[Recorded by Electronic Apparatus]

Tuesday, February 4, 1997

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[English]

The Chair: We're dealing today with Bill C-55 and also with Bill C-254, which is Val Meredith's private member's bill. From the Canadian Civil Liberties Association we have Alan Borovoy, who is general counsel.

Welcome, and we look forward to hearing from you. I know my colleagues will have some questions for you after.

Mr. A. Alan Borovoy (General Counsel, Canadian Civil Liberties Associations): Thank you very much. It's nice to be back.

My remarks this morning are going to be addressed entirely to the proposed amendments to section 810 of the Criminal Code, dealing with judicial restraint orders backed up by electronic monitors. While we have some problems with the provisions on dangerous offenders, our concerns there are essentially with the concept. But the concept has been around for some time, and we note that these provisions essentially tinker with the concept.

It seems to us, therefore, that we would reserve our questions on the concept for a more appropriate occasion and deal entirely at this point with the proposed amendments to section 810. There, of course, it's fair to observe that's a relatively new concept for the criminal law.

Our position can be summarized quite simply: without a conviction or even a charge, no persons should be subject to significant restraints on their freedoms. A society that values freedom has no business imposing restraints on a person unless that person has done something wrong. That means we have to prove that the person has indeed done something wrong. In the absence of that, we are treading upon one of the most vital values in our society. Of course, when I say proof, I mean proof of actual misbehaviour or at least that the person is suffering from a committable disorder.

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The reason we take that position is that in the absence of demonstrated misconduct there is too great a risk that we will impose restrictions on innocent people who would never commit the offences we're concerned about. That's essentially the reason for it. A society that has wrongly jailed a Donald Marshall, a Guy Paul Morin, and a Richard Norris should be especially circumspect about dispensing with the need to prove misconduct. Of course, it's a lot easier to prove what has happened than what's going to happen.

The difficulty with a section like the proposed amendments to section 810, in talking about offences that are going to be committed, is that it is tantamount to imposing punishment on the basis of attempted clairvoyance and, in our view, not an appropriate basis to impose punishments on people in our society.

When I say that, I reject completely some of the comments that have been made before this committee, that what is at issue in these proposed amendments is punishment. It has been said here that these are not punitive measures. In our view, it does not matter. If you impose restrictions of this kind on people, it doesn't matter whether you are doing so with a smile or with a growl. The effect on the person is experienced nevertheless as punishment, and that's the critical issue.

Analogies have been drawn between the proposal here and what has existed in our criminal law and the common law before that, I suppose, since time immemorial; that is, the peace bond, the idea that people can be bound over to keep the peace. The implication is that what you're being asked to do is just extend that concept ever so incrementally and you have what is on the table before you.

With the greatest respect to those who have made that argument, in our view that is not a valid analogy. There is a world of difference between the traditional peace bond and what you are being asked to approve here.

The traditional peace bond is aimed at protecting named parties. As a consequence, the restraints it contemplates are, in the panoply of possible restraints, rather minimal.

For example, if ``X'' is worried about violence from ``Y'', ``Y'' might be restrained from going near ``X'''s house. As things go, that's a relatively minimal restraint. He can go anywhere in the whole world except ``X'''s house. That's not an awfully big restraint.

When, however, you are dealing with anticipated offences to the world in general and not to named parties, the restraints can become much more pervasive. In fact, in order to deal with what you're worried about, they have to become more pervasive. So you have restraints such as don't go to parks, stay home, something of that order. Those are not minimal. Those are much more sizeable restraints on a person's freedom.

When we look at that, we are confronted with certain paradoxes. In general, the restraints that could be imposed for what we're worried about are restraints that are not likely to produce more than a marginal amount of public safety but are capable of perpetrating a rather substantial reduction of freedom.

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For example, don't go to parks where young people might be present. If we are talking about imposing a restraint of that kind during a Canadian summer, we're talking about not an insignificant restraint on a person's freedom. To say you can't go to a park where there might be young people is effectively to say don't go to a park in the daytime. That, in a Canadian summer, can be a pretty substantial restraint.

And to what end? With what benefit? A person who is strongly tempted to commit one of the offences we're concerned about is not likely to be significantly deterred by an order of that kind. He can find his victims elsewhere. There are lots of other places in the world where he can find his victims. I suppose he could even take off the monitor. It might set off alarm bells, but in the meantime he can do his damage. It's not going to prevent the damage. So we're looking at rather illusory benefits for a rather substantial intrusion.

I suppose the one way really to reduce the damage is to impose a restraint that has to be unacceptable. You might foist house arrest on a person. You might say you can't go anywhere but your own house. But that is no longer simply a substantial restraint, that's an astronomical one - to say the whole world is taboo and you have to stay home, or stay home at certain hours or whatever. To do that to somebody who has not been convicted of the offence at issue is effectively to repeal the presumption of innocence.

So this is the sort of dilemma that I think is created by the proposal before you. To be really effective the restraint has to be unacceptable. If you then somewhat reduce the unacceptability of the restraint, you are reducing considerably the effectiveness of it, and you might then ask the question, why bother? It's just not worth it. We might ask, why are we moving in this direction? Why impose restraints of this kind on people who have not been proved to have committed the offences at issue?

I know every now and then we are confronted with a terrible, cruel event. There is an unavoidable impulse in all of us to want to devise a scheme that is going to deal with everything we can conceive of. The fact is we can't do it. It's not possible. For the attempt to do it we could pay a considerable price and still not do it, and that's the real problem with this kind of proposal.

If we look at the crime problem, it's not as though we have experienced dramatic increases. If we look at violent offences that cause physical injury, since 1983, when they subdivided these offences, they have remained relatively stable - higher than most of us would like to see, but relatively stable nevertheless. In the last twenty years the murder rate has declined. Twenty years ago it was about 3 per 100,000. Now it's 2 per 100,000. That's a significant decline. So why should we be doing this?

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Our view, to wrap it all up - and I know the tapping of your pencil was not designed to convey that message -

The Chair: No. I'm an inveterate fidgeter, so I apologize. I'm going to sit on my hands now.

Mr. Borovoy: So am I when someone else is talking.

An hon. member: Oh, oh!

Mr. Borovoy: When we put it all together, it is our respectful view to this committee that the proposed amendments to section 810 should be rejected. They create a significant risk to the freedom of innocent people without producing a commensurate level of public benefit.

To sum up, we respectfully submit that the proposed amendments should be rejected.

The Chair: Thank you, Mr. Borovoy.

Ms Meredith, you have ten minutes.

Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.

I appreciate your comments on the intrusion into the right of an individual's freedom of movement. But when you say that these individuals who are being considered are innocent victims, that they haven't been proven guilty of any crime or any event, that's not my understanding. My understanding is that it would be used only on individuals who have been charged, who have been convicted.

Mr. Bryden (Hamilton - Wentworth): That's not what the bill says.

Ms Meredith: So they don't have to have a previous conviction that shows intent?

Mr. Bryden: They can be completely innocent of any of the charges -

Mr. Borovoy: I have to answer, in a way, in the alternative.

Ms Meredith: Okay.

Mr. Borovoy: First, the bill doesn't say what you are suggesting. It means anybody about whom there are what the bill calls ``reasonable grounds'' to believe he or she is going to do something.

Second, if you are limiting it to people who have been previously convicted, then presumably they have already paid their debt to society. What you're concerned about now is not what they have done, but what you believe they are going to do. And as I suggest, that is to punish on the basis of clairvoyance.

Ms Meredith: In order for this to be used, and if reasonable grounds have to be there, is it not right to presume, then, that there has been an investigation, that charges have been laid, and that reasonable grounds have been determined to be there through a court of law?

Mr. Borovoy: A court does have to find that there are reasonable grounds, but a charge doesn't have to be laid.

It would be different if you were talking about a situation in which a charge has been laid against the person and you seek to impose some restraints on that person pending trial. That would be a different situation.

But here we're not talking about a situation in which what you are apprehending, what you're fearing, has actually happened. You're simply worried that the person is going to do it. There's no requirement for a conviction and no requirement for a charge to be laid.

Ms Meredith: But there is a requirement to prove reasonable grounds in order to reach the conclusion that this individual is a threat to persons in society so that we would want to put these restraints on them. I cannot believe - and perhaps this is where you have less faith than I - that a government, a law enforcement agency or a court would put this kind of restriction on an individual unless reasonable grounds had been established to suspect that the individual's behaviour would be a threat to persons in our society.

Mr. Borovoy: The difficulty with what you're saying - and I suppose the question of faith grows out of one's assessment of human capacity. Without attributing any malevolence to anybody, when you're talking about proving what a person is going to do - It's hard enough to prove what a person has done and even there, as I indicated, we've gotten it wrong on some very tragic occasions, jailing somebody for 10 years for a murder he didn't commit. It's much easier to prove what has happened than to prove what's going to happen. That's why the very concept is such a fragile one.

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Ms Meredith: I have more problems with the concept of society knowing that individuals are likely to commit criminal acts against persons of our society and turning away and ignoring that potential - saying because of the rights of the accused or the offender, we must ignore the rights of the victims or potential victims.

I would suggest to you that the children of our country deserve protection. If the only way we can protect them is by monitoring the activities of individuals who pose a threat to them as opposed to throwing these individuals in jail and locking them up to remove that potential threat - In many ways it is a much more humane way of dealing with it, merely monitoring their behaviour and access to children.

Mr. Borovoy: But in part, you are begging the very question that's at issue before us. I suggested to you that unless the restraint you impose is virtually tantamount to locking them up, something like house arrest, the kind of protection you are creating with this is marginal at most.

It's one thing to theorize and say you'd rather do this than whatever if you are going to be protecting kids, but when you look at the practicality of it, the kind of safety or protection you will produce with this is illusory. You know you will impose sizeable restraints on people, but you can't have any kind of confidence that you will produce any meaningful benefit with it.

Ms Meredith: I won't argue that it falls far short of what is required to protect the innocent victims. But I do know from experience in British Columbia, where it is used in monitoring paroled individuals who have been given that instead of incarceration, it can monitor some of the behaviour that may lead to criminal activity, and perhaps that is the benefit of this. If there is an abuse problem, perhaps this can help monitor individuals' behaviour and help them be more constrained in their practices that would lead to innocent people being the victims of crime.

Mr. Borovoy: I appreciate the point you made about alternatives to incarceration on parole. Let me make it clear that if we are talking about a person who is otherwise lawfully subject to incarceration, I have no difficulty with electronic monitors as an alternative to jail. My problem is if you are talking about someone who is not lawfully subject to incarceration, against whom you have not proved misconduct. Then I have considerable problem with it.

Ms Meredith: You're suggesting one wait until someone has committed another act of crime where incarceration is the answer, rather than trying to prevent that from happening in the first place. In essence, you're putting the rights of the offender, the person who's likely to offend, before the rights of the innocent victim.

Mr. Borovoy: I think you're trying very hard to force me into a box in which, with all respect, I do not fit that conveniently. You are posing a theoretical conflict for me - the interests of the victim and the rights of the accused. You are not likely to produce the protection for the victim that you'd like to produce with this, and to impose the kind of restraints we're talking about could amount to a form of gratuitous punishment.

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Ms Meredith: This restraint we're talking about is not house arrest. It's not preventing someone from carrying on with his or her life.

Mr. Borovoy: That's my point.

Ms Meredith: It just ensures that whatever that individual does, somebody will know when he comes and when he goes. It doesn't prevent them from doing that.

Mr. Borovoy: That's just my point. With the kind of restraints you're contemplating, you will not be doing anything that could really prevent the person from committing the offence you're worried about. That being the case, why subject him to these restraints on his freedom when you haven't proved that he's done anything? When you put all that together it doesn't seem very rational to me.

The Chairman: That's the time, but we'll come back to you.

Ms Torsney.

Ms Torsney (Burlington): Thank you, Mr. Borovoy. It's an honour to listen to you. But I wonder what we can do -

Mr. Borovoy: Don't say ``but''.

Ms Torsney: We all know the kind of incident we're trying to prevent. Everybody says in hindsight - because of course that's 20/20 - everybody knew that guy was going to shoot. The police couldn't charge him with anything and the courts couldn't do anything about it. There was no way to restrain him and look what happened. Everyone knew it was going to happen.

How else can we stop those incidents from happening? Give me another tool we can use.

Mr. Borovoy: I didn't come here as a magician. I'm just a humble lawyer. I lack magical powers, but in a sense I think the way you've put the question really represents what is behind this proposed section. This is not to be anything but sympathetic with those objectives, but it is to understand that regardless of the noble objectives, we're not talking about anything realistic if the notion is put out that you can, with a series of amendments to the Criminal Code, develop a scheme that will be that comprehensively preventive. You can't do it. It behooves us to understand that and to build a system of criminal law, understanding what the limits in reality are. I think that's the difference between the theoretical discussions and the practical ones.

Ms Torsney: We're really talking about the third section of the bill. The first and second sections I guess you don't have -

Mr. Borovoy: Those are the ones about dangerous offenders?

Ms Torsney: Right.

Mr. Borovoy: We're leaving that for another day. I'll come back, I promise.

Ms Torsney: Are we giving you another chance? In the first section obviously there's more opportunity, and that will hopefully prevent some of these characters from creating more victims. The second section is post-detention, post-parole. There's the new ten-year maximum monitoring period. Hopefully those two will do a lot for those who already have some charges and convictions.

This third section is for the person who may or may not have a record, but everyone knows something is about to go. Would it offend you less if it were used very infrequently?

Mr. Borovoy: I guess the precise answer to your question is yes, it would offend me less if it were used very infrequently, but then consider something. Regardless of your best intentions as legislators, you cannot ultimately control what is done with the words you enact. We've had a lot of experience in this country with substantial powers we have given to various bodies. Invariably those powers are used, if the statutes permit, in ways that haven't been intended or contemplated. So the question I ask is, when you really measure costs and benefits, is it worth it?

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I know it's terribly frustrating. You don't want to walk away from the table not having accomplished everything you could conceivably do. But what I'm suggesting you're going to do with this type of thing is to produce virtually zilch in terms of protection. You will have wound up imposing - and remember, it's likely to be used not only on that person you're thinking of and that we all know is going to do it but on lots of other people as well. That's the virtually inevitable consequence of this type of legislation.

Ms Torsney: But it seems that another aspect of what we're also trying to do as legislators, certainly in this current period of people being extremely concerned about justice issues and the real need to restore some faith in the justice system, is that if there aren't processes, if there isn't an opportunity for this kind of tool to be imposed, people will go out and settle the score in other ways. Having this tool in certain provinces - and perhaps, quite rightly, it will be used with a greater take-up in certain parts of the country than in others; in certain jurisdictions within provinces I'm sure it will be used more frequently - if it can restore faith, if it can prevent some people from becoming victims, if it can do some of those things -

Yes, there's a cost on the other side. Perhaps some people will be monitored more than they should be and are not likely to commit any crime. Some people might argue that a year is not enough of a turn, that we should be monitoring some people for longer than that. But it could still have a benefit.

Mr. Borovoy: What is the benefit you're talking about? You're talking about a psychological benefit -

Ms Torsney: And a preventive kind.

Mr. Borovoy: - of trying to pacify a number of angry people. I don't minimize the importance of that, but that's really what we're talking about.

I invite you to consider something. Consider the awful prospect that you might be re-elected and somebody wearing an electronic monitor has committed an offence, the very offence for which you fastened the monitor on him. How then are you going to explain to angry people what you've done?

Consider also - and of course, the difficult thing about all of this is the virtual impossibility of dealing with what would have happened - that you know, you know, it's going to be used against people who will not commit the offences at issue. So look at the price that's been paid to accomplish nothing.

Ms Torsney: On that last point, you mean the people who never would have.

Mr. Borovoy: Who never will, yes.

Ms Torsney: If it was monitoring people who didn't commit offences, that would be a good thing.

Mr. Borovoy: Yes, but a monitor isn't going to make any difference to it. You will wind up doing it to people who aren't going to commit any offences. That's my point.

Ms Torsney: Who never would.

Mr. Borovoy: That's the tragic thing.

I throw a challenge to my members of Parliament. It may be that the way to deal with this anger is to take your constituents more into your confidence and be straight with them about the limits of the criminal law, the limits of what these things can do and how awful it would be to impose these restraints on completely innocent people, which is the risk they're running.

Now, I know this may sound very naive sometimes, but periodically we see the damage that's been done even when, as I say, you're talking about proved misconduct. Maybe that's the time to use those situations and talk to your constituents about it.

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Ms Torsney: I also think this tool could be effective, rightly or wrongly, in preventing some of that semi-vigilantism that's out there, when people are being released at the end of sentence and parole and everything. You've seen it all over various communities, where posters are put up, pictures are put in newspapers, and people are drummed out of town. It's happening in a climate of people deciding that the Criminal Code is not effective, that our justice system isn't effective, and fine, they will sort out the problem.

There's no process, there are no appropriate checks and balances in that system. It's rampant in certain parts of the country. Maybe this will be a tool to calm some of that, or stop - I think that's a far greater evil than actually - God, I would hate to have to decide which is the greater evil, but it is a worse system than what even the worst abuse of this system could be.

What do you say to that?

Mr. Borovoy: You are trying to put me, as a friend of mine would say, on the horns of a non-existent dilemma. I'm suggesting to you there may be alternatives beyond the two you're talking about.

Ms Torsney: What are those?

Mr. Borovoy: I'm talking about being straight with people. When somebody is released from prison and you have reason to believe this may be a particularly dangerous person, or the police believe that, one doesn't have to choose between posting that person's picture all over the press and doing nothing. Traditionally, more diplomatic police officers could go to some areas and discreetly inform some people about the potential in their midst, or if the person applies for a certain kind of job where there is a particular danger, people can be advised about that. You do not have to choose between plastering their pictures in the newspaper and an illusory benefit such as an electronic monitor. There are other ways of dealing with this kind of thing. They are not as sensational.

Ms Torsney: Well, I'm not sure they are as practical in a big city or in a big country, where people have lots of mobility.

Mr. Borovoy: As a matter of fact, I would suggest to you they are even more practical, because even when you're talking about plastering a person's picture in the newspaper very often the very people who should be warned don't know about it, and what you're doing is putting the mark of Cain on that person, making it impossible for him to function, and the people who really should know don't find out about it anyway. So if you're talking about discreet warnings, you are much more likely to achieve it without producing that kind of damage.

The Chair: Ms Meredith.

Ms Meredith: Thank you, Madam Chair.

I'm interested in following up your final comments to Ms Torsney, where you were saying that for an individual with mobility in this country, for an individual to have his face placarded for television reports, to say here's an individual you as a parent or you as an individual should be concerned about and he's moved into your area, is far more damaging to an individual than to have this sort of low-key monitoring that is done within a system. Would you not say that this is better than other alternatives?

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Mr. Borovoy: I was rejecting both of those alternatives. I wasn't suggesting to you that it was preferable. I suggested that discreet warnings on a selective basis would be a much more intelligent way to handle that kind of thing than plastering a picture all over the newspapers.

Ms Meredith: But doesn't that do far more damage to the person's ability to carry on his life, shall we say, than to have some sort of electronic monitoring?

Mr. Borovoy: That would depend on who is being warned, and in what kind of circumstances. It may or it may not. But if you are concerned that somebody has been released from jail, and if you're worried that he may have certain propensities, you might be able to warn some people who may have contact with that person. That still leaves the person free to enjoy the general society. He may not be able to get a job in a daycare centre, for example, and I think that would be a wise precaution.

Ms Meredith: I'm going to change the tenor of this, because although I can see the use of electronic monitoring for parole, for a low-risk offender, for a shoplifter, for petty theft, for those sorts of individuals, I too have difficulty in looking at electronic monitoring for dangerous offenders or for people who have a potential of seriously assaulting or killing other individuals. I don't see it as an option.

I do see the value in this kind of monitoring for low-risk individuals. I can see an application of this with young persons who have been brought up under the Young Offenders Act, or who have identified themselves as individuals who are or could be of concern in society. Rather than coming down harshly on them as adults, they may be brought under this sort of thing as a deterrent for that kind of behaviour from those individuals.

Where do you see it being used in a way that covers the concerns you have raised?

Mr. Borovoy: I think there is a problem with what you're saying. You are talking about something other than the bill before you. This bill contemplates someone who it is believed will commit serious personal injury offences. The kind of low-risk offender that you're talking about is not what this bill deals with.

The second problem comes if you want to impose these kinds of monitors on someone who has been convicted of an offence. As I said, if you don't want to jail the person, and if this is an alternative to an incarceration that could otherwise be validly imposed, it would be an acceptable use of the monitor. You ought not to use it against someone who has not been proved guilty of anything.

Ms Meredith: I agree with you, but you've already stated that this kind of monitoring is not going to stop somebody who has an intent to commit the kind of crime we are all alluding to here. Electronic monitoring is not going to do anything.

Mr. Borovoy: That's right.

Ms Meredith: I'm looking at the section here that deals with it, where it talks in terms of having to appear before a provincial judge. I believe there have to be reasonable grounds before they have to appear before the courts, before a judicial body. You do not feel that's adequate to protect the rights of that individual. You feel that a decision is being made by the judiciary of this country, and that this kind of sentencing, if you will - it isn't incarceration, but is a sentence of monitoring behaviour - is inadequate?

Mr. Borovoy: I hope no one will be offended by what I'm about to say, but remember that judges are just lawyers. They, too, are not clairvoyant. As fair as a judge may be, he doesn't know what that person is going to do, and that's the problem with this whole exercise. If you were talking about imposing the electronic monitors on someone, if that person was susceptible to a jail penalty when you proved misconduct and you wanted to use the monitor as an alternative to that, there would be no objection. But if you're saying that simply on the basis of what I call an exercise in clairvoyance, then with the greatest respect to my brothers and sisters in the judiciary, they too lack that power.

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The Chair: Thank you, Ms Meredith.

Mr. Telegdi.

Mr. Telegdi (Waterloo): Thank you very much, Madam Chair.

Mr. Borovoy, it's a pleasure to have you here. I, too, share your particular concern. I think it's important for us to get our minds around it as a committee. We're talking about people who have been convicted of nothing, who have not been charged, but people who might do something.

I look at the judicial system, and I look at the very serious lack of resources that are already within the judicial system. I look at the fact that bail hearings, hearings where people charged with serious crimes, are presided over by justices of the peace. Now, we would have provincial court judges diverted to hear these cases when we have charges against people being dropped because they've been before the judicial system too long and we do not have the judiciary to handle all of those cases.

When I woke up this morning, I got on the plane and arrived in Ottawa. Let's suppose that my plane were to crash. I guess it would be reasonable for me to say, oh Lord, if you reverse my situation, I promise never to fly again. But to have a government that can guarantee your absolute physical safety is to have a government that will absolutely deny you all of your freedoms. I think that's at the essence of this bill. We're not dealing with somebody who comes out of jail. We're not dealing with somebody who was previously criminal. We're dealing with innocent people.

I guess it really strikes a chord with me, because I can tell you that when I grew up in Hungary, we had people who used to disappear in the evening and they weren't seen for years, if ever again. This was a case in which the state could pick them up and send them off to Siberia someplace. Of course, now you can read The Gulag Archipelago to find out what kind of situation arose.

Mr. Borovoy, I wonder if you'd help with a scenario, with one of the things that I envision. Any time we have a strike in which some workers in the same factory cross the picket line when there is all the tension surrounding the strike, for the most part these folks seem to get back into the workplace when the strike is over. It may be with some discomfort, but they still work for the same employer.

If this bill were in place, it would be very easy for this person - the one who crosses the picket line to go to work - to make the case that a person who was threatening him while he did that should be put under some kind of surveillance. Could I put that scenario to you?

Mr. Borovoy: I'm not sure I adequately understood the example you were giving, but if you were talking about a situation in which a charge is laid because of the tensions on a picket line, and it is a condition of bail -

Mr. Telegdi: No charge is laid. There is just the accompanying verbal confrontation that usually occurs any time somebody crosses a picket line when there are some people on the picket line.

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Mr. Borovoy: Then what kind of surveillance are you talking about?

Mr. Telegdi: Well, let's say the person who was crossing, who was going in to work, could say, hey, that person also works here but is on strike. They may have indicated some actions, some kind of a threat to my personal safety. But when you look at the situation after the strike is over, the people go back to work and work out their differences in a different fashion, even though they -

Mr. Borovoy: I'm not sure what your question of me is, though.

Mr. Telegdi: If I went through the picket line and somebody said, hey, I'll get you, you scab, or what have you -

Mr. Borovoy: Could you go to court and get an electronic monitor for that person?

Mr. Telegdi: Oh, yes. I could say it was serious physical injury.

Mr. Borovoy: I'm always loath to give legal advice, particularly in view of the fee I'm being paid for it. It might be worth what you're paying for it.

I suppose the question would be whether there were reasonable grounds to believe the person was going to commit one of these serious personal injury offences. Were they anticipating a spit in the eye or something more serious? I suppose a lot of it would turn on that.

But if what you're getting at, if I can just extend it to more conceptual terms, is the susceptibility to abuse which is inherent in this kind of clause, whether it would ultimately be used in the kind of situation you're talking about or not, it's fair to say it is a clause that is highly susceptible to abuse. That's really because the problem is you're trying to establish something that has not occurred. That of necessity is a fragile exercise and exposes innocent people to real encroachment.

The Chair: Mr. DeVillers.

Mr. DeVillers (Simcoe North): Mr. Borovoy, when the Minister of Justice appeared before the committee he asked us to consider three suggested amendments, or possibilities for amendments. The first one would be to limit the application of this clause to situations where there had been past convictions. The second was to limit the application to where there was a history of violent behaviour, where a conviction would be relevant but not necessarily determinative. The third would be to apply a pattern, as in section 518 of the Criminal Code, which has lists or categories of factors. Would any of those three possible or suggested amendments change your position or your thinking on this clause?

Mr. Borovoy: No, these suggested amendments don't affect my thinking about it. Again, you see, you can't get over the central problem that even with the proposed amendments you're talking about sizeable restraints for illusory benefits. No matter how you amend the bill, you can't overcome that central defect.

If I were asked, I suppose it's less bad to add a number - I'm not now addressing each one specifically, or even necessarily commenting on these particular suggestions, but it might be fair as a general proposition to say that the more encumbrances you put on the power to impose these things, the less bad will be the situation. I think that would be a fairer thing to say.

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Mr. DeVillers: Still not acceptable, but improved with these amendments. Would that be fair?

Mr. Borovoy: Well, I would say ``less bad'' in the sense that syphilis might be less bad than cancer.

Mr. DeVillers: So it's an improvement.

Mr. Borovoy: If you want to call that an improvement, then all right.

The Chair: You do have a way with words, sir.

Mr. Borovoy: Which one of us?

Mr. DeVillers: On your point in terms of the distinction between the traditional peace bond and these proposed provisions, you're indicating that in the peace bond that person is restricted from going to the house of ``X'', whereas in this, the condition could be not to go to parks. Is that not a distinction in degree? There's still a restriction on - rather than in principle.

Mr. Borovoy: I would suggest to you that it is a distinction in degree that becomes a distinction in kind. If you say to a person there's one place in this world they can't go, one place, that's far different from saying to a person that on a hot summer day they can't go into a park. I would suggest to you that this becomes a difference in kind.

Mr. DeVillers: Fine. Thank you.

The Chair: Mr. Bryden.

Mr. Bryden: Thank you, Madam Chairman.

To follow up on that, if one's wearing an electronic bracelet and one goes near some location and a bell goes on via satellite and the police come and pick you up, is that not a physical restraint? Is that bracelet not then a physical restraint?

Mr. Borovoy: Of course.

Mr. Bryden: Would I be correct in characterizing it as an electronic shackle? Is it more of a shackle than an order?

Mr. Borovoy: Depending on how the technology might operate, effectively it could become an electronic shackle. That's possible.

Mr. Bryden: But it is in essence a physical restraint.

Mr. Borovoy: It could become so, yes.

Mr. Bryden: I mean, even at a minimum -

Mr. Borovoy: I suppose the anticipation of it, sure.

Mr. Bryden: - if my fear is that the cops might come because I get close, then it is a physical restraint, is it not?

Mr. Borovoy: It's tantamount.

Mr. Bryden: Yes. It's tantamount to a physical restraint.

Just for your benefit, and for the benefit of my colleagues, I've done quite a bit of reading on this. The Canadian Journal of Criminology did an article on electronic monitoring in B.C. It made comparisons with other jurisdictions. It variously refers to electronic monitoring as ``house arrest'', ``community-based punishment'', ``intermediate punishment'' and so on and so forth.

I would suggest to you - and I would seek your confirmation - that electronic monitoring is widely regarded in Canada, the United States and the U.K. as a form of intermediate punishment to be applied to offenders. Is that not correct?

Mr. Borovoy: As far as I understand it. I think there's a lot of literature to that effect.

Mr. Bryden: Is it not true that this is the first legislation in any jurisdiction among the western democracies that proposes applying this type of punishment, physical restraint, on people before they have been convicted of any crime?

Mr. Borovoy: Not necessarily before, but without their being convicted.

Mr. Bryden: But is that not true? It is an exception.

Mr. Borovoy: I'm not able to tell you whether any other western democracy has attempted that. I haven't canvassed them. But it's fair to say that this is an extraordinary measure.

Mr. Bryden: It is a huge measure, then.

Mr. Borovoy: I would regard this as a substantial intrusion on freedom that is not warranted.

Mr. Bryden: Isn't the very cornerstone of our democracy and our relationship of democracies with the courts the presumption of innocence? That is, you don't get punished before you've actually had your day in court. Isn't that the very cornerstone of our freedoms?

Mr. Borovoy: Yes, sir.

Mr. Bryden: Is this not directly contrary to that principle?

Mr. Borovoy: Precisely.

Mr. Bryden: Just one other point, if I may, Madam Chairman.

I'd like to test you on your history. It has been suggested -

Mr. Borovoy: You are not testing me on my history, you're testing me on my memory. Those are two different things.

Some hon. members: Oh, oh!

Mr. Bryden: We'll test you on your memory, then, your reading.

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It has been suggested that of course the courts will act very responsibly should this go ahead and will carefully consider the information about the suspicions that this person might be a potential threat. Isn't it true that the Inquisition sent people to the stake based on courts interpreting the laws of the day? Wasn't it the judges who sent people to the stake?

Mr. Borovoy: There may have been - I don't recall the events of the Inquisition.

Mr. Bryden: I do believe they were ecclesiastical courts, but there were courts and judges nevertheless.

I'm not sure of this now, but I would have thought - I took very much to heart my colleague's remarks about Hungary. But surely during the Nazi regime, again, we had a case where courts or quasi-judicial bodies were sending people to concentration camps based on the laws of the day, laws that had been passed by governments. Is that not so?

Mr. Borovoy: It is.

I would like to make one point. I appreciate that your questioning is largely sympathetic to my position. I do appreciate that. Nevertheless, I like to be careful about the hyperbolic metaphors.

Mr. Bryden: That's fine.

Mr. Borovoy: The totalitarian countries of this century were a difference in kind. I always like to be careful about the language I use even when I'm condemning something. I do condemn this, but I'm a little uneasy about the metaphors of totalitarianism to describe it, because there we are talking about a totally different kind of society. From my standpoint - and I don't want to turn this into a sermon - suffice it to condemn this in good, tough terms. I don't think we need to go further than that.

The Chair: Thank you, Mr. Bryden.

Mr. Telegdi.

Mr. Telegdi: Thank you, Madam Chair.

Mr. Borovoy, are you for gun control?

Mr. Borovoy: For gun controls?

The Chair: Oh no, not gun controls!

Some hon. members: Oh, oh!

Mr. Borovoy: Our organization did not register on the merits of gun control. We took the position that the right to possess firearms does not constitute one of the fundamental freedoms of a democracy.

We were, however, critical of a number of the procedural aspects of the original bill that in our view encroached on civil liberties and basic safeguards. We sent a letter to the committee at the time. We did want to come before the committee and make that point, but we never registered on the substantive issue of gun control itself.

Mr. Telegdi: Thank you. It's not something that's striking for fundamental reform, if you will.

It's interesting, because I would have thought that the Reform Party, with their reasoning that gun control struck at individual freedom, would be more careful about exposing innocent people to a kind of situation that might arise from this section, keeping in mind the people who have not been previously charged or convicted.

One of the issues I raised was related to resource allocation in the courts. Could you comment on that? First, could you comment particularly on the fact that we don't have enough judges? Second, could you comment on how dealing with this would be added to their caseloads? This would not even go through the normal process with justices of the peace, who have a great deal of power right now and are the ones who are responsible for most of the show cause hearings.

Mr. Borovoy: You have touched on an important issue. There are, to be sure, serious problems. Everybody is talking about the inability of the courts to deal adequately with a lot of issues, to deal with them in a timely fashion, because of lack of resources. Of course the more you encumber the courts, the greater that problem is going to become. It just can't be avoided.

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So you really have to ask yourself, for every additional burden, what is the benefit society is getting from it? If the best we can say is that it's a way to deal psychologically with some people's upset - if that's the best it is, and I suggest that is the best it is - then that hardly would justify the kind of burden we're talking about. Then of course, as I've said, the likelihood is that it's not going to work as a psychological appeasement either.

The Chair: Ms Meredith.

Ms Meredith: As you can appreciate, I can't help but respond to Mr. Telegdi's comments. They show how little he understands what the Reform Party is all about. I thought I had made it perfectly clear to this committee and to the witness that I don't agree with the government's position on this. I feel it's very inadequate for dealing with the issue of serious offenders. If they have given cause to show they are a high risk to commit serious bodily harm or death to an individual, the court should be prepared to do something far more substantial than electronic monitoring. I thought I had made myself perfectly clear on that.

Mr. Borovoy: This is an interesting thing, that you and I are going to march off into the sunset together, you who say it's inadequate and I who say it's excessive. Nevertheless, I will be happy to hold hands with you.

Ms Meredith: It might be misunderstood.

The Chair: Mr. Bryden.

Mr. Bryden: I have a couple of quick follow-ups on my earlier remarks. I appreciate your reply.

Where I was aiming was that I wanted to ask you whether you felt, as a Canadian citizen, that one of the fundamental jobs of a legislator like me is to try to prevent the passage of laws that erode the fundamental principles of liberty and freedom that we believe in as a democracy. This is actually a very important issue for members of Parliament. It's not just any old law.

Mr. Borovoy: Absolutely it is. I think it is a most appropriate and desirable role for legislators in our society to perform.

I would add to it the need to talk straight with your constituents about it - I don't mean this to be preachy, either - about the importance of helping to educate the public about the limits and the dangers, the limits of the criminal law in producing the benefits that are being sought and the dangers in attempting to use the criminal law for those purposes. I think that's an awfully important part of the job of legislating - really explaining and trying to educate the public about these issues.

Mr. Bryden: I have one final point. We talked about presumption of innocence as a fundamental principle and a fundamental freedom. A corollary to that is not to be subject to arbitrary arrest. Does the concept of arbitrary arrest not fall precisely into this category of being subject to an electronic shackle, electronic monitoring, before one is convicted or even charged with a crime? Is this not arbitrary arrest?

Mr. Borovoy: In a way. I don't analogize this so much to arrest, because arrest starts the process. If you have reasonable grounds for concern about a person initially, you may have a basis for arrest. I analogize it to punishment. In fact, I don't analogize; I am saying flatly this is punishment. When you impose a sentence on a person, that the person can't go to certain places, and you attach monitors to enforce it, to that extent you are effectively imposing a punishment without proof of guilt.

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The Chair: Thanks, Mr. Bryden. Mr. Telegdi is next.

Mr. Telegdi: I have a very short comment, Madam Chair, to my Reform colleague across the way.

I think what's really crucial - and I really wish they would get their heads around this - is that you are taking people who have no previous convictions, have not been found guilty of anything, have not been charged with anything -

Ms Meredith: Don't start putting that on our shoulders.

Mr. Telegdi: If you're saying that's an adequate way -

Ms Meredith: It's the Liberal government that has come up with this.

Mr. Telegdi: - to deal with the innocent, I am just totally amazed.

Mr. Borovoy: I'm so happy to be the platform for this.

The Chair: I would like to ask a couple of questions myself.

Before the committee as well is Bill C-254, Ms Meredith's private member's bill. I think the bill itself is basically in the same form as a bill the last government tried to bring in.

Am I correct?

Ms Meredith: The bill is something the last administration didn't introduce but was going to introduce, on post-sentence detention on an individual who has been tried and convicted. This is quite different from what the issue is here, because they have been tried; they have been convicted of an offence; they are incarcerated.

The Chair: All right. With respect to Bill C-254, as I understand it, it creates a scheme where high-risk repeat or violent offenders can be detained beyond the expiry of their sentences or released under an order of supervision imposed on them post-sentence. Basically the supervision extends the period of the sentence. It also facilitates the denial of statutory release for offenders thought likely to commit sexual offences involving children.

Setting aside the good intentions or the societal concerns this bill addresses, it seems to me there's a charter problem with this bill.

I don't know if you had time to address this, Mr. Borovoy, when the last government talked about this same type of statute. Do you have any comments on its ``charterability''?

Mr. Borovoy: I can't claim to have immersed myself in the jurisprudence. I have, however, discussed it with a number of people I do consider expert. There seems to be a consensus among them that this would not pass charter muster. This would likely be shot down as a violation of the charter.

I think in principle it is a wrong thing for a democratic society to do, to impose a punishment in this retroactive fashion. When you consider that a person brought before the courts - had that person realized then the possibilities you may seek to impose now, the person might not have pleaded guilty when he did. He might have appealed instead of not appealing. The judge might have imposed a different sentence.

It is really a violation of important principles in our society. For those reasons, the charter and, if I can put it to you, the rationale behind the charter would be offended by a measure of this kind.

The Chair: You did come here to address the amendments to section 810. I take it, then, you've considered the application of the charter or what would happen if these proposed sections became law and then were ``chartered'', as we say in the trade. What's your view?

Mr. Borovoy: Again, I can't presume to give an expert view of my own. The consensus I got from talking about it to various experts is that there would be a respectable and strong charter argument. Whether or not it would ultimately succeed may require that very exercise of clairvoyance that I have been eschewing this morning.

The Chair: Thank you very much.

Our thanks for coming today, Mr. Borovoy, and giving us the benefit of your views on this. I can assure you we'll take what you have to say very seriously.

We'll rise until 11 a.m.

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The Chair: We're back. We have, from l'Association des avocats et avocates en droit carcéral du Québec, Mr. Stephen Fineberg, who is the president.

Welcome, Mr. Fineberg. I understand you have some words for us. Then we'll have a few questions.

Mr. Stephen Fineberg (President, l'Association des avocats et avocates en droit carcéral du Québec): Thank you very much. I'll say first that I appreciate the opportunity to address the committee. This is not the first time we've been invited to speak, but it's always useful for us.

The association of Quebec prison lawyers, l'Association des avocats et avocates en droit carcéral du Québec, is composed of the lawyers in Quebec who specialize in prison law; that is, prison and parole. For that reason we consider that we have a professional familiarity with the statutes, the regulations, the policies, the programs that preoccupy this committee.

We were formed in May 1992. Since then we've appeared here on several occasions and we've tried to participate as fully as possible.

This time our members have not had the opportunity to discuss fully and arrive at a consensus on many of the issues contained in the bills. For that reason I'm going to limit my comments to several points, but I know you're seeing many witnesses who can be helpful to you on a range of points. I'll try to limit my comments to the areas we've really discussed fully.

In the case of Bill C-254, however, we are quite ready to urge that the entire scheme of what is described therein as post-sentence detention should be rejected. We are aware that this opinion is being expressed in some other quarters, but we would be remiss not to take a few minutes to record our opposition to this legislative proposal, which continues to seek Parliament's approval.

I should say I apologize for not having sent a brief in advance. We got into this at the last minute. What I'll try to do is to finalize my written statement tonight, when I'm back in Montreal, and send it in by fax tomorrow.

The Chair: You appreciate it's being transcribed in any event.

Mr. Fineberg: Yes.

On Bill C-254, the notion of imposing an indefinite sentence after an offender has already served a definite sentence is a violation of a fundamental principle of our system of justice, namely that once punished for a crime an individual should not be punished again for the same crime. This principle is entrenched in our history and in our present Constitution at paragraph 11(h) of the Charter of Rights and Freedoms, which says:

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

In our opinion the Bill C-254 clearly goes further than the existing dangerous offender provisions of the Criminal Code, in that the indefinite sentences proposed will not only be available where the individual has been convicted but will be imposed after the offender has already served a first sentence for that same conviction. Even if a sentence of indefinite preventive detention imposed immediately following conviction does not violate paragraph 11(h) of the Charter of Rights and Freedoms, in our opinion the new form of preventive detention at the end of a sentence would.

In light of the majority decision written for the Supreme Court of Canada by Mr. Justice LaForest in R. v. Lyons 1987, we must conclude that section 7 of the charter is also violated by such a scheme. That case concerns an individual who pleaded guilty and then became the object of a dangerous offender application. Mr. Lyons argued the current dangerous offender legislation violates the principles of fundamental justice found in section 7 because it sentences people for crimes they have not committed or for crimes for which they have already been punished.

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The Supreme Court did not agree that people are being sentenced for crimes they have not committed. The Supreme Court, on the other hand, said that section 688 - and that's the old section of the Criminal Code dealing with dangerous offenders - permits a judge to impose a sentence of indeterminate detention on an individual for having committed an offence, which sentence is in view of any other sentence that might be imposed for the crime for which the offender has been convicted.

As you see, according to the majority judgment in Lyons, if the indefinite sentence had truly been imposed for a crime that was already punished, section 7 would then be violated. This is our reading of Mr. Justice LaForest's remarks in R. v. Lyons. Obviously the reservation expressed by the court would apply to the new proposal for the imposition of an indefinite sentence at the end of an earlier sentence.

Madam Justice Bertha Wilson, although she agreed with the majority's ruling on charter sections 9 and 12, dissented on section 7, holding that even the existing dangerous offender legislation violates the charter in at least one respect. She said:

It is, in my view, a principle of fundamental justice under s. 7 of the Charter that an accused know the full extent of his jeopardy before he pleads guilty to a criminal offence for which a term of imprisonment may be imposed.

Following Madam Justice Wilson's argument, as long as the accused, having pleaded guilty, is serving a sentence, an indefinite sentence he or she could not have anticipated at the outset of the sentence should not be imposed. And we note that the proposed new method of referral for an indefinite sentence will always be an event the prisoner could not have anticipated at the time of conviction. So it appears to us that what is proposed flies full in the face of Madam Justice Wilson's hesitation.

Turning to the government's bill, it is argued by some that Bill C-55's proposed amendments of the existing dangerous offender legislation managed to avoid the constitutional pitfalls of Bill C-254.

But we think that the central feature of Bill C-55's innovation continues to offend section 7 of the charter. The problem, of course, is that Bill C-55 would allow the Crown to make the dangerous offender application up to six months after sentencing, with the sole safeguard being the obligation to advise the offender before sentence is imposed of what the statute calls ``a possible intention to make an application''.

This strikes us as an obvious violation of the principle relied on by Madam Justice Wilson in Lyons: that an accused know the full extent of his jeopardy before he pleads guilty to a criminal offence for which a term of imprisonment may be imposed.

The text of the new Criminal Code paragraph 753(2)(a) clearly establishes that the proper time to acquaint the offender with the new extent of his jeopardy is after conviction and before sentencing.

Nothing in the statute, then, compels the Crown to advertise the possibility of a dangerous offender application when the accused is exercising his right to organize his best possible defence or to enter into a plea bargain. It is foreseeable that some accused will agree to a guilty plea only to learn afterward of the Crown's intention to reserve the option of a dangerous offender application for six months. That strikes us as unconstitutional, as a violation of the accused person's rights.

Moreover, even if an accused should take the decision to plead guilty in full knowledge of the Crown's intention to give notice under paragraph 753(2)(a), the principle highlighted by Madam Justice Wilson has not been satisfied. Can notice of a possible application based on information that may or may not come to light in the future truly be said to constitute knowledge on the offender's part of the full extent of his jeopardy? We think not.

Proposed paragraph 753(2)(b) explicitly defines the threat to the offender's liberty as one that was unknown at the time of any plea bargain, for if the relevant evidence was reasonably available to the prosecution at the time of imposition of sentence and did not come to light only during the six-month period following, then the application will not be allowed.

So according to the current text of the bill, the only situation in which such an application would be allowed is one in which, by definition, the offender did not know at the time of a guilty plea of the extent of his jeopardy.

In other words, the proposed legislation is specifically crafted to deny the offender the opportunity to know the extent of his jeopardy when he's making his defence and considering the advisability of pleading guilty.

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For that matter, the right to know the extent of one's jeopardy is seen to play a role not only in a decision to plead guilty or mount a defence, but also in the practical question of what resources to devote to one's defence. It is a fact of life that persons brought before the criminal courts at the expense of the state must assess the cost to themselves of an adequate defence.

Often, very practical decisions such as whether or not to ask family members to take out a mortgage on their home or sell their farm will rest on the perceived threat to the accused's liberty. It's one thing to speak of the accused's right to a full defence and another for the accused person to organize one. Choices must often be made with one eye on one's resources and the other eye on the perils that criminal law is then posing to one's liberty and future.

Given the gap between the implications of a sentence in numbers and an indeterminate sentence, after conviction an accused may come to regret bitterly the choices made earlier.

At this point I would just like to state that to our minds the fact that the charges are very serious and the consequences of conviction are extremely grave should not motivate this committee to take the rights of the accused more casually.

We understand that people who find themselves faced with the dangerous offender application are accused of committing heinous crimes. But given the gravity of the crime and the gravity of the consequences of conviction, we consider there is all the more reason to take every precaution and respect every procedural right when the judicial system attempts to identify who is guilty and who is innocent. Because the consequences are so serious and the charge is so serious, we must respect very fully the individual's right to a proper defence. The object of the exercise is not to severely punish people who are not guilty of the crimes.

We would argue further that the new six-month period appears to be at odds with principles operative in all other forms of prosecutorial activity. In the ordinary case, the state is obliged to put forward its best possible case all at once, in other words, to take its best shot.

It's the right of the accused to learn the state's case and to make a defence which, if successful, the accused person is entitled thereafter to rely on. If the state can muster the evidence for a conviction and a sentence in numbers according to the traditional arrangement, it must then end its prosecution of the individual.

In the proposed scheme, however, the state's disappointment over an outcome in definite numbers can fuel a sustained attack against the now convicted person. If unhappy with the sentence, so long as the Crown has cooperated by filing the notice before sentencing, the police can continue to agitate for an indeterminate sentence for a six-month period. During this period of extended effort the offender is unable to know what lies in store for him or her.

We think it is important to remind this committee that the courts have already clearly recognized that not all forms of detention are of equal severity. The courts have agreed that time spent in preventive detention while awaiting trial or sentencing should normally count for double the same time served after sentencing.

We wish to remind the committee that in the same way this legislation seeks to create a category of prisoners serving time without knowing if they are pursuing a definite sentence and progressing toward a fixed warrant expiry date, or merely serving a sentence that one day will be revealed to them as ongoing and never-ending.

Surely the principles of fundamental justice found in section 7 of the charter, if not section 12's prohibition against cruel and unusual treatment or punishment, should be seen as sufficiently encompassing to run afoul of the kind of sentence that is served without knowing if one is moving closer to one's release date or not.

In our submission, the next most objectionable element of the proposed dangerous offender amendments concerns the change to Criminal Code subsection 761(1) so the parole eligibility date of persons serving indeterminate sentences would be fixed at seven years of custody instead of three. At present, all offenders serving federal sentences become eligible at some point for conditional release programs. Until that point in the sentence is reached, the offender is not considered for parole, no matter how deserving the individual may be at that point, no matter how promising the offender's release plan, no matter how little the public safety may depend on the individual's further incapacitation.

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Although that period of enforced reclusion may appear pointless in such a case - I speak of the case of an individual who has proved himself to be worthy at that point - the law defends the legitimacy of the period of parole ineligibility and defends it on the basis of the need for public denunciation of the crime that has been committed and the need for retribution.

But that having been said, we are unable to understand the foundation of the proposed parole eligibility date for dangerous offenders. It should be clear that the period of ineligibility can only be that portion of the sentence during which the dangerous offender must remain without hope of release, no matter how repentant and improved he or she may already be by virtue of the crime that has been committed.

In other words, the offender may have already have evolved to the point where punishment and incapacitation no longer contribute to the security of the public. But this can be of no interest to the releasing authorities. The period of public denunciation of the crime must be respected.

We're not arguing with that. But we note that this period of time during which the merits and prospects of the offender cannot even be considered has nothing to do with the public's right to protection, because there may well be cases in which the public's protection is no longer at stake and yet these individuals cannot be considered for any kind of release. That is the period of public denunciation of the crime that was committed; that's the period of retribution for the crime that was committed. Only after that period has been served do the detaining and releasing authorities have the opportunity to assess the advisability of a gradual and controlled release out of the harmful and negative criminal environment of the penitentiary back into the more positive and supportive context of free society.

Once that point has been reached, the individual has to be re-evaluated periodically to assess if release can be effected safely. Indeed, the courts have held that without the regular reassessment, a sentence of indeterminate length would be unconstitutional. We may consider, then, that the period of parole ineligibility is related to the crime that has actually been committed, while the ensuing period of detention, with regular evaluations by the detaining and releasing authorities, is necessitated by the need to protect the public from what the court identified as the likelihood of future harmful behaviour. ``Y''et Bill C-55 does not wish offenders to be assessed for parole for the first seven years of custody. This implies that the crime on which the conviction is based would in every case have attracted an extremely long sentence, requiring a period of parole ineligibility of seven years of custody.

``Y''et we know well that it is not in every case that a very long period of detention would have been imposed in numbers for the crime that was committed. In fact, the law offers us guidance on this point with the definition of a serious personal injury offence, which according to paragraph 752(a) of the Criminal Code requires that a sentence of imprisonment for 10 years or more be available.

So even if we take as our example the serious personal injury offence, which not only can, but did, attract a penalty of 10 years, such an offender would ordinarily be eligible for parole after one-third of that period, about three and one-third years, not seven years.

We contend Parliament cannot proceed casually or arbitrarily to tamper with individual liberties, no matter how important the issue. Any move to increase parole ineligibility of a category of persons from three years to seven must be made on a principle basis. Here that principle basis does not exist, especially as the proposed change will serve to blur the distinction between those dangerous offenders who shape up within three years and those who prefer to resist personal evolution. We contend no one can have reason to congratulate Parliament for a move in that direction.

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On the subject of low-risk offenders, we wanted to say we welcome the thrust of the proposed new section 119.1 of the Corrections and Conditional Release Act, which will make non-violent first-time federal offenders eligible for day parole at one-sixth of their sentence rather than six months before one-third. This is an innovation that can be defended on principled grounds, and it's consistent with the government's stated objective of providing a criminal justice system that is more responsive, efficient, and effective. The proposed measure serves to accentuate further the different fates reserved for deserving and undeserving candidates, which in the accelerated review context means enforcing the distinction between violent and non-violent offenders.

On the subject of long-term offenders, on its face we think the creation of a category of convicted persons subject to supervision in the community by virtue of their high risk to commit a serious offence after the warrant expiry date may seem like a reasonable response to a pressing need, but even those who are convinced of the justification of this new limitation on personal freedom should have reason for concern with the form it takes in Bill C-55. The offender who is recognized by the court as a long-term offender is rendered subject to supervision, in the bill, in accordance with proposed section 753.2 and the Corrections and Conditional Release Act. This means the nature and extent of the supervision is not to be established by any court but by the bureaucracies empowered by the correctional legislation.

The problem lies in the extent of the authority Correctional Services Canada and the National Parole Board derive from the correctional legislation and the vague way in which it is defined. The lack of guidelines for the identification and implementation of acceptable conditions by the authorities has become a major difficulty for those persons serving sentences on the street and attempting to reorganize their lives without a return to prison.

I can tell you this from my experience as a practitioner in Quebec. I have a client who complained to me that as a condition of his release he would be required by the parole board to travel into the city from his home in the country on a regular basis, at his expense, to have psychological counselling, the counselling again at his own expense. He had no job lined up and he anticipated he would be on welfare.

Other clients complain that they are ordered by the parole board to have an accountant prepare, at their expense, a monthly statement of their revenue and expenses during parole. The individual who fails to pay an accountant, at his own expense, to submit a monthly statement to the parole board is going to be suspended and revoked for failing to respect conditions. Others are obliged to follow therapy programs that make work difficult or impossible.

One is reminded also of the decision of the Federal Court in Litwack, in which the court held the National Parole Board's condition that a parolee not be involved in the business world made it impossible for him to work, despite the fact that there was not, as the court put it, one scintilla of evidence that he had not reformed.

Most prisoners who are faced with arbitrary and intrusive conditions are unable to seek judicial remedies. Even if they have the economic resources to submit the matter to a court during that lengthy litigation, they would at any rate be returned to prison, thus defeating the purpose of their attempt at a remedy.

Even the most intrusive conditions imposed by the National Parole Board are selected without input from the parties who are going to be supervised. These conditions are not the subject of hearings or any other kind of study in which the perspective parolee is invited to participate. These conditions are simply announced.

An increasing problem for the correctional system is the current tendency of the parole board to suspend and revoke release programs quite casually, with no new offence committed or on the horizon. The board, after all, is more easily made to feel pressure from the media and the public than is a court.

I understand it's not this committee's purpose today to examine the operation of the National Parole Board and the parole officers of Correctional Services Canada, but we want to remind you that the supervision services provided by the Corrections and Conditional Release Act, to which the new bill refers long-term offenders, were designed for persons serving their sentences outside of penitentiaries. To extend the same kind of control that Correctional Services and National Parole Board have come to exercise over persons subject to their supervision to a new category of persons who are not even serving sentences strikes us as unconstitutional.

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Whether or not a form of supervision outside of the sentence, beyond the sentence, could pass constitutional muster is a more difficult question to answer. For the moment, we shall content ourselves with raising the difficulty posed by the scheme that has been submitted for our comment in the existing bill.

Given that it will be the correctional agencies and not the courts that are intended to give content to the supervision order, we find it particularly objectionable that long-term offenders will be faced with conviction of an indictable offence for failing to comply with the order as defined - not as defined by the court but as defined by the correctional bureaucracies. This is a dangerous proposal, and we think an unconstitutional one, as currently framed.

I think I'll withhold my comments on judicial restraint. I spoke to Mr. Borovoy yesterday. I'll simply announce our support for the point of view he advanced this morning.

The Chair: That's helpful. Thank you.

[Translation]

Mr. Langlois.

Mr. Langlois (Bellechasse): I would like to say, at the outset, that since the witness read a text, it would have been a very simple matter for him to hand out copies of it to committee members, who therefore would have been able to follow along and to jot down notes as the presentation moved along. I hope this situation will be corrected in the future, but I am aware that the timeframes are very short.

I took a few notes. I understand some of the concerns that have been brought forward and I must concede that it is obvious that there will be charter challenges against Bill C-55. At one point, you mentioned situations that might bring about such challenges.

At this stage in the debate on Bill C-55 and having heard several witnesses, I have nevertheless been able to clarify some questions that I asked the Minister when he appeared before the committee. It is obvious, and you mentioned this, that to hand someone an indeterminate sentence amounts to doing indirectly what Bill C-254 aimed at accomplishing directly, namely hand down, for all intents and purposes, a new sentence. In this way, the inmate will have to prove his illegibility for parole without having a fixed period. Is this justified under clauses 7 to 15 of the Charter? That is another problem. Obviously, we live in a society regulated by law, where sentences must be established, according to what the courts have told us, in as precise a way as possible.

You say that you are against granting the Crown attorney six months to make an application for finding that an offender is a dangerous criminal. If I understand correctly, following a verdict of guilt, an offender would not be eligible for a suspended sentence or parole. He or she would face at least six months in prison. Will these six months really be a factor in the case because the offender will have to spend them in jail no matter what?

In the case of the balance that we must seek between the rights of the State and those of a person found guilty, is it not acceptable, in a free and democratic society, to grant the Crown attorney six months in order to gather evidence and to make representations regarding the sentence based upon all of this information, which might also allow the person found guilty, but not yet found to be a dangerous offender, to prepare his or her defence at that stage?

I will ask my second question, and once you have answered, I will leave you to Ms. Meredith, who will perhaps launch quite an attack on you.

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You made no mention of section 810.2. This section is among those that makes me the most uncomfortable. In my opinion, this section is an improved peace bond, in that it allows one, in the case of a person that has not been proven guilty of any indictable offence, to call for measures that will limit this person's mobility, require that he or she report to police authorities and to supply guarantees of good conduct, when there is no evidence of bad conduct.

It is an aberration, in our justice system, to extend a peace bond that has not existed in our common law for a long time, but that applied in very specific circumstances. I am having tremendous difficulty with this and I am very reticent to the idea that this be codified through Bill C-55. I do not know whether you have an opinion on this section, that might even - I brought this up with the Minister who did not contradict me - be such that the day after or the afternoon following an accused's acquittal by a judge in a provincial court or a jury, the judge, hearing the verdict following receipt of an information under section 810.2, request that the accused appear again before the same judge who dealt with the acquittal, this time not pertaining to evidence beyond a reasonable doubt, but a preponderance of evidence. The judge, in accordance with other criteria, could say that he acquitted the accused because he did not have enough evidence beyond a reasonable doubt but that, having heard the evidence, with the preponderance of evidence, he is opting for exceptional treatment under clause 810.2 limiting the accused to restricted freedom.

It is as if we were creating some kind of purgatory. There is neither heaven nor hell for these people, but rather some kind of no man's land or buffer zone where there would be people who would be more or less guilty of something. Since I do not have a Manichean vision of society, I cannot accept section 810.2. I would like to hear your comments on this issue or on any other point I have brought up.

Mr. Fineberg: I would like to respond immediately to your last point, that I find very interesting. As you have probably guessed, I share your concerns. I believe there is a distinction to be made between those who have already been convicted and those who are suspected of having committed crimes but who are acquitted or for some reason or another have not been convicted. It is true that the National Parole Board, according to law, bases its decisions on the preponderance of the evidence. But these are people who have been convicted and sentenced for crimes they have committed who appear before the board.

What they are asking for, is a privilege. These people who appear before the board and come under it and the Correctional Services by virtue of a parole program are requesting a privilege under a system, a program of gradual release during their sentence, without which they will have to serve their sentence in prison, as set out by the judge who handed down the sentence. However, the person the member has just described is one who is guilty of absolutely nothing. He is talking of a citizen like you and me who all of a sudden has the same burden of proof as the person appearing before the parole board. This person is virtually required to convince the court that his or her freedom should not be severely restricted.

In this sense, and that is perhaps what Mr. Borovoy was trying to explain this morning, I believe that we have come to a turning point in the history of our country. We are beginning to reflect upon possibilities we had never envisaged up until now. Our association finds this very dangerous.

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I would underline that we also see danger in the electronic bracelet proposal. My understanding, though I am not certain that my interpretation is the right one, is that the bill provides that for those people who will be supervised by the police, this supervision will be carried out through the use of a bracelet. In this way, police officers would be informed not only of any illegal act committed by these people, but also of their comings and goings and of all of the completely legal activities they partake in. This is a situation we have never yet seen here in Canada.

Try to imagine yourselves in that very situation: imagine that you are suspected of having done something and that people fear that you will do it again. It is decided that the police must be aware at all times of your comings and goings, of all that you do, of all of your legal activities. This is a situation we have never seen here in Canada. I would like to believe that the committee will not push for the adoption of such an approach, which we would be seeing for the very first time.

[English]

The Chair: Thank you.

Ms Meredith, you have ten minutes.

Ms Meredith: Thank you, Madam Chair.

I appreciate your comments earlier about not only my present member's bill, Bill C-254, but also Bill C-55 and the charter challenge. I see my role as a legislator not to allow the fear of charter challenges to stop me from doing what I believe we should be doing any more than I feel that the threat of a serious personal injury should keep me locked in my home. But there are many in our society who confine themselves to their homes because they feel that their government, the state, has let them down, has deserted them.

They also have a constitutional promise. The Constitution, under the charter, states that they will have freedom and that they will have security of person. They feel that the government, the state, is not providing them with security of person in releasing people from incarceration even while knowing they are likely to commit serious personal injury or death to an individual.

We're not talking about, in either Bill C-55, which is the government's response to dangerous offender legislation, or in Bill C-254, people who might be stealing chocolate bars out of the corner store. We're not talking about people who might punch somebody out. We're talking about people who make a conscious decision to commit serious bodily injury or death to another individual.

Now, you say it's unconstitutional for those individuals to be given indeterminate sentences. You say it's unconstitutional for Bill C-55 to even consider, six months later, changing a sentence, because they have a right to know what their jeopardy is. Well, I think when they make a decision to commit serious personal injury to an individual - attempted murder, or even murder - they understand what their jeopardy is. I think it's the role of the lawyers representing them to let them know perfectly well what the jeopardy may be in their circumstances.

If they don't know what the jeopardy might be, then I would suggest that's the fault of the legal counsel, who should be letting them know, either under Bill C-55 or under Bill C-254, that they might be declared a dangerous offender, and there might be further limitations on their release, and there might be further limitations on their behaviour upon release.

So I don't see where that is any infringement on their right of knowing what their jeopardy might be or of a charter challenge. I would suggest to you that the people of this country are concerned that their rights under the charter are being ignored and that the rights of the offender are given far more emphasis than their rights as a Canadian, as an individual. I'm not afraid of a charter challenge. I think it's a question of whose rights should have priority over someone else's rights.

I have a problem when you refer to these individuals as if they have - you know, decided that they've done something wrong and they should be out on parole sooner than later. I feel that these individuals are given opportunity, and that's actually why I feel that Bill C-254, which is saying that perhaps a determination can be made later in their sentence, allows them the opportunity to take counselling, allows them the opportunity to show that there is some remorse and that they are changing their behaviour.

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At the time of sentencing, you're not giving them that opportunity. You are assuming that they are not going to take counselling; you're assuming that they're not going to change their behaviour. So I would suggest that making that determination in the last year of their sentence is far fairer to the offender than it is at the time of sentencing.

I think if Bill C-254 was brought into application, or even Bill C-55, although I don't feel it goes far enough, the offender is still advised that depending on your remorse, depending on your treatment, depending on your change of behaviour, we will determine whether or not you are released. If we deem you to still constitute a threat to society, we will keep you incarcerated or put you under supervision. I don't see where that is any deterrent to somebody looking for treatment or trying to change their behaviour, and I leave it with you to comment.

Mr. Fineberg: First of all, I think a committee such as this has to make a distinction between a possible charter challenge and a probable charter challenge.

I agree that the committee cannot restrict itself to legislation that clearly and undeniably is constitutional, but on the other hand, some bills are more clearly unconstitutional than others. If the committee has reason to expect that a piece of legislation will fail to pass constitutional muster, then I would say it's the committee's responsibility not to put that legislation forward.

If, on the other hand, it's an open question, one can understand better why Parliament might use its resources and oblige the government to use its resources to adopt, distribute, implement, and educate the public about new laws that at some point may be proven to be unconstitutional and have to be withdrawn, with all the accompanying expense and complication.

But where it's foreseeable, in the opinion of the committee, that something will be found to be unconstitutional, where one can look at existing Supreme Court decisions and from those decisions conclude that a bill has little chance of being found constitutional, I say that it's an irresponsible use of public resources to implement such a bill in the hope that somehow it manages to reverse the court's point of view.

Ms Meredith: If the previous administration had also gone through this dilemma of whether something was constitutional or not, whether it would be challenged, do you feel that they would have presented or come up with a piece of legislation, knowing in mind that it might be challenged in the charter, if they didn't feel it could be defended?

Mr. Fineberg: What I'm saying is that if members of Parliament think a bill could be defended, although they suspect there could be a charter challenge, I think they're authorized to advance such a bill. If, on the other hand, members of Parliament have reason to believe their legislation will not only be challenged but defeated by the courts, then really they're wasting public resources.

Ms Meredith: Would you not suggest that Bill C-68 and Bill C-72 are also legislation brought forth knowing that there will be charter challenges, knowing that they might lose, seeing as how there are provincial governments that will not even participate in it, that are challenging the government? Is that any reason why a government should not be looking at dealing with the issues of society and trying to put in legislation that deals with those issues?

Mr. Fineberg: I've already said - perhaps I'm agreeing with you - that legislators should not retire because they think something will be challenged. I think they should decline to adopt legislation that they suspect is unconstitutional, that will not only be challenged but will be defeated.

Ms Meredith: When you reach this conclusion, that this is likely to be challenged under the charter because it infringes on a person's rights, does it not concern you that without it the rights of society, the individuals in society, are also infringed upon, that our right of security of person is infringed upon when the state knowingly releases an individual who is likely to maim or to murder an individual who has the right, the protection of the right of security, under the Constitution?

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Mr. Fineberg: You're asking a very fundamental question about the role of the legislature and the role of the courts, and then the role of the individual citizen and where that citizen must throw his or her support. No matter how concerned I may be about the issue, I do not think I would want to propose a solution that I'm convinced violates the Charter of Rights, which protects all of us. I think the Charter of Rights must be protected and must be respected.

Ms Meredith: In what way does it violate the offender's rights - in his not knowing the jeopardy; that if he killed or violently assaulted somebody, he may be in prison for a long time; that it may offend the right of the offender who viciously assaulted an individual to parole after one-sixth of his sentence as opposed to seven years? It violates the right of the offender to what? A fair hearing? When these are all done through a judicial process, he has the right to have counsel defending his position. In what way is an offender's rights -

Mr. Fineberg: I think Mr. Justice LaForest stated the case properly in the Supreme Court. I think we, ourselves, should all feel bound by the position taken by our Supreme Court on that issue.

Mr. Justice LaForest was of the opinion that an indeterminate sentence, an ongoing, never-ending sentence of imprisonment, would be unconstitutional if it were imposed after the individual had already served a sentence in numbers, if he had already served another sentence for that same behaviour, and without any new anti-social behaviour. Furthermore, the court was concerned that if people were not regularly seen by parole boards, and if their cases were not reviewed regularly to see if they were now ready to assume their responsibilities, then ongoing preventive detention would also be unconstitutional.

Ms Meredith: Why is it unconstitutional for a person to serve a sentence that they were given in the first place? Where is parole or parole consideration unconstitutional? If an individual has been sentenced, what is unconstitutional about that person fulfilling his sentence?

Mr. Fineberg: I'm not sure I follow the question. As I understand it, the sentence carries with it a parole ineligibility period that must be respected. After that, the Supreme Court considers that people's readiness for the street must constantly be reassessed.

The Chair: Perhaps we'll have some time to get back to that. We've gone quite a bit over the time.

Ms Torsney, did you have a question?

Ms Torsney: Yes, I did, actually.

One issue that you raised was this whole issue of seven years versus three years for those who are declared dangerous offenders and who have been given an indeterminate sentence. I think there were two parts to your concern. One was that seven years is a long time to wait to be reviewed. And I think the second thing you said was that they wouldn't be able to get into any pre-sentence programs and other such things in our correctional facilities. Was that what you meant?

Mr. Fineberg: No, I'm sorry, I wasn't clear on that. What I meant to say is that every sentence in Canada carries with it a parole eligibility date. In Canadian law, there is no such thing as a sentence that does not contemplate the possibility of release if the person shows himself or herself to be worthy, to be deserving, to be ready to respect his responsibilities outside.

In our form of law, the period during which the person cannot be eligible for parole is a period that is attached to the nature of the crime the person has committed and to the length of the sentence that responds to the crime that was committed. There's a period during which an individual, no matter how deserving, cannot even think about release, even if it was clear that this person had learned his lesson from the experience of arrest and conviction and incarceration. That person simply cannot be considered because the crime, that form of anti-social activity, must be denounced by the public, and because the person deserves some punishment. That's the way our law works.

What I'm saying is that at present, a person who is declared a dangerous offender has committed one particular crime, and there are reasons to believe the person might well commit other crimes in the future. To date, however, he has only committed one crime -

Ms Torsney: No.

Mr. Fineberg: - and is ineligible for parole for three years from the date he or she was taken into custody because of that crime.

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But it is proposed that the three years be extended to seven years, and I'm saying there is no rational, clinical, criminological basis for extending the parole ineligibility from three to seven, because that suggests the crime the person actually committed was so serious in every single case that a sentence of perhaps twenty-one years would have been imposed, and one-third of twenty-one years would be the seven-year parole ineligibility period. We know it's not in every case that a person has committed a crime so serious that the person would have attracted a very long sentence for the specific act.

After the person has served the period of time the public demands as denunciation of the crime committed and as retribution, the only reason to continue to incarcerate the person indefinitely is for the sake of public protection. But if the person cannot even be evaluated by a parole board, then public protection is not really the basis for continuing to detain the person. There is no basis, from three to seven, for continuing to detain the person without evaluations.

If a person continues to be eligible at three years, as a dangerous offender is now, and if the person is not deserving, then the person will not be released through a decision of the parole board. But at least the public's representative, the National Parole Board, will be considering the possibility and will be checking this person out after the three-year period of public denunciation.

What I said that perhaps was unclear earlier is that the proposal advanced by the bill would have this person not eligible for release programs - not treatment programs in the institution - between three and seven years. This is a change that is not being proposed on a principled basis, yet it's a very significant change. We're talking about perhaps some very unpleasant people, but we're still talking about relieving them of any possibility of liberty for an extra four years without a foundation for doing it. That's a very serious thing for a parliamentary committee to propose.

Ms Torsney: I'm a bit concerned that you're leaving an impression that people are declared dangerous offenders after having an absolutely clean record and suddenly committing one very violent offence. That's not really the case, is it? Is it not the case that they must have a pattern of behaviour with at least one other charge, if not usually something more than one other charge? I guess in the Bernardo case they knew there were many things they pleaded to that had happened in the past, but in general it's not one offence. These guys have been in there several times.

Mr. Fineberg: But on the previous occasions these individuals also paid a price, and it's the price that is demanded by our judicial system.

Ms Torsney: Right.

Mr. Fineberg: Following that, these people have been persistent. They've committed one more crime and, as it turns out, one crime too many. Finally they're caught with their dangerous offender indeterminate sentence. They've committed one crime too many. I say for that most recent crime there's a period of parole ineligibility that our legal system expects to be consistent with the way parole and sentencing operate in every other context. There's a period we expect for that most recent crime, but that period cannot be extended to seven in recognition of what they've done before, because they've paid the price for what they did before. They've paid everything that the judicial system expects them to pay.

To propose now that somebody who's declared a dangerous offender, and by definition has been involved in anti-social behaviour in the past, should now pay for that past behaviour a second time with a new period of parole ineligibility from three to seven is really to change the way our entire criminal justice system operates and to throw out the most basic principles.

The court says over and over, when asked to determine whether or not a sentence is constitutional, that the sentence must be proportional to the crime. Yet you're talking about people who've already served sentences proportional to the earlier crimes and have dealt with those earlier crimes. They have been persistent, gone on to commit new crimes and are being asked to serve a period of parole ineligibility for the new crime and, in addition, are being asked to serve a period of parole ineligibility for crimes they haven't committed yet.

The period from three to seven cannot be defended, and we're talking about something very important here. We're talking about adjusting the way in which liberty is stripped from a person.

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This doesn't defend their criminal act. This simply asserts that the sentence has to be proportional to the crime. In every other area of Canadian law we know, the period of parole and eligibility would be attached to the behaviour actually committed and there would be no additional period of ineligibility during which they can't even put their best foot forward because they might some day commit another crime.

This is not a basis for knowing a good candidate for release, and of course this doesn't apply to a poor candidate. Poor candidates have no hope - with eligibility, without eligibility. They have nothing going for them. We're talking about the person who is a good candidate, the person we would want to see back on the street, not the person we don't want to see on the street. I'm not talking about those cases but the person we would want to see back on the street. Your law would not allow the parole board to do it, and on the basis of what?

I don't think you can answer me that the basis is that victims have been very seriously hurt and need to be protected from these people now, because I'm not talking about those cases. I'm talking about the individuals who would prove to be good candidates if it were not for this law, which now renders them ineligible from three to seven. Those are the cases I'm pleading for now, the cases who are good candidates, the people who recognize their responsibility, the people who chose to evolve and prove themselves and who are trying to pursue a gradual, controlled kind of release.

Ms Torsney: Mr. Fineberg, do you believe in the dangerous offender provision at all?

Mr. Fineberg: No, I think on balance I would have to say that -

Mr. Rideout (Moncton): It took a long time.

Mr. Fineberg: Well, it was to do justice to the compelling arguments on the other side.

Ms Torsney: That's fair.

The Chair: I would like to be inside that calculator. That was quite a run-through of all the arguments on the other side.

Mr. Fineberg: On balance it becomes impossible, in my mind, to endorse a sentence of preventive detention for acts that may never be committed. We're familiar with the cases in which individuals go on to commit the acts. I'm familiar with other cases in which the individuals don't go on to commit further acts. I know people serving indeterminate sentences, and I judge some of them to be very, very safe, yet the sentence goes on and on and on.

No, on balance I would say it's a dangerous regime.

The Chair: I hope you appreciate that we weren't laughing at you.

Ms Meredith, five minutes.

Ms Meredith: I have just a couple of questions I want to ask you.

How many dangerous offender applications have there been in the province of Quebec to date?

Mr. Fineberg: My adviser in the back says two or three. I think two.

Ms Meredith: Obviously one since I sat on that committee before; yet I don't think that represents a small prison population or a small offenders population in the province of Quebec.

So the dangerous offenders application we are using today is very rarely used. And a dangerous offender has a separate judicial process where they can defend themselves by saying their activities do not constitute a dangerous offender application, by saying they didn't mean to do what they did, it was a one-time shot and they're unlikely to do it again.

The people who get the designation go through a process, and it's not so regular a process. The numbers we're talking about are very small in relation to the numbers who appear before the courts. One has to assume that in order to make that kind of determination we're dealing with the mean of the mean.

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So why do you feel there isn't any foundation for using this provision for those who are the most serious offenders? Why do you feel there isn't a provision for society to say that all things considered, we have selected a few people for special treatment, because we are afraid and we are seriously concerned that their behaviour is such that it cannot be accepted in society to the point of putting them back out after six months, two months, three years or four years? Why does it offend you that for a very small portion of the prison population the decision might be made that they shouldn't be allowed out or that no parole should be given to them for seven years?

Mr. Fineberg: The argument that their numbers are not significant enough to justify our concern is like arguing that if one person should be tortured by Canadian Armed Forces in another country, that should be of no concern either -

Ms Meredith: No -

Mr. Fineberg: - because it is, after all, only one person. It doesn't matter to me if the numbers of dangerous offenders are small. I don't find that a compelling argument. The point is that dangerous offenders, no matter how few their numbers, must be treated with the same respect, concern and consideration as other people. Their rights must be respected in the same way the rights of other people are. I don't think we should legislate on the basis that the legislation may be oppressive but will oppress very few.

As for the procedural safeguards, let me just reply, please.

I tend to agree with you that they receive a fair opportunity to state their case and to defend themselves against the case of the crown prosecutor. However, we have become so preoccupied with procedural rights that sometimes we lose track of substantive rights. Not every legal defect in a law is a procedural one. Sometimes the procedure is not defective or flawed, yet there are other legal difficulties raised. The dangerous offender legislation has substantive problems. Its very purpose is to impose, as described by your bill, a second sentence, and this is something that the Supreme Court finds unacceptable - and not for procedural reasons.

Ms Meredith: But under Bill C-254, if a person is convicted of a crime, feels remorse, shows that there's no reason for society to be concerned, has taken courses or treatment in the prison system, and has proven that he deserves another chance, wouldn't you agree that he has more opportunity to do that when the decision as to whether or not he is safe to put out on the streets is made after he's been given every opportunity to change his ways, to show remorse and to prove to society that he's not likely to reoffend?

Mr. Fineberg: Maybe it would be useful for this committee to actually invite offenders here who are trying to serve sentences, who are trying to organize their lives - the same as we are doing - who are trying to figure out what lies in store for them, who are trying to figure out what programs they ought to be taking and when they might see the street again, who are trying to give an answer to their families and want their family members to know when they're going to be available again, who are trying to figure out when they're going to be renting an apartment again and what kind of job training they should be pursuing, and who are trying to figure out what kind of therapy schedule they're on.

I think the offenders would tell you, as my clients tell me, that it's enormously difficult to do the time they're obliged to do when they haven't any idea of what comes next.

This is an argument in favour of flat sentencing that is used in some jurisdictions in the United States. Parole makes life difficult for people in prison because they don't know when they're going to see the street.

Ms Meredith: Maybe you or one of your -

The Vice-Chair (Ms Torsney): Sorry, Val, that's already six minutes. Thank you.

Mr. DeVillers.

Mr. DeVillers: Thank you.

Mr. Fineberg, when the justice minister was before us he talked a little about the possibility of constitutional challenge and, with specific reference to the amendment to section 810, asked us to consider three possible amendments. He expressed the opinion that, as drafted, the bill could withstand a charter challenge but that, nevertheless, maybe we should consider three possible amendments.

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One would be to limit the application of section 810 to situations where there had been past convictions. The second would be to limit the application to those with a history of past violent behaviour where conviction would be a relevant consideration but not necessarily a determinative. The third would be to apply a pattern situation similar to section 518, where there's a list of category of factors.

Would any of those possible amendments improve the bill as drafted, or affect your opinion on that particular section, section 810?

Mr. Fineberg: I wish I were prepared to give you a competent opinion on that. It sounds to me as though the possibilities the justice minister has presented would improve the bill. They would provide additional safeguards. They would limit the possibility that a section 810 order would be made inappropriately.

I haven't studied what he's proposed. I really can't help you.

Mr. DeVillers: Okay, thank you.

The Vice-Chair (Ms Torsney): Does anybody else on that side have a question? If not, I'll use up the last two minutes.

Isn't it possible that we're moving to seven years from three years because, if you do the analysis, very few people, if any, have ever gotten out, and it really is a question of resources? So in the same way as you don't want us passing legislation that we'd devote a whole lot of resources to knocking down - and we know it's going to be knocked down - why would we have a system that says three years when nobody has ever gotten out in three years? In fact, no one's even gotten out in seven years. Why not make it a system that's more appropriate to what is in fact taking place and save those resources of reviewing first at three and then at every single year when they could be doing a better job of setting appropriate parole conditions for the people who are eligible and do have a chance of getting out?

Mr. Fineberg: I believe the reviews will be every two years, not every year, so that cuts down on the wasted resources.

Second, during the earlier portion of that four-year period I suspect that many dangerous offenders decline to appear before the board because they're not yet recommended by Correctional Services, and they realize they have no hope of receiving a positive decision. So I'm not sure how many hearings are actually wasted during that period.

The more important argument is that you're still left without a principled reason for tampering with the liberty of individuals. I don't think you can do that. You're left without a principled foundation.

You propose to save resources by eliminating the possibility of release for someone who is deserving. I ask you to consider the case of that lonely individual, the dangerous offender, who, within a short period of time, becomes an individual who would be a good neighbour. That individual cannot be released because we want to save resources and we prefer to spend on that person's incarceration.

The Vice-Chair (Ms Torsney): Do you actually have a case where someone did convince somebody that after a slew of convictions and a three-year term for their latest violent assault they totally turned around - in three years - and became a good neighbour?

Mr. Fineberg: No, I don't have such an example in mind, but I think the law has to envisage the possibility. It's important for the law to consider that kind of case, not only the cases you and I happen to have bumped into. I will say that I'm very familiar with a person serving an indeterminate sentence who I consider to be a good neighbour, who I would be happy to have as my neighbour, and who has not yet had any luck with the releasing authorities.

The Vice-Chair (Ms Torsney): So it's really a question of two things: one, they have to become that perfect neighbour; and two, they have to convince. If they can't convince it's just not a possibility.

Mr. Fineberg: But at the moment the law envisages the possibility. For you to remove that would take a positive act on your part. I think it would be even easier for you to justify a seven-year ineligibility date if it already existed and people were lobbying you to reduce the seven to three. But as the law stands now, the ineligibility period is three years. For that to change, you people are going to have to take a decision to amend that law. I suggest to you that you need a principled reason for making that change.

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The Vice-Chair (Ms Torsney): Thank very much, Mr. Fineberg, for coming before us. I understand maybe you'll submit something or you might not, but you recognize the text is there and if there's something you want to clarify you're more than welcome to do that; or you could distribute the notes, whatever you wish.

Mr. Fineberg: Would the committee wish me to send this in by fax tomorrow morning?

The Vice-Chair (Ms Torsney): If you would like to do that, it's the witness's prerogative to do that.

Thank you very much for coming.

The committee is adjourned to the call of the chair.

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