Mr. Speaker, I appreciate the intervention on the part of the Speaker and my hon. colleague from Scarborough—Rouge River. Certainly, the hon. members opposite have no interest in dealing with facts or in dealing with the Constitution or in dealing with the Charter of Rights and Freedoms. For whatever else the Liberal Party stands for, it is the party of the Constitution and the party of our Charter of Rights and Freedoms.
Let me turn to the bill which, I submit, is deeply flawed. Members who might be watching this debate, and I cannot imagine why they would be, but maybe they are, should know that in the Criminal Code, as it presently exists, there is a dangerous offender section. It is section 753. It says:
--definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence--
That is evidence, gentlemen:
--establishing
(i) a pattern of repetitive behaviour--
(ii) a pattern of persistent aggressive behaviour by the offender--
(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;--
That already exists in the Criminal Code. This bill does not change that. This bill stays with that standard of behaviour.
What is going to happen if this bill passes? First of all, a crown attorney is going to have to give a notice. He is going to give a notice presumably after two convictions. Right now there does not need to be two convictions. It can be done after one conviction, if it can be established that the individual is going to be a threat to society. In fact, an indeterminate sentence can be obtained based upon simply one conviction. The crown attorney is still forced to prove beyond a reasonable doubt that those elements of that individual's behaviour threaten society at large.
What will happen here is that the crown attorney is going to give notice. Think about that for a second. The defence counsel probably has someone who is a pretty bad person, probably has evidenced behaviour so much so that he or she has been convicted of at least two offences. That person is now looking at an indeterminate sentence, not a determinate sentence. In other words, throw the person away.
Now the defence counsel is going to say to himself or herself, “Well, we are going to fight this and we are going to fight this hard”. There are no deals and no convictions.
What will happen then? The defence counsel is in effect going to force the crown attorney to accept the plea to something lesser than possibly is appropriate under the circumstances. Now we are looking at an indeterminate sentence rather than a determinate sentence. Instead of the individual going away for an appropriate period of time on the apprehension that they may go away for a much longer period of time, the defence counsel will try and plead it down to something less.
Purists in the chamber may think that this is not very good at all. On the other hand, that is the way the court system works. I do not see that changing any time soon.
We will have a perverse consequence. In fact, the courts are going to get clogged, the crown attorneys are going to have to make deals that they do not want to make, and the courts, ending up clogged, are going to actually process fewer people who have been charged with offences.
The reaction of the crown attorney is either twofold. The crown attorney can either say, “Okay, let us bring it on and let us have the fight” or it is going to be, “Let us make a deal time”. Those are the two choices that the crown attorney will be faced with. The likelihood is that the crown attorney is going to accept something of a lesser plea because in fact the provinces are not going to be greatly more resourced in order to be able to deal with this legislation.
We can ignore that kind of advice on the part of the experts that come before or will come before the committee, or we can take it into consideration when drafting a piece of legislation.
The risk is that it puts the entire section 752 in jeopardy. One can go to the bank on it. It will be absolutely certain that if in fact this section were to pass, if in fact an individual were to be convicted under this section, this legislation would be challenged by defence counsel in court under a charter application. There is an absolute certainty of that.
We put at risk the entire section 752. The court might either strike this bill or it might strike the entire section. We again have an ironic consequence that we would lose the entire dangerous offender section and have nothing, which I do not think any party in this House would support that kind of consequence.
We are playing a high stakes game here with things that clearly are of serious consequence. I do not think hon. members need to take my word for it or anybody else in this chamber. They might actually listen to what other people who have expertise in this area actually say about it.
If I may take some time, I would like to reference David Paciocco, a professor of law at the University of Ottawa. He begins his speech by saying that the best that could be said about this bill is that it is an amalgam of unenforceable and constitutionally suspect provisions. It puts the burden of three strikes on the accused to prove that he or she does not pose that kind of danger that the dangerous offenders do.
In other words, it reverses the burden. We are reversing the burden on somebody who has to prove that they will not likely do this action. When we do that we, in effect, are having to prove a negative. If we are having to prove a negative, the courts that are constitutionally charged with reviewing this under the Charter of Rights and Freedoms will find it very difficult to accept that this is constitutionally acceptable.
The individual accused and convicted has to prove that he or she is incapable of restraining himself or herself, likely to cause death or injury in the future, have a substantial or general degree of indifference to the consequences of his or her behaviour, and be marked with an incorrigible brutality.
The professor goes on to say that, in effect, judges are forced to find that offenders pose the kinds of risks I just described not only in cases where there is a reasonable doubt but even in cases where it is equally probable that the offender poses no such risk. Therein lies the difficulty that this bill poses for those members in this party who actually have to read the bill in the context of the Constitution and in the context of how courts actually behave.
I listened to some of the rhetoric from the other side and I wondered whether in fact those members ever actually go to courts and actually see how they operate. Do they see what the dockets are like for these judges, some 200 or 300 cases on a docket at any given time? Do they realize that plea bargaining is in fact a way of life in courts and that we would have no justice system at all, that it would grind to a halt if in fact every section of the Criminal Code was constitutionally challenged? All we have done is raised a huge flag for defence counsel to challenge this constitutionally.
The professor goes on to say that if this were true, the provision would not only fail to meet the rational connection test, it would also fail to meet the ultimate balancing that is done under the proportionality test. The provision costs to the liberty interest of the convict would outweigh the benefits the provision would produce. In either event, section 1 would not justify the reverse onus.
The court is continually balancing the rights of the accused versus the safety and security of society. It is called the proportionality test, and it is a constant factor in any judge's mind. Does the sentence or the proposal for an indeterminate sentence weigh against the legitimate concerns for the safety and security of the larger society?
I hear the rhetoric about getting tough on crime. I respectfully submit to members opposite that they should get a little smarter on crime. They should not put legislation on the floor which will almost inevitably be challenged in the courts or which will almost inevitably see charter challenges from defence counsel.
I submit from our side of the aisle that there is no way we can support this legislation. It does not meet the proportionality test. It does not meet the constitutional test. We cannot reverse the onus in a situation of this kind. We are, in effect, saying to the courts that the person should be put away indeterminately and that person would have to prove they would not offend in the future. This is very poorly drafted legislation. It deserves to fail.
I would be interested in any questions that members opposite may want to propose.