[Recorded by Electronic Apparatus]
Tuesday, December 10, 1996
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The Chair: We're back to Bill C-55, an act to amend the Criminal Code with respect to high-risk offenders, and also to amend other statutes. And we also have Bill C-254, an act to amend the Corrections and Conditional Release Act and the Criminal Code. That is Ms Meredith's private member's bill.
We have witnesses from the Canadian Association of Chiefs of Police with us today. Chief Brian Ford and executive director Brian McConnell are here. Also with us, from the Canadian Police Association, is Scott Newark, who is the executive officer.
I understand the Canadian Police Association will go first. We'll hear from both groups, and then we'll ask our questions.
Mr. Newark.
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[English]
Mr. Scott Newark (Executive Officer, Canadian Police Association): First of all, Madam Chair, our president asked me to convey his regrets for not being here.
The Chair: I'm sure he's in Windsor doing his job.
Mr. Newark: He is in fact retesting on a specialized firearm, so he couldn't be here.
This bill, however, as I'm sure you know, is one our association has been involved in for a number of years in an attempt to convince government and the criminal justice system overall for the need for this kind of legislation. We're extremely pleased to be able to be here in support of the government's bill.
We do have a couple of little suggestions on things that might perhaps improve the efficiency of what we believe to be the intent of the legislation and its practical impact. I want to make clear at the outset how much we appreciate the involvement that we have been afforded by both ministers,Mr. Rock and Mr. Gray, throughout the discussion and consultation process, and we have even been involved in the analysis of the legislation itself.
I say that as an introduction because I think, at least in this sense, I have a reasonably good understanding at least of what the bill was targeted at. I have some comments to make - some technical, some rather broader - about where it has succeeded in some areas, where it is not as successful as it could be in some areas, and where I think it has outright failed. As is often the case in our briefs, we have attempted to include actual draft amendments where we think it might be helpful.
I don't propose to go through the entire content of the brief. As I am sure you are aware, its main components deal with three sections, one of which is improvements to part XXIV of the Criminal Code in relation to dangerous offenders. In the brief, specifically on pages 5 and 6, we note what we view as a significant improvement in the sense of there being a mandatory conclusion of the finding of dangerous offender once the criteria are met.
As you know, that was one of our suggestions because in the past it was in effect a two-stage process. The criteria were met but the Crown was still forced into then going through what was effectively almost psychiatric crystal ball gazing in attempting to determine whether or not indefinite incarceration was required. That has been removed and we suggest that's a very positive amendment.
We just point out that for some reason that seems not entirely clear, the word ``may'' is used in proposed subsection 753(1) - that is, the finding of the court is ``may'' as opposed to ``shall'' - yet in the immediately following section that deals with the criteria to define it, it uses the imperative ``shall''. It may be that I'm being overcautious here, but it seems to me that it's illogical and somewhat inconsistent that you would use one without the other, particularly when I know the intent was very definitely that this was to be so - that where those criteria were met, that should be the finding.
The only other point I'd like to make on a technical basis in relation to dangerous offender hearings is the very appropriate, we think, proposed section 753(5), whereby the court can convert what is a dangerous offender hearing into a long-term offender hearing - and again this is probably just from my background as somebody who looks at these sections and anticipates the worst. You'll notice that it does not include words saying simply ``hear additional evidence''. We're concerned that what might happen is that counsel might say that you don't have a choice; that if you want to, you have to crank up a whole other hearing, which might be impractical. If you agree with that conclusion - and we think that was in fact the intention of the drafters - and you agree that the words ``hear additional evidence'' should be inserted into that proposed subsection along with what is already there, it would provide that flexibility that might simply eliminate what would be duplicative hearings and unnecessary expense.
The major thrust of the remarks that I wish to make this afternoon are in relation to the other two components: long-term offenders and what we refer to as post-sentence intervention orders, which the government has described under proposed section 810.2.
But first, if I might, I'll deal with the long-term offenders, and I want to stress the background of this because I believe it really came about back as far as 1992. There was an inquest held into the murder of a little boy named Christopher Stephenson, and these sections are aimed directly at the offender, Joseph Fredericks.
As I say, there was an inquest held into the little boy's death. It was probably the most comprehensive review of corrections and processes in law that this country has ever had. One of the jury recommendations was that there was a necessity for something that was, in effect, in between the indefinite sentence that we have under part XXIV and the finite variety that comes to a conclusion at warrant expiry date, when the state simply loses all authority for any kind of intervention whatsoever. It was a recognition that there were all sorts of abhorrent criminal behaviours that could well be controlled outside of a prison, but that absent those controls, there was an unnecessary high risk. It had all sorts of different names along the way, but in my judgment that is where at least ``long-term offender'' came from.
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It is also a recognition of the specialization of what these sections are aimed at - this, as well as the post-sentence intervention orders. When we started advocating, and in our discussions with the ministers and the panel of experts that were called together, these were certainly never meant to be ordinary measures that were applied in the regular course of doing business in the criminal justice system. These were meant to be extraordinary measures to deal with extraordinary kinds of offenders.
What we are extremely concerned about, what we see in Bill C-55 in relation to long-term offenders, is the attempt, if you will, to take the existing structure of the Corrections and Conditional Release Act and just graft it onto the long-term offenders. I suggest that is going to have some pretty negative consequences. Right off the top, the one that I think comes to mind most glaringly is that by this bill, it is a separate criminal offence to breech a condition of a long-term offender order. That makes very good sense, and it's liable to imprisonment up to ten years, which we think also makes very good sense.
At the same time, this bill would impose the current system. If somebody supervising somebody else - a corrections officer, for example - had evidence that a person was in breech of one of those sections, the officer would in effect treat that person in the same way as they do under the CCRA, instead of treating that person differently. There would be a suspension hearing and we would have to go through all of that, and it leaves an administrative discretion as to whether or not there should be a charge proceeded with. We very much want to caution you about how much of bad idea we think that is, quite apart from the fairly obvious civil liability that this bill potentially sets up for correctional personnel if somebody makes a decision and it goes wrong like that.
You may want to look at subsection 139(2) of the Criminal Code, which deals with attempted obstruction of justice. There have been many cases - of which I'm sure people sitting around this table are aware - in which there were after-the-fact reviews of people who were on parole and committed serious crimes. It became apparent that there were instances in which these people had violated the conditions of their parole but were not brought back into custody.
Madam Justice Arbour commented about the atmosphere in relation to Correctional Service Canada. At times, it is hesitant to admit mistakes. We want to caution very strongly about creating that kind of a system that would just simply have the normal Corrections and Conditional Release Act procedure grafted onto it. Instead, we would suggest that what is appropriate is to deal with these people as extraordinary, to have literally a separate process by which those conditions are imposed. Where somebody is in breach of one of those conditions, for example, the appropriate response is for the correction authorities to notify the police and Crown in the local jurisdiction, and to let them then decide whether or not there should be charges laid - as is now contemplated by this bill - or whether the Crown wishes to take that person back to court to vary those conditions. To have that simply done as a routine course under the existing Corrections and Conditional Release Act is not.
I think the second major manifestation of the same problem in relation to this is that the actual conditions for these long-term offenders are supposed to be set by the parole board sometime in the future, after the sentence is imposed. Again, if you go to a number of these kinds of reviews that have taken place, one of the themes you'll see running through them is that there was information known about the offender at the time of sentencing, but that sometime in the future, three, four, or five years later, it somehow got lost in the cracks. Why on earth we would be sort of enhancing that separation of conditions makes little sense to me at all. I promise you that this was not part of what the original discussions were.
These conditions, like any other condition on a probation order that are set as part of the sentence by the sentencing judge.... That is who should be setting these conditions - the sentencing judge. In fact, if you look in the statute, you'll see that if you want to go back and vary these conditions, you don't go back to the parole board, you go to a Superior Court. That's for very good reason, and I would suggest that it is exactly that Superior Court that should be setting these conditions at the time of sentencing.
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So we have that specifically noted in the brief, and I would suggest that this is an extremely significant flaw in the bill as it stands right now. It's easily amendable, and it is one that we think will provide the protection that's consistent with the original intent of the discussion that led to the legislation itself.
The term of the order is, as you know, in proposed subsection 753.1(3). It says the order shall not be for longer than ten years. I just suggest to you that if you look at the nature of the individuals these sections are aimed at - I suspect you're going to have particular applicabilities in relation to child molesters, pedophiles, repeat child-sex offenders - we are reasonably clear in the fact that such behaviour is not usually cured. It sometimes can be controlled, but it's not something that sort of vanishes after the expiration of two to three, eight to nine, or whatever number of years. It's part of the reason why a number of the people who are of that particular ilk actually consent to orders: They recognize that they do need that kind of control.
You know, there is nothing remarkable about it being a lifetime order or potentially being a lifetime order. If you look at section 163 of the Criminal Code, which deals with orders that a court can make about prohibiting people from attending in certain locations if they're convicted of child sex offences, it potentially can be for life. So I would just suggest that it is in effect attempting to apply a finite remedy to an infinite problem, and there is a flaw there.
As you'll hear, we are recommending that you narrow the focus of these proposed section810.2 orders from what's contained in the bill right now. If it was the case that this law is put in place in the way it is written right now, at the expiration of ten years you might well have a circumstance in which somebody is still dangerous but in which we would literally just have to say that there is nothing we can do about it. That is precisely the reason why this attempted legislation was started in the first place. It was because of a recognition that we had people who were being detained because our system correctly identified them as dangerous, yet we had no other vehicle other than to open the door at the end of their sentence.
So I would urge you to take a look at that. There is again some suggestion as to how we could do that as an alternative. It's not particularly complicated. It just essentially substitutes the words ``up to life'' instead of ``for up to ten years'', but logically it is consistent that this is what the order should be.
Finally, if I might, I would just deal with the matter of what we call the ``post-sentence intervention orders'' in proposed section 810.2. I noted that Mr. Rock was before the committee and spoke about some of what I gather that he also perceived to be potential difficulties in terms of the breadth of this section. Let me just say that the first time we wrote about this was in March 1993. At the time, the problem group that we identified was those people who were detained by our existing system. That is to say, that group of offenders who had already been convicted of a criminal offence - a specified certain serious kind of a criminal offence - and who our existing system had already said were too dangerous to let go and for whom it had decided there were grounds to believe they were going to offend in the future. It was to that target group that we felt these extraordinary remedies should apply. It was not some sort of generalized sense that the state should be sort of free to make judgments about people irrespective of whether there was a precondition of a criminal conviction or not.
To be blunt, thankfully ours is still a human system, which means it will not be perfect. But in attempting perhaps to strive for perfection, what we may do is make something so unwieldy that, one, there is a very good chance it will be struck down in the courts; and two, it may be so broad as to lose the effect of being this specially targeted remedy for specially high-risk offenders. So our suggestion, as contained in here, is that this section should in fact be modified so as to only be applicable to those people who have been detained under the Corrections and Conditional Release Act. That is the target group.
If you think about it in one sense, this is an after-the-fact remedy. It is meant to deal with people inside the system who, in theory, we have missed at the first go round. The first part's improvements to dangerous offender proceedings and long-term offender proceedings are front-end remedies, which, in theory at least, are going to help us do a better job of catching the group of people we want to catch on these specialized kinds of orders. Logically, this pool to whom this should apply will shrink. I would suggest as a committee you may even want to set up some kind of review of this after five years to see in effect what the results are, because as we do a better job at the front end it will be less necessary to have these kinds of orders.
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I have two final points, on a technical matter. If we are correct - and that certainly was my understanding of the original intent of the government in its focus on this, that select group - if that is the case, then you may want to take a look at the length of the term for which you have the order. Twelve months is pretty short in the criminal justice system. You'll literally be on - and I'm sure, Madam Chair, your experience would probably be similar - a revolving process, with some of these applications coming back and back before the courts. Our suggestion is simply that given the nature of it, if you agree it should be more focused on these people who have already been detained, it should be for three years as opposed to one year.
The final technical point I would like to make is on the actual conditions themselves - what can be imposed as conditions. In the bill, rather than the normal practice for bail or for probation, where essentially we have a generalized section that says the court can impose the following kinds of conditions and we list those kinds of conditions, this bill has actually taken two specific ones as subclauses, one about firearms, one about reporting and electronic monitoring.
We do want to encourage you to retain electronic monitoring. It is simply bringing evidentiary or remedial procedures up to date with technology. But you may wish to consider a broader subclause on the kinds of things that could be included.
We would specifically urge you to include a residency restriction clause. What that would do is give the supervising authority the ability to say, we have a say in where it is you're going to live. In particular, I suspect that would have real relevance to people who are convicted of child sex offences. A number of these cases where these provisions would have been aimed, as you may know, after warrant expiry have taken up residence next to day-care centres or schools. That's what has prompted some of the near hysteria in communities across the country and demand for publication of names and things like that. This kind of process should alleviate much of that concern. But you have to give the people who are going to be doing the supervision the tools to be able to do the job.
For example, on a probation order right now, with somebody convicted of shoplifting for the first time the state takes on to itself the right to say, we can tell you where you're going to live, because we can put a residency approval requirement on a probation order. Why would we not do that with these kinds of offenders, where it has a million times more relevance?
We urge you to consider inclusion of that kind of clause.
Finally, I virtually never read things from a brief, but I would like to make an exception this time because of the involvement of our association with this bill. I think it is important that this appear in the record of the proceedings. It's contained in the conclusion of page 14.
Our association has seen changes to federal legislation in recognition of the existence of repeat high-risk offenders and the terrible human toll wrought by them. Our first suggestion to government on this was in March of 1993 and it continues until this appearance before the House of Commons justice committee. We wish specifically to thank both Justice Minister Rock and Solicitor General Gray for their personal commitment to these legislative reforms and their ongoing personal intervention and participation to ensure this much-needed legislation becomes a reality. It's our experience that without the involvement of elected officials who exercise the political will to proceed, matters such as this and the public benefit that will flow from it would never occur.
As this brief makes clear, while we support the bill, there are flaws in its current state that jeopardize its overwhelming potential for significant crime prevention and corresponding public safety. We are confident these flaws can be corrected, and indeed that the corrections offered are a more accurate description of the goals of the government and the two responsible ministers then the clauses that require revision.
Finally, we want to make clear our view that the bill, when corrected, will not only produce the described desired effect but will further restore some sorely missed public confidence in the Canadian criminal justice system.
The Chair: Thank you.
Chief Ford.
Chief Brian Ford (Canadian Association of Chiefs of Police): I'll be much briefer. Basically we support the position of the Canadian Police Association.
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The Canadian Association of Chiefs of Police has long advocated need for reform - as the CPA has indicated - to deal with individuals who are identified as high-risk offenders. As such, we believe that the three-pronged approach and the proposals incorporated in Bill C-55 meet many of the concerns of the police chiefs and police officers across Canada.
Those involved in the administration of justice have also been frustrated with the onerous procedural requirements that had to be met before someone could be declared a dangerous offender and sentenced to an indefinite term of imprisonment. The first prong of Bill C-55 relaxes these procedural requirements, as Scott has skilfully pointed out, and will hopefully lead to more successful applications in the future.
Secondly, the lack of supervisory mechanisms to deal with high-risk offenders who have been detained for one reason or another to the full term of their sentence - i.e., warrant expiry - and who are at that time declared by Corrections Canada as likely to reoffend has always been a major concern of the police chiefs, police officers and citizens at large. The second prong of Bill C-55, dealing with the designation of certain individuals as long-term offenders, will, in more serious cases, provide some supervision for a period of up to ten years.
Finally, whereas section 810.1 of the Criminal Code only allowed a person to apply for a peace bond against a person with what is commonly referred to as pedophilic tendencies towards young persons under the age of 14, no similar provision existed vis-à-vis a person who created as great a risk towards older persons. The third prong of the bill rectifies this gap by incorporating similar peace bond provisions in proposed section 810.2.
We welcome the changes that are proposed, but do have a couple of concerns. One, the proposals do not address the issue of notification to the community upon the release of a high-risk offender who is likely to reoffend. The Canadians Association of Chiefs of Police has long argued that such notification be done by Correctional Service officials, in view of the fact that it is their determination - in consultation with their psychiatrists, caseworkers and other staff members - that the person poses a risk to the community.
The present method of the Correctional Service notifying the local police chief shortly before the individual's release has been likened to throwing a live hand grenade, with the pin released, into the chief's lap. The chief is then expected to make the decision whether or not to notify the public at large of an extremely dangerous offender being released into their community. It's a catch-22 in the sense that on the one hand, if you do you're chastized, and on the other hand, if you don't and something happens, you are held accountable for not disclosing information that you have.
We continue to believe strongly that the disclosure of the impending release of high-risk offenders should rest with the Correctional Service of Canada.
We also feel that whereas section 810.1 of the Criminal Code of Canada presently allows any person to lay an information before a provincial judge to initiate a pedophile peace bond application, proposed section 810.2 restricts the application to the Attorney General.
We have already had experiences of police officers being the informants in previous section 810.1 applications, and even if an officer did not have the prerequisite reasonable grounds, any person could be the informant. While section 810.1 and the proposed section 810.2 are similar in nature, only the Attorney General will be in a position to make this application under 810.2.
In our view, the ability to initiate the process should be consistent, and should apply to any person who is in fear that another will commit an identified offence.
In conclusion, we wish to commend the Minister of Justice and the Solicitor General for these very valid and necessary proposals to deal with high-risk offenders. This is an issue that not only is close to the hearts of police chiefs across Canada, but also to the law-abiding citizens of this country who have time and time again expressed their frustration with the status quo.
The Chair: Thank you, Chief.
Mr. Langlois.
[Translation]
Mr. Langlois (Bellechasse): Thank you, Mr. Newark and Chief Ford.
Mr. Newark, I'd first like to congratulate you for making your presentation without a text. You should find yourself a riding in the Ottawa area and then come and sit in Parliament. I think it would greatly benefit the nation. Or perhaps you could stand for the Reform Party in Sarnia - Lambton.
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The Canadian Police Association answers to a large extent my concerns with respect to section 810.2. In your brief, on page 13, you propose to add subsection 810.2(1.1) to give some directions to the court on how to implement that provision when the time comes. It is to avoid too broad an approach if I'm not mistaken.
As a matter of fact, the minister had asked us to look at this aspect of the bill to see whether some improvements could be made to it. One of my concerns was that, under proposed section 810.2, someone might very well be acquitted of the offense he had been charged with on the grounds of reasonable doubt while, on the other hand, it would technically be feasible for the same judge to make him subject to a peace bond under section 810.2 on a preponderance of evidence. This gives an ordinary citizen a strange feeling about the administration of justice.
How could it be possible, for instance, for Scott Newark to be acquitted on a charge of theft and to be set conditions for six months by the same judge? Something is wrong here.
You suggest seven conditions and I'd like to make sure that I understand your position correctly. If an individual doesn't come under criterion a) because he has no previous criminal record, nor under criterion b) because he has committed no previous offence, if the Correctional service of Canada doesn't have any material pertaining to that individual and if there has been no past violation of court orders by this individual, in other words, if those first four conditions, which I believe to be fundamental, are not met, would the other conditions , starting with e) and continuing with f) and g), be sufficient grounds on their own for an order to be issued under the criteria you have established?
[English]
Mr. Newark: In fact what we're recommending is even more narrow than what you're asking about, because the precondition to even get to this section would be that somebody has already been convicted of a criminal offence that has landed them into a federal penitentiary, and have been detained for their full sentence, which we currently now only do to about 4% of the total federal prison population. That group and that group alone get through the door.
Once they get through the door, proposed section 810.2 says the court gets to decide if there are reasonable grounds to decide that we should be afraid about their behaviour and we need one of these orders. It gives a guideline to the court in making up its mind about what are reasonable grounds. It lists the kinds of things that I guarantee you, in any court hearing, are what a judge would actually go through to see whether or not they have reasonable grounds.
One of the reasons I listed them as I did there is because of a previous case from the Supreme Court of Canada called Morales that struck down a section of our Criminal Code that had fairly similar general language, like ``reasonable grounds'' on bail, saying it was just too general. Since that time, many of us who have been involved in this kind of thing take that as sort of a warning, and say if you're going to give somebody the authority to do something, you should specify the kinds of things they will take into account.
But Mr. Langlois, the threshold to even get here, from what our suggestion is, is more narrow even than what your suggestion was.
[Translation]
Mr. Langlois: Madam Chair, I don't have any other question. You have been uncommonly straightforward and it would not serve any purpose to have you repeat what I believe has been made sufficiently clear. I shall leave the floor to someone else.
[English]
The Chair: Thank you, Mr. Langlois.
Mr. Ramsay, you have ten minutes.
Mr. Ramsay (Crowfoot): Thank you, Madam Chair. I may be sharing my time withMs Meredith, if that's in order.
We continue to release violent offenders back into society, who continue to rape and murder. That is the challenge this bill is attempting to meet, from my understanding of it. We are still going to be releasing violent high-risk offenders back into society, either on early parole or after their warrants have expired. The only safeguard we have for those presently in jail under those conditions is this proposed new section 810.2, the possibility of electronic monitoring. Would you agree with that?
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Mr. Newark: Yes.
Mr. Ramsay: Then we have to place our faith and our trust that innocent people will not be targeted in the ability of the state to electronically monitor the whereabouts of these individuals?
Mr. Newark: May I respond to that point, sir? It's a separate question and -
Mr. Ramsay: I'd like to ask you, do you have examples you could give the committee concerning electronic monitoring in Canada or in another country, perhaps, to determine whether or not it will safeguard innocent people? I am not convinced that it will, and I'm not convinced that it will not result in more Melanie Carpenters and Mrs. Salters and so on.
Mr. Newark: The short answer to that is yes. We do have some information we can provide in relation to electronic monitoring, not only in Canada but in the United States, and I will be happy to forward it to the committee. I can at least get a start on that by the week's end.
But if I can deal with what I think is really the larger question, it's why I hesitated a second and then said yes. With respect, much of what we have attempted in the suggestions we've made about legislation tries to take away some of the discretionary ability of the corrections and parole system in this country, which has had a less than successful past in dealing with high-risk offenders. We are attempting to suggest that there should be a recognition, generally based on repetitive violent behaviour, that these people merit specialized treatment.
I asked you if I could intervene when you said that we should trust and rely on.... I guess that's the point. No, I don't think we should. My information that's gathered from CSC and the National Parole Board, for example, is that if you look at just those federal offenders on any form of conditional release in the last seven or eight years or so, about every day and a half one federal inmate on early release has either murdered, raped, robbed, or molested a Canadian over that period of time. And I would suggest, sir, that the track record is not such that we should simply hand over more discretion.
It seems to me that what this legislation and our amendments are aiming at - and there are other things that can follow - is focusing on specialized, restrictive, intrusive measures against certain offenders. The problem, it seems to me, with the next challenge that is coming is that there are only so many federal tools one can create. At a certain point it passes on to the people who have the responsibility to actually enforce those laws. In this case it will be up to correctional officials or potentially provincial Attorneys General to actually use the tools that are there. But it is imperative, we think, that we make those tools as best we can and as focused on the high-risk offenders as we can.
It's why I have such a violent objection to the notion of the eternal closed system, which is what I think corrections and parole in this country has become. They have been allowed to have the ability to decide what to do with the high-risk offender when they have information of a breach of an offence. I can give you all sorts of reports of examples of people who've been on early release of one kind or another who have violated their conditions, a fact which was known to the supervising authorities. Those authorities ignored it and allowed it to continue, and after the fact people paid with their lives. That is why I object to it as much as I do.
Realistically, though, I don't think the solution is that this entire group of people must be incarcerated forever, and that's why we support the essence of this bill.
Mr. Ramsay: Do you agree with the six-month provision in subclause 753(2) regarding the dangerous offender designation?
Mr. Newark: No.
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Mr. Ramsay: You don't agree with that.
Mr. Newark: I don't think it's all that long, frankly, and I can almost guarantee what the response is going to be. This is the dangerous offender provision where it allows a window after the fact of a person being convicted. I think I can pretty much guarantee that what's going to happen is that the Crown will serve notice and the defence counsel will tell the offender to sit in their cell and shut up - don't say anything to anybody.
That came about as a result of a very big back and forth on whether the window should extend past conviction. That, I believe, was simply a compromise.
Mr. Ramsay: Then would you support the extension of that period, and if so, to what extent?
Mr. Newark: Yes, sir, I would, but I'm not sure there's a magic number, really. It seems to me that the people who are actually going to give you information about themselves that you can use may well do it in six months. The people who aren't going to won't do it in six months, twelve months or eighteen months. I don't have the special expertise to give you a number.
Mr. Ramsay: Then we're faced with a situation where a person who's committed his first violent offence, or perhaps his second, does not fall within this category, serves his warrant time and then is released into society as a high-risk offender. There is nothing within this bill that addresses this type of situation. Therefore Correctional Services will continue to release back into society high-risk offenders who will be targeting innocent people. This bill does nothing to address those individuals.
Mr. Newark: I don't agree, sir. I think the provisions of the dangerous offender sections, especially the way they are now crafted, make it an awful lot easier to be able to bring, as a crown attorney, first, a dangerous offender application, and second, if there is not a dangerous offender application, to have somebody declared a long-term offender, serving a finite portion of a sentence with the second part being these long-term offender orders.
Where I have a bit of a problem with this...and I'm not just hoping, crossing my fingers, as they did in the Joseph Fredericks case, by the way. Those are the exact words of a person when they released him. Knowing what he was, a sadistic paedophile psychopath, when they released him on early release - they had nothing past warrant expiry - the person said he just crossed his fingers and hoped.
My point is, these orders, with respect, should be very different from normal parole orders. This is where correctional officials should be sending their best people, with their caseloads not having 50 and 60 people on them. This is why, when there is a breach of any of these conditions, we should recognize what it is that's being breached. It should not be left to the discretionary authority of the industry to decide whether or not they want to produce a statistic of failure. Instead, it should be mandated, as we recommended, that you pass on that information to the police.
Otherwise, quite frankly, if it were I sitting as the Crown on some of the cases I've seen examples of, I'd be investigating people for attempted obstruction of justice.
Mr. Ramsay: But I fail to understand your reasoning in terms of your own earlier comments with regard to the number of violent offences being committed by people on early parole, on probation, with conditions. They continue to go forward and commit murders - for example, Mr. Auger, who's the prime suspect in the Melanie Carpenter murder, under this warm, fuzzy term ``mandatory supervision''. That sounds very comforting.
What is there in this new bill that will allow even the ten-year probation period that will guarantee the safety of the individual?
Mr. Newark: Auger is a very good example to use. Auger had twice failed to comply with conditions that were specifically set by the board for him.
Mr. Ramsay: I've read the report.
Mr. Newark: They basically ignored it. That's why one of the amendments we've suggested here is that on receipt of that information there should be no discretion. What we're trying to recommend, Mr. Ramsay, is the removal of some of the discretionary authority in the correctional officials dealing with these kinds of offenders.
Literally, that information of the breach should have been forwarded to the police, who then would have had the obligation to decide whether or not there should have been a charge. What we hope to produce in this country, frankly, is an atmosphere of recognition amongst law enforcement authorities that you have to deal with high-risk offenders like this on a basis of recognizing the risk they pose.
Mr. Ramsay: Would you then support peace officers having the authority to arrest, on the spot, individuals on parole who they find to be in violation of their parole or probation conditions?
Mr. Newark: In fact, we suggested an amendment to section 450 of the Criminal Code some time ago. I believe Mr. Thompson has, or had, a private member's bill to that effect. We supported that a long time ago.
The Chair: Thank you, Mr. Ramsay. That's all the time you have.
Mr. DeVillers.
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Mr. DeVillers (Simcoe North): Thank you, Madam Chair.
When he was before the committee last week, the Minister of Justice, with respect to section 810.2 and in view of the potential challenges under the charter, asked us to consider limiting its application to past convicted people or to those with a history of past violent behaviour where conviction would be relevant but not determinative or applying a pattern as in section 518 of the Criminal Code, which lists categories of factors.
Mr. Newark, in your brief you seem to be combining the first and the third of those alternatives, and I just wondered if you'd given any consideration to the second. I wonder if Chief Ford could give us his comments on the three alternatives as well.
Mr. Newark: About confining it to people detained at the entry level, in that sense our system has already gone through a judgment where somebody has been convicted of one of these most serious kinds of offences. There has already been a judgment about their future dangerousness in relation to all those facts as well. So all of those preconditions would already be there.
All we were trying to get at with those kinds of sections or criteria to consider was that once you are part of this select group that is by definition high-risk offenders, which is why they're kept for their full sentence, then the courts would consider a set of other factors in determining whether or not it's reasonable to have one of these orders.
I think in large part it's going to be fairly determinative. If somebody has been detained, short of having some kind of extremely remarkable turnaround, the very fact of their having been detained is going to be compelling evidence that one of these orders should be issued.
Certainly in my past discussions with Mr. Rock and with Mr. Gray, this was the target group. It was, in effect, the people our system has missed. Whatever the tools we had, we missed them, but thankfully we've gotten to the point in our legislation now where we can at least keep them off the streets for the last one-third of their sentence. We've recognized that they're too dangerous to release, even at the two-thirds point of their sentence. The problem is that right now we just open the door and let them go.
My suggestion is that you confine it to those people who are detained right now. I believe the number is somewhere around 450. I think you will have correctional officials in front of you tomorrow and maybe they can tell you. The number has quadrupled over the last couple of years, which in my view is in large part why the violent crime rate and the homicide rate have gone down. We're doing a better job of targeting the worst people and keeping them off the street. If you target that group, it seems to me that will meet all of Mr. Rock's legitimate concerns.
Chief Ford: I tend to agree with what Mr. Newark said with respect to that. There are a number of cases we could bring forward and put before you where the provision of this bill would allow us to have some mechanism whereby we can control situations within our communities to make them safer and to make our streets safer and to keep under control people who have obviously been identified as a danger to our society. I would agree with his comment.
Mr. DeVillers: Thank you. That's the only question I had.
The Chair: Mr. Langlois.
[Translation]
Mr. Langlois: Let me repeat what I said earlier. I hope that the department officials will consider seriously the recommendations that are being brought forward and even the suggested drafting for section 810.2 and that we'll be given some clarifications on this at the clause by clause stage. I think that the position you have taken is very positive and will prevent any Charter challenge that I believe might result in a provision from this legislation being struck down. It would make more sense to clarify it than to strike it down. It is better to have a provision that can be implemented rather than a policy statement that the courts will refuse to implement.
Thank you.
[English]
The Chair: Ms Meredith.
Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.
I'd like to address my question to the Canadian Association of Chiefs of Police. I want to remind them of a submission they made two years ago, on December 13, 1994. In it they were discussing or criticizing Bill C-45 and bringing before the committee the former Solicitor General Doug Lewis's approach to dangerous offender legislation. They supported it. The Association of Chiefs of Police supported Doug Lewis's approach to dangerous offender legislation.
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I want to know whether you feel this bill, C-55, will address dangerous offenders who are not picked up at the time of sentencing.
Chief Ford: I don't think I was part of the group that came here.
Ms Meredith: I think you were.
Chief Ford: Was I here?
Ms Meredith: Yes.
Chief Ford: I might have been sitting there, but I don't remember. I can conveniently forget.
An hon. member: I thought it was on retroactive incarceration.
Ms Meredith: No, post-sentence detention is what the Lewis bill was about. It was picking up dangerous offenders after the time of sentence while they're incarcerated up to the final year of incarceration, plus post-supervision.
It particularly addresses your submission - as I said, December 13 or 14, 1994 - where you brought to the attention of this committee this former legislation which addresses post-sentence detention for dangerous offenders. I'm asking you whether Bill C-55 deals with that issue of dangerous offenders who were not identified or picked up within this period around sentencing, which may be three or four years into incarceration, before it's determined that they are dangerous offenders? Does this legislation address that?
Chief Ford: What year was that in?
Ms Meredith: 1994.
Chief Ford: Yes, I was here.
Ms Meredith: Oh, yes. I remember you.
Chief Ford: It matters. No, I was here. I recall now.
The Chair: It's a sort of fundamental rule of cross-examination on prior statements that you let them see what was said before. There are some witnesses I wouldn't mind bringing here and ambushing, but I'm not in that mood today.
I'll turn the clock off while the chief takes a look.
Chief Ford: I think what the CACP was doing at that time was commenting on a proposal that was put forward for legislation. Based on the information put forward at that time, yes, we agreed with it at that time. But we also agree with what's being put forward by the government at this time.
By and large, the identification of dangerous offenders is done before the sentencing process that goes on. Certainly when a person is arrested and charged with a very serious criminal offence the determination of whether or not that person is a dangerous offender can, in almost all cases, be done at that time, before sentencing. Mr. Newark maybe has a better grasp of that issue, but I would think none would escape through that six-month clause in the process at this time.
There may be. That's just off the top of my head. I haven't gone back and looked at Mr. Lewis's proposal at the time.
Ms Meredith: The reason the six-month clause concerns me - Mr. Newark can maybe support me on this - is if a person is found guilty, generally they will appeal that and there's a thirty-day appeal process. So they will probably stay in the lock-up for thirty days, until their appeal is heard. Then they go through the appeal process. Then they go into an assessment, which in most cases is a two-month program where they are being assessed, where all the records are being brought together. So you're already three months into the sentence before you have this individual in a federal penitentiary where you're able to monitor and supervise on a regular basis.
Basically you have three months to monitor the activities of this individual to determine whether or not you feel he is a dangerous offender. Not only that, but you're making that determination before the guy has had any advantage of treatment programs or of the incarceration itself. You're making a determination at the very beginning of a sentence without giving him the benefit of the doubt that he might react to counselling and rehabilitation programs and not be a danger down the road.
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I want to get back to this report, because you have changed your position. At the bottom of that page you even deal with the unconstitutionality of Lewis's proposal. If I read it correctly, it referred to that you felt this business of a charter challenge could be overcome because of the way it was written and the premises. So I see you as changing your position two years later and accepting something from the government that I would question is any better than Bill C-45.
Chief Ford: I don't really have a response for that part of it. But with respect to the issue of basically the determination of a dangerous offender, in my view.... I'm not speaking from a legal expert point of view because I am not a lawyer by any stretch of the imagination; I'm merely a police officer and I'm here from that perspective.
The Chair: You sound relieved.
Chief Ford: I'm merely here as a police officer, a person who has come up through the ranks and has been fortunate enough to obtain the position I have, and a person who gets out and sits down with the people who work with me in my organization and other people from across the country.
In my view.... It's like, did you say something yesterday or two years ago, or whatever the case may be. I may have. I certainly didn't prepare this brief; I can guarantee you that.
The other thing is the point in determining a dangerous offender, in my view, is done a lot based on investigative techniques and investigations undertaken and the previous history of an individual who has come to the attention of a police officer, in all circumstances because of a very grievous and heinous crime that has been committed by the particular individual being investigated, based on the investigator's understanding of the previous history of this individual. Based on the investigator's understanding of what has happened at the time of the offence, the investigator will go to the crown attorney and request that the crown attorney seek a dangerous offender application against a particular individual, which I think is appropriate.
Ms Meredith: You don't see the need for post-sentence detention? The reason I'm harping on it is you're also appearing here on a private member's bill, Bill-254, which deals with post-sentence detention.
Chief Ford: I am? When?
Ms Meredith: Well, actually this committee is dealing with both Bill C-55 and private member's Bill C-254, which is in essence Lewis's proposal for dangerous offender legislation.
Chief Ford: I don't know that I'm appearing on that one, at least I have not been....
Ms Meredith: Oh, okay. Well, I am -
Mr. Newark: I was unaware of the fact that your bill was sort of on the table as well. I have a pretty good memory of it, but I certainly would have gone through it in much greater detail had I known that.
Ms Meredith: Well, my understanding is the committee is dealing with it. It is a different way of looking at dangerous offender legislation. So that's what I'm trying to get out: Do you feel that Bill C-55 will deal with the situation, or does private member's Bill C-254 deal with the situation in a much more efficient manner?
Mr. Newark: If I can just ask, correct me if I'm wrong about what was in the bill, but essentially it was retroactive incarceration.
Ms Meredith: I refer to it as post-sentence detention, where the person -
Mr. Newark: After the fact. A person could be declared a dangerous offender at any point during the sentence.
Ms Meredith: Up to the last year.
Mr. Newark: Okay, and kept in indefinitely in a custodial setting?
Ms Meredith: Yes.
Mr. Newark: That was one of the options that was actually discussed, even back in May 1995. It was one of the models. I don't think it's telling any secrets that in fact obviously it would be from a public safety perspective a more efficient method of dealing with this problem. So would capital punishment. But it isn't the law, and what a lot of us around the table were charged to do was to look at it and all of the different options, and determine what we thought was the best attainable amendment that could be made.
It's one of the reasons I don't believe you'll find us ever on the record saying we thought this retroactive incarceration should be supported, not because it wouldn't have a desirous effect in the sense of public safety. I've never been accused of being soft on punitive measures in relation to high-risk offenders, but I have no doubt whatsoever it would never survive the charter. I say that after having done a fair amount of research on the scope of section 1, and why section 1 in our judgment will basically - because there will definitely be a charter challenge to Bill C-55 - why it will work on what's in Bill C-55 but would not work on what was contained in Mr. Lewis's or your bill.
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The Chair: Ms Meredith, Mr. Maloney has some questions and then we'll come back to you.
Mr. Maloney (Erie): This is a small question on your consideration of dangerous offender parole reviews, your suggestion that the time should run from the time when...the dangerous offender designation. That would be seven years thereafter, not when he went into custody originally. Also, you're suggesting a review every three years instead of every two. Why is it just an extra year? What's the difference of one more year?
Mr. Newark: Let's start with the first part about the seven years. I might use a favourite topic in relation to penalties for persons convicted of first-degree murder. In Canada, in theory you're sentenced to life imprisonment, except we all know that this doesn't mean life; it means 25 years. We all know now that it really doesn't mean 25 years; it means eligibility at 15 years.
The second part is that we just never got around to this. We only have the bumper stickers that say 745 with the X, but in reality there should be another one that says 746, because 15 years doesn't even mean 15 years. Section 746 starts the clock running from the time of first arrest custody. As a result, I don't have the exact numbers, but someone like Paul Bernardo is actually eligible for this first review about 12.5 years after the court says that it finds you guilty and sentences you to life imprisonment, no parole 25.
Our experience on a host of sections, but particularly on parole sections, is that what drives a lot of the cynicism and frustration amongst Canadians about their justice system is that it is continually saying one thing but doing something else. Frankly, whatever the number is, it would be a lot better if the clock started running when somebody was sentenced. There are no back doors, no calculations you have to go to another section for. That's what it is.
That recommendation of seven years, by the way - and I believe it was seven and three, not seven and two - comes from a predecessor justice committee that was looking into the kinds of cases Mr. Ramsay was talking about. It made recommendations about the change of the number of years.
I think if you ask the corrections officials, you will find that very few dangerous offenders have actually been released. Recently one was, a fellow named Milne who had a long history of violating children sexually, and he has been rearrested for further sexual offences against children. But generally they do not get early release, for very good reason.
Our point simply is that these hearings and processes are extremely expensive. We could do an awful lot better things with the money in the justice system, like even spending it on people before they get to the justice system, than by frankly wasting it on these kinds of hearings. Anything we can do to stretch that out.... It's two years and we suggested three. It's for that reason we're suggesting it.
The Chair: Mr. DeVillers.
Mr. DeVillers: I have a question relating to Ms Meredith's question on the six-month period and dealing with proposed subsection 753(2), which says: ``An application under subsection(1) must be made before sentence is imposed on the offender unless''. Then proposed paragraph 753(2)(b) says:
- at the time of the application under subsection (1) that is not later than six months after the
imposition of sentence, it is shown that relevant evidence that was not reasonably available to
the prosecution at the time of the imposition of sentence became available in the interim.
Mr. Newark: I think our point remains valid. This is just a standardized sort of text. If the Crown wants to go back and have a second kick at something, generally there's a rule that if you're going to be able to do that, it has to be based on something you didn't have reasonably available to you at the first instance. It might be information that is newly acquired, which would be a reason why you didn't have it, or an insight about somebody's behaviour. But there would have to be a reasonable explanation for why you didn't have it available to you.
It's one of the reasons why six months, twelve months...I don't think there are going to be too many of these after-the-fact applications.
Mr. DeVillers: So it's not related to the conduct after the sentencing?
Mr. Newark: It's imposing an additional burden on the Crown to be able to show why it should be given this second kick. For me at least, I doubt there will be a whole parade of these.
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Mr. DeVillers: Okay, thank you.
The Chair: Mr. Ramsay.
Mr. Ramsay: Mr. Newark, I'm going through your presentation. You dumped it on us two minutes before we started and then you rattled through your presentation. It's hard for us to really grasp some of the contents of it, so I'm going through it and I'm asking questions about it.
I would have difficulty supporting this bill if section 810.2 remains as it is. That is because of the fact that under 810.2(1) it says:
- Where the Attorney General believes that there are reasonable grounds to fear that another
person will commit a serious personal injury offence, as that expression is defined in section
752, in respect of one or more persons, the Attorney General may lay an information...
Mr. Newark: First of all, I think we got notification we were coming to testify on this bill on Wednesday or Thursday of last week. With respect, I've been involved with some of the work on this thing, but I don't churn this stuff out overnight, Mr. Ramsay. As I think you know, we make every effort to get the information we produce into the hands of members of Parliament as soon as we can. This is not the first time we have been questioned about this, and as I'm sure you know far better than I, the control of the scheduling of these hearings is not something within the purview of the Canadian Police Association.
So I take your point, sir, but -
Mr. Ramsay: I'm sorry I mentioned that part. I'd like you to answer the pertinent question.
Mr. Newark: I'm sorry, I thought it was all pertinent.
Mr. Ramsay: Some parts of the question were more pertinent than others.
Mr. Newark: The answer to the first part is only insofar as the amendments we've suggested in the brief would exist. We think there should be the delisting of the criteria on which the decision should be made. It just says ``on reasonable grounds''. I believe those are the exact words the Supreme Court struck down in Morales. We have a draft amendment in here that would list on what those reasonable grounds should pertain to or be based on.
Secondly, the order should be for three years, as opposed to twelve months.
Thirdly, it should only be for people who have been detained under the Corrections and Conditional Release Act.
I believe those are the only amendments we specifically put forward. But yes, if those were the amendments made, we would support the order.
Mr. Ramsay: Would you support this bill if the bill goes forward as is?
Mr. Newark: This is a question you have asked before on other bills. I think the simple although less than satisfactory answer is yes. But we will all the while be yelling and screaming. We will be doing everything we possibly can to alert people, including people at the House, and offering amendments on third reading, in the Senate, to the media and everything else. This is what we do. We try to point out what we think is right about the bill and we try to point out what we think is wrong about the bill.
I meant it when I said - I gather the department used it as a quote - that in my judgment this is the most significant piece of public safety legislation in 20 years. It could be better, and I'm trying to make some suggestions to make it better. But by no means would I or our association or the rank and file who supported this for three years in resolutions say if we don't get every word we want, we won't support it. Frankly, this would not be realistic.
Mr. Ramsay: This is in spite of the fact that if this bill does go through as is, we might see, based simply upon someone's fear a personal injury may occur, people subjected to these conditions. You're prepared to support this -
Mr. Newark: Mr. Ramsay, I don't have any doubt this section, if it goes ahead as it is, will be struck down by the courts instantly.
The Chair: The words were ``public interest'', not ``reasonable doubt''.
Mr. Newark: They're both generic phrases. It's the point I'm trying to make, though.
The Chair: But ``reasonable doubt'' is used all the time in the Criminal Code and it hasn't been struck down yet.
Mr. Newark: No, but....
The Chair: It's just a factual interjection, that's all.
Mr. Newark: Sure. Okay.
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Mr. Ramsay: I agree with your analysis of this bill. If it is not amended, I think this portion of the bill amounts to a dangerous piece of legislation.
Mr. Newark: What's worse, sir, is that I think it's going to amount to something that's useless. We only get so many opportunities to be able to bring this forward. From our perspective, it has taken us three years to get to this point. We hope we do it right.
Mr. Ramsay: Thank you, Madam Chair.
The Chair: Thank you.
Chief Ford: If I may make just one comment, Madam Chair, with respect to the cross-examination of our viewpoints -
Voices: Oh, oh!
The Chair: We'll get you and ambush you at another time.
Chief Ford: In 1994, at the time the proposal was put forward for legislation, we did support it, because nothing else was put forward at that time. However, something else is put forward at this time, and we support it and will continue to support it.
The Chair: Thanks, Chief.
I thank the Canadian Police Association and the Canadian Association of Chiefs of Police for their time with us today. We appreciate it.
We are adjourned until tomorrow afternoon.