common and charter law.

[The Chair, Conservative, Rick Dykstra]

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

First of all, Mr. Chairman, I take it the government will not be supporting our colleague's amendment. Secondly, I thought this amendment was sanctioning a practice that had become accepted through use. I can't imagine that once the psychiatric report is available and the time comes to declare someone a dangerous offender, no written notice will be given. I don't quite understand. In my opinion, this amendment is formally acknowledging a common practice. Am I wrong to say that? Am I wrong to think the government has no intention of supporting this amendment?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, the government is not going to be supporting amendment LIB-1 for some of the reasons that have already been laid out, including the fact that if it were to be included, it would be certainly in a different part of the bill. It's in the substantive section. There are already constitutional requirements on disclosure. This is happening in practice. So the government will not be supporting Mr. Lee's amendment.

[The Chair, Conservative, Rick Dykstra]

Madam Jennings.

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

I'm cognizant of the information Mr. Hoover has just given us. While he appreciates what Mr. Lee is attempting to do, and notwithstanding the lack of consultations with the stakeholders, the most effective way to achieve what Mr. Lee is attempting to do would be under subsection 754(1), the hearing of the application.

It states that:

Where an application under this Part has been made, the court shall hear and determine the application except that no such application shall be heard unless

(a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application;

(b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application

My question is this. To achieve what Mr. Lee is attempting to achieve, if I follow you correctly, Mr. Hoover, the line that says “outlining the basis” would be amended to say something to the effect of “outlining the basis on which it is intended to found the application, including the criteria to be used by the court in making its finding”, or making a reference back to subsection 753(1), where it lists the pattern of repetitive behaviour, the pattern of persistent aggressive behaviour, behaviour of such a brutal nature, etc. That's where one would do it.

[Douglas Hoover]

I suppose that's the most logical spot, if you were going to pursue that type of amendment. But I would reiterate that there has been no analysis done by the department and there has been no consultation. I think it would be premature to provide departmental support or an opinion on that one because it's not available.

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

I'm not asking for departmental support. I'm just asking whether, if any member wished to go forward with the objective of Mr. Lee's amendment, the most appropriate section wherein that objective would be met would be an amended subsection 754(1) of the Criminal Code. If I'm not mistaken, it is already being amended by clause 48 of Bill C-2, and therefore a proposed amendment to section 48 would be in order.

I'm not asking for a ruling; I'm just making a statement, so the chair is saved by that.

My other question is whether, should an attempt be made for a friendly amendment from the floor—which the rules of this legislative committee permit—to section 48 in order to ensure that the criteria found under subsection 753(1) would be provided as part of outlining the basis, etc., it would not impede or diminish in any way the amendments the government is bringing to the Criminal Code that create the reverse presumption. This is the case where, once there has been a third conviction for a serious personal injury offence that is also a designated offence and for which the offender received a minimum of two years on each of the prior convictions, should the prosecutor in his or her wisdom decide to use discretionary authority and actually file an application, the reverse presumption that the offender is indeed a dangerous offender would obtain, unless the offender can rebut it through balance of probability. My question is whether this doesn't diminish and doesn't in any way attack the government's desire to create the reverse presumption that an offender is indeed a dangerous offender, which is rebuttable.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, Ms. Jennings is asking—

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

I asked my question of Mr. Hoover.

[Rob Moore, Conservative, Fundy Royal, NB]

Actually, you're asking about the government's position.

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

No, I'm not. I'm asking—

[Rob Moore, Conservative, Fundy Royal, NB]

You're asking about some hypothetical--

[The Chair, Conservative, Rick Dykstra]

Mr. Moore has the floor.

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

No, I have the floor.

[The Chair, Conservative, Rick Dykstra]

Madam Jennings, you've asked a question. I will allow Mr. Moore to respond. You can certainly have a follow-up to Mr. Hoover as well. You asked the question to the group. It isn't specific to one person.