Mr. Speaker, I am pleased to debate at report stage this omnibus criminal law statute. The government made a decision before the session opened that it would package together in one statute approximately half a dozen criminal statute amendments, most of which had already been through the House of Commons and into committee.
As for those parts of the bill that have already been through the House, the justice committee did not spend an undue amount of time in reviewing them, nor did we seek witnesses on them since the parliamentary record deals reasonably adequately with those other components.
The one part of the bill that Parliament has not had an opportunity to look at is the part on the provisions dealing with dangerous offenders. The amendments here tweak or modify the provisions. I want to make three comments in the limited time available so that my views are clear.
Certainly for my constituents I want them to know, and I would like the parliamentary record to show, that are a couple of issues which may be cause for public debate in the future or perhaps in the other place.
First, the name of the bill is slightly pretentious, as it purports to tackle violent crime. I can understand where that thinking has come from, but I suggest that if we as a society are going to tackle violent crime we had better address the causes of crime.
I think most people would accept that the Criminal Code itself is not the cause of crime. The procedures in the code are not the cause of crime. The real causes are societal. They are out there and they are real. This statute really does not do a thing to address the societal causes of crime. It draws the line clearly in the sand and it alters the procedure, but in terms of its impact on the causes of crime, and therefore on crime in the future, the future will have to assess that.
I regard the attempt in this bill to deal with the causes of crime, although I think it does not do it, as being a little like trying to fix a leaky roof from the underside of the roof. It cannot be done. If someone is going to fix a leaky roof, it has to be done from the topside. We have to deal with where the leak is, just as in criminal matters we have to deal with crime and focusing on the causes of crime. It cannot be done at the end of the pipeline. It has to be done at the beginning. I know that most Canadians buy into that.
My second point has to do with the constitutional protections inside the bill. We are dealing with a criminal statute here. While many people will say that we are dealing with criminals so let us just put them in jail and be done with it, the fact is that before these people are convicted they are citizens just like me and everyone else in this chamber. We expect that our citizens will be accorded the fairness and the legal protections that have been inherent in the Canadian justice system and our Constitution virtually forever. Part of our job in this House is to make sure that continues.
The first principle is the principle of “fundamental justice”. One of those principles that is protected by section 7 of our Charter of Rights and Freedoms is the right to remain silent. In this particular new provision involving dangerous offenders, imposed in the procedure is a reverse onus, a presumption. It states, and I am paraphrasing, that if a person has been convicted three times of offences which carry a sentence of two years or more, that person will be “presumed” to be a dangerous offender.
If, under our Constitution, a person has the right to remain silent in criminal procedures, the imposition of this presumption effectively takes away that right to remain silent because one cannot rebut the presumption unless one breaks one's right to remain silent.
In this particular case, the new procedure allows the judge some discretion in not finding the person to be a dangerous offender, but is it enough? In my own judgment, it is borderline. I think it comes so very close to breaching the charter protections that I was very cautious about it. In the end, I think I just barely accepted that it withstood scrutiny. I am not so sure that the legal fraternity in Canada or the other place will view it the same way, but they will have the benefit of our parliamentary record and our debate on it.
The second issue is constitutional in nature and also has to do with protection, not protection from criminals but the legal protections that we all have under the Constitution. In regard to imposing the reverse onus on the offender in this case, I should point out that until now it has not been a reverse onus. Every element of showing someone to be a dangerous offender had to be proved by and shown by the Crown. A pretrial assessment and a lot of procedural protections and judgments are brought into the process.
However, until now, the burden has been on the Crown to prove it. If this section reverses the onus and says that the person is presumed to be dangerous and now must disprove it, my question, to which we have to find an answer, is this: how does the person alleged to be a dangerous offender know the particulars that have come to make him or her dangerous, the particulars that allow that person to meet the threshold of the definition that he or she is dangerous?
The new statutory provisions do not take any steps to insist on the provision of particulars by the Crown as to why the person is dangerous. There is simply a presumption that he or she is dangerous. I believe that this does cross the line. If, in the procedure that is out there, the officials involved begin to rely on the presumption, they will fail to meet a standard of disclosure. Disclosure is part of a procedure that will take away, potentially for life, the freedom of the convicted offender. The courts and a fair-minded assessment under our Constitution will find these procedures deficient.
In order to rectify this, I did propose an amendment at committee. It was fairly discussed at committee. In the end, it was not adopted. In my view, this potentially would require an amendment to section 753 or section 754. All it would require is a statement in the code that in relying on the presumption it would be necessary for the Crown to provide a list of particulars, an itemization or a description of the particulars on which the Crown is relying and on which the judgment that the person is a dangerous offender is based. This would cure that particular problem for me.
If we have all been right, and I hope that we are right in this House, that the general presumption meets the charter test of fairness and does not offend the principles of fundamental justice, then this bill will have a chance to see it work itself out, even though I think we can find much better ways to address the causes of crime and I think we should be doing it.