Debates of Dec. 13th, 1995

Constitutional Amendments Act

[Darrel Stinson, Reform, Okanagan—Shuswap, BC]

Mr. Speaker, I rise on a point of order. On a vote as important as this I wonder if I could beg the Speaker to give a few minutes for the Tory leader-

[The Speaker]

That is not a point of order.

[Sheila Finestone, Liberal, Mount Royal, QC]

Mr. Speaker, on a point of order, unfortunately a truck got in my way and so I was delayed. If I had been here I would have voted with my party.

[Maurizio Bevilacqua, Liberal, York North, ON]

Mr. Speaker, unfortunately I was detained. As always I will be voting on behalf of the-

[Louis Plamondon, Bloc, Richelieu, QC]

Mr. Speaker, if the Standing Orders so permit, I have just arrived and I would like to be included in the vote, as I am entitled to be.

[The Speaker]

Pursuant to an order made Tuesday, December 12, 1995, the House will now proceed to the taking of the deferred division at the third reading stage of Bill C-108, an act to amend the National Housing Act.

The House resumed from December 12 consideration of the motion that Bill C-108, an act to amend the National Housing Act, be read the third time and passed.

National Housing Act

[Don Boudria, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Speaker, in the spirit of the festive season I take this opportunity to salute my colleagues, the whips across the way, and thank them for their co-operation.

I ask the House if there would be unanimous consent that the members who voted on the motion previously before the House, plus the hon. Secretary of State for the Status of Women and the Parliamentary Secretary to the Minister of Human Resources, be recorded as having voted on the motion now before the House, with the Liberal side voting yea. I am sure the whips of the other parties will add, if needed, members of their parties with their ranks.

[Gilles Duceppe, Bloc, Laurier—Sainte-Marie, QC]

Mr. Speaker, the members of the Bloc Quebecois will vote in favour of this motion.

[Bob Ringma, Reform, Nanaimo—Cowichan, BC]

Mr. Speaker, Reform members will voting nay on this motion, except for those who might wish to vote otherwise.

[Len Taylor, NDP, The Battlefords—Meadow Lake, SK]

Mr. Speaker, New Democrats in the House vote yea on this motion.

[Gilles Bernier, Independent, Beauce, QC]

Mr. Speaker, I am voting in support of this motion.

(The House divided on the motion, which was agreed to on the following division.)

[The Speaker]

Pursuant to an order made Tuesday, December 12, 1995, the House will now proceed to the taking of the deferred division on the motion of the hon. member for Cariboo-Chilcotin at second reading stage of Bill C-315.

The House resumed from December 12, consideration of the motion that Bill C-315, an act to complement the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves obtained by certain corporations, be read the second time and referred to a committee.

Protection Of Personal Information Obtained By Certain Corporations Act

[The Speaker]

As is the practice, the division will be taken row by row, starting with the mover and then proceeding with those in favour of the motion sitting on the same side of the House as the mover. Then those in favour of the motion sitting on the other side of the House will be called.

Those opposed to the motion will be called in the same order.

(The House divided on the motion, which was negatived on the following division:)

[The Speaker]

I declare the motion lost.

Dangerous Offenders

[Val Meredith, Reform, Surrey—White Rock—South Langley, BC]

moved:

That, in the opinion of this House, the government should amend Part XXIV of the Criminal Code-Dangerous Offenders-to provide:

1. that where an offender is convicted of a ) a sexual offence involving a child, or b ) an offence set out in

(i) section 271 (sexual assault) that has been proceeded with by way of indictment,

(ii) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), or

(iii) section 273 (aggravated sexual assault),

or an attempt to commit any of these offences, the offender shall, before being sentenced, be examined by two psychiatrists to determine c ) in the case of sexual offence involving a child, whether the offender is likely to commit or attempt to commit such an offence in the future, and d ) in the case of an offence referred to in section 271 that has been proceeded with by way of indictment, or section 272 or 273, whether the offender is likely to cause or attempt to cause death, injury or serious psychological harm to another person through a failure in the future to control his or her sexual impulses; and

1. that where the psychiatrists conclude a ) in the case of a sexual offence involving a child, that the offender is likely to commit or attempt to commit such an offence in the future, or b ) in the case of an offence mentioned in section 271 that has been proceeded with by way of indictment, or section 272 or 273, that the offender is likely to cause or attempt to cause death, injury or serious psychological harm to another person through a failure in the future to control his or her sexual impulses,

the Attorney General of the province in which the offender was tried shall direct that an application be brought to have the offender declared a dangerous offender.

Mr. Speaker, I would like to split my time with my colleague from Calgary Southeast.

[The Deputy Speaker]

That would require unanimous consent. Is there unanimous consent?

[Some hon. members]

Agreed.

[Val Meredith, Reform, Surrey—White Rock—South Langley, BC]

Mr. Speaker, it is my pleasure to have the opportunity to begin debate on Motion No. 461. I believe it is especially appropriate to speak to this motion today.

Earlier this afternoon I introduced to the House a petition that had been collected by the Melanie Carpenter Society. The petition had over half a million signatures, to be exact, 506,285 names. The petitioners ask Parliament to enact legislation that would keep dangerous offenders, especially dangerous sex offenders, off the streets of our country. The first of the nine items on the petition states: That dangerous offenders and pedophiles should be locked up for life.

As fate would have it, that is what we are debating today. The motion that I introduced jointly seconded by my colleague from Calgary Southeast, is targeted against sexual predators. It is an effort to get these offenders off the streets after their first conviction, not the second or third conviction which is often the case now.

The motion asks that once an individual has been convicted of aggravated sexual assault, sexual assault with a weapon or sexual assault that has been proceeded with by way of indictment or any sexual offence where the victim is a child, the convicted offender must be examined by two psychiatrists.

If the two psychiatrists conclude that the offender is likely to commit a similar crime in the future, the attorney general shall direct that a dangerous offender application be initiated. The convicted offender would then have a dangerous offender hearing where the crown would have to prove beyond a reasonable doubt that the offender was likely to reoffend.

This motion carefully balances the rights of the offender and the protection of society. The motion only applies to convicted offenders. Two psychiatrists have to conclude that the offender is likely to reoffend. Then the crown has to prove beyond a reasonable doubt before a court that the offender is likely to reoffend.

Society is protected by having early identification of dangerous sex offenders. Some may ask if this is possible. Not only is it possible but science is moving quickly in this regard.

While I was conducting research on my private member's bill, Bill C-240, I came across the work of Professor Robert Hare of the University of British Columbia. Professor Hare teaches in the psychology department and is the leading authority in the subject of psychopathy. Professor Hare and his colleagues have developed tests to identify psychopaths for Correctional Service Canada as well as the prison systems in Washington and California states.

It is generally accepted that these tests have an 85 per cent accuracy in identifying psychopaths. Some may argue that not all psychopaths are sex offenders and that is true. With this motion we would only be concerned with those psychopaths who were convicted of a serious sexual assault or pedophilia.

If two psychiatrists conclude that someone who has just been convicted of one of these offences is a psychopath, then if our society values its protection he must be found to be a dangerous offender.

In this instance we are talking about people like Clifford Olson, Paul Bernardo and Fernand Auger. I would like to use Auger as an example. We all know Auger as the man who kidnapped Melanie Carpenter from her place of work in Surrey, B.C., drove her out to the Fraser canyon where he sexually assaulted and murdered her. Auger was on parole at the time of this crime not for a sexual offence, but for robbery.

However 10 years earlier Auger was convicted of sexual assault or more precisely, two instances where he committed extremely violent sexual assaults. One instance involved a 17-year-old prostitute, the other involved a 14-year-old prostitute. In both cases Auger picked up these girls, drove to a secluded location, put a gun to their heads, threatened to kill them and the raped and sodomized them.

Arrested and convicted for both crimes, Auger received the remarkably lenient sentence of two years less a day and served his time in Ontario's provincial system. Why such a light sentence? As a Correctional Service Canada spokesman stated to a CBC reporter last March, Auger's crimes were not viewed as being violent because the victims were prostitutes and this implied a level of consent.

However, after a subsequent conviction for robbery Auger ended up receiving a sentence in a federal institution. He submitted himself to a psychological review as part of a parole application. It was at this time that the true nature of Auger's personality came to light. Auger's psychological assessment reads as follows: "Appears to employ defence mechanisms, such as minimization,

rationalization and displacement to justify his criminal activity. He has a fairly advanced anti-social personality disorder".

In August 1994 the National Parole Board denied Auger parole, stating he was a high risk to reoffend. Unfortunately, because of the way the Corrections and Conditional Release Act is written, Auger was required to be released a few months later and because of this Melanie Carpenter is no longer with us.

I am confident that had Auger been examined by two psychiatrists for his assaults on the two teenage prostitutes in Toronto, his anti-social personality would have been uncovered at that time. Had he been found to be a dangerous offender, he would have received an indefinite sentence.

Contrary to what some may think, an indefinite sentence does not mean to lock them up and throw away the key. What it does mean, however, is that the offender is kept in custody until the parole board is convinced that the offender does not pose a serious risk to society.

It is mainly up to the offender to determine how long the sentence will be. If the required treatment is taken and shows real progress, it need not be a long incarceration. Parole eligibility is after three years and then every two years thereafter.

The greatest value of the indefinite sentence is twofold. First, for those offenders who show no inclination of rehabilitation, there is no pressure on the correctional system to get them ready for release, whether they are prepared or not.

Second, for those who are released, the justice system can closely monitor their activities in the community. If this had happened in Auger's case, maybe two people would still be alive, Melanie Carpenter and Fernand Auger.

I believe this motion is sound. It satisfies not only the Reform Party's objectives for public safety, but the red book objectives of the Liberals to protect women and children.

Similarly, the justice critic for the Bloc Quebecois has frequently expressed her concern for the safety of women and children. I only hope that she is equally concerned about protecting them from sexual assault, sexual predators, as she is from protecting them from firearms.

This motion targets only a small percentage of the Canadian population, sexual predators. I fully agree with the over half a million individuals who signed the Melanie Carpenter Society petition, who believe that dangerous sex offenders and pedophiles belong behind bars, not on our streets.

[Jan Brown, Reform, Calgary Southeast, AB]

Mr. Speaker, I am very pleased to speak today in support of the motion of my colleague from Surrey-White Rock-South Langley. It is unfortunate, in fact an abysmal comment on Canadian society, that we require this kind of legislation. However, I am heartened by it and am honoured to second the motion.

Under current law, a sex offender cannot be detained beyond a jail sentence. We may ensure their stay beyond their statutory release date only if a psychiatrist signs a certificate saying that the inmate suffers from a mental disorder that would likely result in serious injury to others.

The motion before us today provides the point of difference that Reform brings to the debate. Rather than attempt analysis at the end of a sentence, an offender should be subject to analysis by a psychiatrist before sentencing and then, if need be, deemed a dangerous offender. This supports reasoned argument to keep incarcerated those who pose a threat to society.

This is exactly the kind of legislation that this country needs. This issue should be non-partisan. I believe all of us in this House want to safeguard the rights of victims and, in this instance, the rights of victims of sex offences.

Let us not forget that the law of the land should not only safeguard those who already have been victimized, but the law should also endeavour to protect us from further victimization by those who demonstrate a dangerous propensity to commit sex offences.

Currently, we sit in the House listening to a great deal, possibly too much debate on national unity, when under our noses other important problems need to be addressed. We can do something positive here. Instead of splitting apart, instead of limiting debate on issues of importance, we can join together today on an issue that concerns us all. I urge all of my colleagues in the House to support this important motion.

The motion we are debating today specifically addresses the issue of protecting society from sexual predators, people who are driven to inflict harm on women and children in our society. Sexual predators are people like Clifford Olson, like Paul Bernardo. They prey on the weak and vulnerable and they enjoy it. They have been psychologically profiled as deviants who repeat their crimes and even enjoy them. These are the people who will be affected by this motion.

By passing this motion we will be saying that yes, we believe that we have a moral obligation as parliamentarians to protect society from those who seek to prey on its weak and vulnerable; yes, we believe that for the safety of society certain offenders should be required to undergo psychological evaluation and under certain circumstances should be deemed to be dangerous offenders.

This allows us the freedom and opportunity to keep those individuals in prison, those who pose an unacceptable threat to society.

In this instance, to some extent we are talking about locking the door and throwing away the key. That statement unto itself may sound unduly harsh; however, when it is rephrased it may become more palatable and perhaps better understood. Does anyone here believe that someone like Clifford Olson or Paul Bernardo should ever be allowed to walk the streets again? I do not think so. It would take a tremendous amount of convincing to dissuade me of this opinion.

The criminal must have served many years in prison. Treatment must have been completed and demonstrated to have had a positive effect. Remorse must be clearly demonstrated. Compensation of some kind would have to have been made to the victims of the crime by the criminal. Then and only then would I even entertain the notion of allowing the individual the opportunity to undergo further psychological assessment to determine the possibility of recidivism. This is not an issue of being harsh; this is a basic human issue about protecting the most vulnerable.

Protection of society will not be accomplished solely by the provision in the motion under debate today, but it does go a long way. Clearly, the preference would be to treat sexual offenders and to cure them of their illness. However, when this effort has failed we have a moral obligation to protect society. What we are debating today is whether the House sees this moral obligation; whether the House feels this moral obligation so strongly that it will make the moral obligation a legal obligation.

Some may ask why we need this legislation. Allow me through the use of an anecdote to demonstrate why this kind of legislation is necessary. There are times when my colleagues opposite are critical when we cite real life stories. However, unfortunately, they abound. They do represent a body of anecdotal evidence which cannot be ignored. If we can introduce legislation at little or no cost which will inconvenience few in society and by doing so save lives or prevent the commission of crimes, then we must commit to that effort. On that note, allow me to share with the House a sad story.

On November 18, 1984 Wray Budreo became a free man and every parent's nightmare. For days his face had been plastered on newspapers throughout southern Ontario. Budreo had a 32-year history of child molesting, including 22 convictions for sex offences. However, because he had served his full six-year term, there would be no parole or probation, no restrictions on his movements, no conditions for mandatory treatment. He was bundled into the trunk of a police car and spirited past the protesters who awaited him outside Kingston Penitentiary. I do not know if this man has reoffended. I pray that he has not. What concerns me greatly is that a known sex offender who was expected to reoffend was released from one of our jails.

I hear a familiar refrain all too often from people who doubt their own ability to shield their children from sexual abuse, especially without being overly paranoid or obsessive. We must first know some of the facts.

Not every child is equally at risk. Offenders target especially vulnerable children: lonely kids, those with disabilities or who have difficulty communicating, youngsters with absent dads who may be looking for a father figure, and those whose behavioural problems make it unlikely they will ever be believed if they do speak up.

Of course, the biggest risk factor is contact with a potential abuser. Here the facts contrast with the headlines. The dangerous stranger is the exception rather than the rule. A 1992 Statistics Canada survey found that in cases of child sexual assault, 48 per cent of the abusers were a parent or family member. Another 43 per cent astoundingly were friends or acquaintances. Only 5 per cent were strangers.

Whoever the offender, the offence is clear. It is always illegal for an adult to engage in sexual contact with a child under the age of 14. It is also illegal for an adult who is in a position of trust or autonomy to engage in sexual contact with a young person under the age of 18. The law recognizes what adults know. Children can be manipulated especially by the people they trust. Whether they say yes does not matter because the adult is the one who must say no.

There are no national statistics on the number of children molested every year but whatever the figure, it is too high. It can only be reduced one child at a time. That means we must make an effort to deal with potential abusers by ensuring that dangerous, repeat sexual offenders remain in a place where they cannot threaten our children or society as a whole.

Even the term "potential abusers" is quite misleading in this context because we are referring to people who have already been convicted of a criminal offence but who we strongly suspect will have the potential to reoffend. Suggesting that dangerous offenders of this kind are only potential abusers gives them too much credit.

An important component of this debate revolves around the issue of our ability to rehabilitate the convicted sex offender. One of the reasons for this legislation is the widespread disagreement about the success or even the possibility of rehabilitating a sexual offender.

Two centuries after the birth of modern psychiatry there are numerous treatments for sex offenders but as yet no consensus on the results of such treatments. A forensic psychologist at the Oak Ridge Facility for the Criminally Insane in Penetanguishene,

Ontario states: "We do not seem to be having much of an impact on sex offenders".

What are the costs to society? An argument is made that the annual cost to supervise an offender while on parole is only $9,400 whereas the cost of incarceration for a year is reported to be close to $70,000. Simply put, I believe there are times when social protection is worth the price. This may just be an instance where we have to swallow the costs. If it means saving 22 people from being victimized by a man like Wray Budreo then $70,000 a year is worth it.

Canada spends about $11 million per year on dozens of programs for sex offenders. About 5,000 of the 23,000 convicts in the federal corrections system have sex crimes on their record. The government proudly points to the statistics that only 6 per cent of sex offenders repeat their crimes within three years of their release. However, researchers who study sex offenders say that the recidivism rate jumps to about 50 per cent when the criminals are tracked over a decade. It is always the part that is left out that is the most startling.

There is little evidence, or at least there is lots of contradictory evidence, that therapy reduces recidivism. I am concerned by this contradiction. Until we are more certain of treatments that will reduce recidivism, I am uncomfortable in allowing potential predators back on the streets.

Belatedly, it is important that those who commit sexual offences be categorized as to whether or not they are psychopaths. Experts agree that the recidivism rate for psychopaths is triple that of non-psychopaths.

In conclusion, let me reaffirm my very strong support for this motion. I believe that if we could encourage the justice minister and the government to pass this motion, we would go a giant step toward making our country a safer one in which to live.

[Russell MacLellan, Liberal, Parliamentary Secretary to Minister of Justice and Attorney General of Canada]

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.

[Grant Hill, Reform, Macleod, AB]

Mr. Speaker, I simply want to express my support for the private members' bill from the member for Surrey-White Rock-South Langley. It is timely, the right bill at the right place at the right time. I cannot imagine that anyone would not accept that.

[Peter Milliken, Liberal, Kingston and the Islands, ON]

It is not a bill, it is a motion.

[Grant Hill, Reform, Macleod, AB]

A heckler across the way.

In my life I dealt with sexual predators. This motion is exactly what we need and I express my support for it.