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

[The Chair, Liberal, Bernard Patry]

Mr. Lee.

[Prof. Ian Lee]

Thank you.

That's why I emphasized at the beginning that I'm not a lawyer qualified to speak on the technical issues. But there are some important policy issues here, and I think that in the discussions or the debates I've read over the past several years dealing with criminal justice, the focus is very narrowly on the Department of Justice and the costs of the correctional service, rather than looking at the larger picture—which Statistics Canada does, and which is where this data came from, so it is very reputable—showing that the costs are much larger.

I put the data in for the Government of Canada expenditures because last fall I testified before the justice committee, and a law professor was testifying, talking about the enormous amount spent by the Government of Canada on jails. Well, we'll spend $1.87 billion this year, 2007, by the Correctional Service. That's nine-tenths of 1% of government expenditure, of the total federal budget. It's two-tenths of 1% of GDP, which is the number you use when you want to do cross-national comparisons. So the amount we spend on security expenditures at the federal government level is trivial. But when you look at the cost of crime to the larger society, it's very large.

This is 2003 data. Unfortunately, I made a mistake and put 2005 in the heading, but it's 2003 data from the Department of Justice and StatsCan. It was estimated at $80 billion. Now, $80 billion is an enormous amount of money, and as I pointed out, it falls disproportionately—and this again is Statistics Canada data—on young people under the age of 30.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Professor. I appreciate your pointing that out.

Mr. Goldstein, to go back to what you said, I'm not quite getting it; what you're saying is not quite holding water. Under the current system as it is, where you've already said you trust the discretion of the crown prosecutor, and under the system as it will exist if Bill C-27 passes, there's still a discretion for the crown prosecutor. In fact, the actual process we're going to go through as to whether someone is or is not a dangerous offender will look very similar. You're going to have one side saying, “No, my client is not a dangerous offender, and here' s why”, and you're going to have another side saying, “No, the person is a dangerous offender, and here's why.” That exists now and it will exist under Bill C-27.

What Bill C-27 does, number one, is prevent applications from falling through the cracks, because it puts an onus on prosecutors to say whether or not there's going to be an application; and two, it puts that onus on the offender, who only after being convicted of a third violent or sexual offenc, must show—not whether there should be a dangerous offender application, not whether they're guilty or innocent.... The onus is now on them, after a third violent or sexual offence, and the only onus on them is, to show why they shouldn't be designated a dangerous offender.

I fail to see how this in any way is taking away discretion. I don't think, once the DO process is under way, there's going to be any seismic shift in the role of defence counsel and of prosecutors.

[Lorne Goldstein]

The honourable member says he trusts the crown discretion and goes on to talk about applications falling through the cracks. I fail to see where Bill C-27 advances us in that regard. He further states that applications would look the same. If the applications are going to look the same and be the same, then why table this aspect of Bill C-27 at all?

If they're going to be the same, let's exist with the system that is presently working. If the honourable member is worried about applications falling through the cracks, he can speak to the crown attorneys about creating a policy. But he need not table legislation in Canada's Parliament to make sure they're doing their job.

[The Chair, Liberal, Bernard Patry]

Thank you, Mr. Goldstein.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, I would like to make a clarification.

[The Chair, Liberal, Bernard Patry]

You may have a clarification.

[Rob Moore, Conservative, Fundy Royal, NB]

It wasn't my comment that I trust—although I do—the discretion of the crown prosecutors. That was a comment that you, Mr. Goldstein, made; that you, as it is currently, trust the discretion of crown prosecutors when they proceed on these.

I also did not say the application process would be the same, but that the process as to whether someone is or is not going to be designated, at the end of the day, a dangerous offender would be very similar: there are two sides making arguments, and ultimately, a judge will decide whether that individual is a dangerous offender.

In that regard, the only change is the shift in onus on the offender. We feel, and I think most Canadians feel, when you're dealing with someone with a third violent or sexual offence, that this onus shift is abundantly appropriate.

[The Chair, Liberal, Bernard Patry]

Thank you.

Mr. Moore, you can discuss that with Mr. Goldstein.

We'll finish with Monsieur Bélanger, s'il vous plaît.

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

Thank you, Mr. Chairman, and thank you Mr. Lee and Mr. Goldstein for your written material. I imagine you will make sure to send us the publications so we can see the final product.

Mr. Goldstein, I'm going to ask you a question in the same vein as Mr. Ménard. Mr. Hoover in his testimony suggested, in answering a question, that one of the reasons why the government was tabling a bill on reverse onus is that since the Supreme Court decision in that regard, people who have been found guilty, could withdraw into total silence and refuse to answer questions. You made a statement which would completely refute those grounds, the basis of which led to this bill. I would like you to expand on your answer, I am intrigued.

And if you could forward to the committee documents on this issue of convicted individuals refusing to speak, perhaps you could tell us whether it is of no significance or whether it has an effect on the decisions made by the courts, I would appreciate it.

I was asking the minister questions regarding the resources which will be needed if this bill were to be passed because at the moment, when the time comes to convict an individual, designate him a dangerous offender and incarcerate him for an indeterminate time, the government has the necessary resources to do so and it has the onus of proof. However, if the onus is handed over to the individual, we may end up in the same situation as described earlier on. If a young aboriginal woman, for reasons beyond her control, ended up in this type of situation she would be incarcerated indefinitely. That is what I would like you to explain.

There is one thing that we have not yet addressed and which is in the notes.

As an aside, I should commend our researchers for the excellent document I received and which provides a very good overview of the matter.

Is there a concern about the effect this bill may have on aboriginal people? We know that there is a disproportionate number of aboriginal people that are incarcerated in our jails. What effect would this bill have on aboriginal people, if it were passed?

[Lorne Goldstein]

As a practitioner, not a researcher, I can't speak across the board or for different communities. I can only tell you what I've read in the case law and with regard to the practice I have.

I can indicate from case law—and I'm certainly referring now to R. v. Neve as one of the cases that jumps to mind—that when we're looking at aboriginal offenders and other things and young women caught up in the system, Bill C-27 and the reversal of the onus would have a wholly detrimental effect on anyone who was in any way classically marginalized at the beginning of the process. Aboriginals, people of any kind of ethnicity, people who are not the linguistic majority in their communities, and anyone who's marginalized at the beginning is going to find themselves hopelessly lost when the onus is placed on them and they are acting and not reacting, with the balance of their lives as the stakes in the game.

I'm happy to send you any material I can find in respect to that first part.

[The Chair, Liberal, Bernard Patry]

Go ahead, Mr. Lee.

[Prof. Ian Lee]

Thank you. I'll respond to that.

You are right, Monsieur Bélanger. The incarceration rate right now for aboriginals in Canada is approximately 17% of our prison population, and they are only 2.5% of the Canadian population.

This is something that has been looked at very seriously in the research, and I would not want anyone to skate too quickly by this, because most violent acts by aboriginals are against aboriginals. It's aboriginal-on-aboriginal violence, and it would be, I think, most inappropriate to say that it's less important and let's not prosecute it. That's the risk.

I'm not suggesting that you were saying that. I'm saying that the risk when we go down that road is that we then start to ignore violence in certain minority communities because it's often minority-on-minority violence.

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

My question was about, in the thinking behind the bill—and I know you can't answer that, because it has to be from the government—what considerations were given to the effect of the bill, if it ever becomes law, on such communities. I think that's something the committee will have to obtain from the government.

[The Chair, Liberal, Bernard Patry]

Thank you very much.

Thank you very much, Mr. Lee and Mr. Goldstein, for your appearance. It was very much appreciated.

Now we'll go and vote.

The meeting is adjourned.