Bill C-27 (39th Parliament, 1st Session) Committee on June 5th, 2007

[The Chair, Liberal, Bernard Patry]

Good morning. This is our second meeting.

This is the Legislative Committee on Bill C-27. Pursuant to the order of reference of Thursday, April 5, 2007, we are studying Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

Appearing in front of us now we have the pleasure of having Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada; and from the Department of Justice, Mr. Doug Hoover, senior official. Welcome to both of you.

Mr. Nicholson, please give your introductory remarks.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much, Mr. Chairman.

I'm pleased to be here with Mr. Doug Hoover from Justice Canada. He has been looking at this piece of legislation and this particular area of law for quite some time. He is an expert in the area and I'm pleased to have him join me today.

I'm pleased to have the opportunity to come before this legislative committee to talk about some of the significant reforms to the Criminal Code, in particular to section 810.1 and section 810.2, the peace bonds; and to part XXIV of the Criminal Code dealing with dangerous offender provisions.

This bill was tabled last October as a response to the concerns of Canadians and all provincial and territorial governments that the existing provisions of the Criminal Code that target the most dangerous and high-risk offenders in the country required some changes to respond to the emerging issues in the courts. The government indicated previously that it was committed to reforms in this specific area, as we believe that repeat predators sometimes escape dangerous offender designations and are then released into the community without adequate supervision and management.

This bill tackles the problem by giving prosecutors the tools they need to achieve dangerous offender designations against offenders who clearly present the threat of serious injury to the general public. It also toughens the peace bond provisions in the Criminal Code that allow attorneys general to place strict conditions on individuals released into the community, often after serving their full sentences, even though there is clearly a high risk of their reoffending violently or sexually.

I wish to emphasize that these reforms were in large part based on ongoing consultations with our criminal justice partners in the provinces and territories. Most of these measures were the subject of extensive review and recommendation by senior justice officials from every jurisdiction in Canada. At the same time, we have taken every step to ensure that the constitutional rights of individuals are protected. In my view, this bill achieves a proper balance between the rights of Canadians to be safe from violent and sexual offenders, and the fundamental rights of an accused facing a lengthy prison term.

As I indicated, Bill C-27 focuses on reforms in two areas of the Criminal Code, which I would like to explain in greater detail.

First, this bill introduces a number of important amendments to section 810.1 and section 810.2, peace bond provisions that impose conditions on high-risk sexual and violent predators released into the community. The maximum duration of these conditions will be doubled from 12 months to 24 months. This reform will allow police to avoid having to return to the courts to renew peace bonds in the appropriate circumstances. This will give police and justice workers a much greater degree of flexibility in the long-term ability to monitor and supervise these individuals.

The bill further enhances society's ability to control these individuals under peace bonds by making it clear that a court has the ability to consider and impose any reasonable conditions necessary in the circumstances to ensure the safety of the general public from future harm. The bill also stipulates that a number of specific types of conditions are available that many courts in the past have refused to consider. These include electronic monitoring, medical or psychiatric treatment, residency conditions, and drug or alcohol prohibitions. These new provisions respond to a number of recent court cases that had the effect of limiting the range of conditions under the current wording of section 810.1 and section 810.2. Bill C-27 will therefore improve the way we manage the risk to the general public posed by individuals in the community.

The second major area of reform that Bill C-27 targets is individuals who are at the highest risk of offending sexually or violently, to ensure that they are not released into the community unless and until they can demonstrate that they no longer pose a threat to public safety. The bill accomplishes this by giving crown prosecutors the tools they need to secure dangerous offender designations against these individuals, which result in an indeterminate sentence of imprisonment with no opportunity for parole for seven years.

The reforms also encourage crown prosecutors to be more vigilant in using the dangerous offender sentencing option.

Bill C-27 accomplishes these objectives through four significant amendments to the dangerous offender provisions in part XXIV of the Criminal Code.

First, crown prosecutors will be required to consider and declare in open court whether they intend to bring a dangerous offender designation whenever an individual has been convicted of a third prerequisite violent or sexual offence. This amendment ensures that the dangerous offender provisions will be used more consistently in all jurisdictions.

I note that since the bill was tabled, some provinces have expressed concern that this amendment would fetter prosecutorial discretion in sentencing decisions. Therefore I wish to emphasize that this amendment does not force a provincial prosecutor to make the actual dangerous offender application. It requires only that the Crown consider and indicate to the court whether they have considered the dangerous offender option.

If the reform went so far as to make the hearing automatic, in such cases the provinces would have a very strong case that the bill intrudes on their traditional and important discretion to seek appropriate sentences.

Secondly, section 753 is amended so that any offender convicted for a third time of a short list of serious violent or sexual offences will be presumed to fully meet the dangerous offender criteria. The onus will then shift to the offender to rebut that presumption. This change will make it easier for crown prosecutors to obtain dangerous offender designations in the very worst cases of violent and sexual misconduct. I believe this provision will withstand any constitutional change, as the presumption does not go to the issue of presumed innocence, given that this offender has already been found guilty.

While the Canadian Charter of Rights and Freedoms protection regarding the right to be presumed innocent is a basic right entrenched in paragraph 11(d), it does not extend to the offender once found guilty. This view is consistent with the Supreme Court of Canada decision in Regina v. Lyons, where the court held that the right for a trial by jury does not extend to a dangerous offender hearing as, again, the individual subject to the dangerous offender application has already been found guilty.

Thirdly, section 753 is amended to codify the need for the sentencing judge in every dangerous offender hearing to consider whether or not there is a lesser sentence available that can adequately protect the public. This amendment is required to properly respond to the landmark constitutional decision of the Supreme Court of Canada in the case of Regina v. Johnson.

As it currently stands, there are varying interpretations of that decision being applied in different jurisdictions, resulting in confusion and uncertainty and what amounts to a handicap against crown attorneys in some provinces in dangerous offender hearings. This amendment will ensure that prosecutors in all jurisdictions are not necessarily handicapped due to varying interpretations of the principles in Regina v. Johnson. Consistent with that decision, this amendment will stipulate that when the requirement to consider whether a lesser sentence can protect the public is applied, the burden is in fact not on either the Crown or the offender.

Finally, the bill introduces two amendments to section 752.1 to provide procedural relief regarding the filing of part XXIV psychiatric assessments. These amendments are intended to respond to specific concerns that forensic psychiatric resources in many jurisdictions are often stretched thin by the requirements of dangerous offender hearings. By extending the time periods for the filing of the mandatory psychiatric assessment under section 752.1, crowns will be better able to meet the prosecutorial requirements of a dangerous offender application.

Before I conclude, Mr. Chairman, I would like to address concerns that have arisen recently in regard to this bill.

I'm aware that a number of jurisdictions have requested an amendment to allow for a dangerous offender rehearing when an individual who has been found to meet the dangerous offender criteria, but who was sentenced as a long-term offender, breaches a condition of the supervision order. I would note that on this issue my officials are currently engaged in consultations with senior officials from all provinces and territories to identify a viable and constitutional methodology that can be supported by all attorneys general across Canada.

So while I'm supportive of that process, I am aware that there are a number of concerns that must be considered, not the least of which are some serious constitutional issues, such as the potential paragraph 11(h) charter challenges, regarding the right not to be punished twice for the same offence. Having said that, it is imperative that we continue to move forward with Bill C-27 while we continue to develop options to address the new and emerging views of the provinces and territories.

In closing, I wish to thank honourable members for allowing me the opportunity to come before you today. I would be pleased to respond to any questions you may have, as time permits.

[The Chair, Liberal, Bernard Patry]

Thank you very much, sir.

Now, we'll start with Q and A. It's going to be a seven-minute round.

We'll start with Mrs. Jennings, please.

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

Thank you, Mr. Chairman.

Thank you, Minister, for your presentation.

We Liberals have a few concerns about the reverse onus clause in Bill C-27. At present, the burden of proof usually rests with the Crown when a hearing is conducted further to an application to declare a person a dangerous offender. Further to your bill, the burden of proof will now rest with the offender who has been convicted of a minimum of three offences.

Firstly, has this provision been put to the proportionality test set out in section 1 of the Charter?

Secondly, if the bill is eventually adopted and passed into law and down the road, someone challenges the reverse onus clause, if the court were to find the challenge well founded, would this put all, or part, of the dangerous offender regime at risk?

Thirdly, why does the violation of a long-term supervision order not automatically result in a hearing to declare the offender a dangerous offender? The fact of the matter is that many offenders have already been declared dangerous offenders at a hearing on the basis of prima facie evidence presented by the Crown. However, because of jurisprudence, the judge is required to assess whether the risk and threat that this offender represents can be controlled in the community by means of supervision orders.

Can you explain to me why that is? The Liberals are very tempted to bring in an amendment which would ensure that violating such an order would allow the Crown to request a hearing to declare the offender a dangerous offender.

[The Chair, Liberal, Bernard Patry]

Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Chairman.

Thank you, Madam Jennings.

Of course we look very carefully at the constitutionality of all the provisions of Bill C-27. As I indicated in my opening remarks with respect to the change of presumption, it's very narrow in the sense that it's only at that third conviction. It's after the individual has already been found guilty. As I indicated to you, the indication we have from the Supreme Court of Canada is that, among other charter protections, the presumption of innocence is not offended at the sentencing stage. I'm confident, having looked at this, that changing the onus as to who has to prove what at the dangerous offenders application is drawn narrowly enough from a narrow group of offences that it would withstand that scrutiny.

You indicated that if there was a problem with that with other sections in the dangerous offenders...it seems to me this is a refinement of that. Again, we not only had a look at that in terms of its constitutionality, but we codified the provisions and the remarks and directions of the Supreme Court of Canada in the R. v. Johnson case, so I'm prepared to believe, in terms of the advice I have received, that this will withstand a constitutional challenge.

You referred as well in your comments to why we don't bring an amendment with respect to those out on long-term offender designation who have breached the terms of their release. I guess I fairly briefly indicated to you that there may be some constitutional issues. Of course that's very important any time there are constitutional issues, but in addition to that, this is the subject of a number of discussions between the federal Department of Justice and our provincial counterparts. While I'm very sympathetic to making sure individuals who don't live up to their court-ordered sanctions are meted out with the proper response, I would ask you, rather than going ahead with an amendment at this time, to withhold that. Let's get this part of it through and we'll continue to follow up in the other area.

[The Chair, Liberal, Bernard Patry]

Ms. Jennings.

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

On the breach of a long-term offender supervision order, I've had discussions with crown prosecutors and attorneys general, and I know a letter has been sent to the chair of this committee indicating that the Ontario Attorney General and the Saskatchewan Attorney General...and apparently there are other provincial attorneys general coming on board in favour of the Liberal proposal that a breach of a long-term offender supervision order be included in the offences that may trigger a dangerous offender hearing.

In fact, you would probably be in the best position to tell this committee how many long-term offenders were designated long-term offenders as a result of a dangerous offender hearing.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We do have that information. We have information on a number of those. But on the first part of that, Madam Jennings, one of the provinces you included, the Province of Saskatchewan, actually wants the discussions between the federal, provincial, and territorial justice departments to conclude. So I would ask you to wait until that is concluded. I believe that's what most of them want at this particular time.

Again, you're aware of this government's justice legislation. We're very sympathetic to strengthening and clarifying the provisions of the Criminal Code, so I would suggest to you that you hold that for another day and let's get this bill passed, because this, I'm sure, will be very welcomed.

Could you shed some light on that?

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

On the specific issue of long-term offenders who meet the dangerous offender criteria, it's really not possible to give a definitive number, because you'd have to actually look at the reasons for the actual designation.

Certainly I've taken a hard look at all the cases that have come down post-Johnson. Sometimes a judge is quite explicit. He will say, I've considered and I find you meet the dangerous offender criteria, but you don't meet the Johnson test; therefore, you can be managed successfully and you are an LTO. Other times the judges aren't very specific as to their rationale, so it's difficult to place a really strong number.

I can suggest that when we look at a number of the decisions post-Johnson, there have been about 40 appeal cases brought by designated dangerous offenders on the strength of a Johnson-type argument. About half of those have resulted in an order for a rehearing or a lesser sentence. That tells us again that a significant number are out there. It's a tell-tale sign, I think, that a significant number of long-term offenders are in fact meeting the dangerous offender criteria, but in terms of specific numbers, we have not done a study to analyze all the judgments, and I don't know that such a study would give you an empirically valid number.

It's difficult to really respond to that.

[The Chair, Liberal, Bernard Patry]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Good day, Minister. Good day to all of you as well.

As you know, we have worked closely with you in the past. In fact, as a minister, you have been rather blessed. However, where this bill is concerned, I hope that you are not counting in any way on our cooperation. In my opinion, you have exceeded the boundaries of what is considered reasonable. As much as I think your bill on camcorders and film is praiseworthy, I find this particular bill goes too far.

As it is currently worded, this bill would make it possible to declare someone a dangerous offender after a first serious offence.Your bill is a combination of arbitrary provisions and preconceived ideas and from a legal standpoint, it is ill-conceived.

I have two questions for you. What problem are you trying to address? What is wrong with the dangerous offender regime? That is what we are discussing. We do not quite understand why you are bound and determined to go with this list of 12 offences, when other equally serious offences, notably child pornography, impaired driving causing death and robbery, are not on the list.

So then, can you tell me what problem we are trying to address, as lawmakers, what is wrong with the current dangerous offender regime and why you came up with this list of 12 offences? Please try and keep your answer short, because I have two other questions that I would like to ask you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. I hope I continue to be blessed by the gods in your turn, Mr. Ménard.

You asked about the rationale particularly. There are a number of provisions. One is with respect to peace bonds. We've had basically universal agreement that moving it from 12 to 24 months actually would be of some assistance in terms of dealing with some of those individuals.

In addition, we are trying to address the Supreme Court of Canada decision in the Regina v. Johnson decision. We've had actually a decline in the number of successful applications. In some cases, even attempts to designate an individual as a dangerous offender added some uncertainty to the process, and there has been uneven interpretation across the country, so we are trying to standardize that.

In addition, you asked what the rationale would be between some of these offences and the study by Mr. Hoover and others. These were the ones most often the subject of those dangerous offender applications. Yes, we are zeroing in on the ones who have been found to be dangerous offenders, and part of what we are trying to do is to make sure that through inadvertence or oversight we are not missing the opportunity to have someone.... So that's why we asked the Crown to direct attention to this.

[Réal Ménard, Bloc, Hochelaga, QC]

Designating someone a dangerous offender is, hopefully, an effective, practical measure provided for in the Criminal Code. According to the figures supplied to us by the Library of Parliament staff, approximately 334 criminals have already been so designated and between 24 and 30 new names are added to the list every year.

Can you explain to us why it is a problem for you to make the existing provisions effective? Would it not be better to focus our efforts on making them effective? If you were to table a bill to improve the operation of the dangerous offender regime, I would be very surprised if it did not receive the backing of my party. However, the fact that the three strikes you're out rule applies here is highly questionable. Why model our justice system after the American one? Please tell is in clear terms what is wrong with the current regime.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Monsieur Ménard, I actually don't agree with your characterization that this is similar to--I think you indicated--American law, whereby you get three convictions and you're automatically given a particular sentence. This is very much unlike that. All we are saying is that when that third offence has been committed, the presumption shifts to the individual to show why he or she should not be a designated offender. That presumption can be met, and ultimately it's at the discretion of the judge as to whether there is that designation or a lesser one. So to that extent, it makes it very, very different, in my opinion.

[Réal Ménard, Bloc, Hochelaga, QC]

Tell us specifically what is wrong with the regime and the problems that you are facing.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Why are we doing this?

Monsieur Ménard, it's our job to clarify the law and to make sure that this particular proceeding is actually considered. That's why we have the crown attorney indicate to the court whether he or she will consider it, and then it seems to me only reasonable at that time that the presumption go to that individual. These are long, very difficult, expensive cases. They use up a great deal of resources. And in terms of the outcome—

[Réal Ménard, Bloc, Hochelaga, QC]

So then, you have a problem with the Crown prosecutors. Again, I ask you: what isn't working with the existing regime? Perhaps it needs to be modified, but what is the problem exactly? Are prosecutors not invoking the regime's provisions? Is it a question of evidence? Is the regime too complex?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Hoover, did you want to make a comment?

[Douglas Hoover]

On a procedural issue, especially post-Johnson, we heard a number of crowns in our consultations suggest that a new strategy used by defence counsel in dangerous offender proceedings was beginning to manifest itself. Specifically, if the offender chose not to participate actively in the psychiatric assessment, because the burden of proof is beyond a reasonable doubt for the criteria portion of the hearing, it became exceedingly difficult to prove based on the offender's actual condition today. What they would have to do is resort to more forensic-type analysis of his past record, especially if the offender was, either by desire or incapability, unable to participate actively in the prior studies as well. It was actually in some cases perhaps close to impossible to achieve the objective of being beyond reasonable doubt.

So the presumption will definitely help. It will draw out the offender in that situation. They will have to come forward and make their case. They will not be able to go mute. They will not be able to stop participating. And certainly again because of the narrowness of scope of the offences, this is carefully tailored to target those offenders who clearly on the surface, on the face of the facts, would fit ab initio that definition of a dangerous offender.

[The Chair, Liberal, Bernard Patry]

Thank you.

Mr. Comartin.

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

Thank you, Mr. Chairman.

Thank you, Mr. Minister and Mr. Hoover, for being here.

To some degree, I want to follow up on Mr. Ménard's question as to why we're using the reverse onus in these circumstances. I guess I'm looking for some numbers.

Mr. Minister, this is information I got from your department regarding how many are being designated at this point. From the time we started using the dangerous offender designation, there's been a total of 384 designations. That's going all the way back to 1978. In fact, the number of those being designated on an annual basis is increasing now. In the early years it was only eight, and now it's running at about 17 to 18 a year.

I don't know if this is available, but my question is—again following up on Mr. Ménard's—what problem are we trying to resolve? How many cases do we have on an annual basis--if you can give me this--where this would apply, where there would be a third offence and the individual after the assessment would be required to prove why he...? And I'm saying “he” advisedly because there have been no women designated as dangerous offenders as far as I know. So I'm asking if in fact there is a problem.

I want to add to that. I have a perception, from the experiences I've had and from what I've noted in the criminal justice system, that by and large for most of the offenders we're going after, we're usually going after them--when it's a serial killer or a serial rapist, somebody who has committed a series of crimes--after the very first time, and we're not waiting for the third time. I'm back to asking whether we do in fact have many cases where this is going to be used.

[Rob Nicholson, Conservative, Niagara Falls, ON]

In response to your question, Mr. Comartin, we expect that about 50 cases would fall into the category that I described to you.

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

I'm sorry, is that per year?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes, 50 cases per year.

You're quite correct that the Crown can apply for a dangerous offender designation on the first conviction; there's nothing stopping them. I guess we're making the point, and this comes to our attention from time to time, that there are individuals who repeatedly commit some of these very serious sexual and violent crimes, and people ask, well, what's the problem? Mr. Hoover indicated to you some of the challenges that have crept into the system.

In terms of your question to me, I think it's only reasonable that if you've been convicted twice, and now for the third time.... These are convictions of serious sexual violent crimes. It seems to me that what we are asking to do is only reasonable. To ask, “Could you please tell us why you shouldn't be designated a dangerous offender?” is, I think, a reasonable question to ask.

In terms of the presumption that the individual is guilty, we're talking about somebody who has done it. Again, I think the public has a right to require these individuals, if they're not going to get that type of sentence, to come forward and say why.

As I indicated to Monsieur Ménard, ultimately the judge has the discretion to give whatever sentence he believes appropriate. In that case, it doesn't have to be a dangerous offender. So that part of the system is preserved; it's still part of it. But again, I think what we're suggesting here is just reasonable.

Did you have anything to add on that, Mr. Hoover?