Mr. Speaker, I was just getting to the highlights of my speech and I am glad you are back to hear the rest of it.
I was talking about the context of the development of the dangerous offender legislation in reaction to the Johnson situation, whereby many of the applications were no longer undertaken by the crown because of the difficulties created by the Supreme Court of Canada. I would like to outline the changes that are contained in this bill.
First, we have addressed what we believe to be problems of consistency across jurisdictions. Specifically, we do not believe that crowns across Canada are always seeking dangerous offender designations whenever appropriate. The legislation requires crown attorneys to make a declaration to the court in certain situations of whether they have considered and intend to pursue a dangerous offender designation. This is found in the new proposed section 752.01.
This operates in reference to the offence list defined in the amended section 752 referred to as the designated offence list. I would note that the designated offence list includes all of the offences listed in the primary offence list, plus all of the other serious violent personal offences listed in the Criminal Code.
Under new section 752.01, once an individual has been sentenced for an offence, which in the opinion of the prosecutor is a serious personal injury offence as currently defined in section 752 of the code, the crown is directed to consider whether the individual has at least two prior convictions of a designated violent or sexual offence that received a sentence of at least two years.
This provision will ensure the crown will more consistently consider whether it should pursue a dangerous offender designation. While this is not intended in any way to bind either the court or the offender as to the sentence that will actually be pursued, it is nonetheless important to encourage greater diligence in sentencing repeat violent and sexual offenders.
The next proposed amendment is one that has received a great deal of attention, the new so-called reverse onus provision. The first thing to remember is that the dangerous offender hearing occurs after a conviction. We are not dealing with an innocent person. We are dealing with a convicted criminal, a criminal who has been convicted of a very serious offence.
In some contexts there are automatic prison sentences. For example, in the case of certain firearms offences and murder they are automatic. There is no hearing other than an automatic imposition of at least the minimum.
In this particular case, the offender will be presumed innocent until the trial judge makes a finding of guilt. After that the crown makes the choice whether to proceed with a dangerous offender designation. Post-Johnson, we believe that in many cases individuals who are at real risk to commit further violent sexual offences are escaping a dangerous offender designation. This amendment is designed to address this situation.
As it currently stands, the crown prosecutor must apply to the court before a dangerous offender hearing can proceed and the court will order the hearing based on whether the individual has in fact been convicted of a serious personal injury offence, that is the smaller list of serious offences which are defined in section 752, and whether there is a reasonable likelihood that the individual will be found to be a dangerous offender. We are not changing that process. The crown retains the full discretion as to whether or not a dangerous offender application should be brought forward.
The provincial attorney general must still file his or her consent in writing before the application can proceed to the next step. The judge must still order a psychiatric assessment before the hearing can proceed. The existing process continues to apply to any situation where the prosecutor is of the view that a dangerous offender application is merited.
Once the hearing is under way, the new reverse onus provision will only take effect if the following prerequisites are met: first, the crown has to satisfy the court that there are two prior convictions from a new list of 12 serious sexual or violent primary designated offences in section 752; second, each of the previous convictions must have carried at least a two year sentence; third, the court must be satisfied that the current offence for which the offender has been found guilty, the predicate offence, must also be one of the primary offences; and finally, the court must be satisfied that the predicate offence would otherwise merit at least a two year sentence.
If these prerequisite conditions are proven, then the crown is presumed to have satisfied the court that the offender meets the prerequisites of a dangerous offender designation under section 753(1). The offender is then given the opportunity to rebut this presumption on a balance of probabilities.
I note that many individuals have suggested that this provision does not respect the charter of rights. I must respond that those individuals have failed to fully consider the impact not only of this provision, but of the following amendment in proposed section 753(1.2)
In the first place, I emphasize that the list of qualifying offences that trigger the reverse onus, the primary offences, is very narrow and carefully tailored. Again, it is a list of 12 offences. I note that every one of those offences carries at least a maximum penalty of 10 years in prison. These are all very serious offences.
In our analysis we have determined that all of these offences commonly arise as a predicate offence and dangerous offender designations. Of the current 360 dangerous offenders, for example, about 80% had a predicate offence of one of the seven listed sexual offences from the primary list. For the remaining dangerous offenders, the vast majority were convicted of one of the remaining five offences on the primary list. The list was deliberately tailored to effect this reality.
We constructed the list to make sure that the very nature of each offence would satisfy the threshold criteria of a serious personal injury offence. We also avoided offences such as manslaughter and impaired driving causing death that, while on their face are serious, do not by their nature require the same intent to commit serious harm. Further, I emphasize that for the reverse onus to apply, each previous conviction must have received a sentence of at least two years which signals that the offence was serious. As an additional criteria the judge must be satisfied that the current offence would also be eligible for at least a two year penitentiary sentence.
We believe that if an offender has met all of these criteria, it is reasonable to presume that the person meets the prerequisites of a dangerous offender designation. There is a clear and rational connection between the triggering criteria and a finding that the individual is a dangerous offender. This justifies the presumption contained in this legislation. Based upon this analysis, I am firmly convinced that these provisions will withstand constitutional scrutiny.
Again I point out that the reverse onus is fully rebuttable by the offender. I note that in all dangerous offender proceedings the defendant has access to legal aid if counsel cannot be afforded, and this allows access to independent expert psychiatric witnesses for the defence. If such expert witnesses are unable to place evidence countering the presumption, then the offender clearly should be deemed to fully meet the criteria of the dangerous offender designation.
I must point out that this does not end the extent of the constitutional protection built into the proposal. I want to emphasize that in every single case, even if the offender fails to satisfy the court that he or she does not meet the dangerousness criteria, the court still retains full discretion to refuse the dangerous offender indeterminate sentence.
This bill enshrines the discretion of the court to refuse to make the dangerous offender designation. We are making it clear that consistent with the principle laid out in Johnson, the sentencing judge may not impose an indeterminate sentence unless the court is satisfied that there is no lesser sentence available which can adequately protect the public.
We are acknowledging and embracing the need for the courts to retain their ultimate discretion in this matter and that is fully consistent with the Supreme Court of Canada decisions in the Johnson and Lyons cases.
Given the narrow tailoring of the primary offence list and given the respect, now codified--it is important to mention that this is now codified--for the discretion of the judge to impose a fit sentence, I can stand before the House today and state with full confidence that I believe the legislation will withstand constitutional challenges. The ultimate judicial discretion is not touched. It is there and is now entrenched in the legislation.
In closing, I would remind the House that there is a long list of innocent people that have fallen to individuals with lengthy violent criminal records, Christopher Stephenson, Jonathan Wamback and Frank Groves to name a few. They are names that should haunt us until we as a nation summon the courage to take action and enact tougher legislation against dangerous offenders. How many more children are we prepared to sacrifice? How many more victims are we prepared to sacrifice? When will we join with the majority of Canadians who say enough is enough.
Our choice is simple: stand by and do nothing as more people fall victim to these predators, or send a message that Canadians have had enough.
Mr. Speaker, I rise today to speak to Bill , 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 . 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 , 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 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 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 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 .
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 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 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 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 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 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--
Mr. Speaker, it is my pleasure to rise today on a bill on dangerous offenders that seeks to create a different emphasis and direction from the approach we already have.
Before presenting the Bloc’s basic arguments and position on dangerous offenders, I would first like to emphasize just how seriously the Bloc takes community safety.
No member of Parliament would want to live in communities where there is a threat to public safety. Whether in Quebec or in any other province, no one would want older people, single parents, children, working people or our parents to find themselves in harm’s way as they go about their regular lives in the community.
I must say that I am a little tired of hearing the demagogic, simplistic rhetoric coming from the Conservatives. Their rhetoric implies that anyone who does not support their position is unscrupulous, lax and not very concerned about public safety. I hope this kind of talk will end. This subject is far too serious for them to indulge in such simple-mindedness.
The Bloc Québécois does not support this bill as worded. Does this mean that the Bloc feels that there is no need for the Criminal Code to contain provisions on dangerous offenders and long-term offenders? Of course not.
The Bloc is perfectly aware of the fact that there are some people who commit criminal acts and, unfortunately, have no self-control nor any control of their impulses and have certain personalities with a very high risk that they will re-offend. Is this genetic or acquired? Is it a question of the environment or their upbringing? Is it a matter of values? Is it a question of their families? I do not know. What I do know, though, is that it is the responsibility of parliamentarians to protect people against this kind of behaviour and these kinds of personalities.
The government’s rhetoric seems peculiar because it tends to imply that these provisions have not been used in the past and do not exist, or that crown attorneys are reluctant to use them.
I would have liked to see the rise in this House and tell us that his government is introducing a bill on dangerous offenders because prosecutors and the justice system—under his administration—are not using these provisions.
We would then have asked ourselves what procedure must be followed to ensure that in cases where it has to be proved that a person presents a risk, that person must be found to be a dangerous offender, with everything that implies. A dangerous offender can be imprisoned for an indeterminate period.
Under sections 752 and 753 of the Criminal Code, certain individuals are considered dangerous offenders. We do not need the minister’s current bill; the courts and the prosecutors have done their jobs. There are, right now, people who are considered to be dangerous offenders and in some cases, they have been in prison for 20 years.
What is dangerous in the bill and in the approach taken by the is the idea that we should do things automatically.
If an individual commits—in three instances—an offence on the list of primary offences, the burden of proof will automatically be reversed, and the person will have to prove that he or she is not a dangerous offender. Unfortunately, things cannot work this way in criminal law.
Perhaps this is something we need to complain about; perhaps there should be no Charter; perhaps there should be no trials; perhaps there should be no courts; perhaps we should send everyone to prison once they have committed a serious offence against a person.
Perhaps some people support that kind of justice system, but let them have the courage to say so clearly. Once again, the dividing line is not between people who care about the safety of victims and communities and the people who do not care about it. I am even tempted to say that it is not even the question of reverse onus that defines that line. Reversing the burden of proof is a benchmark, an important cornerstone of the justice system. It is an important principle, as is the presumption of innocence. The courts have offered guidance on what the presumption of innocence means, but that is not the gospel truth. We can agree that, in some circumstances, the burden of proof has to be reversed.
My former colleague, the member for Charlesbourg—Haute-Saint-Charles, a man who was respected by all parties in this House, once introduced a bill concerning property acquired through crime. It was directed particularly at organized crime. In 1997, I was in this House when we added sections 465, 466 and 467 to the Criminal Code to create what is called a criminal organization offence. New law had to be made. The Hell's Angels, the Rock Machine and the Bandidos presented a real danger to the community because they were engaging in open warfare within the community for control of the drug market. They plainly held the ordinary people in contempt.
I even recall having conversations with senior officials in the Department of Justice who said they wanted to break up organized crime using the conspiracy provisions. In the Bloc Québécois, we were convinced that we had to make new law and that what we needed was a new offence. When my colleague, the former member for Charlesbourg—Haute-Saint-Charles, introduced that bill, we were convinced that this was what had to be done.
The difference with dangerous offenders is that the Crown has access to existing provisions. There are guidelines: a psychiatrist's report is required. Quebec, for example, has an arrangement with the Philippe Pinel Institute, which evaluates offender profiles. Why specify “after three times”? This is not about the number of times or the quantity. If an individual presents such a profile—if, after the first offence it is determined that the individual lacks self-control, is a risk to re-offend and a danger to society—nothing prevents the Crown from using sections 751, 752 and 753. The section is very clear, so clear that the courts have used it over 300 times.
Of course, there are exceptional circumstances. When an individual goes into a convenience store and commits robbery, that is unfortunate and deserves to be punished. It is reprehensible, and the justice system must act. Nobody has said otherwise. However, such a crime does not mean we are dealing with a dangerous offender who should spend 20 years in prison with no eligibility for parole and be jailed indeterminately. The government's approach is disappointing because it lacks nuance and perspective.
Earlier, I was listening to the Parliamentary Secretary to the President of the Treasury Board. Apparently he is the youngest member of the House. The parliamentary secretary rose twice in this House to call the opposition member irresponsible. How did we suddenly become not responsible? Because in the committee, which included all of the opposition parties, we voted to amend Bill . The opposition member said that we wanted to allow thieves to serve their sentences in the community.
He is a little young to be such a demagogue and to make such an argument, which is extremely simplistic.
The reality is the following: in 1996, we added something to the Criminal Code on the nearly unanimous recommendations of the justice ministers. I was in this House at the time and we realized that the prisons were populated, but that a third of the incarcerations had to do with unpaid fines. People were imprisoned for failing to pay a fine.
Of course, we are not encouraging people not to pay their fine, but should they be incarcerated for that? When Bill was passed, Canada had the third highest incarceration rate in the world. Only Russia and the United States had more prisoners than Canada.
I want to remind hon. members that the minister was unable to show a single scientific study to prove that there is a link between the harshness of the sentences and the rate of recidivism. We know full well that it is not by having stricter sentences or putting more people in prison that we will make our communities safer to live in.
Sometimes imprisonment cannot be avoided. But if the minister were right, the reality in the United States would certainly deserve a second look: they send seven times as many people to prison as Canada does. However, the homicide rate is four times lower in Canada—and I will mention just one type of offence. In a society that sends more people to prison, we would expect there to be less crime and recidivism, but that is not the case.
Could it be that it is not so much the harshness of the sentences but the real fear of the prospect of ending up behind bars that is the real deterrent preventing an individual from committing a crime?
We therefore agree on the need to include provisions concerning dangerous offenders in the Criminal Code. We agree on the crown prosecutor's responsibility, based on a psychiatrist's or psychologist's report. When an assessment shows that, after an initial offence, a person represents a threat to public safety, we agree that the Criminal Code provisions regarding sections 751, 752 and 753 must apply. We are not saying that the court has to wait for two to five offences, but we cannot support the idea of a list of 22 offences, even though we agree that they are serious. The proposed primary designated offences include sexual interference, invitation to sexual touching, exploitation, incest, attempted murder, sexual assault, attempted rape and indecent assault on female. These are serious offences, but we cannot support a legal system that operates automatically.
This is the main difference between the Bloc Québécois and the Conservatives. We in the Bloc are concerned about public safety. It was the Bloc that first fought for a real anti-gang law. It was the Bloc that brought about the reversal of the burden of proof in cases of proceeds of crime, by introducing a bill that was passed unanimously.
We approve prison terms when necessary, because sometimes they are necessary. Sometimes prison can have a deterrent effect, but the main principle of the administration of justice is individualized sentencing. I repeat, this is the main difference between the Bloc Québécois and the Conservatives. Every situation should be dealt with in light of what led to the crime, the crime that was committed, and the offender's profile.
Sentencing can never be automatic, because when we go in that direction we do not appreciate the facts. That is what justice is all about. Who wants to live in a society where we are on automatic pilot?
Unfortunately, the Conservative government is going in the wrong direction. It did so on the issue of conditional sentencing. The and the have been talking about conditional sentencing. I repeat, the Bloc Québécois agrees—of course— that the right of the individual to serve the sentence in the community is not a constitutional right. It is a privilege. However, the Supreme Court also stated in the Proulx decision that it remained a sanction. The conditional sentence is a type of imprisonment. Of course we agree that all types of offences do not have the same degree of seriousness.
An 18 year old who draws graffitis on a wall three times is guilty of public mischief. It is reprehensible, sad and unacceptable. However, in the list proposed by the minister, this youth, whose graffiti caused $5,000 in damages in total, would not have been eligible for conditional sentencing. We believe that there are cases where an automatic approach—which precludes a conditional sentence—is not indicated.
We can—of course— understand that it may be less appropriate for individuals who have committed sexual assaults, rape, abuse— especially in the case of sexual offences—to serve their sentences in the community. We want to denounce these acts; we want to send a message about these types of offences.
We should remember that conditional sentences represent 5% of sentences, but the minister was unable to make this fine distinction.
In closing, the Bloc Québécois believes that dangerous offenders must be dealt with in a particular way, that dangerous offenders should not be released if they represent a risk to the community. However, we do not accept the logic of automatic process, a logic by which we are unable to assess a situation according to the offender's profile, his record, or the circumstances that led him to commit the crime.
That is the price to be paid for living in a society where the symbol of justice is a balance among rights; but also a balance among responsibilities. Yes, crown prosecutors must evaluate the situation. Yes, a judge must evaluate the situation. Yes, there are constitutional freedoms that must be protected. Yes, there are situations that call for imprisonment and enforcement.
The danger arises when the response becomes automatic. Every time the Conservative government wants to propose simple solutions to complex problems, we cannot accept that. However, we will never be soft on crime. We will never unconditionally defend criminals. We will certainly be able to say that there are situations where people deserve to be locked up; that they cannot be rehabilitated and deserve a firm sentence of 20 or 25 years in prison. We are able to make distinctions between cases. Once again, we do not accept the logic of an automatic response and we do not accept the contempt in which this government holds the work of the judiciary.
When we see the way in which the courts have interpreted conditional sentencing; when we see the way in which provisions for dangerous offenders have been used, we have no reason not to have confidence in the justice system. Does that mean to say that there are no judges who have gone astray? Yes, indeed it is possible.
This is a Conservative tactic.
In 2003, out of 257,000 cases where there was a conviction, 13,000 cases resulted in a conditional sentence. In his appearance before the Standing Committee on Justice, the minister gave five examples of cases where, a priori, without having studied the file in greater detail, it would seem that there was little reason for a conditional sentence. Does that mean to say that the administration of justice has been brought into disrepute? Does that mean that we should be thinking in terms of automatic responses? Certainly not.
That is why we are very uneasy about this government in connection with justice. Not to mention the blackmail it employs. We began this session in September; tomorrow we will be into November. The Standing Committee on Justice adopted two bills, reviewed budgetary allocations and is beginning review of a third bill. Members have had a respectable workload. However, it is clear that when bills are being examined, witnesses must be heard. Our work of legislative review; our work as members of parliament, which consists in considering the consequences of a bill, must always be done with the greatest attention.
Mr. Speaker, I am pleased to speak on behalf of the federal New Democrat caucus on second reading of Bill .
First, I would like to pay tribute to the very able justice critic, the member for , who has given the NDP caucus incredible guidance, information and led the debate within the caucus on this bill as well as close to a dozen bills that have been thrown at the justice committee from the Conservative government. The member for has earned respect from all sides of the House for his intelligence and wisdom and how he has approached these matters. I certainly speak today based on the wisdom and guidance that he has provided to the NDP caucus.
We are at a very interesting and critical juncture in this debate. Being the fourth party to speak, it has been clear to anyone watching the debate and if it was not clear to the government previously it would be clear to it now, that this bill is going down. Three parties are opposed to this bill at second reading, which as we know is a debate in principle. It looks like the bill will not go forward to committee. That is a very serious situation.
I listened, sometimes with a smile on my face, to the political rhetoric that has spewed forth time and time again from the government on this bill and many of the others. The government's mantra is that members who do not support these bills are soft on crime, that if they do not support Bill , they are soft on crime; they are giving a free ride to criminals, they do not care about the public, they do not care about victims, they do not care about anything. We have heard it over and over again. Government members must dream about it and repeat in their sleep.
One of the members said we should look at reality. Let us look at reality. There are three opposition parties basically saying no to this bill because it is a very fundamentally flawed bill. The parties that have spoken thus far have given very strong both philosophical and intellectual reasons but also legal and practical reasons why this bill just does not cut it. That needs to be said.
We have heard from the that the opposition is delaying the crime bills. Bill , the age of consent bill, was introduced in June but the government itself did not call it until yesterday. So much for the delay. The same goes for this bill. This is the first time we have had an opportunity to debate it.
Let us put aside all the political bunk and rhetoric and focus on the merits of this bill and whether or not it is a good, sound piece of legislation. Presumably that is what we come to this place to do, to represent our constituents, to represent sound public policy, public interest and to decide whether or not legislation that comes from the government is good. We make our judgment on that and decide whether the legislation should continue. That is what we are debating here today, not all the political rhetoric.
In terms of Bill , as I said, the NDP caucus is opposed to it. I note that in the information put out by the justice minister's office we are told that this particular bill will make it easier for crown prosecutors to obtain dangerous offender designations. It goes on to point out that a cornerstone of the reforms in this bill is that an offender found guilty and convicted of a third designated violent or sexual offence must prove that he or she does not qualify as a dangerous offender. This is what is referred to as the reverse onus. This is one of the major reasons that certainly the NDP and other parties we have heard from today are opposed to this bill. Why is that so?
I would like to quote a very good article written by Paula Simons which appeared in the Edmonton Journal in October, as well as in the Regina Leader-Post, and maybe other publications. In that article the author pointed out:
|| It's a rule of law as old as the Magna Carta, a golden thread that runs through almost 800 years of British legal tradition. And it's enshrined in Section 11 of the Canadian Charter of Rights and Freedoms, which guarantees that any person charged with an offence has the right to be presumed innocent until proven guilty.
I begin with this first argument and fundamental point because it is very much the underpinning of the concerns that we have about the bill. The bill brings forward a provision that will bring in reverse onus and will remove from the system the state's responsibility to bring forward evidence to show that someone is a dangerous offender. The onus will be put on the offender to show why he or she is not a dangerous offender.
I point out that in basically eliminating these hundreds of years of tradition, we did have sections in the Criminal Code that did have reverse onus clauses. This is something that was actually contained in our Criminal Code before the charter, but since 1982 when the charter came in, those provisions have been either struck down by the courts or voluntarily removed through successive Criminal Code reviews and amendments.
We really need to understand that within our judicial system we have had a long-standing practice of assuming someone's innocence until he or she is proven guilty and looking at each case on its merit. We are not talking about a cookie cutter system where one checks off a little box and it is either black or white, yes or no. We are dealing with individual offences. We are dealing with individual victims. The basis of our justice system is that we have the capacity and the ability to make judgments based on applying the law as it exists to determine each of those cases.
Bill will be a massive reversal of that very important democratic and just tradition within our judicial system. For that reason alone, we are opposed to the bill.
In the current environment in our judicial system, 85% of current dangerous offenders are still in custody. They do not get out. We are talking about longer than a life sentence if someone is convicted as a dangerous offender.
I would argue, and I know our justice critic, the member for , would argue that there is no doubt the provisions and the system we have require improvements, but the basic provisions that are there actually are working. Basically completely eliminating that provision and bringing in the reverse onus we see as something that one, will be struck down and will be subject to a charter challenge, and two, will not necessarily improve the safety of Canadians. We have heard that today throughout the debate.
The second problem I can identify is that the bill crosses a boundary whereby it will allow a federal jurisdiction, the federal government, to move into a provincial jurisdiction and tell prosecutors, who are under provincial jurisdiction under the administration of the law, what they should be doing. This is very problematic and is likely to be challenged and struck down.
It makes one think why a bill would be brought forward when two of its basic tenets are things that are legally very open to challenge. As we have heard today, there have been many expert opinions that these particular provisions would be struck down.
There is of course an enormous amount of concern in Canadian society about crime, safety and making sure that people who are dangerous are not on our streets. These are very legitimate things. As New Democrats, we want to ensure that we have the best criminal justice system which ensures that when a dangerous offence has taken place, someone is convicted and the appropriate sentence is given.
It seems surprising to us that under this proposed bill, we would wait until someone had been convicted a second and third time before this kind of provision would apply. The most efficient, intelligent and practical thing to do would be to make sure that the system is working as early as possible, in terms of earlier intervention, by providing crown prosecutors with the resources they need to get the convictions they need, when they can see that there is information and evidence before them.
Right now if a prosecutor is of a mind that there may be information that leads him or her to believe that someone should be prosecuted as a dangerous offender, it is expensive and it takes time to do that. It takes a lot of resources to do the investigation. The reality is that in some instances, prosecutors may back away from that because they are simply overwhelmed by the system as it is and what they can deal with in terms of managing the cases that they have.
The point I am trying to make is that if we are truly interested in making sure that dangerous offenders are locked up and that the public and our communities are safe, then surely we would want to ensure that the system is responding in a way that the prosecutors can actually do their jobs.
Rather than waiting for the second or the third conviction and then placing the onus on the offender to show why he or she would not be a dangerous offender or a risk to society, why not give the prosecutors the tools and the resources to actually do the job they need to do, so that we do not even get into those other situations? We believe that would be a much better scenario, a much better set of rules under which to operate.
What kind of message are we sending out to the public with this bill? We have heard the rhetoric from the government that it is all about getting tough on crime, but actually what we are saying is that it is okay to wait for the second or third time. Do we want to give offenders that third time?
From our point of view, it is much better to have a system that provides the resources and the tools to make the system work as it should and to make sure that the prosecutors are actually able to deal with these cases, and where they can see that the dangerous offender designation is required through prosecution, that they are actually able to follow that up. That is a very important point.
A fourth argument I would like to raise is that if there were a seriousness about this bill and dealing with dangerous offenders, then we should be looking at what we can change that would actually improve the work that takes place. One example would be changes to the evidentiary burden on the prosecutors. Right now they have to line up three psychiatrists when they are trying to prove their case for a dangerous offender. Maybe we should be looking at that. Maybe we should be saying that only two psychiatrists are necessary in order for the prosecutor to bring forward the required expert information.
There are a number of things that could be done within the system to actually improve the resources of the prosecutors to do their jobs, but this is being completely overlooked by the government. Instead we have this very heavy-handed approach that has been brought in by the government where there is absolutely no confidence whatsoever from anybody in the justice system and the law profession that this law will actually be upheld.
In fact earlier I heard the member from the Bloc say that this is why they are afraid of the government. It was a very interesting remark. I think it echoes a sentiment in the public that we see the government loading in these crime bills and there seems to be very little thought to some of them.
The opposition parties have worked together very closely at the justice committee and have tried to convince the government why some of these bills are so seriously flawed. Yet the government does not seem willing to engage in that debate. Therefore, one is left with the conclusion that it is about political spin. It is about the politics of fear. It is about playing on people's fear about crime and safety, which people have, without really ever addressing it.
One of the fears Canadians have is that we are moving closer and closer to the U.S. style of justice system where it has the “three strikes and you're out” laws in effect. The evidence shows us that it has not worked. Again, from this very good article in the Edmonton Journal, it quotes from a 2004 report by the Justice Policy Institute in Washington, D.C. It cited FBI crime statistics that showed violent crime and homicide rates between 1993 and 2002 dropped faster in states without the three strikes law. This is very interesting and we should learn from the very real evidence available in the United States.
I know members of the Conservative government will argue that this is not exactly the same law, but it is based on the same kinds of principles and it is moving us closer and closer to the kind of system we see in the United States. We have heard its kind of mantra on getting tough on crime.
The report also compared California to New York. California has the toughest three strikes law. It sent people to jail for life even if their third crime was stealing a piece of pizza. New York has no such legislation, yet its overall crime index fell 50% from 1993 to 2002. California's overall crime index fell only 39%.
Despite the fall in crime rate between 1994 and 2004, in the 10 years experience of the California three strikes policy, its prison population rose by almost 23%. The Justice Policy Institute study estimated that building and staffing the extra prisons to house all those prisoners cost the state an extra $8 billion U.S. over 10 years.
I bring forward these points of information because they are very pertinent to this debate, not only in terms of this bill but also other bills that are before the House. As a Bloc member said, this is why we are so afraid of the government. It is embarking on a radical departure. It seems hell-bent on radical changes whether they are shown to work or not. This should be of very grave concern to all of us.
I totally reject the arguments, which will come forward now, that the NDP is soft on crime. Nothing could be further from the truth. We want to be intelligent about our response to crime and justice in our country. We want to ensure that there is sound public policy development. We want to ensure that we do not adopt legislation that has been shown not to work, that may create incredible havoc within the judicial system and that will undermine very fundamental principles established over many hundreds of years.
The government needs to take note. This is a minority Parliament. We have a majority of members in the House who say, with a united voice, that this is not good legislation and that it will be defeated. Therefore, the government members can squawk all they want about that. They can try to put out their political line that nobody on this side cares about crime, which we know is absolute nonsense, or they can get serious and engage in a real debate about what changes need to be made to the justice system. I have offered a few today, so have the other parties.
The Conservatives can choose if they so wish. If they are serious about putting public policy first and protecting the Canadian public, they can look at changes that will work within our judicial system. It is their decision. I do not know what they will decide, but they should take note of the fact that three parties now oppose the bill.