Mr. Speaker, I rise today to speak against Bill C-471 regarding dangerous offender designations for repeat sexual offenders against children. This bill proposes to impose mandatory dangerous offender designations against any offender who can be shown to have had a previous conviction for a predicate sexual offence against a child.
My colleagues who spoke on this matter a few months ago have indicated that this particular provision poses a serious problem from a constitutional point of view. I also note that some members opposite have argued that there is no constitutional problem, as the provision allows for the respondent to rebut the presumption that he or she should otherwise be designated a dangerous offender.
While this is an attempt to respond to the obvious charter issues this provision raises, I cannot agree that it in fact overcomes those specific issues cited by the Supreme Court of Canada in the leading cases of R. v. Lyons and R. v. Johnson.
These cases discussed the ability of the Crown to impose an indeterminate prison sentence while remaining within our Constitution. Our Constitution has entrenched in it fundamental principles of justice. The court made it clear that if the Crown seeks to impose an indeterminate sentence in order to protect society in addition to the regular sentence available for the specific crime the accused is convicted of, then certain principles had to be followed.
In the first place, the burden must be on the Crown to prove that the individual before the courts is in fact a clear danger to commit a violent offence. Second, if that burden is met within the specific requirements of the dangerous offender provisions, the Crown must also meet the burden of demonstrating that the particular risk posed to society by that particular offender cannot be managed by any other method available, in particular the new long term offender designation in section 753.1.
In effect, the Supreme Court of Canada has established that if the Crown is unable to satisfy the sentencing court on the evidence that the risk of serious re-offence cannot be managed by the less onerous long term offender designation, then the dangerous offender application cannot succeed.
Finally, the Supreme Court stipulated that even if the Crown meets those burdens, the sentencing judge must retain discretion to refuse to permanently jail the offender. Without this discretion, indeterminate incarceration is simply not viable under our charter of rights.
If we look at the bill, we see that it is inconsistent with these clear principles laid down by the Supreme Court in Lyons and Johnson. The proposal in Bill C-471 requires a judge to impose the dangerous offender designation. There is no discretion. The bill says “shall,” not “may”. The provision that the judge can refuse the application if the offender satisfies a reverse onus is almost certainly not adequate in this regard. As I see it, this proposal does not meet the principles enunciated by the Supreme Court of Canada in Lyons and Johnson.
The objective of the bill is not only to automatically jail indefinitely anyone convicted for a second time of specific sexual offences against a child under the age of 18, but to also make it much more difficult for such offenders to be granted parole.
However, this is already so. Under the current provisions of Part XXIV of the Criminal Code, an offender who is designated a dangerous offender is not entitled to a parole hearing until the seventh year of incarceration. This position was significantly toughened by our government in 1997.
Before that, dangerous offenders could apply for parole after only three years. It is now seven years. The reason for the change was, among other things, to prevent the inconsistency in parole applications between someone sentenced to a 10 year imprisonment for the same offences but who was not designated as a dangerous offender.
Bill C-471 seeks to establish a very specific set of criteria for a very specific group of dangerous offenders. Under the proposal, the National Parole Board would have one set of statutory rules for current dangerous offenders and another set for this particular group of sex offenders.
The National Parole Board is an independent administrative tribunal with a legislative mandate under the Corrections and Conditional Release Act. To make decisions about the timing and conditions of release of offenders into the community, board members are required to make decisions in regard to the specific factual circumstances of the individual case, guided by the law, policies and Canadian court precedents in coming to their decisions.
There are a number of principles in the Corrections and Conditional Release Act that direct the work of the Parole Board.
The paramount principle, in considering a parole case, is the protection of society. In doing their case by case analysis, board members are required,by law to take into consideration all available information that is relevant to the case.
Therefore, the National Parole Board currently has in place a policy that dictates that at least one sessional assessment by psychologists and psychiatrists is required for all dangerous offender parole applications. Such assessments provide critical information about the mental state of an offender and other characteristics and factors that may raise the risk of reoffending. Therefore, the psychological assessment that Bill C-471 asks for already occurs.
The member for Crowfoot is asking for more than one assessment. I am not sure why. There is no doubt that an assessment is an important piece of the puzzle in parole applications for dangerous offenders, but it is certainly not the only piece. An assessment is only one element of the comprehensive analysis that board members must, by law, undertake in reviewing each case.
As I mentioned above, the current system ensures that public safety is paramount in all cases, including dangerous offender cases. However, by putting an overly important and restrictive emphasis on the psychological assessment alone, I believe a dangerous precedent could be set, and the National Parole Board may feel compelled to release an offender if the assessments indicate any chance of success in the community, even though there may be other factors that dictate against release.
I believe it is critical that the National Parole Board remains an independent administrative tribunal operating at arm's length from the Government of Canada. The legal authority within which the National Parole Board operates is clearly set out in statutes, including the Constitution Act, the Canadian Charter of Rights and Freedoms, the Criminal Code of Canada, the Corrections and Conditional Release Act and its regulations and other legislation.
In making quality decisions regarding conditional releases and pardons as well as recommendations in clemency cases, the board's primary objective is the long term protection of society. The National Parole Board's mandate ultimately requires that public safety can best be achieved by timely and supervised conditional release and through the effective administration of sentences. However, while the board is autonomous and independent, it is also accountable for its actions to Parliament and ultimately to all Canadians.
The board is headed by a chairperson who reports to Parliament, through the Minister of Public Safety and Emergency Preparedness. The minister does not and should not give direction to the board in the exercise of its decision making powers regarding the conditional release of individual offenders. It would be the same as the Minister of Justice dictating to judges who is guilty and who is innocent and how sentences should apply, and that is absolutely unacceptable.
The independence of the National Parole Board helps to ensure the impartiality, objectivity and integrity of the parole decision making process. There is no political interference in decision making in individual cases and there should not be. It seems to me that the restriction being proposed regarding conditional release for dangerous offenders in Bill C-471 would unnecessarily fetter the case by case discretion which the board now uses to make decisions.
The Parole Board, under current law, cannot release dangerous offenders unless they can determine that they do not pose an undue risk to society. In the rare cases when dangerous offenders are granted parole, they are subject to intensive supervision for the rest of their lives. The fact is that a very few dangerous offenders are paroled and in the vast majority of cases, only when they are quite elderly. In the rare cases where these offenders are paroled, they are subjected to rigorous reporting and supervision conditions for the remainder of their lives.
In summary, I do not believe these amendments to the Criminal Code would be constitutional. Nor do I believe that the amendments in Bill C-471 would be effective in enhancing the protection of children. As such, I respectfully decline to support the bill.
