Bill C-27 (39th Parliament, 1st Session) Committee on June 13th, 2007

[John Muise]

I can't speak to the kinds of conversations that happen behind closed doors, because I've never been part of one of those conversations. What I can tell you—

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

Mr. Muise, I don't want to limit you to direct evidence. I'll take hearsay if you have any.

[Some hon. members]

Oh, oh!

[John Muise]

I want to be fair. Cost is always an issue. For instance, a police officer, particularly in a small jurisdiction.... I think it becomes an issue because it's just looked at in the context that we can't do this because the person taking care of sexual assaults is the one and only person taking care of sexual assaults and criminal offences in that small, small jurisdiction.

At the end of the day, the person who is given the job—because it goes beyond the Crown's office—of putting that brief together is usually the police officer on the particular case that he has charged, as you know. So probably the main conversations are about whether there's a reasonable likelihood that somebody is going to be declared a dangerous offender and, of course, since 1997, whether they might be declared a long-term offender.

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

Just to pursue the cost issue for one more question, have you seen any analysis by anyone as to what, on average, it costs for a dangerous offender application currently in the country?

[John Muise]

No, I haven't and I don't know whether the information exists. But I can tell you that when people came to speak to the CCAA during the round tables for the Martin's Hope report, one of the recommendations was that the province pick up the tab for the cost of the police investigation.

The Toronto Police Service will grab somebody from the sex crimes unit and say, this is what you're doing, and the other 50 people can manage the other cases. But in a smaller town service or smaller city service, you're doing it. Particularly in those smaller places, it becomes very significant.

[The Chair, Liberal, Bernard Patry]

Thank you.

Mr. Moore, please.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

Thank you, Mr. Muise, for being here.

I think this is one of the cases—and I'd like to know whether you agree—for which, if ever there was a time when cost shouldn't be a factor, it's in these cases of dangerous offenders. You'd be best placed to talk about this, but with your organization working on abuse awareness and victims' issues, I look at the associated cost to society when these guys are victimizing.

We've heard evidence already on the recidivism rates. If someone has had a second offence, a third offence, a fourth offence, especially when they're of a sexual nature, the likelihood goes up of their reoffending. You gave testimony that in many cases that's what we're talking about: dangerous offenders.

Maybe you can talk a bit about that and the cost to society—I think there's agreement, and I'd like your comment on this also—when someone who, after the Johnson decision, because of the threshold that's in place, meets the requirement to be a dangerous offender but does not get the status of becoming a dangerous offender and therefore eventually is out in the community.

[John Muise]

That's a good question. There is a cost in terms of actually conducting the dangerous offender investigations. I certainly don't deny it. And it's not pennies; it's a lot of money. But I weigh all of these issues: not how much it costs to do that investigation, but rather the cost overall to society—and I think that's where you're going—and to particular individuals who end up victimized.

I can never accept that, for instance, we'd like to do this but provincial attorneys general want more money to conduct dangerous offender investigations. That may be so, but in the meantime we can't afford not to do these kinds of investigations, because we know that it's particularly the serial repeat offenders who are the ones who offend again.

Let's use Mr. Callow again, because it's a matter of public record. There are several people whose lives have been inextricably altered as a result of his actions. To this day, one of them, a Jane Doe, continues to speak from time to time in public. I cannot speak for her, but certainly there's no question that her life and other women's lives have been altered. We have a community that is rising up in fear in British Columbia because of someone, quite frankly, who....

In fairness, part of the reason he's not a dangerous offender is that at the time, probably, the crown attorney's office felt it was too difficult to have him declared under the old legislation. When he does it again.... I hate even saying that; I think about my children, I think about my family, I think about my wife. When he does it again, I think we're going to have a much better chance of locking him up, but it shouldn't happen that way.

If you choose not to identify the small minority of offenders who commit a disproportionately large majority of serious and violent crime, the cost of ignoring them is far greater than coming up with the $10,000 to $40,000 for a provincial attorney general and a local police service to conduct a dangerous offender hearing.

If the hearings happen to double from 25 to 50, that cost in actual dollars per year, over the whole country, is minimal. We cannot afford not to do it.

[Rob Moore, Conservative, Fundy Royal, NB]

Chair, I was going to split my time. How much time do we have left?

[The Chair, Liberal, Bernard Patry]

There is three minutes left. Mr. Norlock can go, and you can go, and then there'll be a second round.

[Rob Moore, Conservative, Fundy Royal, NB]

Well, I'll be splitting my time with Mr. Lukiwski.

[The Chair, Liberal, Bernard Patry]

We'll have Mr. Norlock, and there'll be a second time for Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much, Chair.

Thank you, Mr. Muise.

I'm new to this committee, but I do want to follow up on some of the comments made by my colleague Mr. Comartin and my colleague from the Bloc on the cost, particularly the cost of incarceration.

I'm assuming that you are aware of Peter Whitmore. Peter Whitmore, of course, is a serial repeat sexual offender. I recall having this debate in the House, when Bill C-27 was first introduced, and responding to a line of questioning--or a line of debate, I suppose--from one of the Bloc members, who was stating in his terms of debate that he was opposing this legislation because of the cost of incarceration.

I pointed out to my colleague the case of Peter Whitmore, who had offended several times before. His MO was to abduct small children, small boys, and sexually abuse them. He was out either on parole or for whatever reason and came to Saskatchewan—he's not a Saskatchewan resident—abducted two small boys, one from Saskatchewan and one from Manitoba, held them captive for three days, inflicted God knows what abuse upon them, before the RCM Police, acting on a tip, finally apprehended him in a small farm house just outside of Broadview.

I asked my colleague from the Bloc if he could please come out to my constituency and to my province and explain to the parents of those young children that the cost of incarceration was more than the security of their children was worth. I do not think—and I'm not trying to embarrass anyone here—that there is any cost too great to protect our children from that type of torture, that type of abuse.

I'd just like to get your comments on that, because there seems to be a prevalent theme here about costs.

[John Muise]

Well, I agree. I know it's expensive to incarcerate somebody. I think it might be $90,000 or $100,000 a year. I get that. That's a fraction of the overall government budget. That is a lot of money where I come from. I'm a penny-pincher. I buy cheap suits. But in the overall budget of this land, I think the criminal justice budget is reasonably insignificant as a percentage.

If we're going to spend money in the criminal justice system, I would suggest that if indeed this bill identifies more people that are potentially dangerous.... I know all about Peter Whitmore. I don't know his record to the same specifics as I do Mr. Callow's. But if, for instance, the next time he goes wrong, or let's say maybe if these current offences were flashed forward post-passage of this bill--if it indeed does pass--if it captured him, then that would be a good thing.

So if we were spending $90,000 or $100,000 more a year because we were incarcerating the likes of Peter Whitmore, I think that would be an appropriate expense in the context of the overall budget. I think it's an appropriate expense in the context of the overall budget of the criminal justice system. I would go back to what I said before, which is that we can't afford not to lock up dangerous offenders, particularly people like Paul Callow.

Mr. Whitmore's previous record is a matter of public record. The current allegations are just that. But this is the kind of offender that I believe, and the CCAA believes, would be captured underBill C-27. We know Mr. Callow would, but I'm not sure about Mr. Whitmore.

[The Chair, Liberal, Bernard Patry]

Thank you, Mr. Muise.

We'll go back to

Mr. Bélanger.

You have three minutes, Mr. Bélanger.

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

Thank you, Mr. Chairman.

I want to make sure that my colleagues opposite understand that it's not so much a question of cost. In fact, I haven't even talked about that. I think Parliament must address this because it is a question of principle. I find it hard to accept that the burden of proof is being transferred from the state—with all its resources—to individuals, who, in most cases, won't have sufficient resources. The committee would do well to explore why in the past we haven't used the Criminal Code provisions that enable the state to incarcerate these people for an indeterminate period by declaring them dangerous.

Mr. Muise, in your study, you concluded that the question of the burden of proof might not pass the Charter test. Consequently, you didn't make that recommendation. I'm very glad to hear it. You produced a study, which I haven't seen. There appear to be a number of people who have previously been convicted of crimes, who have served their sentences and who have returned to society. I don't believe there are any limits to the number of times the state can try to have someone declared dangerous. Why, with all these instruments, hasn't the state done it? Why is it that this measure is underutilized? In your opinion, it is. How have we come to that? Before concluding that we must reverse the burden of proof, I would like to know why it's not sufficiently used. Why is that, in your opinion?

[The Chair, Liberal, Bernard Patry]

Mr. Muise.

[John Muise]

First, I'd like to correct the record. I think I made it clear. From where we sit, the reverse onus provisions that are contemplated in Bill C-27 are absolutely appropriate in the context of the charter. As we worked to craft the Martin's Hope recommendation, we believed that the “three strikes and you're in”--in other words, one robbery, two robberies, three robberies--would not withstand charter scrutiny. So I just want to clarify that.

I think the number one reason, the overriding reason that attorneys general haven't proceeded with dangerous offender hearings is that when they looked at--particularly pre-1997, before the long-term offender provisions--the standard that was required to meet a determination of dangerous offender, they recognized that in a lot of cases they weren't likely going to meet it. And so they weigh their resources. They don't proceed with cases that have little likelihood of conviction. When they realize they're not likely to have somebody declared a dangerous offender, they don't proceed. I think that has probably been the number one overriding reason, particularly before 1997 when the long-term offender provisions came in.

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

Do you know how they managed to determine that they probably wouldn't succeed?

[John Muise]

The test is very high. In law, it is significant. The test you have to meet to have somebody declared a dangerous offender is high.

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

I have one final question.

[The Chair, Liberal, Bernard Patry]

Yes.

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

Would the test for demonstrating the contrary—that someone is not dangerous—be as high, in your view?

[John Muise]

If I understand your question correctly, in the current dangerous offender legislation, the onus is on the Crown to prove that somebody is dangerous.