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

[The Acting Chair, Liberal, Brian Murphy]

I'd like to call this meeting of the Legislative Committee on Bill C-27 to order.

This is our fourth meeting. Our witnesses today are Mr. Tony Cannavino, President of the Canadian Police Association,

and the executive officer, Mr. David Griffin, who are before us. We have received their briefs.

Gentlemen, you have your opening remarks.

[Tony Cannavino, President, Canadian Police Association]

Thank you very much, Mr. Chair.

I don't know if this is the last meeting before the break or whether we're going to have more during June and July. We hope you have your break.

The Canadian Police Association welcomes the opportunity to appear before the Legislative Committee on Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

The CPA is the national voice for 56,000 police personnel serving across Canada. Through our 170 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages, as well as those working in our largest municipal cities, provincial police services, members of the RCMP, railway police, and first nations police associations.

Our goal is to work with elected officials from all parties to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.

For over a decade police associations have been advocating reforms to our justice system in Canada. In particular, we have called for changes to bolster the sentencing, detention, and parole of violent offenders.

The Canadian Police Association has been urging governments to bring an end to Canada's revolving-door justice system. Chronic and violent offenders rotate in and out of the correctional and judicial systems, creating a sense of frustration among police personnel, fostering uncertainty and fear in our communities, and putting a significant strain on costs and resources for the correctional and judicial system. We welcome the changes introduced in Bill C-27 to strengthen provisions dealing with dangerous and long-term violent offenders and sexual predators.

Bill C-27 makes the following amendments to the Criminal Code of Canada. First, an offender convicted of a third violent or sexual offence, a primary designated offence for which it would be appropriate to impose a sentence of two years or more, is presumed to be a dangerous offender and may therefore be subject to incarceration for as long as the offender presents an unacceptable risk to society. A recognizance to keep the peace may be ordered for a period that does not exceed two years in the case of a defendant who has previously been convicted of a violent or sexual offence. The conditions of a recognizance to keep the peace in relation to a violent or sexual offence are broadened to include participation in a treatment program, wearing an electronic monitoring device, or requiring the defendant to observe a curfew.

Currently, applications for Dangerous Offender designation are infrequent, as Crown Attorneys perceive the thresholds and onus to be high. A dangerous offender designation automatically provides for an indeterminate prison sentence in a penitentiary. While not eligible for statutory release, a dangerous offender will be eligible for day parole after four years' imprisonment and for full parole after seven years.

After that time, the Parole Board must reassess the offender's file every two years. Dangerous offenders who are paroled are subject to parole for the rest of their lives. If the Parole Board determines that they continue to present an unacceptable risk for society, they could stay in prison for life.

Bill C-27 does not alter the sentencing and parole provisions. An offender may appeal the dangerous offender designation.

In the interest of time, I will refrain from explaining the process of a dangerous offender application since it is well outlined in the Library of Parliament's legislative summary and in our brief. However, I would like to point out that the Supreme Court of Canada has rendered several decisions that uphold the dangerous offender applications process.

In Mack in 1988, the Supreme Court of Canada held that the standard of proof beyond a reasonable doubt applies only where the issue is the guilt or innocence of the accused.

In Lyons in 1987, the majority of the Supreme Court of Canada was of the opinion that the right to be presumed innocent did not apply in the context of a dangerous offender application.

In Lyons, the Supreme Court of Canada held that imprisonment for an indefinite period was not cruel and unusual treatment.

In Lyons, the Supreme Court of Canada held that the rules governing dangerous offenders did not violate section 9 of the charter, protection against arbitrary detention or imprisonment.

The Supreme Court of Canada held in Johnson in 2003 that before considering finding that an offender is a dangerous offender, the judge must consider whether the risk presented by the offender can be adequately controlled in the community and thus whether it would be appropriate to apply the long-term offender rules. The court said the imposition of an indeterminate sentence is justifiable only insofar as it actually serves the objective of protecting society.

Bill C-27 does not alter this situation. The court retains discretion not to make a dangerous offender finding in a case where another sentence would adequately protect the public and impose a less severe sentence, such as a long-term offender finding, or impose a sentence for the underlying offence as described in subclause 3(2) of the bill.

The CPA would, however, support an amendment to this provision that would require the onus to rest with the accused to establish that the public would be adequately protected by either a finding that the offender is a long-term offender, or a sentence for the offence for which the offender has been convicted. We submit this is consistent with the reverse onus for the dangerous offender designation for repeat offenders.

The CPA supports Bill C-27, with the proposed amendments, as a reasonable and proportionate approach to repeat violent offenders who present a significant threat to reoffend.

One, the dangerous offender amendments contained in Bill C-27 deal specifically with offenders who have already been convicted of a number of serious offences.

Two, in order to protect society from violent repeat offenders, it is necessary to impose a reasonable limit on the offenders' rights and freedoms.

Three, Bill C-27 provides protective measures, as previously mentioned. Bill C-27 does not alter the regime that applies to long-term offenders other than with respect to the assessment process. Bill C-27 amends the assessment process for both dangerous and long-term offender consideration.

The CPA would support an amendment to Bill C-27 that would address breach of long-term offender supervision orders. Currently a conviction for the criminal offence of a breach of a long-term offender supervision order, punishable by up to 10 years' imprisonment, cannot lead to a dangerous offender application by the crown prosecutor. The CPA would support the inclusion of the criminal offence of breach of a long-term offender supervision order in the list of designated criminal offences found under clause 1 of Bill C-27 definitions. If adopted, this would ensure that a long-term offender who is found guilty of breaching his supervision order could become subject to an application for a dangerous offender hearing.

The CPA has long been on record concerning the problem of the release of high-risk offenders in the community at the time of warrant expiry. The high-profile release of Karla Homolka and Clermont Bégin brought significant public attention to this issue.

Current mechanisms are inadequate to adequately address the protection of the public from persons who are identified to pose a significant threat to society, who are about to complete their full sentence without a successful parole period, and who were not designated as a dangerous offender at the time the sentence was imposed. While the CPA would support the creation of a process that would enable such a designation to be reconsidered prior to warrant expiry, this poses significant charter concerns.

Recognizances to keep the peace have been utilized, to some extent, to maintain supervision and preventive restrictions on individuals who are identified as presenting such a risk.

Bill C-27 deals only with those recognizances that deal with certain sexual offences in respect of a person under the age of 14 and with serious personal injury offences.

Bill C-27 extends the maximum period of recognizance for these offences from 12 months to two years, and it expands the scope of conditions that may be imposed by a judge in these cases. The CPA supports the proposed amendment set out in Bill C-27 with respect to recognizance supervision.

In conclusion, Bill C-27 is a proportionate and justifiable measure to protect Canadians from repeat violent offenders and safeguard communities. The Canadian Police Association supports the bill and urges Parliament to amend and pass this bill without delay. The CPA also supports the dangerous offender proposals contained in Bill C-27, with the proposed amendments, as a reasonable and proportionate approach to repeat violent offenders who present a significant threat to re-offend. The CPA would support an amendment that would require the onus to rest with the accused to establish that the public would be adequately protected by either a finding that the offender is a long-term offender or a sentence for the offence for which the offender has been convicted. The CPA would support the inclusion of the criminal offence of breach of a long-term offender supervision order in the list of designated criminal offences found under Clause 1 of Bill C-27. The CPA also supports the proposed amendments set out in Bill C-27 to extend the maximum period for a recognizance for these offences from 12 months to two years, and expand the scope of conditions that may be imposed by a judge in these cases.

Thank you very much.

[The Acting Chair, Liberal, Brian Murphy]

Thank you, Mr. Cannavino.

We will now begin the first round of seven minute turns, and the first questioner will be Ms. Jennings.

I would like to underscore, Madam Jennings, that the seven minutes include your questions as well as the answers. The total amount of time is therefore seven minutes.

Ms. Jennings.

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

Thank you, Mr. Chairman, and thank you for that little reminder.

I would also like to remind witnesses that, if the time allowed for the questions and answers is not sufficient for the provision of full answers to the questions put, they are perfectly entitled to provide their answers to the committee in writing, via a letter addressed to the Chair of the legislative committee.

I would like to begin by apologizing for my late arrival. I was held up in the House. I obviously missed a part of your presentation. Fortunately, I arrived as you were explaining that you would be in favour of the amendments that the Liberals would like to propose and under which the breach of a long-term offender supervision order would be included in the list of criminal offences that could trigger a dangerous offender hearing. I was very pleased to hear that.

When the minister of Justice appeared before the committee, several members questioned him repeatedly on the issue of the reversal of the burden of proof and the constitutionality of this aspect. I would like to know if the Canadian Police Association has examined the matter. We, members of the Liberal Party, have many reservations in this regard and are suggesting that instead of there being a reversal of onus, a third finding of guilt for criminal offences designated under the bill automatically trigger an assessment application.

[Tony Cannavino]

We did not hire constitutional experts, but I did have the opportunity to have discussions with Crown Attorneys. I recently attended parole hearings, among them that of Mr. Forget, an individual who attempted to murder two policemen. I thus had the opportunity to discuss in particular the reverse onus of proof.

Having to prove that an individual is a dangerous offender is quite a burden for attorneys. They say that it is a very demanding task. It is so difficult that in many cases, instead of applying the principle, they simply let it go. It requires too much energy, it is costly and it is a very involved process. It is in their view deplorable, because individuals having committed crimes of this nature should normally be declared dangerous offenders.

Crown Attorneys therefore fail to understand why the burden of proof should not fall to those individuals. The fact that they were thrice found guilty is in their eyes proof that these people were guilty of committing these acts. This is what the Crown Attorneys I have had discussions with have told me.

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

Thank you very much for your explanation. I have a couple of other questions, if I still have time in my seven minutes. Goodness, I have four minutes left.

If Bill C-27 were adopted entirely now with no amendments, the prosecution would still have no obligation to apply for a remand and assessment order. If it's ordered by the judge, when the assessment order is filed, depending on the conclusions drawn within that assessment report, it provides the prosecutor with the possibility of applying for a dangerous offender hearing.

Under the current system, once an application for a dangerous offender hearing has been filed and the assessment has already taken place, if the Crown proves beyond a reasonable doubt that all of the statutory criteria for declaring the offender a dangerous offender have been met beyond a reasonable doubt, the judge must look to see whether or not the threat and risk the dangerous offender poses to the community can be controlled within the community.

I've also spoken with prosecutors, and they've basically said that as a result of R. v. Johnson, the courts are more and more requiring the prosecution to prove a negative so the individual is not declared a long-term offender: the risk and control cannot be controlled in the community for X, Y, and Z reasons. So Liberals are looking at the possibility of bringing an amendment that would place the burden on the offender to prove that he can be controlled in the community, and therefore the long-term offender designation is appropriate.

We believe that would not be a problem constitutionally, because the criteria for designating the person as a dangerous offender has already been proven by the Crown beyond a reasonable doubt. We believe that would be more effective than the amendment the government is bringing, which says neither party bears a burden in the matter.

If it's not something that the CPA has had an opportunity to look at, I would appreciate your looking at it and getting back to us.

[Tony Cannavino]

We support it is as long as it's an addition and not a substitution, because for us the reverse onus has to be if it's for a dangerous offender and for the long term. If it's an addition, we're okay with that.

If the reverse onus were for the long term but not for the dangerous offender designation, we would be against that amendment. The way we read it, your amendment suggests it would be reverse onus for both the designation of dangerous offender and the long term. That's what we're supporting.

[The Acting Chair, Liberal, Brian Murphy]

Thank you.

Your time is now up.

Mr. Ménard, you have exactly seven minutes at your disposal.

[Réal Ménard, Bloc, Hochelaga, QC]

Seven minutes, including questions, answers, exchanges, jokes and humour. It is a package deal.

Welcome to the committee. It is always a pleasure for me to meet with you.

Clearly, I was not surprised when I learned that you supported the bill. I hope that I will not lose your friendship by telling you that the Bloc Québécois will not be supporting it. We have supported a good many bills, but we fail to see the need for this one. Furthermore, we believe that there is a danger that the precedent that will be created might bring about automatic responses.

I would like to ask you two questions. Yesterday, I tried to understand. First of all, I think it should come as no surprise that the threshold for the burden of proof is high, when we are talking about incarcerating someone for an indeterminate period. We are not talking about putting an individual in jail for three, four, five or ten years. People have rightly been declared dangerous offenders; they constituted a threat for society. We are clear on that. There must be provisions in the Criminal Code in order to be able to declare an individual a dangerous offender. There is agreement on that. There is no need to wait for the person to have committed three crimes. I hope that at the very first offence, the individual who is unable to control his impulses and who is suspected of being a serial killer, will be declared a dangerous offender and that we will not wait for him to wrack up three offences. We agree that the burden of proof must be substantial.

What is to your mind problematic within the present system, beyond the fact that the threshold for the burden of proof is high? Why the attorneys? Why the prosecutor? As the organization that is the spokesperson for Canadian police, why is it that the present system, with the way it now functions, is not always successful?

[Tony Cannavino]

First of all, this will clearly change nothing with regard to the friendship that we have—

[Réal Ménard, Bloc, Hochelaga, QC]

That reassures me.

[Tony Cannavino]

—even if in our estimation the Bloc is on the wrong trail with regard to this bill.

[Réal Ménard, Bloc, Hochelaga, QC]

Do not say that.

[Tony Cannavino]

In the view of the Canadian Police Association, having, as I told you, had discussions with Crown Attorneys working on these types of files, it is very rare to see an individual declared a dangerous offender after having committed just one offence. This is a very rare occurrence, even if the crime was a serious one. I do not have the statistics, but I can tell you that such cases do not even amount to 1%. It is even below that. The individual must by all accounts be a recognized psychopath and have perhaps killed ten persons at one and the same time, in a very sadistic fashion. Such cases are really exceptional.

There therefore must be a pattern, a series of crimes committed, confirming that the person always commits serious offences, as opposed to simply shooting at someone during a bank robbery, for example. And even the killing of someone during the course of a bank robbery can be considered a criminal act, but not a truly premeditated one. Therefore, it is really something very specific.

The other reason why the reversal of the onus of proof is important to us is the difficulty for a Crown Attorney to prove beyond reasonable doubt that the accused represents a danger. Those who practice the profession know that that means that there really is no escape. It becomes very difficult to really show that such is the case, even once the accused has gone through trial, has been declared guilty and has been sentenced.

[Réal Ménard, Bloc, Hochelaga, QC]

You agree that this is they way things must be. If we are going to incarcerate someone for the rest of his days, we cannot simply do it based upon civil law evidence. There must be a serious threshold for proof. You would agree with me on that.

[Tony Cannavino]

We do not disagree with the fact that the individual who is designated a dangerous offender or a long-term offender must have committed very serious offences. We agree on that part.

However, what we are saying and what the team of attorneys is saying is that we have convinced a jury or a judge that the person has committed such and such a crime. But here, we would further be required to prove that this individual is not a risk for society. The onus of proof should fall on the accused, because the crimes committed show that he or she is dangerous or is a criminal who should be controlled. That is the difficulty.

[Réal Ménard, Bloc, Hochelaga, QC]

First of all, we are talking about a marginal phenomenon. There are 354 offenders who are deemed to be dangerous in Canada. That is all the better; we are not going to complain about that. However, it is a phenomenon that exists.

[Tony Cannavino]

Unfortunately, that should not be the number. Those individuals who have committed acts of this nature...

[Réal Ménard, Bloc, Hochelaga, QC]

I agree. I would like to live in a society where there is no crime whatsoever.

[Tony Cannavino]

The Garden of Eden does not yet exist.

[Réal Ménard, Bloc, Hochelaga, QC]

Voilà! In my role as legislator, I cannot say that I am not concerned by the fact that we must protect ourselves, as a society, against offenders whose sadistic bent is such that they are dangerous or must be controlled.

The reasoning I do not understand is the following. How will the automatic reversal of the onus of proof... First of all, the burden of proof has not changed.

Therefore, if the difficulty lies in the administration of justice...

[Tony Cannavino]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

Then it is reversed.

[Tony Cannavino]

But it is enormous.

[Réal Ménard, Bloc, Hochelaga, QC]

Yes, it is enormous, but a judge cannot declare that a person... The difference, clearly — and I agree that it is fundamental —, is that it will be up to the offender to prove that he or she must be granted parole. For a person to be declared a dangerous offender, he or she must have racked up quite a collection of serious offences.

What I do not understand is that if there is a difficulty procedurally, administratively or in the way in which justice is carried out, let us not wait until the person is at his or her third offence.