Mr. Speaker, it is a pleasure to speak to this motion. I have many reservations about the motion which I will put on record.
The hon. member for Surrey-White Rock-South Langley has introduced a motion that calls for making it mandatory for the crown, in all cases in which a person has been convicted of a sexual offence involving a child or sexual assaults, to apply to the court to have the offender declared a dangerous offender whenever two psychiatrists are of the opinion that there is a danger the offender will strike again.
The hon. member is asking the government to implement this through an amendment to part XXIV of the Criminal Code, the part that deals with dangerous offenders. Obviously the hon. member is of the view that the dangerous offenders provision of the Criminal Code needs improvement. Quite possibly it could be improved but I am not sure the measure proposed by the hon. member would carry the appropriate result.
I am not saying 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 we should proceed cautiously in broadening it or oversimplifying it.
The existing dangerous offender system has 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 must be met if we are to justify locking up individuals indefinitely.
I will address one proposed change with which I disagree, a proposal central to this motion, the mandatory aspect. 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 a dangerous offender application be brought.
I do not support the elimination of the discretion of prosecutors in the bringing of dangerous offender applications. It would be unwise to do so. The criteria for a dangerous offender finding are contained within the Criminal Code. This is a concept created by criminal law and supported by criminal procedure.
It is 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 the offender's committing 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 but a legal decision made according to criteria legislated by Parliament.
The crown should possess the discretion, considering all evidence available to it, to estimate whether an application will be strong enough to meet this legal standard. If an application is brought without meeting this legal standard, it is a waste of time and resources and will not succeed.
I also want to address the issue of broadening the scope of the legislation. The motion 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-year's imprisonment, individual offences usually do not receive such lengthy sentences nor do they typically involve the degree of violence envisioned in part XXIV. In broadening the target group so much, the motion before us runs a serious risk of conflicting with the charter and a 1987 Supreme Court decision.
The current dangerous offender provisions came into the Criminal Code in 1977 and replaced the habitual offenders provisions that had been found to be too broad. These amendments were designed to be more precise, to target the most 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 and the nuisance cases.
The dangerous offender legislation passed a major hurdle with the Supreme Court of Canada decision in R. v. Lyons in 1987. The court ruled that the dangerous offender provisions did not violate the charter of rights and freedoms. This case constitutes a firm indication by the Supreme Court that any law that seeks to sentence a citizen to an indefinite term in a penitentiary must be well tailored and confined to the most serious circumstances.
In broadening the target groups so much, the motion before us runs a serious risk of conflicting with this decision. I doubt that the Supreme Court would find this much net widening consistent with the charter, particularly when given the new rules prescribed elsewhere in this motion. Crown attorneys would be forced to launch many more applications. The court, as in the Lyons case, would be vigilant to the potential for abuse in the overall structure of the procedure.
In the same Lyons case, the Supreme Court also stated that 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 is arbitrary. That could very well be the case if Parliament was to legislate according to this motion before us today.
I would like to point out how successful part XXIV of the Criminal Code has proven to be. Between 1977 and 1995 approximately 143 offenders were found to be dangerous offenders and sentenced indeterminately to a Canadian penitentiary. Of that number, 134 remain there still.
There are signs 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 cases. We all remember the recent designation of Paul Bernardo as a dangerous offender.
I suggest that the current motion is not an appropriate way to improve the dangerous offender legislation. I regret that I cannot support this motion.
