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

[Dr. James Bonta]

Yes.

[Ed Fast, Conservative, Abbotsford, BC]

Are you in a position where you're able to say whether this legislation is appropriate, given the increased risk once someone has been convicted of a third violent or sexual offence?

[Dr. James Bonta]

I think that's a little bit outside of my scope as a researcher who basically looks mainly at the evidence, and I provide that to our policy group for them to consider in terms of a policy direction.

[Ed Fast, Conservative, Abbotsford, BC]

You're not an advocate for policy per se. Is that right?

[Dr. James Bonta]

I think it's important to have policy, but I think it's important to have evidence-based policy, and that's why I'm there in the department, to have our group provide evidence-based policy.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Motiuk, would you take the same position? Or are you able to comment?

[Dr. Larry Motiuk]

I think I would take the same position as Dr. Bonta, insofar as there are still a lot of questions remaining in terms of what reverse onus and three convictions mean, by definition, or as criteria for selection of those deemed to be high risk.

In terms of the administration, or the risk appraisal, we would expect that it somehow contributes to the overall estimation of risk.

[Ed Fast, Conservative, Abbotsford, BC]

Have you looked at the list of the designated offences, to review those in terms of how you regard their seriousness?

[Dr. Larry Motiuk]

No, I haven't, but I would assume that many of those offences on the list would be of that nature.

[Ed Fast, Conservative, Abbotsford, BC]

Very serious.

[Dr. Larry Motiuk]

Yes, of course.

[Ed Fast, Conservative, Abbotsford, BC]

Many of them are.

Can we discuss a little bit further the report from 2006? Mr. Bonta, you had focused on the national flagging system. I think I understand what it generally involves, but there are many Canadians who feel that whatever system we have in place right now to flag dangerous offenders—even if they're not designated that way but might be considered to be a high risk to reoffend—the flagging system has still not protected them. For example, in the Peter Whitmore case, he is a great example of someone who had a history of sexual offences, and in fact was sentenced to five years in prison. When he was released on parole he reoffended on at least two occasions when he was found in the company of young children. And there are many other cases like that, which we can refer to, causing Canadians serious concern.

In terms of the flagging system itself, are there some problems with it that you've identified? Are there ways of strengthening it so that we don't have the kinds of cases that Peter Whitmore highlighted last year?

[Dr. James Bonta]

From our evaluation of the first four years of the national flagging system, we basically found that it was identifying high-risk individuals and identifying and bringing to trial those with dangerous offender designations or long-term designations in a way that was 18 times more likely than we would have expected without the system operating.

That being said, it is not perfect. I think the national flagging coordinators recognize this and are working hard to improve it. From a research perspective, we are presently working with the national flagging system to look at ways to improve it. What can we do to make the tracking of these high-risk offenders more accurate and more efficient in bringing them to the Crown's attention, so they can proceed with the appropriate designation?

[The Acting Chair, Liberal, Brian Murphy]

We'll have to stop there, Mr. Fast.

Mrs. Jennings, for five minutes, in this second round.

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

Thank you, Chair.

Thank you very much for your presentation.

I'd like to ask, given your expertise in evaluating the level of risk posed to the community by prisoners in the correctional system, and given the fact that once someone has been designated a dangerous offender or a long-term offender and comes into the correctional system, they would undergo an assessment—which, Dr. Motiuk, you mentioned could take up to 90 days, I believe—do you have any data indicating whether your assessment of those two categories of offenders, or the assessment of them done in the correctional system, is incorrect? For instance, is there data indicating for someone designated a dangerous offender by the evaluation that you or the system did over the 90 days that the level of risk and threat could have been supervised in the community, and for someone designated a long-term offender when evaluated on their intake into the Correctional Service, is there data indicating that a dangerous offender designation would have been more appropriate?

Are you in a position to answer that?

[Dr. Larry Motiuk]

To answer definitively, perhaps not. But in 2002, when I was managing the research branch, we undertook a pretty comprehensive study examining the characteristics of those who were designated as dangerous offenders versus those who were given long-term orders. There were dramatic differences in some important areas. For certain, a conclusion of that research was that those who were designated by the courts as dangerous offenders were indeed high-risk offenders. They had histories of violence--repeated violence. And on the traditional risk indicators that we would assume would designate them as that, they came out quite characteristically like that. So on a continuum of risk, shall we say, those that were deemed to be.... And they distinguished themselves from the general penitentiary population as well.

This report is available. It's been published, and it's on the website.

There is a continuum, and they distinguish themselves, of course, from the general offender population as well on a number of important characteristics that we know are good risk predictors.

To answer the question of whether we think there were some who shouldn't have been, from my reading of it, no. Perhaps others may--

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

You're talking about dangerous offenders.

[Dr. Larry Motiuk]

That's right.

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

Okay. I also asked about the long-term offender.

[Dr. Larry Motiuk]

The long-term offender is not so clear. We need to do more research in that area to understand that population. They are quite heterogeneous in some respects. Some of them are serving time in provincial jurisdictions, and then they get the long-term supervision order for us to supervise. They would distinguish themselves, I would assume, from others in the population as well. Because there is so much difference within that group, it would be hard to definitively say that they all should have been there or shouldn't have been there. Again, they might be. Nevertheless, I think that takes closer examination.

What was dramatic for us was that they do distinguish themselves as three populations--the dangerous offenders, those who have long-term orders, and those who are in the general population--on what we would assume to be a very good, clear indicator that there is a continuum of risk, under many measures.

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

Okay. Given that, are you in a position to comment on the impact...? You've just said that the research shows clearly that dangerous offenders who have been designated as such are clearly a high risk and are a completely different population, in terms of characteristics, from long-term offenders, and then again from the general population within the correctional system.

In that case, is the reverse onus that is created under Bill C-27...? It states that if the prosecutor makes an application for an expert assessment, and an order is given, then once the assessment report is filed, if the Crown applies for a dangerous offender hearing and designation, the offender is automatically presumed to be a dangerous offender. And the court shall deem that offender to be a dangerous offender unless the offender shows, on a balance of probabilities, that he or she is not a dangerous offender.

Are you in a position to say that this would then create a danger that we would have offenders who normally, under the current system, would be, for instance, designated long-term offenders, but because they don't have the resources or whatever, they will not necessarily be in a position to overturn the presumption that they are dangerous offenders? Therefore, they would have a designation that is in fact an incorrect designation.

[The Acting Chair, Liberal, Brian Murphy]

You have about a minute to designate your answer.

[Dr. Larry Motiuk]

I know there are some opinions in terms of interpreting the data along those lines. That is, the resources might not be there for those individuals because of some risk factors. Maybe they don't have stable employment patterns or the resources to defend themselves. This I'm not sure of.

To answer the question as to whether there is a margin of error in some of these evaluations, we don't have definitive research on that yet to clearly distinguish that. Is there a portion that should be designated? I don't know. You would have to look at that in a more focused way in that population, because they share some characteristics as well. They are a higher continued risk. I do not want to have the committee think that they are not at risk. There are some common risk factors they share with dangerous offenders and some they do not. That's the question one has to delineate on a case-based approach.

[The Acting Chair, Liberal, Brian Murphy]

Thank you for your answer.

We'll now turn to Mr. Norlock.

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

Thank you very much.

Thank you very much, gentlemen, for your testimony today. I find it very enlightening.

Dr. Motiuk, your background indicates to me that you've studied psychology from a holistic point of view, not just criminal. Have you done any studies with regard to just human behaviour in general?