Thank you very much, Mr. Patry, Mr. Dupuis, and members of the committee, for this opportunity to testify on this important public safety matter.
My name is John Muise. I'm the director of public safety at the Canadian Centre for Abuse Awareness. For those of you I haven't met before, I'm a retired police officer, having just last year wrapped up 30 years as a police officer in the Toronto Police Service.
During the last six or seven of those years, I was a seconded member of Ontario's Office for Victims of Crime, an arm's-length advisory agency to the provincial government. We provide advice on public safety, criminal justice reform, and support for crime victims to a number of attorneys general and other members of cabinet.
The CCAA is a non-governmental charitable organization that has been in place since 1993. It has tried to raise awareness about the true cost of neglect through its support of the victims of child abuse. Based in Newmarket, Ontario, north of Toronto, the CCAA is powered by a committed group of staff and volunteers, providing support to 70 partner agencies. Whether it's fulfilling a child's dream wish, assisting crime victims, developing abuse prevention programs and resources, or advocating publicly for legislative change—that's what I do—CCAA is committed to ending abuse.
A few years ago, the CCAA received a government grant to go around the province of Ontario—where I first met them, actually—to conduct a review of round tables to get a sense of how we could better improve the criminal justice system in order to enhance public safety and protect children. When they went around the province, they spoke to 150 front-line criminal justice professionals, crime victims, abuse survivors, and other stakeholders.
From this, a report was completed. It was named the Martin's Hope report in memory of Martin Kruze, an adult survivor. He was an innocent child victim of the Maple Leaf Gardens sexual abuse scandal. In a courageous move, Martin publically disclosed the abuse he had suffered at the hands of his perpetrator. Convictions were subsequently registered for numerous child sex abuse offences, but just four days after one of the accused was sentenced to just two years less a day in a reformatory, Martin tragically took his own life. Although it was too late for Martin, the sentence of the offender was later increased to five years on appeal.
This proved to be the turning point for the CCAA. They did their review, and out of it came the Martin's Hope report, with 60 recommendations for change—39 directed at the federal government, and 21 at the Ontario provincial government. The report was released in November 2004 at Toronto police headquarters.
We welcome the opportunity to provide these submissions. As indicated in the preface, CCAA's Martin's Hope report makes 60 recommendations. Included in the report are recommendations with respect to dangerous offenders, long-term offenders, and section 810 orders, or recognizance to keep the peace.
Seven of the recommendations in our report have relevance, and we have reprinted them in a brief that I provided to the clerk, Mr. Dupuis, electronically last night. I suspect once it is translated, it will be made available to you. I'm relying on that brief today.
Three recommendations in particular have specific applicability to the amendment proposed in this bill; several others are ancillary, and we have included them in the brief.
Our recommendation 8-5 was that the federal government amend sections 810.2 and 810.1 of the Criminal Code to extend the duration of the order for up to five years, also providing for a process whereby the person required to enter into the recognizance can seek a court review of the need for continuing or varying the order on an annual basis.
We also made a recommendation 8-6 to include specific conditions in the recognizance orders, including residing at an approved location; where necessary, residing in a community facility; and complying with electronic monitoring.
One other recommendation that is specific to this bill is 8-9, and our recommendation was that the federal government amend section 753.1, the dangerous offender provisions of the Criminal Code, to ensure that the court takes special notice of any pattern of repetitive behaviour by the offender of violating conditions of a court order, including any kind of conditional release, including long-term offender releases, and for the court to take special notice where those violations resulted in direct victimization.
As you can see in that recommendation, the CCAA's proposed amendment would require judges to take special notice of any repetitive behaviour. We are heartened that an amendment of this kind with respect to violations of long-term orders is being proposed by certain parliamentarians, including members of this committee, and we would encourage this committee and its members to pursue an amendment of this nature either now, as part of this bill, or in the future.
We note that some provincial Attorneys General have called for an amendment of this nature, and additionally that the Honourable Rob Nicholson, Minister of Justice, in his testimony before this committee, indicated that his department is actively exploring this possibility.
Several of the participants, during our round table, had originally called for a “three strikes and you're in” amendment, whereby three serious crimes that resulted in serious time would result in an automatic dangerous offender designation. To be frank, we hadn't thought of a reverse onus provision as set out in Bill C-27, so the recommendation that I just read to you, as set out in 8-9, was what we felt was an appropriate fallback, consistent with section 1 of the charter. We hadn't considered the reverse onus provision as contemplated in this bill, so our compliments for the creativity displayed by this government and the Department of Justice in crafting this particular suggested amendment.
For the CCAA, amending the dangerous offender legislation is simple. We hope to expand the reach of the legislation to capture more dangerous offenders than are currently designated as such and, of course, to do it in a way that would pass constitutional muster.
It is our position that the section 1 charter justification for the amendment proposed in Bill C-27 could come from the Oakes case, Supreme Court of Canada, 1986--I don't think it's a case that's been referenced yet before this committee, I'm not sure--wherein the court stipulated that the measures used must be fair and not arbitrary, proportionate to the objective, and ultimately the least intrusive to accomplish the objective.
Let's look at those words in the context of Bill C-27.
Is it fair? Bill C-27 defines a narrow set of serious offences, primary designated offences, where the offender has been convicted twice already, sentenced to federal time on both occasions, and is now being sentenced for a third time for another primary designated offence. This is serious enough. Most, if not all, of these offenders will have long records that often include many more convictions. The CCAA believes that Bill C-27 in this regard passes the fairness test.
Is it proportionate? The goal of the legislation is to incarcerate indefinitely offenders who pose a danger to society. The bill, according to the justice department, would put approximately 25 more offenders per year into this process, possibly doubling the current 25 offenders estimated, more or less. Out of a population of approximately 30 million people, half of whom are men--and men are the people who are declared dangerous offenders--this is but a tiny sliver of the population. It is also a tiny sliver of the criminal population, and indeed, the inmate population. The primary designated offence list ensures that no pizza slice thief will get caught up in this measure.
Is it arbitrary, and does it serve the principle of least restrictive intrusive measure? If the reverse onus provision led to automatic dangerous offender status, much like a “three strikes and you're in” law, then one might be able to make that case. In our opinion, the safeguard in Bill C-27 is the fact that subclause 3(2) treats this proposed amendment the same way as the existing dangerous offender legislation, wherein the onus is placed on the judge to decide if the offender could be managed in, for instance, a long-term offender setting. Therefore, I believe the principle as set out in the Johnson case, that the judge must consider less restrictive measures if appropriate, applies to this amendment.
In addition, the Mack case confirms that proof beyond a reasonable doubt only applies with respect to the issue of guilt or innocence of the accused, and in the Lyons case, the right to be presumed innocent doesn't apply with regard to dangerous offender hearings. These men are, after all, already guilty.
Who are these offenders who might be captured? For the most part, these offenders will have numerous and varied convictions, likely over a long number of years, with the large majority of them being sex offenders.
A recent case that has been in the news, and for which much of his criminal history is a matter of public record, is the Paul Douglas Callow case. Mr. Callow is known also as the balcony rapist.
Mr. Callow has a record dating back to the early 1970s that includes a number of convictions for property and violent crimes, including break and enter and assault. Mr. Callow also has a conviction for loitering by night, or peeping.
He has a rape conviction, which as most of you know is a historic conviction for sexual assault involving penetration. It would be included as a primary designated offence—so that's number one—for which he was sentenced to four years in prison. It is an offence for which he was subsequently recommitted as a mandatory supervision parole violator, now known as statutory release.
Finally, he was sentenced in 1987 for five counts of sexual assault with a weapon, which is primary designated offence applicable, and he received a total of 20 years in prison for those five convictions. In light of the danger posed, he was held until he had served every last day of his sentence, with release when he reached warrant expiry in February of this year. Since his release, he has been on a section 810.2 order, and very much in the news.
There are more than just a few people wondering why this offender has not already been declared a dangerous offender, but he hasn't been. The next time he commits another sexual assault, which would be an applicable primary designated offence, the reverse onus provision of Bill C-27 in his particular case would kick in.
I think that's a good thing. The CCAA believes this would be entirely appropriate. We believe Mr. Callow is fairly typical of the kind of offender who would be captured by this legislation.
What about the provision regarding recognizance to keep the peace of Bill C-27? As was detailed earlier in my presentation, CCAA has called for both an extension of the time period and for Parliament to identify in statute the kinds of conditions that are appropriate for use in crafting these orders. Our experience with the kinds of offenders placed on these orders, particularly sex offenders and child sex abuse offenders, led us originally to recommend in our Martin's Hope report a period of five years, rather than the two years that was proposed, with the opportunity for the subject of the order to return and have the order shortened or changed if he no longer posed a danger to the community or if the danger lessened. In addition, we suggested a number of specific conditions to include in the statute, with electronic monitoring as one of those.
We are very satisfied with the specificity of the list of conditions as proposed and see no requirement for change. When one considers that these orders are for the most part reserved for offenders like Paul Callow—and wouldn't it be nice if he had an electronic monitoring bracelet on—including a broader range of conditions, particularly electronic monitoring, could, like the dangerous offender portion of this bill, have a positive impact on public safety.
It is our understanding that significant support exists for this section of Bill C-27 at this committee and amongst parliamentarians. For that reason, we will not dwell on its legislative or constitutional validity.
In conclusion, the CCAA supports Bill C-27 as written. We believe it is reasonable and proportionate and will enhance public safety. As we have previously recommended, a breach of a judicial order, including long-term offender orders, should be a factor for which a judge should take special notice in determining whether to declare someone a dangerous offender.
We certainly welcome the conversation that has been had at this committee and elsewhere about making that a potential trigger to bring somebody back before a judge to be declared a dangerous offender. We are heartened that you share that view. Again, we would encourage you, either as a complementary addition to this bill, or in a future bill, to consider this sort of amendment, but not as a replacement for the section as written.
As for the length of the so-called section 810 orders, we would urge you to consider a five-year term, up from the two currently proposed.
Either way, it is the position of the CCAA that Bill C-27 should pass, and although we welcome amendments that strengthen the bill, they shouldn't slow its passage or compromise its integrity by inserting the discussed triggering amendment to replace the current reverse onus amendment.
Thank you very much for the opportunity to testify. I look forward to your questions.
