Mr. Speaker, I rise today to speak to Bill C-27, which was recently introduced by the Conservative government. We will now debate the bill and I will provide a context of the current established law already existing in the Criminal Code.
Under the dangerous offenders and long term offender provisions of the Criminal Code of Canada, the Crown may trigger an application where the offender is convicted of a predicate serious personal injury offence. This prerequisite is defined in section 752(b) as being a specific sexual assault offence, sections 271, 272 or 273, or alternatively as meeting the criteria in section 752(a), which requires a finding that the particular offence was essentially violent or potentially violent and which carries a potential maximum sentence of at least 10 years or more. All part XXIV Crown applications must be directly approved by the provincial attorney general in writing. The dangerous offender designation now carries an automatic indeterminate term of imprisonment with no parole application for seven years.
The 1987 case of R. v. Lyons has held that the imposition of a sentence of indeterminate detention as authorized by this part does not offend sections 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. Section 7 states, “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Section 9 states, “everyone has the right not to be arbitrarily detained or imprisoned”. Section 12 states, “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.
Currently, before the accused can be found to be a dangerous offender, it must be established to the satisfaction of the court that the offence for which the accused has been convicted is not an isolated occurrence, but part of a pattern of behaviour, which has involved violence, aggressive or brutal conduct or failure to control sexual impulses. Further, it must be established that the pattern is very likely to continue. Even after this, the court still has discretion not to designate the offender as dangerous or to impose an indeterminate sentence. Thus the existing legislation meets the highest standard of rationality and proportionality in legal terms.
In other words, the dangerous offender section we currently have in the country, which has put behind bars 360 offenders as dangerous offenders, is charter proof and is working.
As further context, the former Liberal government in 1997 created the long term offender designation, which was targeted at sexual and violent offenders, in response to concerns that many sexual and violent offenders required specific attention even if not meeting the criteria for a dangerous offender. This change was needed as now we have, as of June 2005, 300 offenders under the long term offender designation in Canada.
This long term offender designation allows individuals convicted of a serious personal injury offence, who on the evidence are likely to reoffend but who can likely be managed through a regular sentence along with a specific term of federal supervision in the community, to be given a long term offender supervision order of up to 10 years after their release from serving their original court imposed sentence. Once released the offenders are subject to any number of supervisory conditions ordered by the National Parole Board. These can include orders to stay away from areas where children congregate, 24/7 monitoring, regular reporting to police or other agencies and include conditions which would affect their liberty, such as residing in federal halfway houses. A breach of a long term order condition itself is an indictable criminal offence punishable by up to 10 years imprisonment.
There has been developing case law in the areas of both dangerous offenders and long term offenders designation. In September 2003 the Supreme Court of Canada held that a sentencing judge must consider fully the prospects of control of an offender under a long term offender designation before a dangerous offender designation could be made. That is part of R. v. Johnson. If the court has a reasonable belief that the risk that the offender poses to the general public can be controlled under a long term offender designation, then the offender must be given this lesser sentence, even if he or she otherwise meets all the criteria for a dangerous offender designation.
Currently, procedure for and criteria for finding a person to be a dangerous offender is set out in sections 753, 754 and 757 of the Criminal Code of Canada. Procedure criteria for and consequences of finding a person to be a long term offender are set out in sections 753.1 to 753.4 and 757. The rights of appeal are found in section 759 of the Criminal Code of Canada
The Liberal Party strongly supports legitimate efforts to protect Canadians and punish offenders who represent threats to the safety of our communities across Canada. When changes are made to the current working system, they should be done in a manner that would not jeopardize this working system. Changes proposed must meet the constitutional muster and not risk successful constitutional challenges, which could undermine protections that we already have in this country.
We also think it is important to codify the Supreme Court of Canada decision in R. v. Johnson. Reforms must ensure that offenders who should be designated as a dangerous or long term offender do not slip through the cracks of the judicial system, while at the same time the reforms must in no way violate the rights of fundamental justice ensured to all Canadians. To do so would have the unfortunate effect of being more messaging to a law and order imperative of the current minority Conservative government rather than responsibly governing for all Canadians. Victims themselves will not be happy when they discover a flawed law, not a strong one.
In the short term since this bill was tabled, serious concerns have already been raised by those knowledgeable in the legal community with respect to the constitutionality of some of the proposed changes in Bill C-27. These are not restricted just particularly to the provisions that shift the burden of proof from the Crown to the defendant and certain dangerous offender hearings. Justice officials have already confirmed publicly and privately that they expect the legislation will be challenged.
The Supreme Court of Canada has upheld the existing dangerous offender sections of the Criminal Code and has, by case law, clarified the use of the long term offender legislation. What will happen when unconstitutional elements are grafted on to those existing sections? Would it put in jeopardy the entire regime? Could anyone guarantee, even the Minister of Justice, what the court would do? We know that there will always be divergent legal opinions, but more important, we do not want to lose the ability to designate a dangerous offender for this would make Canadians less safe, not more safe. Perhaps the government hopes for unconstitutional elements of this legislation to be severed by the court, but nobody can guarantee a court's response.
This is why in the normal course of events with governments in the past, legislation was widely consulted before introduction. No change to such an important and needed part of the Criminal Code should be undertaken without both empirical evidence-based studies and broad-based consultations to help ensure that the legislation is the best it can be before bringing it to Parliament. Justice officials have confirmed to me that neither was done here.
Under the former Liberal government, I believe discussions were ongoing with respect to the Johnson decision and the needed clarification and the subject matter of peace bonds. There are ways to bring in a number of reforms to the dangerous offender and peace bond provisions to enhance the protection of all Canadians from high risk and violent offenders. Any proposed changes should take into account, in advance, the potential impact of those changes, especially in a minority Parliament. These changes should have been approached in a serious non-partisan manner. The potential for negative unintended consequences related to Bill C-27 is great and not confined to constitutional issues.
This proposed legislation, in part because of the large widening of designated offenders, could impact everything from the charges that are laid to the way Crown attorneys prosecute the cases and how defence lawyers defend their clients. I have been strongly warned by both defence lawyers and prosecutors that with Bill C-27 the end result is likely to be more costly in trials, fewer plea bargains and a greater backlog of cases in our already overburdened judicial system. That is to say nothing of the re-victimization of victims who have to go through a trial.
We should also be wary of the Askov effect where we could lose prosecutions because of court delays. This is not just because of the number of new dangerous offender and long term offender hearings. It is because whenever an artificial number is used, for example three, it will have an effect on charges one, two and three. What is the true potential cost and impact of the bill? Has it really been properly assessed with this hasty legislation? The legislation will affect the financial and time burden upon the justice systems in Canada. The expense of these changes is downloaded to the provinces that administer the system of justice for us in Canada.
The dangerous offender designation is among the most severe penalties--some say the severest--because it involves incarceration for an indeterminate period. As a result, a dangerous offender hearing is one of the most legally complex and time consuming procedures in our criminal justice system, often including not only psychiatric but other testimony that is complicated.
The system is undermined if the dangerous offenders do not have any counsel during the process. A significant number of criminal defendants rely on legal aid programs for representation. Unrepresented accused in these situations would not save costs but add them and perhaps would provide later challenges on designation.
I raise the point because legal aid is an area to which the government is not paying sufficient attention. Some provinces, including my own, are currently experiencing severe problems. There is a pattern with this minority Conservative government, that of messaging to the public before introduction of a bill. Without the benefit of the real details of the legislation, the government wants its messaging delivered to the public even if it is the incorrect message.
Here, the government desired a message of a U.S. style “three strikes and you're out” law. It wanted people to believe that this law would strengthen the ability to catch problematic situations. The Prime Minister even cited a case currently before the courts in his press conference and photo opportunity. As the bill was not even tabled at that time, the people lined up to support the announcement had not seen the details of Bill C-27.
Where are the challenges that the bill presents? Many Canadians have already started to speak out. I will share with the House some of the concerns raised with me by others who are more expert than I in this field of specialized criminal and constitutional law.
The new proposed section 752.01 in Bill C-27 reads, “If the prosecutor is of the opinion...” In essence, new section 752.01 would require prosecutors to notify courts as soon as feasible after a finding of guilt, whether the prosecutor intends to make an application for dangerous offender status.
First, existing subsections 752.1(1) and 752.1(2) already deal with timing of applications, so this new section is not needed to control notice to the courts. The more unusual and very probably unenforceable situation is the wording of this new section. How does one, in law, enforce this kind of notice provision without making findings about a prosecutor's opinion? Are we going to have hearings in which a prosecutor gives evidence as to his or her opinion? I do not think so.
Is this the federal government's clumsy attempt to direct provincial prosecutors to turn their thoughts and actions to the dangerous offender provisions and bring more frequent applications? If so, the lengthy listing of offences set out in the bill as designated offences are primarily offences prosecuted by provincial, and not federal, prosecutors.
Is the federal Minister of Justice really trying to give policy directions to provincial prosecutors about when to bring dangerous offender applications? Again, the administration of justice is provincial. If this is the intent, it is likely to be ultra vires or out of the federal government's jurisdiction, especially if the intention is to impose statutory duties on provincial prosecutors, especially in areas of prosecutorial discretion. One could ask also what the consequence is for prosecutors who fail to notify the court as soon as feasible.
So just in this section, we have issues not only of jurisdiction but of an unenforceable standard and no consequence for not doing the action.
I will now address the reverse onus situation found in new subsection 753(1.1). While some commentators have felt that the protections about presumption of innocence found in section 11(d) of the charter would apply only to persons charged with an offence and only until they have been found guilty, arguably this section could apply to a sentencing process.
However, the principles of fundamental justice in section 7 of the charter are more likely to place the burden of proof on the prosecution, even at the sentencing phase, which would include hearings on dangerous offender sentences.
The appropriate standard of proof in criminal law is “beyond a reasonable doubt”. In proposed subsection 753(1.1), the standard is lowered to the balance of probabilities, at the same time--and I emphasize at the same time--as the onus is reversed in the same section. The reality is that the dangerous offender hearing is predicated on the fear of possible future offences and not on the current offence before the court. That is important to understand.
What is being essentially changed here is now a presumption that the risk posed by a three strikes offender is the equivalent in every case of the category now defined in the legislation as dangerous offending to be presumed to possess the kind of risk that a dangerous offender is to a society. In other words, do they really pose the specific kind of risk that the dangerous offender provisions require? They are different tests in law.
On the face of it, this would be a violation of the charter, but now we must examine whether there is a justifiable limitation on the presumption of innocence under section 1 of the charter. Is it demonstrably justifiable to limit or compromise the values we hold in the presumption of innocence during the situation of a dangerous offender hearing? In constitutional terms, what is the documented need for changing the onus in this way?
The justice official could not answer this question when specifically asked by me. Why taint this area unnecessarily? Obviously it was a choice of the political master. The provision requires that the courts assume a fact of future dangerousness even in cases where that might not be proven or be capable of being proven or, as one expert said to me, in fact may not be true.
Proposed subsection 753(1.1) puts the onus on the individual before the court to prove a negative: that he or she does not represent the kind of threat the dangerous offender provisions were looking to address. Under section 1 charter challenges, there must be a pressing and substantial need for a legislative provision that infringes on charter rights. Does a political need to be seen to be acting qualify for this?
As was pointed out by an early Globe and Mail editorial, most offenders that the public would be concerned with in recent newspaper stories would not have been caught under this section because the sentences of prior convictions were not federal sentences, but provincial sentences of less than two years. Thus, we have a provision inserted not because of a pressing and substantial need in law to do this, but to show political action even if it does not solve the issues.
What if the court, in examining this section, instead decides that the use of a reverse onus, based on the factors identified, does not lead to the rational inference that the absence of restraint posing a likelihood of future death or injury, substantial general indifference to foreseeable consequences or incorrigible brutality, follows? Here is where the government could have just stayed with making it easier for the Crown with the use of the lower evidentiary burden.
Instead, the government has chosen to impose a legal burden of proof on those with three strikes. What this means is that a judge will be forced to find an accused poses the kind of threat that a dangerous offender does not only when the judge has a doubt about that, but even where the judge thinks it is as likely true as when he does not pose that danger. This is vastly different from just lowering the onus on the Crown when the Crown holds the burden of proof.
I spoke to one provincial minister of justice who thought “the three strikes” adds nothing to the bill. In existing paragraph 754(1)(a), the provincial attorney general still has to consent to each application for a dangerous offender designation, and there is nothing in the bill removing this consent from the Criminal Code.
The way Bill C-27 reads, it raises the question of whether the bill is minimally impairing in the constitutional context. There are many technical constitutional aspects of the bill that would engage experts. One, Professor David Paciocco, has provided me with his analysis in relation to the bill. I have tried to capture some of his and others' ideas in my limited time. I cannot do justice to all the arguments.
However, I do need to talk about the need to insert or codify R. v. Johnson. Proposed subsection 753(1.2) is found in clause 3 of Bill C-27 beside the margin note limitation. After adding the reverse onus provision just discussed, we now have a section that would seem to effectively disregard this same reverse onus section and disregard the initial findings of threat of dangerousness that proposed subsection 753(1.1) forces in the bill, and states that the court can apply an ordinary determinant sentence, the indeterminate sentence, or the long term offender sentence if it wishes.
This, in other words, is judicial discretion. I will not have time to quote the section so I will leave it for members to read, but it states “despite subsection (1)”. Here is the least restrictive sentencing principle--and I just have a couple of paragraphs more--in the Criminal Code captured by 718 coming into play, clarified in R. v. Johnson.
Why go through the reverse onus? This is deceptive. The Minister of Justice has concentrated not on the law but on a message in the first subsection about being tough on crime and then has placed in the second subsection the findings of the court decision and the existing law. The burden of proof in this subsection is missing. This is unusual. What is the intention?
Somebody knew what they were supposed to do here, and they made it look like it would all work, but I think it is smoke and mirrors--