Mr. Speaker, I would like to thank the two hon. members who contributed to this debate.
The hon. member for Surrey-White Rock-South Langley has introduced a motion at the same time as her private member's bill is before the Standing Committee on Justice and Legal Affairs for further consideration. Admittedly, Bill C-240 pursues a somewhat different angle on the subject. I want to commend her for her dogged determination to change the dangerous offender legislation. It is obviously a subject with which she feels very deeply. She has done a lot of work in making her presentation both on the present motion and in respect of the private member's bill.
Does the dangerous offender procedure need improvement? Quite possibly it could be improved. I will start by addressing one proposed change with which I disagree, a proposal that is central to this motion.
The motion provides that every time two psychiatrists determine that in effect an offender poses a high risk of reoffending, the attorney general of the province in which the offender was convicted shall direct that the dangerous offender application be brought. I do not believe it is appropriate to eliminate the discretion of prosecutors in bringing dangerous offender applications.
The criteria for a dangerous offender finding are contained within the Criminal Code. That is a concept created by criminal law and supported by criminal procedure. It is certainly true these criteria rely heavily on psychiatric prediction of risk, but medical standards are not the only ones that have to be met.
Section 753 of the Criminal Code requires that the likelihood of an offender causing further harm must be established to the satisfaction of the court. This is not entirely or even primarily a matter of medical or statistical prediction. Indeed it is a legal decision made according to criteria legislated by Parliament. The crown should possess the discretion considering all of the evidence available to it to estimate whether an application will be strong enough to meet this legal standard. I will return to the subject of the role of prosecutors in this process.
I would like to review the history of part XXIV of the Criminal Code in order to understand why the law is structured the way it is. I am not saying that part XXIV should never be changed, but the evolution of the dangerous offender concept and the restrictions the charter of rights imposes on that concept indicate that we should proceed cautiously in broadening it or oversimplifying it.
The dangerous offender provisions have their origins in the habitual criminal provisions added to the Criminal Code by Parliament in 1947. A person found to be such a habitual criminal could be sentenced to preventive detention for life. The state had to prove the offender on three separate occasions had been convicted of an indictable offence for which he was liable for imprisonment for five years or more and was persistently leading a criminal life.
If this sounds vague and ripe for abuse, it was. In 1969 a report by the Canadian Committee on Corrections, the Ouimet committee, found that a substantial number of these habitual offenders constituted a social nuisance but were not really dangerous. In 1948 Canada tried out the concept of a criminal sexual psychopath law. In 1958 it was thrown in with the habitual offender provisions under the name of dangerous sexual offender. Once again the Ouimet committee found in 1969 that the dangerous sexual offender legislation was capturing many non-dangerous sexual offenders and was missing the dangerous ones.
These provisions were repealed in 1977 and replaced with the dangerous offender provisions we see now in the Criminal Code. These amendments were designed to be more precise, to target the most dangerous serious offenders and similarly to avoid widening the net too much. In essence Parliament was saying: "Let us target the worst offenders without sweeping in the low risk or nuisance cases".
The dangerous offender legislation contained in part XXI, now part XXIV, passed a major hurdle in the Supreme Court of Canada's decision of R. v. Lyons in 1987. The court ruled that the dangerous offender provisions did not violate the protections in the charter of rights and freedoms.
I mention this case not so much for its support of the current law as for the firm indication by the Supreme Court that any law that seeks to sentence one of its citizens to an indefinite term in a penitentiary must be well tailored and confined to the most serious circumstances.
I offer one example from the judgment upholding the dangerous offender legislation:
The legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated dangerous. The criteria in Part XXI are anything but arbitrary in relation to the objective sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well-being of their victims.
The existing dangerous offender system contains three components: a focus on the most serious offences, a focus on the pattern of the offender's conduct, and an assessment of the likelihood of the offender's continuing his serious offending. These criteria have to be met if they are to justify locking up individuals indefinitely.
In broadening the target group so much, the motion before us runs a serious risk of conflicting with the decision of R. v. Lyons. It would broaden Part XXIV to capture any sex offence against a child. This would include cases of sexual interference under section 151 and an invitation to sexual touching under section 152 of the Criminal Code. While these crimes carry a maximum penalty of 10 years imprisonment, individual offences usually do not receive such lengthy sentences, nor do they typically involve the degree of violence envisioned by Part XXIV.
I doubt the Supreme Court would tolerate this net widening, particularly when, given the new rules prescribed elsewhere in this motion, crown attorneys would be forced to launch so many more applications. The court, as in the Lyons case, is vigilant to the potential for abuse in the overall structure of the procedure.
Returning to the issue of prosecutorial discretion, the Supreme Court in the Lyons case also stated it was important for the crown to have some discretion in bringing dangerous offender applications and that the absence of any such discretion could lead to a conclusion that the law was arbitrary.
I have raised several objections to the concept in this draft. In the interest of perspective, I point out how successful Part XXIV of the Criminal Code has proven. Between 1977 and 1995 approximately 143 offenders were found to be dangerous offenders and sentenced indeterminately to Canadian penitentiaries. Of that number, 134 remain incarcerated.
There are signs now that the provinces are using the procedure more often. Successful applications usually average eight or nine a year. In 1993 there were 15 successful cases; in 1994 there were 13, and we will all remember the recent designation of Paul Bernardo as a dangerous offender.
We can improve the dangerous offender legislation but not with the elements in this motion. I look forward to the review of the hon. member's private member's bill the standing committee, to which this motion is quite similar.
I would like to deal with this private members' bill and I am hopeful this motion will not be successful to allow us the opportunity to deal with these things one at a time.