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

[Douglas Hoover]

No.

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

Mr. Nicholson, you know as well as I do that if you're sitting there as a judge...and again, I want to point out these figures from you. Of those 384 who went in, I think it's a very small number who have been released. If the designation is found, very few, I think fewer than 18 out of the 384 who went in, have ever come out. The prospects of their ever coming out, from what we can see by past pattern, are extremely limited.

So if you're sitting there as the judge and you're saying you're sending this person for life.... It's not life for first or second degree murder or manslaughter or other serious violent crimes, where the person is going to be out in 10, 15, or 25 years maximum; this person is going to stay in prison for the rest of their life. So if you're sitting there as the judge and saying this person has to tell you why you're not going to keep him in jail for the rest of his life, don't you agree with me that the vast majority of judges in this country, certainly at the upper levels of our superior courts, are going to say that's offensive to the charter and are going to strike this provision down?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I couldn't disagree with you more, Mr. Comartin. I don't believe that's the case. I indicated to you that the Supreme Court of Canada indicated that the presumption of innocence as articulated in the Canadian Charter of Rights and Freedoms applies to individuals who have not been convicted. Once convicted, you don't get that presumption. In the cases that you indicated, you quoted the statistics correctly, but again, I ask the question, how many individuals escaped and didn't get that dangerous offender designation who should have had it, but by reasons of the challenges that Mr. Hoover indicated to you, and the procedures that criminal defence lawyers are developing in terms of having their clients avoid that designation when in fact they should get the designation...?

So as to whether a judge has the ultimate discretion to give a lesser sentence than that of dangerous offender, I believe that would be perfectly in order if that's what a judge concludes. But as for saying that he or she would be offended that we are asking that individual who has been convicted of three serious violent sexual offences to show why they shouldn't get a particular sentence, I disagree with you that it would be a problem.

[The Chair, Liberal, Bernard Patry]

Now we'll go to Mr. Norlock, please.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you for appearing, Mr. Minister and Mr. Hoover.

We've had similar legislation, dangerous or habitual offender legislation, since about 1947. Recidivism has always been a condition. In addition, we've found over time that because there were significant numbers in our society who were committing, at least in the past, offences with punishments in excess of two years, they were included as dangerous offenders.

We notice that in this legislation we've actually narrowed the scope, as it were. Since 1997, of course, we've significantly changed the legislation to preclude those offences, but of late...and I know one of my confreres was discussing the actual historical changes, referring to some numbers. In looking over some of the research that the researchers were so kind as to present to the panel, we notice that we've gone from about 14 to 22, and I'm talking about over a decade. So over a 10-year span, we went from 14 to 22. I see on page 5 of the research that the numbers are currently up to 39, and today we heard that your estimate is approximately 50 people who it's anticipated might be classed as such.

I'm just wondering, in this category, why would your analysis indicate that we are going to continue on the incline? Most of the argument against this is that there should be a decline. If we're to assume that this legislation won't have an effect, I can't see that. Historical patterns are showing us that there's an increase in people who are designated as habitual criminals.

My question is very simple. Could you go through some of the analysis you've done in order to come up with the number of about 50 persons?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I might ask Mr. Hoover to talk about this, but trying to predict these things, indeed predicting human behaviour, is always a challenge. One of the significant changes that have taken place in this area is the Supreme Court of Canada decision in R. v. Johnson. As I indicated in my opening remarks, this has presented its own set of challenges to crown attorneys. We are facing the situation where we have different interpretations of that particular decision.

I think this will clarify that. It will standardize the tests that are being used. In my opinion, it will facilitate those individuals getting the designation who should get the designation.

Again, it's not something I look forward to or hope there will be lots of. Nobody wants to see this kind of behaviour. It's the last resort. Let's face it, that's why there haven't been thousands of these applications. They're long, difficult, expensive, challenging, and they stretch resources of the crown attorney's office.

So it is the last resort to try to bring some measure of control to individuals who have demonstrated that they have to be incarcerated. Again, it's the last resort. We think this particular piece of legislation can play a part of that role, and a reasonable one, in protecting the public.

With respect to the numbers, I'll ask Mr. Hoover if he has any comments.

[Douglas Hoover]

When we began consultations a number of years ago, we tried to listen to what the concerns were of all jurisdictions and we heard different concerns, depending upon the jurisdiction. Ontario, British Columbia, and Alberta typically have a very high rate of applications relative to other jurisdictions. The Northwest Territories, Yukon, and Nunavut have a very low rate as a percentage of the number of those types of offenders in their jurisdictions, and when you ask why, you'll see different types of answers.

A lot of it has to do with the resource implications. As the minister has pointed out a number of times, these are extremely resource-intensive. They often last one to two years or longer, and also they're often appealed. A jurisdiction without the resources to manage this will in many cases be scared off these.

We think that because of the combination of the Crown declaration and the reverse onus, there will in fact be a bump in the number of applications, especially in these traditionally non-participatory jurisdictions. As well, you are going to see, even in places such as Ontario and B.C., probably a more aggressive approach when an individual is before the Crown who typically might fit the pattern. They'll be more inclined right from the beginning, I think, to seek the psychiatric assessment, which again is a very expensive process. Resources are very stretched even in the more resource-rich provinces, and until you get that assessment back, you can't be sure whether or not this guy is manageable in the community, and thus you're taking a bit of a risk.

So a big part of this legislation is to take that first step and figure out whether or not the individual merits further consideration.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

[The Chair, Liberal, Bernard Patry]

You may have a very short questions, Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

We also notice in the legislation peace bonds being increased from 12 to 24 months. Is this as a result of consultations with crown prosecutors and other attorneys general?

[Rob Nicholson, Conservative, Niagara Falls, ON]

This, in my opinion, is long overdue, quite frankly. For everybody involved with the criminal justice system, whether on the front lines or as a policy-maker, if there is unanimity about any particular segment of this bill, I would guess it's in that particular area: that 24 months is a more reasonable period of time to set down the conditions upon which an individual will be out in the community. I don't anticipate any controversy on that at all.

[The Chair, Liberal, Bernard Patry]

Thank you.

Now we'll go to the second round, which is a five-minute round. I understand Mr. Murphy will share his time with Mr. Bélanger.

Mr. Murphy, please.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Thank you, Mr. Minister, and Mr. Hoover.

We are getting into the world of reported designations and the nomenclature of applications. If information on the number of applicants is available, it wasn't canvassed in the material we had, and we would certainly appreciate getting whatever information you can give us with respect to the numbers of applications over various years and by various provinces.

I can say from talking to many prosecutors in the province that in New Brunswick the current average is, I think, one to two per year. It doesn't sound as if it's a big issue, but of course it is, because prosecutors respect the process and use it judiciously, if I can use that word, and are looking for some improvements, of course. So the resource issue is a big issue.

Let me start by saying that I'm totally in support of tweaking the dangerous offenders system, which has worked pretty well but has some tweaking to be done to it. I think that in contradistinction to many of the other justice bills presented thus far, this is really targeting.... The dangerous offender community is a community that should be locked away. These are recidivists; these are people over, on average, 40 years of age who in some cases—a quarter of them—have committed 15 or more offences. They're dangerous and they're...I won't say bad people—it's too moralistic—but they're dangerous to society.

So we want to support you in making this bill better, Mr. Minister, but I think—and you can nod and make a face if you wish, but it's very sincere—you've glossed over the charter aspects. Wanting this to work means that you, I think, should have canvassed section 7 as it relates to liberty and the Supreme Court of Canada cases in respect to the necessity to show, on sentencing in aggravating circumstances, that those aggravating circumstances are proven beyond a reasonable doubt.

In that DOs are going to lose their liberty, which is the fundamental aspect of section 7 of the charter, are you not concerned that this standard must apply to aggravating circumstances, which in this case are the triggers, if you will, of your bill?

[The Chair, Liberal, Bernard Patry]

Thank you, Mr. Murphy.

Mr. Bélanger.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chairman.

Good day, Minister, Mr. Hoover.

Mr. Hoover, what is your title exactly and what duties do you perform? I want to know where you fit in on the Justice Department's organization chart.

Minister, I have a feeling that this committee's work will continue into the fall. Those who are just now learning about this kind of study will have a little time to do some background reading this summer. Would you be prepared to share with the committee the documentation pertaining to the bill, for example, statistics or forecasts based on number, category and so forth. I would also like to know if you commissioned any studies in conjunction with the drafting of this bill. Could we possibly have a list of the studies that were conducted at the department's request or those used by the department in the course of its work?

Earlier, you said you had received some legal opinions on the constitutionality of some of the bill's provisions. Are you ready to share these opinions with the committee? Lastly, given that the reverse onus clause will, if the bill is adopted, result in costs for persons convicted of offences, I would like to know if any additional resources have been budgeted for this, so that persons convicted can assume this financial burden.

[The Chair, Liberal, Bernard Patry]

Mr. Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Chairman.

I'm not quite sure, Mr. Murphy, what you mean by tweaking the bill. It seems to me that if you're pursuing the route of the previous questioner from your party about introducing amendments with respect to breaches by long-term offenders, that would be a major change to the bill, in my opinion, and you heard my opinion to Madam Jennings that we should leave that issue for another day.

If there are minor amendments that improve the bill, again, I'm always open to suggestions on this or indeed any other bill.

With respect to your comments about whether this will meet a challenge under the charter, these are always considerations when we put legislation before Parliament. Indeed, that's one of the specific items the Attorney General has to direct his or her mind to before tabling legislation. The analysis that we, at the Department of Justice, have undertaken with respect to this legislation indicates that this is constitutional and that it will withstand a challenge if and when that takes place. I'm going to ask Mr. Hoover to make any further comments.

With respect to statistics, we are prepared to provide any statistics we have on this. I think we have given them a number. I'll have Mr. Hoover have a look at that.

With respect to a note that I have reviewed, I'm not sure I said a specific note. My analysis of my discussion with the Department of Justice with respect to the bill is that it is constitutional and of course, they, Mr. Hoover among others, direct their attention....

You had asked what exactly is his role. He describes himself as a counsel within the Department of Justice and, as I indicated in my opening remarks, that he has had a particular connection with this particular piece of legislation.

In terms of the costs of an individual, the best estimate of detaining an individual for one year is about $87,000. They would be within the federal penitentiary system, of course, and we believe the resources are there to handle any increase of individuals. As others on this committee will know, when people ask me the cost, I always tell them that society pays a tremendous cost when some of these individuals don't get the sentence they should get--and the havoc and the cost to society up to this point.

But I think you're anxious to either give me a supplementary or more clarification, so I will--

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

Mr. Chairman...

[The Chair, Liberal, Bernard Patry]

That was not the question Mr. Bélanger asked you. I'm just going to ask him to repeat the question, and you can give us a real answer, please, on this one.

Mr. Bélanger.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I will say it in English, to be sure the Minister understands.

I referred to your quotes. You said you had received advice, presumably in the written form, so I was wondering if you would be prepared to share that advice.

I also referred to an inventory of studies that the department might have had, conducted for itself, or referred to.

And finally, when I spoke of resources, I meant not resources for people incarcerated; I meant that if we reverse the onus onto those found guilty for the third time, have any provisions been thought of for resources for those who now have to make the proof that they may or may not be dangerous offenders?

[Rob Nicholson, Conservative, Niagara Falls, ON]

With respect—

[The Chair, Liberal, Bernard Patry]

Could you make it a short answer--because time flies--on these three questions from Mr. Bélanger—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Any advice that I receive, Mr. Bélanger, would be protected by solicitor-client privilege.

With respect to the resources, I'll ask Mr. Hoover to make comments on that.

[Douglas Hoover]

In the first place, the vast majority of dangerous application defences are actually conducted under provincial legal aid programs, with some federal funding. So the impact of resources of these changes would actually be borne—a very large majority—by the provinces themselves, who primarily support the ability, as best we can, to provide these reforms to the dangerous offender provisions.

The actual impact again will depend upon the number of applications brought. There is nothing being done here to fetter the Crown's discretion as to whether or not to bring a Crown application. Ultimately it will be the attorney general of each province who has to approve a dangerous offender application and determine what the impact is going to be on their resource base.

I think that answers that part.

[The Chair, Liberal, Bernard Patry]

Thank you.

Now we'll go to Mr. Moore, please.