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

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

Thank you, Chair.

I think the simplest explanation that I can try to reason with here is a statement made by Mr. Hoover in that full disclosure by the crown is mandated by both charter and common law. To not have full disclosure would be detrimental to the crown's case and would obviously give grounds for appeal. So absolutely it would be against the crown's purpose not to have disclosure. In other words, it would have to be an obvious attempt to subvert the course of justice in order to validate Mr. Lee's point. I just don't understand. That does not seem to me to be the manner that justice is carried out in Canada. Our legal people follow the rules of law. Our crowns follow the rules of law.

I understand Mr. Lee's point of view, but to me it's almost overkill in that it is not necessary when it's already mandated through full disclosure by crown through the charter and through common law.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Kramp.

(Amendment negatived)

[The Chair, Conservative, Rick Dykstra]

On the same clause 42, NDP amendment 10, Mr. Comartin.

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

Thank you, Mr. Chair.

The amendment's purpose is to deal with the factual type of situation we had in the Callow case this summer.

What I'm doing here with this amendment is combining the existing (a) and (b) in that section. I'm not taking away from that at all. We're just combining it into one subsection and then introducing a new paragraph in the form of the (b) that's in NDP-10.

Mr. Chair, what these sections deal with is when the prosecutor can bring an application for a dangerous offender designation. Basically, the first paragraph in my amendment would provide for two opportunities. The first is within six months of the conviction on the most recent offence that's triggering the application, or at a later period, if new evidence that was not available to the crown comes forward. That's the (a) part and that's already in the legislation. They're in the Criminal Code.

The second part would introduce the authority, the mandate, to the prosecutor to be able to bring an application at any time after the individual was in custody, having been sentenced, and in federal prison, if two criteria are met. The first is that the individual had shown that he—and I'm going to say “he” because it's almost always a “he”—has refused and continues to refuse treatment that is available. The second criteria would be that the offender continues to constitute a threat to society.

In the Callow type of situation, this would have allowed the prosecutor to have moved to bring that designation when it became obvious that Mr. Callow was not responding to any attempts at rehabilitation that were being provided to him by the correction officials.

That factual situation has occurred more than once, although the Callow case is the most recent and I think probably the most high profile one.

Those are my comments, Mr. Chair. Thank you.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Comartin.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I would like to know if the government supports this amendment?

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks for the question.

No, the government is not going to be supporting Mr. Comartin's amendment. I've seen what Mr. Comartin is proposing, and it goes in a direction that our bill is not going in. It would require, again, significantly more analysis before the government could support it. If I understand what Mr. Comartin is proposing, it would permit the DO application to be made later than six months or even after a previous one has failed, on the basis that the offender has refused treatment.

This bill does some major things, even with regard to long-term offenders who breach their conditions. But the specific provisions Mr. Comartin has put forward would require much further analysis because they're offering some new triggers that do not currently exist in the bill, and for that reason we're not going to be supporting it.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I would like to ask Mr. Comartin if, after the six-month period, he would like a court, or the crown, to be able to bring an application and to initiate the process? Why has he tabled this amendment? What inspired him to do so?

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

Clearly it was inspired by the Callow case, although that's not the only time this has occurred. We've heard from a number of witnesses--Mr. Hoover in particular--about the difficulty that crowns have in bringing these applications at the time of conviction, whether it be the third one under this legislation or because of concerns that this person is not rehabilitative. We have missed a number of opportunities. The Callow case is a classic case of bringing the application within the six-month time period and then not being able to do so after that. It may be a failure of the system because of the costs involved or a misapprehension of the facts by the prosecutor. Perhaps the application was brought and denied because of a judicial assessment of the facts. But we are left with the situation where we do not have the ability.

If you paid close attention to Mr. Hoover when he was testifying, he said the Corrections Services people have the greatest opportunity to make the assessment as to whether the offender is no longer a threat to society and is receiving treatment that's beneficial. Often the best evidence in support of a dangerous offender comes after the person has been incarcerated, because the experts and the officials who are treating him are the best ones to make that assessment in that period of time. It's a flaw in the legislation right now that we cannot do that. If you don't meet that six-month requirement--and it's very hard to get around that by arguing new evidence--you're stuck.

Although it's somewhat addressed in the recognizance section of this bill, it also allows us a greater opportunity to deal with individuals over a much longer period of time.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Comartin and Monsieur Ménard.

Madam Jennings.

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

I have a difficulty with Mr. Comartin's amendment NDP-10, new proposed paragraph 753(2)(b). Mr. Comartin's explanation and the case he uses confuse me. It states in the last six lines:

and it can be shown that the offender has refused and continues to refuse any treatment available to the offender while in custody and that the offender continues to constitute a threat to society.

But Mr. Comartin uses the example of Mr. Callow. Had he consulted the documents, an independent analysis that was done of the Callow case clearly demonstrated that Mr. Callow did not refuse treatment through his years of incarceration. He went through numerous treatment programs. Initially the assessments following the completion of the treatment programs showed they did not have much of an impact on the level of danger he represented, but in further years they showed that his level of risk diminished.

There was a great deal of media coverage when Mr. Callow was released. Incorrect information was given out by Corrections Canada, which then corrected it. Corrections Canada initially mistakenly said that Mr. Callow had consistently refused to accept any treatment available to him in close to 20 years of incarceration. Corrections Canada then had to correct that because it was not factual. I want to put that on the record.

I'm not sure if Mr. Comartin's amendment would do what it's seeking to do; therefore I would like to hear from the officials on this amendment.

[Catherine Kane]

I'll just say a few words, and then my colleague Mr. Hoover may want to elaborate.

It's always difficult for us, as officials, because we don't get the motions very far in advance, and I realize that. So we don't have an opportunity to fully explore them, but on our first reading of this, it did seem that this would extend the period indefinitely for which an application could be brought, and it would subject a person who was otherwise receiving a determinate sentence in a penitentiary to have this—that a dangerous offender application could be brought—hanging over their head, so to speak, for the duration of their sentence. If there were further consideration of this in the future, we would need to do a very careful charter analysis of this provision, because this could be putting us in the sphere of that which is unconstitutional and not justifiable. It would have to be looked at in the whole context of the rights available to an offender who is incarcerated.

The sentence is the sentence. This would be something else that could occur later. There is no obligation on a person to undergo treatment. We know that is a concern for a variety of reasons, but there is no way to compel them to undergo treatment while they are in an institution. At least, that is our understanding. The threat of a dangerous offender application if they refused would appear to compel them to take treatment. Officials from Correctional Service of Canada would definitely be better placed to advise on the programs currently in penitentiaries and the types of treatment that are available, because some people apparently are not suitable for treatment in any event.

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

I have a question for clarification.

Under our criminal justice system we have a system of probation that is available to the sentencing judge when the offender is sentenced to a maximum of two years less a day, but there is no such authority available, if I'm correct. All I want to know is yes or no. Am I correct in believing that there is no system of probation that exists for sentences that are two years and more?

[Catherine Kane]

That's correct. There is, obviously, parole.

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

Thank you.

Yes, but there's also parole under two years less a day. Under two years less a day, under what we call provincial sentences, meaning that they are less than two years, the judge has at his or her disposal a sentence of incarceration, for instance, plus a sentence of probation, which is added on once the sentence is served out. Parole is the Correctional Service of Canada's or the parole boards'—provincial or federal—measure that can allow for release while someone is serving out a sentence. There is no such system of probation available to a judge at the sentencing if the judge imposes a sentence that is two years or more.

[Catherine Kane]

That is my understanding.

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

Thank you.

[The Chair, Conservative, Rick Dykstra]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I'd just like to ask the officials whether the fact that this hearing could be brought at any time offends the principle of requiring that a person be charged within a reasonable time and not hanging over their head constantly.

[Catherine Kane]

This provision, as we read it, is related to a dangerous offender application, which could be brought while they are serving their sentence, so it would necessarily be a new charge. It's not characterized as a new charge or failure to comply with the treatment. It's extending the length of time that the dangerous offender application could be brought. Similar concerns are raised about a person not knowing what they face.

[The Chair, Conservative, Rick Dykstra]

Mr. Comartin has requested a recorded vote, so I call the question on amendment number NDP-10 on clause 42.

(Amendment negatived: nays 11; yeas 1)

(Clause 42 agreed to on division)

(On clause 43)

[The Chair, Conservative, Rick Dykstra]

NDP amendment number 11.

Mr. Comartin.

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

Mr. Chair, NDP-11, 12, 13, and 14 are all amendments that were recommended by Mr. Cooper. He is the crown attorney who is responsible for the dangerous offender applications for the Ottawa region.

I had a discussion with Mr. Moore at the end of last week indicating that I was bringing these motions in response to the request from Mr. Cooper. I recognize that with the exception of NDP-11, the other three would be inadmissible, unless there was unanimous support that they be allowed. The last three address sections that are not part of C-2. NDP-11 does deal with proposed section 753.02, which is part of C-2.

I suggested to Mr. Moore that if we couldn't get unanimous consent, I would not proceed. I do not have that unanimous consent from the government, so subject to the consent of the committee I will be withdrawing, NDP-12, 13, and 14. I would like to proceed with NDP-11, though.

[The Chair, Conservative, Rick Dykstra]

Is there unanimous consent?

[Some hon. members]

Agreed.