Yes, sir.
Such a situation arose recently in the Federal Court of Appeal and it was upheld, because the offender need not participate. The discussion of prediction of recidivism is predicated on past behaviour, and past behaviour is captured in Correctional Service Canada records, school records, criminal records, and other places.
As for what the offender says or does not say in the hearing, you should note they almost never testify. And he's presumed to be deceptive in what he says to the doctor. All of the people from Correctional Service Canada will tell you that when dealing with offenders, the latter are presumed to be deceptive. All the psychiatrists will tell you that when dealing with them from an analysis perspective, they are presumed to be deceptive. The offender's participation is utterly irrelevant and the Federal Court of Appeal has recently upheld, I believe, a dangerous offender designation where the offender simply refused to participate.
So there is no requirement that any legislation be tabled to mandate the accused's participation. Their participation is entirely secondary to the present system, and the present system is working, if you look at the crime rates.
In terms of what we would do as defence counsel if Bill C-27 were passed, frankly, I don't know. We would immediately apply to legal aid. You should know that I've never heard, even anecdotally, of an accused funding his own defence of such an application. We would immediately apply to legal aid for funding to review all of Correctional Service Canada's materials, all of the psychiatric materials, the school records, and all of that. We would also need some type of clearance to go into the police records so we could look at what witness statements we would need to disprove a pattern.
What would we need? How would the defence deal with its onus under Bill C-27? It would require a great deal of legwork, a great deal of money, and a great deal of access to the institutions, all of which is readily available to the crown as it stands now.