Bill C-27 (39th Parliament, 1st Session) Committee on June 6th, 2007

[Tony Cannavino]

Mr. Ménard, we will be dealing with that in the context of the review of Correctional Service Canada. We are already working on it. We are compiling a whole dossier on that. What is going on is frightening.

There is a direct link. There is a link between that and what is going on in the courts. Furthermore, the fact that it is becoming difficult for the Crown to have a person declared a dangerous offender or a long-term offender is having a direct impact on the way in which the individual is held and on his or her actions in prison, in other words his or her participation or non-participation in a rehabilitation program. This matter will require a debate by another committee.

If what is happening in the courts is treated properly, I believe that even with the addition of amendments... We support the amendments, obviously, because there are now two pertaining to the reversal of the onus of proof. This is not strictly for the designation of dangerous offender; this also applies to long-term offenders. This means that, depending on the dangerousness of the criminal, the individual in question will have to explain why he or she should not be subjected to long-term supervision or why he or she should not designated a dangerous offender.

[The Acting Chair, Liberal, Brian Murphy]

Your time is up. It is now the NDP's turn.

Mr. Comartin, you have exactly seven minutes.

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

Merci, monsieur le président.

Thank you, gentlemen, for being here once again.

I really just have one question or area I really want to explore with you. I have to say that I looked at your recommendation 2(a), and my reaction was that it wasn't necessary. I have to say, like Mr. Ménard, that I'm not in support of reverse onus in these circumstances.

I don't think either one of you are lawyers, but did you have a lawyer or a prosecutor look at this? My sense is that the bill as presently drafted would require reverse onus to be applied to an accused after a third serious conviction; in those circumstances, the reverse onus would apply. They would have to establish not only that they weren't to be found as dangerous offenders, but also that a long-term offender designation or another sentence would be appropriate to deal with the security issue.

So I guess I'm looking for some explanation. We can't look at any cases, because we don't have a reverse onus as the present time.

[Tony Cannavino]

No, exactly.

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

I don't know. I'm just throwing it out at you, but it seems to me that it wasn't necessary, because as I read proposed subsection 753(1.2), it's already covered by that proposed subsection.

You obviously have a different interpretation. Could you expand on that and explain why you think it's necessary.

[Tony Cannavino]

If I get your question clearly, we want to make sure.... I had a discussion with crown attorneys, but it's very hard for me, because I can't give their names and it would be up to them to be here , and I don't want to interpret what they said. But they were supportive of the reverse onus, even with the amendment. When we heard about the amendment, I made some phone calls just to make sure it would be a good thing to do and if it would help them. Reverse onus, in this one here, is for both of them.

Do you have it there? Go ahead.

[David Griffin, Executive Officer, Canadian Police Association]

As you quite accurately pointed out, I'm not a lawyer either, but looking at proposed section 753--

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

It's proposed subsection (1.1), not (1.2), by the way. I'm sorry, I pointed out the wrong proposed subsection.

[David Griffin]

So subclause 3(1) of the bill amends subsection 753(1) and proposes two new subsections, 753(1.1) and 753(1.2).

Proposed subsection 753(1.2) says the following:

Despite subsection (1), the court shall not find the offender to be a dangerous offender if it is satisfied by the evidence adduced during the hearing of an application under that subsection that a lesser sentence--either a finding that the offender is a long-term offender or a sentence for the offence for which the offender has been convicted--would adequately protect the public. Neither the prosecutor nor the offender has the onus of proof in this matter.

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

But if you understand the way the process works, when the application for the dangerous offender is before the court, there is always a consideration, like the “included offence” concept, always the alternative of the long-term offender or some other criminal penalty if the judge concludes that's sufficient.

So if you go back to proposed subsection 753(1.1), the reverse onus applies there. It seems to me that if this section went through, which I'm hoping it won't, the reverse onus would also apply to the accused person's having to establish that it would be sufficient to have him designated as a long-term offender or to have some other penalty as a result of the third-time conviction.

[David Griffin]

I don't think we saw it as being that automatic, and I think it's the last line of proposed subsection 753(1.2) that expands that doubt, because--

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

Because of the requirement that neither has the balance--

[David Griffin]

Neither has the.... So from our perspective, it's kind of cascading. The first test is whether you are a dangerous offender. The second, then, would be--

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

There's a shortage of time.

So your position would be that if we were going to go this route, we would take out, in proposed subsection 753(1.2), the final sentence and put in your suggestion that the reverse onus apply to that as well?

[David Griffin]

Yes.

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

Then I have a quick follow-up question on that. There's been a debate. In fact, there are cases going on in the country that are conflicting as to whether the prosecutor has the responsibility, the onus, and whether that's proof beyond a reasonable doubt or just on the balance of probabilities. Do you have a position on that?

[David Griffin]

No.

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

Those are all my questions, Mr. Chair. Thank you.

[The Acting Chair, Liberal, Brian Murphy]

Good, but you didn't take all your time, so we'll just sit here for two minutes.

I'm kidding.

Mrs. Davidson.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you, Mr. Chair.

Thank you very much for your presentations.

My questioning is perhaps going to take a little bit of a different route. I'm not a lawyer, so I'm going to be approaching this from a different aspect. I believe there is a fundamental right in this country for the general public to live in an atmosphere of relative safety. I also believe there are vulnerable segments of our society who need protection to be able to do that. As a legislator, I think it's our responsibility to see that happens.

I note with interest the part of your presentation where you say:

Current mechanisms are inadequate to adequately address the protection of the public from persons who are identified to pose a significant threat to society, are about to complete their full sentence without a successful parole period, and were not designated as a dangerous offender at the time the sentence was imposed.

You also say:

Bill C-27 extends the maximum period for recognizance for these offences from 12 months to two years, and expands the scope of conditions that may be imposed by a judge in these cases.

So my questions to you would be as follows. What would some of the positive aspects of doubling the section on peace bonds be? Second, can you please tell us what kind of role the police play in the surveillance of long-term offenders? Third, will the recognizance orders help the police with dangerous offenders?

[Tony Cannavino]

Our role is surveillance. There's not much done by us. We have to be very frank. It's normally Correctional Service Canada. That's part of their mandate.

So sadly--and you'll probably hear this when we attend that committee--we'll explain what they do, actually, and what the resources are to control them or to supervise them. From the information we have, it's really disappointing.

As far as our police officers go, if we know that somebody is released or there's a breach in the conditions, then we will intervene. But it's asking a lot of police personnel to do what we have to do, actually, and that's why we ask for more resources. We're hoping to get those resources, because it's very hard to do that part of the job, to compensate for the lack of resources that CSC is going through.

[David Griffin]

There are two benefits of those amendments. First is the extension, obviously, the greater time period. I guess you could always debate what an appropriate period of time is or how long it would be, and it may depend on individual cases, but one would assume that if somebody has gone through that period of two years after the end of their warrant expires, it would become more difficult to prove that there's a need to continue that indefinitely. The fact that the person has been back in the community for two years seems like a reasonable period of time.

Also, there is expanding the different conditions that could be placed on some of these offenders when they're put back in the community. We were pleased to see those expanded in Bill C-27 as well.

[Tony Cannavino]

On the conditions, the judge will decide what he is going to add to those conditions, so we're okay with that.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Do I still have some time?

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

You have over three minutes left.