[Recorded by Electronic Apparatus]
Tuesday, September 19, 1995
.1106 
[English]
The Chairman: Order.
We'll start with Bill C-240, An Act to amend the Corrections and Conditional Release Act and the Criminal Code. It's a private member's bill. Val Meredith, member of Parliament for Surrey - White Rock - South Langley, has introduced this bill and is here before the committee today to deal with it.
Ms Val Meredith, MP (Surrey - White Rock - South Langley): Thank you, Mr. Chairman. I would like to start by congratulating you on your new appointment.
The Chairman: Thank you very much.
Mr. Ramsay (Crowfoot): It's an election, not an appointment.
Ms Meredith: Pardon me, an election.
The Chairman: With Mr. Ramsay nominating me.
Ms Meredith: It is an honour to be appearing before this committee as a witness. I admit that sitting at this end of the table is somewhat different from being a member of the committee.
I am pleased to have succeeded in bringing Bill C-240 before the committee. The issue of dealing with dangerous offenders must be dealt with before any more innocent people lose their lives to high-risk offenders.
The genesis of Bill C-240 is thoroughly and accurately described in Marilyn Pilon's legislative summary of the bill, and I'd like to take this opportunity of thanking her for her analysis and work on Bill C-240.
As is laid out in the summary, this bill was draft legislation developed by the previous Conservative government. Much of this legislation was incorporated into Bill C-45, which the Solicitor General introduced in June 1994, but for whatever reasons, the Liberal government chose not to include the sections dealing with post-sentence detention of high-risk offenders. In my opinion the government was wrong to exclude this section, so I have introduced and am promoting the private member's bill, Bill C-240.
Yes, Bill C-240 is likely to generate controversy and attract charter challenges, but no more than Bill C-68 generated controversy or is likely to attract charter challenges. Bill C-72 will also be subjected to charter challenges. However, Parliament is here to make laws to protect the rights of all Canadians, not just those who have violated the law.
Both the Solicitor General and the Minister of Justice acknowledge the need for new legislation to deal with high-risk offenders. The ministers created a federal-provincial-territorial task force on high-risk offenders that was to examine ways to change criminal justice and mental health laws, policies, and practices in order to deal more effectively with high-risk offenders.
In response to repeated questions from the Reform Party over the past year and a half on new high-risk legislation, the Solicitor General usually relied on suggested changes to the provincial mental health acts as being the answer. Over recent months, however, less emphasis has been placed on this option. Professionals in the mental health field have correctly argued that the scarce resources available for mental health treatments should not be spent on criminal matters.
Another option the Minister of Justice has suggested is that of declaring a high-risk offender to be a long-term offender, who could then be subject to lengthy periods of supervision following his release from prison. While community supervision is also one of three options that are available under Bill C-240, the issuance of any subsequent community supervision order also runs the risk of a charter challenge.
In addition, it is ridiculous to argue that an offender who is too great a risk to public security to release on parole, who is too great a risk to release on statutory release, suddenly is not a threat to the community if he is released under supervision as a long-term offender.
If you recall, Fernand Auger, the man who abducted and sexually assaulted and then murdered Melanie Carpenter, was under strict supervision in Calgary, but that did not prevent him from driving to Surrey to commit his heinous crime.
.1110
I would suggest to this committee there is only one viable option, and that is Bill C-240. The lawmakers of this country should not feel they should have to apologize for passing a bill that will keep individuals who have been convicted of serious violent crimes and who are deemed to be a high risk to repeat their crime off the streets. What we do have to apologize to Canadians for is for tolerating the current situation, in which high-risk offenders are released back into the community when the experts know they are likely to commit further violent crimes.
I have heard people say you cannot predict or foresee future criminality. But the reality is that the science is there to give qualified practitioners accurate measuring devices to determine future dangerousness. I would like this committee to hear from two British Columbian professors of psychology. Dr. Robert Hare, from the University of British Columbia, is one of the leading experts in the world in the identification and treatment of psychopaths. Dr. Hare has developed the means to identify psychopaths within an 80% to 85% accuracy. In addition, Dr. Stephen Hart, from Simon Fraser University, who has collaborated with Dr. Hare on this and other issues, is one of the leading authorities in the country in dealing with dangerous offenders.
I also believe it is vital that this committee hear from the families of some of the victims of high-risk offenders who were released. These families will be able to describe the result of releasing high-risk offenders back into society.
I have spoken to Jim and Anna Stephenson, whose 11-year-old son Christopher was murdered by Joseph Fredericks in June 1988. Although he was only 45 years old at the time of the Stephenson murder, Fredericks had a 34-year history of sexual assault. When Fredericks was released on mandatory supervision in 1988, all four of his case management team believed there was a high probability he would commit further serious violent crimes. Yet the law said he had to be released. So Fredericks was set upon an unsuspecting public in Brampton, Ontario. Within three months of his release Fredericks abducted Christopher, and over the next 24 hours he tortured and raped this boy until finally he strangled him into unconsciousness and then stabbed him to death.
It was the death of Christopher Stephenson and the subsequent coroner's inquest that led the previous government into drafting what has become Bill C-240. In the meanwhile the law was changed to give Corrections and the Parole Board the right to deny statutory release to anyone considered to be a high risk to commit a serious personal injury offence. But rather than solving problems, this change has created a major dilemma for the parole board. When you keep an offender in custody until his warrant expiry date, on that date you lose all control of that individual.
That is what happened to Mitchell Owen, a convicted sex offender who was originally released on statutory release, then reincarcerated when convicted of break-and-enter, and released once again on statutory release. In February 1993 his statutory release was suspended when he failed to join a sex offender program. Faced with the dilemma of keeping him in custody until the end of his sentence or releasing him under community supervision, the parole board chose to release him under strict conditions, despite branding him a high-risk offender.
Those conditions expired in March 1994 and Owen decided to leave the Toronto area and move in with his brother in White Rock, British Columbia. On October 4 of last year 16-year-old Pamela Cameron left a muffin shop after school. At 4 p.m., while walking down a busy Surrey street, ironically less than two blocks from my office, Pamela was dragged into a bush lot. Although she fought with all her might, she was sexually assaulted and strangled to death.
These are just two cases that a bill such as Bill C-240 could have prevented. I believe it is crucial that this committee should hear from Jim and Anna Stephenson on their loss of Christopher. This committee should also hear from Paul and Marilyn Cameron on how their lives have been affected since Pamela's murder.
.1115
This is the crux of Bill C-240. It is balancing competing rights: the rights of convicted offenders versus the rights of innocent victims and their families. As the legislative summary sets out, there may be infringement on the rights of the convicted offenders with the implementation of Bill C-240, but it is my contention that it is a reasonable infringement upon their rights.
In the landmark case of R. v. Lyons the Supreme Court of Canada found that the current dangerous offender legislation was an infringement on the rights of those designated dangerous offenders. But the court also found that such an infringement was reasonable. There is no reason why such a finding would not occur with Bill C-240.
In some ways, Bill C-240 is fairer to the convicted offender. A dangerous offender designation today requires a judge to determine that an offender will be dangerous in the future, regardless of any treatment that offender may or may not avail himself of. Bill C-240 does not require such foresight. The judge will have to decide only that given any treatment the offender may have taken, he is dangerous today.
As the legislative summary also points out, many safeguards are built into Bill C-240. Before an offender can receive a dangerous offender designation under Bill C-240, there has to be unanimous agreement among the Correctional Service of Canada, the National Parole Board, the appropriate attorney general, and the judge. If all these people find that the individual is dangerous, then he should be declared a dangerous offender.
That is enough about the offenders. Let's not forget about the rights of the victims or potential victims. The Charter of Rights and Freedoms grants that everyone has the right to life, liberty, and security of the person. Christopher Stephenson was deprived of these rights, as were Pamela Cameron, Melanie Carpenter, Sarah Kelly, Mindy Tran, and Melissa Deley. Why? Because for years governments and the courts have put so much emphasis on the rights of the offender that they have forgotten about the rights of society as a whole.
Can anyone here say a society should not have the right to keep a convicted offender behind bars when in accordance with due process he or she has been determined to be a serious threat to society? This is a legitimate concern of any society. What is obscene is having laws that require us to release these individuals until they prey upon another innocent victim.
Mr. Chairman, Bill C-240 is about conflicting rights, the rights of the convicted offenders versus the rights of society as a whole to protect itself. It is my opinion that in such a conflict the rights of society must prevail every time.
Thank you. I will be happy to try to answer any of your questions.
The Chairman: Thank you, Ms Meredith.
The first round is a 10-minute round. Madam Venne.
[Translation]
Mrs. Venne (Saint-Hubert): Firstly, may I tell the Committee and Ms. Meredith that this bill was voted on in the House of Commons at the time when we had just learned that Mr. Bouchard was having an amputation. Consequently, there were almost no members present in the House to vote and, if I recall correctly, there were absolutely no members from the Bloc. As for myself, I am convinced that if the circumstances had been different, this bill would not have gone through second reading.
But since we have the bill before us, let us deal with it.
Ms. Meredith, in section 26 of you bill, you are adding a new section which would become subsection 753.1 of the Criminal Code. Would this new section not be tentamount to instituting new criminal proceedings, hearing new evidence and having a second sentencing? Is that the object of section 26 of the bill?
.1120
[English]
Ms Meredith: I should be up front. Not having drafted this, I would suggest it would be important for this committee to call before it the justice department and the officials of the Correctional Service Canada and the National Parole Board to deal with the specifics of the intent of the bill.
My understanding is that having new evidence would be one of the reasons it would be reconsidered in the application for dangerous offender the year before release. If there is new evidence that was not available at the time of the court hearing of the original trial, that would be reason enough to make the application.
[Translation]
Mrs. Venne: Since you cannot give me a specific answer to my question, I'll ask you a more general one.
What do you think of paragraph 11h) of the Canadian Charter of Rights and Freedoms, which states that any convicted person ``if finally found guilty and punished for the offense, not be tried or punished for it again.'' Don't you find that your bill goes completely against this long standing principle?
[English]
Ms Meredith: No, I don't, because I feel this bill allows for the people who make those kinds of decisions to look at information outside of just the offence. It's time in Canadian law that we look at evidence outside of just what that offence was.
I don't feel the person is being judged solely on the offence. The offence may be one part of what the judgment encompasses, but it is the personality, it is the characteristics, it is the violent tendencies, it is the lack of taking treatment - it is a number of factors as well as what offences have been committed; not just the one they were convicted on, but other offences as well. It is a determination of many factors, not just the factor of what offence he was tried and convicted on.
[Translation]
Mrs. Venne: Do you have any specific statistics justifying post-sentence detention, which is what you are asking for?
[English]
Ms Meredith: Yes, if you want specific statistics on the recidivism -
[Translation]
Mrs. Venne: I'll tell you exactly what I want to know. I want statistics on the number of people who committed crimes while out on parole.
[English]
Ms Meredith: Again, this bill would not apply to all people who are on parole. It would apply to the 1% of the prison population who have been denied parole and who have been denied statutory release. These are the people the system already determines to be too dangerous to be placed out on parole or to be given statutory release.
Those would be the numbers. I do not believe it has been broken down in the numbers. Any time we are given numbers, we are talking about the general population who are out on parole or who are out on statutory release.
[Translation]
Mrs. Venne: Can you answer my question about the rate of recidivism?
[English]
Ms Meredith: What I can do is give you some statistics that have been developed in studies on the recidivism rate of psychopaths; of people who are deemed to be extremely dangerous. The recidivism rate of psychopaths -
[Translation]
Mrs. Venne: No, that's not what I want to know.
[English]
Ms Meredith: Is this not what you want? It's that 77% of psychopaths commit violent offences. But my figures and statistics are more specifically on those violent offenders who fall outside the parameters of parole and statutory release. The reoffence figure I have is 77% reoffence; 77% of violent offences are committed by them.
[Translation]
Mrs. Venne: No. You're not giving me the information I'm looking for. So, I'll move on to my next question.
Section 15 of your bill is more or less identical to sections 42 to 45 of this government's Bill C-45.
.1125
It is the same system and the same detention criteria for offenders deemed to be prone to commit a sexual type of offense against children. I suppose that you remember well this concept in your bill. I would like to ask you if you intend to withdraw your bill or, at least, this part which is duplicating exactly what is in Bill C-45 anyway.
[English]
Ms Meredith: Yes, if it were possible I would withdraw those elements of Bill C-240 that have been picked up in Bill C-45.
[Translation]
Mrs. Venne: Thank you, that will be all, Mr. Chairman.
[English]
The Chairman: Mr. Ramsay.
Mr. Ramsay: I support the thrust of this bill, and I do so from some fundamental feelings and considerations. I believe simply that when someone commits a violent act against another innocent person, that person loses their rights. They lose all their rights, particularly if it's a deadly attack. What rights do they have while in the act of committing a murder? I say they have no rights.
I draw that from my conclusion that had a policeman been present when Marc Lépine was murdering 14 students at the École Polytechnique, he would have been justified...in fact, it would have been his duty, if the only way to stop that had been to take the life of Mr. Lépine. If that's true, then he loses all his rights, including the right to life.
So my question to many witnesses has been this. If an individual loses those rights because they have launched a deadly attack, at what point do they regain them? Well, of course they have regained them through statutes passed by Parliaments over the years.
Perhaps it is time that our system consider allowing the victims of these acts, particularly in the case of Melanie Carpenter, where the prime suspect is Mr. Auger.... Of course he's dead now. I think because the system released that individual into society knowing full well from the evidence that he might - might - commit another violent offence, someone within that system must be accountable for that action. It's time the government of this country were held accountable when they release by statutory requirement people the experts consider may again commit a violent offence.
So inasmuch as this bill aims at what you refer to as the 1% of those people who have been denied parole but have not been denied statutory release, based upon the considerations of our professional people that they are likely to recommit an offence, then I would support this bill because it's aimed at that 1%.
I would like you to comment on those observations, that the rights of individuals in Canada, the rights we have, place an incumbency upon us as citizens to abide by the rules. When we violate the rules, we lose our rights. As a committee member, if I violate the rules, I lose the right to sit on this committee. There is a corresponding responsibility. If I do not respect your rights and I violate your rights, why is it that the government continues to insist that I maintain my rights in spite of the fact that I have shown by my actions I'm not worthy and I cannot be trusted to exercise those rights and privileges as a citizen in Canada?
Would you care to comment on that?
.1130
Ms Meredith: One of the rights that is guaranteed in law - and I, for one, would not want to change it - is that everybody has the right to a fair trial to have an opportunity properly to defend their actions. Hopefully, no one would deny a person that opportunity.
I think the concern Canadians have is that there has been a constant support of the rights of those who have been convicted of breaking the law and they feel that when those rights conflict with the rights of the victim or the rights of society, the tradition has been that the rights of the offender always take precedence. I think Canadians generally oppose that and would see where the rights of society, the rights of the victim, take priority when there is a conflict of rights.
So I would support that, and that's what Bill C-240 is suggesting: that there is a conflict in rights between that of the offender and that of society, and when that conflict takes place, the government has an obligation and a responsibility to see that the rights of society take precedence.
Mr. Ramsay: I might just add, as I have before when this subject has come up on these committees, that I feel that when someone launches a deadly attack upon another person, the only right they retain is the right to a fair trial and to humane treatment if incarcerated.
Do you feel that this bill would apply to Karla Homolka?
Ms Meredith: Yes, it could apply to Karla Homolka. Our office was asked that by the press, so we looked at it with that application in mind. Because she has been sentenced to a term greater than two years, she could be assessed under this. If it was deemed that she was too high a risk, too serious a threat, and she was denied parole and denied statutory release, then an application could be made if it was deemed that she posed a high risk of reoffending in society.
Mr. Ramsay: Do you feel this bill fills in a gap that is not covered when rehabilitation fails with violent offenders? We have been advised and we see the moneys expended towards rehabilitating all offenders, but particularly violent ones. When the rehabilitative process fails, today the only alternative is to release the dangerous offenders back onto the street in the full knowledge that the rehabilitative programs have failed in these cases. Is this what Bill C-240 would deal with, those cases where rehabilitation has failed?
Ms Meredith: I don't know if I would describe it in that manner, because what it does is take up the slack where somebody has missed the designation at the time of sentencing.
Part of the problem is that what people are convicted of is not necessarily what they were charged with. In many cases, plea bargaining and other things diminish the sentence. So if somebody is charged with sexual assault, they might be convicted of assault, which loses a lot of the flavour of the original charge.
So what this bill does is allow, when more information becomes available or when, because a person is incarcerated, there is an opportunity for their behaviour to be watched and their personality to be observed.... Information that was not apparent at the time of sentencing might become available to the people who work with that individual. So this would allow for that kind of assessment based on many factors, not just what they were convicted of, because that might not properly reflect the problem. This bill allows for all of that information to be gathered and then to be processed and then to be dealt with.
Right now, if it's not caught at the time of sentencing, you've missed the opportunity, and if that person is shown to be a dangerous individual who attacks cell mates, who attacks guards, who refuses treatment, who takes treatment that doesn't work, there's no provision in law to allow for any change in the way in which you would deal with that person.
.1135
That's what Bill C-240 does. When you identify somebody because you have closer supervision, it allows them to deal with it.
Ms Cohen (Windsor - St. Clair): First I'm going to say, Ms Meredith, that I really admire the degree of preparation and work that has gone into this. Frankly, whether or not I'm going to agree with you in the final analysis, it raises the level of debate. So it's going to be an interesting hour or hour and a half or whatever.
I'll pick an argument with you right off the top. It's my view that the legislation as it's drafted here, and probably any legislation of this type, could not cure the ills of the Karla Homolka deal. I'm not as much picking a fight as just raising the issue of retroactivity. It's a fundamental premise of our criminal justice system, and a good one, that you can't be convicted or punished retroactively. So you can't create a punishment, and I would suggest to you that, however else we look at this, it is a punitive statute. You can't punish someone retroactively for something in a way to which they weren't liable when the offence was committed. Whether that's good or bad, qualitatively I'm suggesting that it would be the case here.
That creates a problem in terms of this legislation, because in addition to a very real concern I have around the issue of double jeopardy, I would suggest that the transitional clause, clause 31, couldn't stand a court scrutiny.
Ms Meredith: The clause 31 to which you are referring says:
- ...when this Act comes into force is serving a term of imprisonment of two years or more or a
term of imprisonment in a penitentiary for a serious personal injury offence...
- I don't feel it's double jeopardy at all, because - again I go back to what I said to Mrs.
Venne - it's not dealing specifically with the crime they were convicted of. You're dealing
with many more factors. A lot of the evidence you are using would probably be from the point of
incarceration until the point when these decisions are being made. So the crime they committed
might be one factor, but you're determining not whether this person is guilty of committing an
offence but, rather, if the person poses too high a threat and a risk to be placed back in society.
Ms Cohen: I understand that. In my view, the only way in which we could legitimately do this is under the criminal law power. The issue is whether what you're trying to do falls within that power or not.
Let me take you back to my original comment. I think there are three issues here, but the one I'm concerned about at this point is whether we can retroactively punish someone or whether we can retroactively add to their sentence when, assuming for the moment that this statute is otherwise constitutional, the statute wasn't in power - when, for instance, Karla Homolka was convicted.
.1140
Second, as an editorial comment, I don't think all the problems, or any of the problems, frankly, with the Karla Homolka deal - I think you should be directing your comments to the Province of Ontario and the attorney general there, if there are problems with it. It seems to me, in terms of federal law, trying to do something retroactively to someone when there was no statute and the statute didn't exist at the time she was convicted is problematic.
Ms Meredith: But we do that in other circumstances. We have acts in Parliament that do have retroactivity written into them. I see no problem with doing it -
Ms Cohen: Within the criminal jurisdiction?
Ms Meredith: Not within the Criminal Code, no.
Ms Cohen: You said something during one of your responses. You said everyone has the right to a fair trial - and you support that - and also to have the opportunity to defend their actions. I would suggest to you that as Canadians, as inheritors of fundamental British jurisprudence and French jurisprudence, what we have is the right to be presumed innocent until proven guilty - not the right to defend but the right to have someone prove us guilty. I think there's a fundamental difference there. So I have some concerns with this based on that.
Please don't anyone interpret my comments as being that I don't think there should be rights for victims. I do. I'm not at all unsympathetic to that. But I'm also concerned about fundamental democratic rights, which include the right to be presumed innocent. Do you think, as I do, that what you're proposing conflicts with, or at least runs on the edge of, that?
Ms Meredith: Not at all, because they have had that right to be presumed innocent and they have gone through the legal process, through trials, and in the cases this bill would deal with, probably more than one trial, to determine whether or not they were guilty of a crime they were accused of. They've had that right. This does not deal or interfere with that process at all, as I see it.
Ms Cohen: The last in my series of questions relates to the issue of double jeopardy, which in my mind relates to the issue of presumption of innocence. I've followed - I'm not going to say very closely - the Washington state law and the controversy that surrounded it. I have had an opportunity to read a decision on that which struck it down as violating the fundamental right in the United states against being penalized twice for the same offence, against double jeopardy.
Its strikes me that this is modelled after that statute. It's fundamentally the same. Our courts don't have to find the same way as the United States court, and we certainly aren't bound by their jurisprudence, but I would suggest to you the arguments that were successful in that case would be pretty compelling here, in spite of your view otherwise.
Ms Meredith: Again, the processes outlined in this piece of legislation, where it is a court hearing that is the final process to determine - So in that court hearing, the person has the right to have a defence. In that court hearing for the determination of declaring a dangerous offender, the Crown has to prove its case.
Ms Cohen: Beyond a reasonable doubt?
Ms Meredith: Yes.
Ms Cohen: Does it say that specifically?
Ms Meredith: I think it's covered under the current legislation. Under the dangerous offender legislation it's already in place. It's the same process as already takes place at the time of sentencing. The only difference is the timing.
So they do have due process of law. It is after due process of law that this determination takes place. I don't see where there is any infringement on the individual as far as his legal right is concerned.
Ms Cohen: I'm going to have to look more closely at it. My gut legal instinct is telling me you're wrong.
Ms Meredith: I really would appeal to the committee to take this seriously and call before you as witnesses Corrections Canada and the National Parole Board, who deal with these on an ongoing basis and who support the concept of the Department of Justice and the Solicitor General, who were the drafters of the original legislation, so they can explain to you why they worded it the way they did.
.1145
I think this warrants being looked at, but I don't know that the department is looking at it. I think they're running away from the threat of a charter challenge. We really have to caution about that. It was defended in the Supreme Court of Canada when it was challenged under the Lyons case, and the Supreme Court of Canada supported it.
Mr. Knutson (Elgin - Norfolk): I've been on this committee only since yesterday afternoon, so I haven't had time to study the issue. Bear with me for a moment.
Take the typical sex offender. You mentioned an example that everybody agrees is a dangerous offender being released, and we're wringing our hands as he walks out the prison gate and we all know that he's going to reoffend again. Can you just educate me on why mental health acts can't bring a...? I guess ``charge'' isn't quite the right word, but why can't they bring a whatever, a hearing, and have these people locked up in mental health institutions?
Ms Meredith: As I understand it, the mental health people are reluctant to take on criminal offenders in that mental health is when a person has no knowledge or hasn't any concept of what they're doing, that it's breaking laws, in that there are different ways of measuring mental health problems and criminal problems.
The true psychopath knows that what he is doing is wrong. He knows he's breaking the law, and I think that in itself prevents the mental health people from looking at it as something with which they would deal.
The other thing is they don't have the money in order to facilitate this type of criminal person -
Mr. Knutson: The provinces don't?
Ms Meredith: - the provinces don't - and the facilities they have would in no way protect society from this criminal element. We're not talking about mentally deranged people. We're talking about people who are in full control of their thinking. It's just that they operate outside of the normal, accepted behaviour -
Mr. Knutson: On that point of facilities, I live not quite next door to a forensic hospital in St. Thomas, and in terms of secure custody, it's as secure as any federal prison is. It is the same in Penetang as well.
Ms Meredith: You might find that those are part of a federal or provincial corrections system -
Mr. Knutson: No, it's a mental health hospital with a forensic ward, which means that it has what used to be called criminally insane people in it. They don't use that term any more.
Ms Meredith: In discussions with people within the health facilities or within the health parameters, and certainly people dealing with violent offenders, there is a distinct difference in how they look at their responsibilities.
It seems to me that the provisions of the Mental Health Act state that when they decide to let a person out, they're out, and that's it. There are a lot of problems with using that kind of establishment to solve these kinds of problems, and there's an unwillingness of that community to take on this problem.
Mr. Ramsay: I want to touch on the issue of double jeopardy that was brought up. I have a real concern about double jeopardy, because it's a sound principle of law that you cannot be punished twice for the same offence. But in this case I don't see that happening. I see that the person has been convicted once. The question then is the responsibility of the state to ensure that society is protected from that individual in the future. So it's a question of the duration of incarceration. They can call that a penalty, but it's a question of whether or not that person is safe to release back into society.
That is the question this bill addresses, and there's no question about double jeopardy in a life term, which may be what an indeterminate penalty results in.
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Where the question of double jeopardy comes in, as I heard our colleague across the way mentioning, is in the timing. I understood her to say that because the decision to extend the period of incarceration does not come at the time of sentencing but, rather, later, it poses a question of double jeopardy. I don't think that would hold water. I don't think that would be a successful court challenge to that.
So I do not have concerns about the question of double jeopardy - certainly not to the extent Ms Cohen had mentioned.
As I've said before, I don't think the government is running away from a charter challenge on this principle as much as they're continuing to run into or embracing the rights of the offender. That's what it seems to me government is doing by not ensuring that my children and society are protected from someone in the 1% whom the experts say very likely will reoffend. That error and the consequence of that error is paid for dearly by members of society.
So that's just a comment I make. I have great concerns that the rights of society have been downplayed to the point where many people tell us across the country - at least tell me in letters and so on - that the rights of the offender now supersede those of victims, victims' families, and members of society. It is time for us to look at the principle outlined in this bill, and if the government does not accept this bill, then it must assume the responsibility for the deaths and the injuries and the assaults that take place when our officials within the parole system indicate clearly that someone has not been rehabilitated but at the end of their sentence they have no alternative to ending the warrant and releasing them into society, and some innocent victim is going to be targeted.
We, as members of Parliament, must address that issue, either through this bill or, if there's something wrong with this bill, through some other suitable piece of legislation.
Ms Phinney (Hamilton Mountain): I want to talk about the same section as other people have been talking about, about declaring a person a dangerous offender at the end of their sentence.
We already have part XXIII of the Criminal Code, which allows a person to be declared a dangerous offender at the time of sentencing. Now, this has not been enforced as well as it could be, and the federal justice minister met with the provincial ministers last spring and it appears as if since that time they have been enforcing it and using it more carefully. We see this in the Bernardo case, where they have already made an application to have him declared a dangerous offender.
I can understand this if new evidence is presented because of actions of a person during his time in prison and his actions have changed in such a way that it would cause the public to be concerned if the person is released. But my problem with deciding 25 or 15 years later that somebody is now a dangerous offender is that, particularly now when television is so powerful, we could have one or two strange acts going on in North America or anywhere in the world that would get so much publicity that for two months or for two years public opinion could be swayed completely off the normal key, the normal way people would think.
If some person is eligible after 25 years to get released and the public opinion for this week happens to be a certain way, then all of a sudden they could be declared a dangerous offender, where they wouldn't have been five or fifteen years before when their actual case was being heard. However, because the public today, because of a certain case, feels a certain way, all of a sudden they become a dangerous offender. That concerns me.
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Ms Meredith: In response to that, what I want to challenge you with is that we already have in law, in the Criminal Code, a provision that says although somebody was convicted and sentenced to life imprisonment without parole for 25 years, and that was a decision of a court of law at the time when that offence occurred...we have allowed in law the provision to change that ruling, to change that sentence, in favour of the offender. After 15 years he can apply for the right to apply for parole.
If we can do it in that manner, why can we not do it in reverse? Why can we not say that although this person was sentenced to a determinate period of time, evidence and behaviour have shown...and looking at the profile of this individual and all the convictions he's had, now that we have him in a federal prison, we have a concern and we're going to watch this person? Over a period of incarceration he has been shown to be a violent personality who has attacked guards, attacked inmates, and is at high risk to reoffend. Why can we not change it to err on behalf of society?
Ms Phinney: You haven't answered my question. I've already said I agree with you if the person's actions change while they are in prison. I'm talking about when public opinion happens to sway because of a certain case, which we've seen recently in Canada. If public opinion for 2 years happens to be one way but this person was convicted 25 years before, or 15 years before...all of a sudden you're saying, well, okay, because today public opinion is this way, this prisoner who...when he was tried, public opinion wasn't that way, and next week it might not be, but today we are going to declare him a dangerous offender.
Ms Meredith: I don't see that as a factor at all. The process protects that from happening. The process means you have to have the Correctional Service of Canada identify the person as a potential risk to society. Then you have to have the parole board agree that they also feel this person should not be released. Then you bring in the attorney general of the province where the last serious offence was committed to make sure that in the right jurisdiction they are in agreement with that suggestion. Then it goes to a court - to a hearing, a judicial process. So that process protects the relevance of public opinion, I would think.
I would suggest to you a follow-up to that is that we're saying the same thing in reverse. We're already doing the same thing. I hate to be stepping on the toes of a colleague who will be appearing before you this afternoon, but we're saying that a decision that was made, that held the public opinion's attention at the time, 25 or 15 years ago, is irrelevant. We are going to give this person an opportunity to face a whole new stage in society where people may have forgotten the horrendous event.
Take Clifford Olson. Next year he is going to be applying for the right to parole. Do people have the same memory and feelings and impact about what went on as happened 15 years ago? I doubt it. Fifteen years later, when people have forgotten, when the heinous crime is in deep memory, we're going to be changing a decision?
If it's okay in one instance, why is it not okay in the other?
The Chairman: Mr. Regan.
Mr. Regan (Halifax West): It seems to me the problem we're having here in relation to the question of the issue of double jeopardy and so forth, or retroactivity, is that we're dealing with two different issues, at least in a sense. One is the issue of what the person has done. Another is what they are, in a sense. They're convicted for what they have done in the past, and that's the conviction the government has to prove - that they've done it and committed a crime, and then they're convicted for what evidence was offered at that time.
The way it works currently, of course, is that new evidence basically can work only to acquit them. If the system didn't have the evidence at the time to convict them of something a little stronger, or to get a stronger sentence, that's too bad.
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That's a problem, I think. What I'm looking for is the tool to correct it. What is the right tool?
I am concerned about the constitutional issue here, and how to challenge it, because it does seems to me that if you have unanimous agreement among the Correctional Service Canada, the National Parole Board, the appropriate attorney general, and the judge that a person is not safe to go back on the street, then we need to find the right tool to make sure that doesn't happen. We need to deal with that.
One of the ways, obviously, at least today, is if the provinces start using the dangerous offender provisions that exist now, that's good news. But I am concerned about the cases where they haven't used them. Let's say a few years ago someone was convicted and only now they're at the point where they're looking at parole or absolute release and we recognize this person is going to go out and kill somebody.
I think we have to find a way to answer that problem. I don't know if this is it or not, because there may be that constitutional challenge. Whether it's a question of the Charter of Rights being amended.... I've only got here today, obviously, and I'm new to the issue and I want to give it a lot more consideration, but that's my immediate reaction.
Ms Meredith: My response to that is that's why I believe this private member's bill deserves to have witnesses who can answer some of your questions about the constitutionality challenge legally. Could it withstand a challenge? I think you need to hear from the Correctional Service to see what tools they do or do not have and whether they feel this is an appropriate tool. I think you need to hear from experts who will show you scientific evidence, scientific research, that shows you you can identify, you can pick out, those people who have an 80% to 85% chance of reoffending. That's what I think this committee should do: bring in the people who can answer your question and give you more background support on whether or not this is the right answer. But unless you ask those questions of the people who can give you the scientific and expert testimony, you will never know whether this is the right answer or not.
Mr. Regan: My impression when you referred to the psychiatrist or the expert who indicated he could determine the person who was likely to reoffend in 85% of the cases.... When you said 85%, I had the impression -
Ms Meredith: I said 80% to 85%.
Mr. Regan: - it was that they could say that in 85% of the cases. In other words, 15% they can't necessarily get. That remains a different problem, because people who aren't going to be indicated as psychopathic obviously sometimes are and we don't recognize it. That's a separate issue, though, obviously, isn't it?
Ms Meredith: But the point is there has been a claim over the last decade or so that you cannot with any kind of accuracy predict who is going to reoffend. What I'm saying is there are people in the community who deal with this issue and who challenge that, who say, yes, we have modern research and modern data saying you can, with accuracy - with better accuracy than you can predict somebody is going to have a heart attack or die from lung cancer from smoking. There are research data that will support that you can with accuracy predict who is going to reoffend. I think those are the sorts of things this committee needs to hear.
Mr. Regan: I guess my point was picky. I think it was that you were saying that you could say you were 85% sure this person is going to reoffend or not. I think that is just a bit different from where you can say in 85% of cases you're going to determine it accurately. That's all I was getting at.
Ms Meredith: Okay.
Mr. Regan: It's not a major issue.
Ms Meredith: It's probably the way I worded it.
The Chairman: Mr. Ramsay, do you have other questions?
Mr. Ramsay: Just one comment, to pick up on Mr. Regan; and I enjoy his fresh perspective on the committee, and I hope he stays with us.
Mr. Regan: I may not now.
Mr. Ramsay: The parole system...just a comment to put on the record. We have visited with the Correctional Service Canada, and I have visited with many of the prison guards and wardens and so on. The parole system is under severe criticism because of the few failures. I don't have to mention them. Some of them are contained in Ms Meredith's original statement to the committee.
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If this act or some type of power such as is contained in Bill C-240 was placed in the hands of the officials, where at the end of a person's sentence they could still maintain custody of the individual and provide the protection to society that we all want, then of course it would greatly enhance the parole system itself, because either these people would not be applying for parole and slipping through the system or we would not be in a situation where statutory release is automatic and their hands are tied.
I think the principle here is very sound, and it would enhance the parole system, because we are now receiving comments and admonitions that we should perhaps have fixed sentences where parole is not allowed at all for some offences. Why? It is because parole has failed in a small area and with a small percentage of inmates. Those in the parole system say that it would be a terrible mistake if we did away with parole and went to fixed sentences.
Inasmuch as the protection of society should be our number one concern, I feel that the principle contained within this bill must be considered by the government.
Ms Meredith: I thank you for those comments, and I agree. In talking to the National Parole Board and Corrections, I have learned that it has been a problem where they have given parole because they felt no other choices were left open to them. The reason is that if you keep an inmate incarcerated until the end of his sentence, until the warrant has expired, then you lose all your ability to be monitoring, tracking, and making sure they are meeting the conditions. So they might let somebody out on parole so they have the ability to see that the move back into society is occurring satisfactorily.
The problem with the system now is that if they keep somebody in until the end of warrant expiry, then at the end of the warrant they have no legal right - there is no legal right for anybody - to be monitoring the actions of that individual, even though they are deemed to be dangerous.
That's another provision of this legislation: if they have kept somebody in until the end of their sentence, until warrant expiry, then if they feel that this person poses a high risk, it can be supervised. There's a period of supervision as well as a determinate sentence or an indeterminate sentence. So there are options there that give more flexibility to the parole board and to Corrections to deal with that type of inmate.
Right now Parole is taking the rap for something that is beyond its control.
The Chairman: I have one comment, Ms Meredith. It's commendable when people try to keep people who are dangerous and a risk to society away from society, but does your bill perhaps go a little bit too far?
Let me give you a scenario. Your bill refers to ``serious personal injury offence''. If you look in the Criminal Code, you will see that this includes offences such as assault causing bodily harm. The distinction between assault and an assault causing bodily harm isn't necessarily the force or the intent, but sometimes it's a question of where the victim is struck. If the person isn't struck on the jaw but on the cheekbone and the cheekbone collapses, then all of a sudden it becomes an assault causing bodily harm. That person suddenly is subject to this provision, because perhaps with an attitude problem in the jail, he is not recommended for parole, etc., and is kept for the sentence.
Is your bill, by having good intentions in dealing with a certain class of prisoner, perhaps so broad that some individuals would be trapped for what might be rather minor offences and would be subject to this procedure - not necessarily incarcerated indefinitely eventually, but subject to this procedure and put at risk of being incarcerated indefinitely?
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Ms Meredith: I guess I have greater faith in the process than you do, Mr. Chairman, because I feel a minor behaviour problem in the jails may get the Correctional Service to highlight this individual, but I'd like to think the parole board and its mandate would not get taken in by that. Certainly the attorney general of a province would not be taken in just by a behavioural problem in a penitentiary, and I would assure you that a court, with somebody defending that person, would not allow a behavioural problem in the prison to be the sole factor in giving that determination.
I feel there's enough protection in this legislation to see that this kind of abuse doesn't occur, that the person must be a very serious contender for the application in order for it to be applied. I think this bill has looked after the provision very well, to see that a poor, innocent person who just happens not to like a guard - and the guard does not like him - is not processed in this manner.
The Chairman: Thank you, Ms Meredith, for appearing before the committee and making your presentations today.
Mr. Regan: Mr. Chairman, I have a separate matter. I move that the committee purchase new Criminal Codes.
The Chairman: All right.
Thank you, Ms Meredith.
Ms Meredith: May I make just one closing comment? Mr. Chairman, I would urge the committee to consider bringing in witnesses who can give support data, information this committee should hear, on post-sentence detention of dangerous offenders; and I would encourage you to make that available.
The Chairman: I'm sure if you have witnesses you feel are appropriate you'll make them available to the steering committee.
Ms Meredith: I have done that.
The Chairman: Thank you.
Mr. Regan, you have a motion that Criminal Codes be made available to all members of the committee.
Mr. Regan: Yes, Mr. Chairman. I understand new Criminal Codes are available now.
The Chairman: Are there any comments on that?
Some hon. members: Agreed.
The Chairman: There are no other matters this morning. We will meet again at 3:30 p.m.
This meeting stands adjourned.