[Recorded by Electronic Apparatus]
Tuesday, February 11, 1997
.1549 
[English]
The Chair: Order, please. We have with us from -
Mrs. Sheridan (Saskatoon - Humboldt): I have a point of order, if I may.
I know we parliamentarians enjoy treating each other in harmonious fashion and I wonder if we could take a moment to salute the chair on her birthday. Bonne fête.
The Chair: Thank you so much.
Mrs. Sheridan: Not a day over 23.
Mr. Discepola (Vaudreuil): Which version of your 39th birthday are you celebrating this time?
The Chair: I've entered my 50th year. That's how I'm dealing with this, and I've done it for the last time.
Mrs. Sheridan: The country's in good hands.
The Chair: Thank you very much.
We're dealing with Bill C-55, and also Ms Meredith's private member's Bill C-254.
From the Ontario Criminal Lawyers' Association we have Irwin Koziebrocki. We have a brief. Irwin is the co-chair of the legislation committee for the Criminal Lawyers' Association.
.1550
Irwin, welcome. You just go ahead, and then we'll fire away with questions.
Mr. Irwin Koziebrocki (Co-Chair, Legislation Committee, Criminal Lawyers' Association of Ontario ): Thank you.
Unfortunately, I'm also the treasurer of the Criminal Lawyers' Association. That's why we don't have very much money.
Obviously, on behalf of the Criminal Lawyers' Association, we appreciate any invitation that this committee and the Minister of Justice extend to us to receive our submissions. At the request of the minister and this committee, we have on occasion received copies of the bills that have been presented to Parliament and we've made submissions to the committee.
Clearly our responsibility as the Criminal Lawyers' Association is to protect our clients' rights. Basically that means that when dealing with criminal acts we're interested in seeing that our clients receive a fair trial and receive the protections that the system of justice affords them. Also, as far as we're concerned, that protection belongs to the general public as well. Certainly that includes protecting the public against those who would commit criminal acts.
As you know, we've prepared some submissions. Unfortunately I haven't had a chance to see them. Apparently they came up last week. Basically, we've dealt with the three main areas that this particular legislation deals with: the dangerous offender legislation, the long-term offender provisions, and section 810 and those provisions.
With respect to the dangerous offender provisions, our position is that there are certain changes that cause the criminal lawyers concern. The three changes we have set out in our paper are what I would consider to be relatively major changes in the system set out with respect to dangerous offenders.
The first is the elimination of the judge's discretion to impose a fixed term as opposed to finding somebody a dangerous offender and as a result giving an indefinite or indeterminate sentence. The second is the change in the parole review from three years to seven years, and the third is the imposition of the six-month period whereby this dangerous offender application can be brought even after a sentencing has taken place.
In my respectful submission to you, each one of those causes great concern. As you'll see, and as I'm sure you know, the Supreme Court of Canada dealt with this piece of legislation in the past in the Lyons case and basically held it to be constitutional. The reason it appears that the Supreme Court of Canada held it to be constitutional is that they found it was rationally and proportionately designed to target a certain group of people, with a certain number of legislative safeguards built into that legislation.
It's our position that unfortunately, by these changes, some of those safeguards and in fact some of the major safeguards that the Supreme Court of Canada set out as saving the legislation are being dramatically changed. The main two are the discretion of the trial judge to impose a fixed sentence in justified circumstances and the availability of the parole reviews. Those are two changes that will dramatically alter the face of this legislation and may well, in the long run, change what is now being considered constitutional legislation into legislation that offends the charter and especially results in punishment that might be considered to be cruel and unusual.
.1555
On page 3, I've set out some of the reasons with respect to the elimination of the discretion as to imposing fixed-term sentences. The problem with this type of legislation is that as a result of the type of offences whereby one can be found to be a dangerous offender, some of the offences that lead you to court for the last conviction, so to speak, such as sexual touching and sexual exploitation, may be relatively minor in substance. Those offences, though they sound serious and are sexual assaults, have a gamut of events that could be covered, some of which are serious and no doubt require serious consideration, some of which may not be nearly as serious as the face of the legislation seems to indicate.
For example, a sexual exploitation charge could be as simple as a 15-year-old living with an 18-year-old and that person providing security and goods for that person, or falling in love with your camp counsellor who happens to be 18 years of age. Those are covered by sexual exploitation charges. The consequences can be startling in these circumstances.
That's one of the considerations a trial judge has to consider in imposing a dangerous offender type of application. You may well find yourself in situations by taking away this discretion that trial judges won't use the dangerous offender application or will be inclined not to find somebody a dangerous offender because of the consequences that befall someone who may be there on a lesser-scale charge but may, after the history is dealt with, be considered to be a dangerous offender if that discretion isn't there.
From a practical perspective, as a practising criminal lawyer, I can tell you that I don't recall the last time a trial judge used the sentencing provisions as opposed to the dangerous offender provisions. They usually either find them to be a dangerous offender or not and impose the appropriate sentence. I expect that if that discretion disappears, you will find more judges tending to err on the side of finding somebody not to be a dangerous offender and imposing what they feel to be the fit sentence in using some other criteria or other remedies that are available to them.
The portion of this particular legislation that is probably the most troubling is the change from three years to seven years. There doesn't seem, with respect, to be any real reason for that. Effectively, what you've done is taken what is a serious piece of sentencing legislation and made it into probably the most serious and draconian type of legislation that one could find. Seven years minimum before your review is effectively a 21-year sentence; seven years minimum before a review is effectively a life sentence. If you are sentenced to life, you are not entitled to parole before seven years on those sentences. The effect of this kind of sentence, in our submission, is effectively a situation that may well border on a minimum sentence becoming cruel and unusual.
One of the problems you have to face here is that the purpose of the legislation is twofold. One is protective, to protect the community, and that's why you impose an indeterminate sentence, because you want someone to be there until it can be safely said that this person can resume membership in the community.
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The other part of this is that there has to be a rehabilitative aspect of this type of sentence. You're not creating warehouses here, you're not putting people in custody for the rest of their lives, you're setting up a scheme. If you are doing the first, it will be constitutionally struck down, without a doubt. You have to have some kind of provision there so that you can rehabilitate and review this kind of incarceration.
Anyone who has any dealings with Corrections Canada knows that any kind of treatment that's given to an inmate is dependent on the sentence that the inmate receives. If it's a three-year sentence, you'll get your treatment somewhere before the three years elapses. If the sentence is seven years, and that's what it's going to be here, you're not going to get your treatment until about a year or two before the seven years elapses. Nothing is going to be done for the first five years to try to rehabilitate anybody; that's just the nature of the limited resources they have.
So if you're serving a life sentence, you're getting treated near the end of that life sentence on the basis that it's only effective if you give that treatment to somebody when they're close to the time they might get out. Here, you're effectively saying to somebody, you stay there seven years and maybe we'll treat you near the end of those seven years. It's self-defeating in that respect if the purpose is to get people rehabilitated and out as quickly as possible. I would say to you that if you look at this legislation and you see what this change and the discretionary change does, you may well find that you're in a situation where the sentence becomes grossly disproportionate to the type of offence and the type of offender you're dealing with.
The issue of the delayed applications also causes concern, because there's no doubt that when a dangerous offender application is made there is usually a gap between the time the person is found guilty and the time the dangerous offender application comes before the court. In fact, on the two or three occasions I've done it recently...that gap can be as long as a year between the time this person is actually convicted and the time the dangerous offender application is finished. This is by nature of the fact that there have to be assessments and psychiatrists involved, and often you're sent off to various places like Penetang for that type of assessment and reporting.
To add on top of that a situation where you sentence someone effectively and then come back six months later and say, no, we didn't like what we did the last time or we didn't like what the judge did and we want to now do a dangerous offender application, not only is unfair but strikes at the very heart of the administration of justice. Someone who reaches a stage where they are sentenced expects some degree of finality subject to the appeal procedures that are available in the Criminal Code. To sit there and think you've been sentenced, and then you get a knock on your door six months later and someone says, no, we're not finished with you....
In my respectful submission to you, that is not only unfair but will effectively cause a situation where the administration of justice is put into disrepute. You'll have situations where people won't plead guilty because they don't know what's going to happen down the line; you won't have any negotiated pleas. You'll have situations where prosecutors aren't happy with the sentence they got from a trial judge and want to take a second kick at the can with respect to those sentences.
On top of that, you'll have two sentencing procedures, and we have all talked about the strain on the availability of judicial resources. I would say that to undertake effectively two sentencing hearings in one matter is a situation that strains the limited judicial resources you have already.
.1605
With respect to the second area, the long-term offender provisions, the Criminal Lawyers' Association takes the position that certainly, in principle, it's a good and acceptable idea to have alternative sentencing-type provisions available in dealing with accused people. That makes it better for the community. That makes it better for the court to have a gamut of sentencing procedures available to them, and it makes it better for the lawyers as well to be able to recommend the appropriate mix for the appropriate circumstances and the appropriate accused. There are some problems I outlined in terms of whether this is aimed only at sexually inherent offences or at all dangerous offences. I think it's just a matter of clarification in the legislation. It appears that the legislation is aimed basically at sexual-type offences, although I must say I'm not sure why that would be. There are other offences where you might well want to use long-term supervising-type provisions.
The difficulty we foresee, which we've set out on page 7, is the delegation of sentencing. One of the things that is important in the sentencing process is the fact that an accused person knows what he's been sentenced to, so that he or she either conforms to the sentencing or, if he or she disagrees with the sentencing, can go off to the curt of appeal to say, no, this sentencing is right or wrong and should be changed.
One of the things this particular series of legislation does is it says, trial judge, you can impose this elongated period of probation, but you will leave the conditions of sentencing of the probation to the parole board. That causes a concern. Often the conditions of the probation may well be things that you want to challenge in a court as being inappropriate for the circumstances, and you appeal them. The normal procedure as it stands now is you have 30 days to appeal your sentence after it's imposed. If you have a ten-year sentence and ten years down the line you're told by the parole board that you have ten more years of restrictions and here are the restrictions, and you say, no, those aren't appropriate, what can you do about it? There's no grounds of appeal. There's no right of appeal.
What if the parole board, for example, decided in their wisdom, after your ten-year sentence, that they didn't like you very much and they imposed ten years of house arrest, so that you can't leave your home, as a condition of your release? You couldn't do anything about that. In fact, if you broke it, you would be committing a criminal offence where you could be sentenced to up to ten years' imprisonment.
There's nothing in here that sets out a right of appeal from the parole board, and effectively it's a delegation of a judicial authority to an administrative body that you have no right to challenge. Our position is that the trial judge, when imposing the up to ten years of this elongated probation at the end of a sentence, should be in a position to set out those conditions that he or she feels are appropriate. Usually they're general conditions such as receiving treatment, community service, or staying away from certain people.
There's always been a provision that allowed some delegation of the actual supervision that is done here, but there's never been a delegation of the actual conditions that are a part of sentence. I think you ought to consider that seriously, because if you don't, it may well be a question of whether it's unconstitutional to assign a sentencing program to a non-judicial body that can't be reviewed.
.1610
The issue of the high-risk recognizance provisions, I'm sure, is an area you've been dealing with on a regular basis here.
The Chair: Mr. Borovoy was here earlier.
Mr. Koziebrocki: I'm sure.
Our concern is several-fold. We recognize that there is a common law type of provision that has existed in our law for hundreds of years, if not more, that allows a judge to impose a peace bond with respect to certain situations. Usually it has been imposed in a rather restricted way. It's usually limited in scope; it's usually specific to the person or to the property; it usually deals with situations of interaction between spouses, between boyfriends and girlfriends, between neighbours, that kind of thing, where you're told, look, there may be a problem here, it's better for everybody that you stay apart, and we ask you to enter into this recognizance to ensure that the interaction isn't there and therefore the problem is separated.
From experience, anybody who has been through the courts on a regular basis will see that those types of peace bonds usually go on consent. The parties are in agreement that they should be done and dealt with on that basis and they're prepared to literally shake hands and say, you stay on this side of the fence, I'll stay on that side of the fence, and we won't bother each other; if we do, then there's a mechanism to correct that situation.
This high-risk peace bond goes substantially further than what the law has been up to now. I know we have to recognize that you've tried this route once already and it's in the Criminal Code, subject to a present appeal that's actually before the courts, which I'm sure you know about. It has been upheld at the summary conviction appeal level, and I believe it's on its way to the court of appeal presently. Basically what has happened there is that there was a limiting of the type of provisions you could impose.
The concern here is that this particular peace bond-type provision seems to go even further. It appears to be aimed at two groups of people. One type is those who have been convicted in the past with respect to certain criminal activities and basically walked out of the jail and about whom the police have a concern. I guess they just don't want to follow them around or watch them, so they want some mechanism for the community to watch them.
The other type of person who is more problematic is the person who has been acquitted of a criminal act and there's some indication in the evidence that there may be some predisposition or reasonable belief that doesn't reach the standard of proof required to convict somebody. You can turn around and say, excuse me, we couldn't find you guilty of this offence but we certainly have reasonable grounds to believe you're a person of a violent nature, given what we've seen here, and we're going to ask for this kind of bond to be put on you. That smacks of double jeopardy, in that those people who have been acquitted are now being faced with some form of sanction.
The question here also deals with the issue of how you design some kind of condition to prevent somebody from doing something - something violent. The sexual section, subsection 210(1), involving young children is probably a little easier because you know where you can limit people's access to young children, but how do you do that in a case of serious personal injury? Do you tell people they can't walk the street because they might hit somebody, that they can't go into a bank because they might rob it, that they can't go to the beach because they might get upset with someone? There's real difficulty.
.1615
Now, on some occasions you can do that. If it's clear, for example, that someone becomes violent when they're drinking, there are certain positions or conditions you can impose to avoid that risk. You can prevent them from drinking. You can prevent them from entering drinking establishments. You can suggest conditions be imposed that they don't possess instruments of violence, which is something you've already done in this legislation.
But how do you stop someone from being violent by requiring them to wear some kind of electronic monitoring device or to report to the police station? That's not a device that can prevent anyone from committing any kind of violent criminal act. It's only a device that makes it easier for the police to find somebody after they've done it or to keep tabs on them in the sense that we know where they are.
I would suggest to you that to say to somebody that they have to report to the police station on a regular basis or that they have to wear some kind of electronic monitoring device when they haven't done anything is, with the greatest respect, highly stigmatizing and highly invasive of someone's personal privacy, and it doesn't do the job.
If it was aimed at doing the job, such as keeping somebody away from daycare centres because there are young children there, then one would say there is a connection between the condition you impose and the good you're aimed at. But if you say to somebody that they have to wear an electronic monitoring device because they're a violent person, there isn't any connection. If anything, it stigmatizes them in the community, and I would think it is one of those situations where you might well find that you offend section 7 of the charter on the presumption of innocence. To impose some condition on someone that they have to wear a monitoring device or to report to the police station on a regular basis would, I would think, be so intrusive that it would offend the charter.
As I said to Ms Cohen as we came in, my view of this particular portion of the legislation is that it's Aldous Huxley's 1984 in 1997. Those are my submissions. Thank you.
The Chair: Thank you.
[Translation]
Mr. Langlois (Bellechasse): Thank you for your presentation. You have raised questions that I have myself had throughout these hearings, particularly with respect to the dangerous offender application.
I had thought, and please correct me if I am wrong, that the present bill allowed the judge, after a guilty verdict, and upon application by the Crown, to delay sentencing for six months; once the sentence was determined, there would be a postponement. However, you seem to have understood that the judge would give a determinate sentence, and that during the next six months, the Crown could return to ask for an indeterminate sentence. Did I understand you correctly?
[English]
Mr. Koziebrocki: As I read the legislation, there are two alternatives. One of the alternatives is that the Crown can ask for a period of six months before the sentence is imposed to make its determination as to whether to have a dangerous offender application go forward. That's not the one we complain about, other than that six months is a long time to make that determination. One would expect that you could have made that determination earlier on in the proceedings.
.1620
But it appears also that if you look at proposed subsection 753(2)(b), that allows you to also bring this application after sentencing. It says: ``not later than six months after the imposition of sentence'', the caveat being that you have to show that there is relevant evidence that was not reasonably available to the prosecution before. But one would expect in this kind of situation, and from the the documents that the Department of Justice has presented...there have been about 150 of these dangerous offender applications in the past.
I would expect those cases are rare enough that you would know you're going to do your job beforehand. Invariably when the gavel goes down and the judge or the jury says ``guilty'', the crown stands up and says, I am contemplating bringing a dangerous offender application and I want to seek formal instructions from the attorney general of my province to sign the appropriate documentation.
[Translation]
Mr. Langlois: I had indeed understood that the Crown counsel would be in the same situation he would be in during a bail hearing, where the Crown counsel can, at the request of the defence, ask for the three-day statutory delay. The judge has no discretion: he must allow a three-day delay before hearing representations on temporary release, while awaiting the continuation of proceedings.
Would you be satisfied with a provision which, immediately after the guilty verdict, would force the Crown to make its bed immediately? I have a feeling that it would give itself as wide a berth as possible, that is that it would indicate to the court its intention to take the six-month period to avoid double sentencing.
[English]
Mr. Koziebrocki: I would be content with that decision being made after the finding of guilt. I still have some problems with the six months. That's a long time to make a decision as to whether you're going to go ahead, because once you make that decision, then the process goes into effect, and the process isn't just a minor process. It can take six months in itself, in the sense that you then have to send somebody off to Penetang, for example, to be tested by psychiatrists. The defence will want to have the accused person tested by their psychiatrist. They will want to exchange reports. Then you have to bring the people back, and the hearing takes ten days or whatever. You're talking about a year or a year and a half before this whole process is completed, and the accused is sitting in jail, I would expect, during that time. These are not the types of people who would be out on bail.
So yes, I like the idea of the Crown making that decision within a very short period after the finding of guilt. I don't like the fact that they need six months to make that decision. That is a long time.
We have to remember that when the police and the Crown sit down at the beginning of the trial, they've prepared their case. They have a pretty good idea as to who they're dealing with at the time that kind of case is going forward. It's not that they haven't had the time or the energy to look and decide whether this is the type of person who should be seriously prosecuted.
[Translation]
Mr. Langlois: You were very eloquent in your review of the peace bond in clause 215 of the Criminal Code. We have a fairly improved peace bond, especially the one provided for in clause 810.2. In our criminal law tradition, there are both guilty and innocent parties, the latter being more numerous than the others, if only because of the presumption of innocence. It seems to me that we are creating a grey area, where there would be people who are not really guilty, but who are not really innocent either. Even without a guilty verdict against these people, measures could still be taken against them as if they had done something criminal, because of the provisions of clause 810.2.
.1625
The other day, I said to one of the witnesses that it might well be, in a trial before a judge alone, and with the consent of all parties, that after an acquittal decided upon by a judge, that all of the evidence could be resubmitted to the judge, with the consent of the prosecution and the defence, asking the judge to rule by applying clause 810.2. The judge, having decided on an acquittal, could tell the accused that he is acquitted, but that, because of clause 810.2, the preponderance of evidence leads him to believe that the accused probably did commit the crime, that he was acquitted on grounds of reasonable doubt, and that now he will have to give sureties to keep the peace, in accordance with the broader provisions of clause 810.2.
I can foresee a certain amount of apprehension because of the grey areas that would allow for all intents and purposes to convict whole groups of people who have not been found guilty of any crime. It seems to me that it's a fundamental tenet of our laws to ensure that guilt is established before anyone is convicted.
When I taught criminal law, I usually asked my students a question that I could also ask you. I think you will have the answer. I said: what type of sentence...
[English]
The Chair: And you will have exactly five minutes to answer.
Mr. Koziebrocki: My pen is drying out.
[Translation]
Mr. Langlois: What type of sentence should be given to a person who has just been acquitted of first degree murder for the third time? Can you believe that about 70% of students answered that the person should be condemned to life imprisonment for a minimum of 25 years. I of course explained to them that in our society, we don't usually convict people who have been found innocent.
If I go back to teaching, I will probably revise my ideas about law, having experienced the35th Parliament. I'd like you to tell us your feelings - that's the word that I will use - with respect to these grey areas that seem to be appearing. Perhaps you don't see them in the same way or perhaps you don't see them at all, but I would like to know how you feel about it. That will be my last question.
[English]
Mr. Koziebrocki: The way I look at it is this. The common law peace bond has always applied to a situation where you're dealing usually with a personal thing, an interplay between two people. So when you decide a peace bond is an appropriate remedy to use in that situation, it's often a personal thing. Even though there is a judge there, it's between those two people, and most people are content to deal with it on that basis. It gives them that assurance that things will go appropriately.
What's happening here is that this is not a personal thing; this is a community thing. This is a person who has not been found guilty of any criminal act being put up against the community and being stigmatized: you are someone we think is a danger to the rest of us, and therefore when we put this bond on you, we're basically ostracizing you. We're putting you over there, and we're putting bracelets on you, and we're putting reporting conditions on you. That's the difference. Between two people, most people can live with that type of situation because it's an appropriate accommodation, but when you set someone up against the community as a whole when they haven't been convicted - and we all know that when someone is found not guilty it doesn't mean they're innocent, it means they haven't proved the case. So as you say, a judge could well find that person to be someone you would impose this kind of peace bond on. Effectively, you stigmatize that person as to the rest of the community.
The Chair: Thank you, Mr. Langlois. Ms Clancy is next.
Ms Clancy (Halifax): I'm jumping in on this, tagging in on what you said. This is something that is close to my heart. I brought in a private member's bill when I was in opposition to toughen up peace bonds, and I absolutely understand your point. I also know you're not here to flog the horse that I'm interested in riding, but you are here, so here comes the horse. In honour of Ms Cohen's birthday, I thought I'd liven up the proceedings.
.1630
While I see what you mean about stigmatizing someone, I do, to a degree, take exception to your comment about the peace bond as a personal thing. I know what you mean. Nonetheless, what gave rise to my private member's bill a couple of years ago was a situation that happened in Sydney, Nova Scotia, where a man had been put in jail several times for varying periods of time for menacing his wife, either on assault charges or ``assault causing'' charges or whatever. She finally got the peace bond. He attacked her in a mall, and the only reason she was able to get away from him was that she held on to a pipe and eventually he left her alone.
When she got to the police station to lay a charge for this most recent incident, she discovered that he had already gone in and laid a charge of assault against her, and she was not getting much chop from the police on the whole thing. The tragedy was that two nights later he broke into her apartment and killed her.
While I understand your point about all of this, we are left with a dichotomy in the law. We're left with an inability to fill the gap. I absolutely am wedded to the idea of someone being innocent until proven guilty and all of this, and not punishing for crimes that people have not been convicted of. Yet what do we do with this anomaly that we are faced with, particularly in the realm of violence against women?
Mr. Koziebrocki: There's nothing in this legislation that's going to solve the problem you've confronted me with. That problem was a systemic problem. The police should have charged him if there was an allegation of assault. They should have held a bail hearing, and they should have tried to keep him in if that was appropriate. If he breached that, they should have breached him.
We're talking about there being a system available, and what happened here is that the system didn't work because of whatever reason - the police didn't want to do their job, or she didn't want to pursue the criminal charges. No electronic bracelet would have made one iota of difference as to whether he would have broken in and killed her. I still have some difficulty in knowing what this electronic bracelet is intended to do, whether it can even tell you where someone is, other than that maybe it beeps. There's nothing this type of provision can do. The system exists, if it's used properly, to prevent that. There are victim impact people in the courts now who could say to that women or people like her, look, this is a potential here; you have to look out for yourself, so go into that court room and swallow hard and tell the judge what this guy has done to you.
Ms Clancy: Yes, but with the greatest of respect, that happens. I don't think it's that cut and dried from the point of view of the victim.
I think what we're trying to do here is seek out a solution for something that may not have a readily available answer, but with respect, the system doesn't work particularly well. That scenario that you just set out doesn't necessarily work.
Mr. Koziebrocki: The system works better than it used to work.
Ms Clancy: Better, but not -
Mr. Koziebrocki: Yes, it does.
Ms Clancy: No, I don't disagree that it doesn't work somewhat better than it did maybe when I graduated from law school 22 years ago. The idea of the bracelet is appealing in one sense to our sense of control, but I think you may be right, it may not have any other -
Mr. Koziebrocki: I think this is more science fiction than reality that we're talking about.
Just so I can say this, having lived for the last 22 years with a prosecutor - my wife and the mother of my four children - I think the system works better than it used to. They're less likely to have charges withdrawn. In fact, they will not withdraw charges any more.
Ms Clancy: I know that.
Mr. Koziebrocki: You know that. So they won't withdraw charges, and they'll force the woman to come into court and say -
Ms Clancy: I know that, too, yes.
.1635
I see the points of your argument, but I think on the other side there is a terrible feeling in certain segments of an utter inability to get a handle on this kind of crime. I think, to some degree, the perception of control may be what's happening here.
Mr. Koziebrocki: I think there are other things you can do, though. Educational programs not only for battered wives but for battering husbands and that kind of thing would be an appropriate condition that can be imposed in the criminal court.
Ms Clancy: Then enforcement is still our biggest problem.
Thank you. I'll stop harassing you.
The Chair: I'm going to piggyback on your point and say this. We had a gentleman here from the Clarke Institute the other day. We've had substantial evidence on the predatory sexual offender, who is the person we're trying to get at here, by and large.
I believe there's a sense out there in the public.... First of all, I think the public believes there are more of these cases going on than in fact there are. The flip side of that is, as the victims who spoke to us this morning said - and they do have a point - if there's one case, then that's one too many. Given that the numbers have remained sort of constant over the years, people are looking to us, and we're looking, to try to find a mechanism that can assist us in controlling these things.
With that background and with that as a goal, then the problem for us becomes this. We know these people exist. We know they're small in number, but they wreak havoc when they strike. We know there's a certain level of predictability about their behaviour and that we're now in a better position in terms of social science, or medicine, or psychiatry, or whatever, to predict when someone is going to react in this way.
What the justice minister is proposing, using section 810 as amended, is a way to exercise some control over that kind of person. If this isn't the way to do it, then what is the way?
We have a certain level of predictability of behaviour, and we have devastating consequences. If we know it's going to happen, if we have a probation officer or a social worker or a cop or a psychiatrist or a psychologist who knows that this is a walking time bomb and that it's likely to happen, then we'd like to give them some tools to cope with that.
I accept much of what you say, but I think we're on the horns of quite a dilemma here, where somebody has not been charged or convicted of an offence.
Mr. Koziebrocki: That's probably why this long-term probation is a good idea. It's a tool you can use properly to cover an extended period of time with substantial consequences, assuming that it's done properly. That would allow you to pull somebody in if they were ever in a position to commit the type of offences that you're suggesting.
As for the peace bond, first, it's not aimed necessarily at those sexual predators you're talking about; it's aimed at everybody who has a violent disposition, or a potentially violent disposition. That includes the common drunk who gets ornery when he has a few drinks in him, and everybody knows that he gets ornery when he gets a few drinks in him. It's that aspect of criminality, or lack of criminality, that causes real concern when you're asking someone to impose what are restrictions of substance.
Can I ask what this bracelet is supposed to do? Has anybody told you what this bracelet is supposed to do?
The Chair: You're just awfully pushy, aren't you?
Mr. Koziebrocki: I know, but I just can't figure it out.
The Chair: We're going to hear from the manufacturers next week. I think there's a substantial question about that. Just as background, we also had a fellow - I don't know if it was earlier this week or sometime last week - who said there are some substantial problems with them. You can have the person wearing a device that will cause a signal.... Let's say there's a known victim, a potential victim, a spouse or somebody that's been stalked. They could have an alarm in their house, and then if the person got too close the alarm would go off and she or he would know they were in danger.
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The problem is that the alarms sometimes are set off by microwaves or other activity. So you would have a series of false alarms, or you would not be able to prove in a court of law that in fact he had been that close, because he could drive by, harass the person and be gone, and no one would know whether he had been within so many yards of her house, and that sort of thing. There's that aspect to it.
I suppose the other side of it is that some people are concerned that you could take this to its logical absurdity and you could have a person who has never been charged with an offence living under house arrest because of the danger that he's going to - in fact, these are mostly male offenders - commit this offence. That's the extreme that people like Mr. Borovoy and others, and some people around this table, are concerned about.
Mr. Koziebrocki: Can I say this, though. You might want to consider, assuming these things work, that when you're talking about any type of probation after someone has been convicted of a criminal offence, why you can't use that kind of system at that point. At that point, the stigma doesn't exist; you've committed a criminal act.
Let's say it's against a specific person, and you have a vendetta, or it's a former spouse or a spouse who is fearful for their life, and one of their concerns is once that person is released from prison they would attack them. I don't see anything wrong with that kind of situation if it works and it's appropriate. But given the way things work in Toronto, it would cost you $75 for a false alarm, you know.
The Chair: I know.
Until one of my colleagues stops me by signalling that they have questions, I would ask you this as well.
One suggestion that has come to us from the Canadian Police Association, I think, and this morning from Steve Sullivan, who is with the Canadian Resource Centre for Victims of Crime, and from a couple of others is that we restrict this kind of application; that we set categories of background information that a judge would need to have in order to make a decision that somebody should be liable to an order under section 810; and that we restrict it by perhaps a condition that this person must have had a conviction in the past for a similar offence, or something like that.
The problem I have with that intellectually is that it seems to me, then, you are adding a sentence after a sentence has been served, and I think we would be looking at a charter application if we only did it there.
Yet it seems to me that's exactly the kind of person we should be trying to control - somebody who's been convicted, who's finished their sentence and is still a danger. That particular person is the person I think we're always trying to.... We know they exist, and there's certainly predictability in terms of their behaviour. The sentence wasn't long enough, and we're going to be able to catch them now. There will be a few hundred, maybe a few thousand, people in jail in Canada who could be susceptible to that. I suspect that's one area we're trying to get at.
You're nodding, so I guess you would agree with me that it would certainly be challengeable on that basis.
Mr. Koziebrocki: I would think so. That's back to the issue of sentences being final.
The Chair: Yes.
Mr. Koziebrocki: If you provide now for longer-term probation with types of conditions like that, then you'll be catching those people. You have a series of tools that exist right now for people who are in jail. They may not be as satisfactory as you would like. Unfortunately, you can't necessarily catch everyone in this situation -
The Chairman: No.
Mr. Koziebrocki: - but those tools will be available to you.
The Chair: Okay.
Mr. Langlois, did you have some questions?
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[Translation]
Mr. Langlois: You have probably read Ms Meredith's Bill C-254, which, if memory serves, allows, for all intents and purposes, the renewed conviction of a person before the full sentence has been served, if it is felt that the person will re-offend.
Truthfully, if we can determine that the pith and substance of Bill C-55 is to do the same thing by imposing indeterminate sentences, would this not be subject to a constitutional challenge? Are we not doing indirectly what the law does not allow by imposing a double sentence when it is obvious that an indeterminate sentence is for all intents and purposes a measure to allow an almost perpetual re-evaluation, while giving no security to the person who has been found guilty of an offence?
[English]
Mr. Koziebrocki: I don't think you can sentence somebody twice for the same thing. That has to be unconstitutional. It is right in the charter that you get one shot at it and that's it, and that's why you have appeal provisions if you don't like what the sentence is. That applies to both the Crown and to the defence. It sounds to me like the Homolka type of amendment to the Criminal Code - we didn't like what you did the last time; let's try it again. It just doesn't work that way.
It would make my job terrible because - not that you really care about my job but -
The Chair: We're just doing all of this to give you guys more work.
Mr. Koziebrocki: Well, I know that, and I appreciate it.
The Chair: All right.
Mr. Koziebrocki: And you know I practise in the court of appeal a lot, so....
The Chair: I know, so we'll give you a lot of work to do.
Mr. Koziebrocki: That's true.
But it would make it terrible when I had to tell a client what that client was facing when they came to court. Effectively, it would make it, for a client, the most difficult of situations. I would think that if you were not able to tell a client what the parameters of the sentence that was going to be imposed was, then nobody would plead guilty to a criminal offence. Why would they? If there's no predictability, if there's no give and take in terms of what happens, everybody would go to trial because there wouldn't be any benefit to pleading guilty. That system could not work. We all know that our system works on the basis of 90% guilty pleas.
The Chair: Mr. Telegdi.
Mr. Telegdi (Waterloo): Thank you, Madam Chair.
Getting back to your electronic bracelets, the only place I would see that actually being applicable is if you have somebody under house arrest. Say you have a curfew; you have to stay at home at this and this time. If the beep doesn't go off, given that they're only about 85% accurate, then you would have to dispatch somebody to the house who could verify that the person was not there. I'm not totally sure how you would do that, because you would actually have to be able to physically check on the house. But you could go to the house, and if the person was there you would obviously not proceed with charges. But you could take that kind of physical presence to be able to prove it in court, given that the person said, I believe, that they were only 85% accurate.
But the thing I wonder about is this. Many times I have had occasion to take people down to the emergency clinic at a hospital when they really were quite psychotic. Then you're faced with a situation where the people say, sorry, we're not going to admit them because our facilities aren't equipped to handle somebody who's psychotic.
This is a problem that's faced by people in social work. The police face it all the time. Invariably what happens is that the people taking them down to the crisis clinic.... They start out quite rational when the process begins, and after the whole thing breaks down after six hours, the client usually calms down and the person who has tried to get them admitted is in a crisis by this point.
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The Chair: These people who are psychotic - is it anyone we know? This doesn't happen in Ottawa, does it?
Mr. Telegdi: I'm not speaking about experiences in Ottawa.
It strikes me as a problem. Some of this stuff you should be dealing with is under the Mental Health Act, and we don't seem to have the capabilities or the resources to do that, not even where the person is actually willing to be admitted and you can't get them admitted.
Mr. Koziebrocki: Most doctors, at least from my experience, are loath to admit somebody under the Mental Health Act.
Mr. Telegdi: But even voluntary admission, where somebody says he will go in?
Mr. Koziebrocki: They are still loath to do it because of the ramifications of admitting somebody. Literally, you have to make a finding under the Mental Health Act that the person is incompetent at that time. I've seen the documentation. You have to tick off all the right boxes, which literally say that person is incompetent at the time. A lot of doctors aren't prepared to do it, first, because of resources, and second, because they may feel that at some point they may be sued because they found someone incompetent. They will kick him out as fast as they possibly can.
But that's a provincial problem, isn't it? I thought it was.
The Chair: Yes.
Mr. Telegdi: Well, yes, but here you have an individual who says, I'm having problems and I want to get myself admitted. You have cases where they say, well, sorry, you are too psychotic for us; we're not going to take you.
The Chair: Steps have been taken by the Solicitor General, I think, to have the provinces take a look at some kind of uniform mental health act so there can be a uniform mental health approach to some of these things. But my experience is like yours. I'm sure I recall the Solicitor General or the Minister of Justice commenting on the reluctance of doctors to come to grips with these problems because of the huge liability concerned.
Mr. Koziebrocki: I just did a murder appeal in the court of appeal - it's now on reserve - where a young fellow tried to get into hospital, and he was truly psychotic at the time. They kept him for a day and they kicked him out. A week later somebody was dead.
The Chair: Mr. DeVillers.
Mr. DeVillers (Simcoe North): On that point about the reluctance of doctors, in the 1960s I worked at the mental health centre in Penetanguishene. In those days they had 300 people at the Oak Ridge Division. Now they're down to about -
Mr. Koziebrocki: Doctors or inmates?
Mr. DeVillers: Patients. They're down to about 150, and there seems to be a reluctance to certify people under the Mental Health Act. Also, a lot of people transferred from the correctional system were certified in Kingston and elsewhere.
Is it the liability issue, in your opinion, that is discouraging the psychiatrists from doing that, or is it charter considerations that have intervened in the thirty years since I was there? What is the reason for that, in your opinion?
Mr. Koziebrocki: Because there are fewer people in -
Mr. DeVillers: There don't seem to be as many people getting into the mental health system, and they might be some of the people we're trying to deal with here, the targeted people, the sexual predators, etc.
Mr. Koziebrocki: I think the reason there are fewer people has nothing to do with doctors. It has to do with the fact that juries are loath to find someone not guilty by reason of insanity, or not criminally responsible. They just won't do it.
You can have cases where you have all the doctors saying this person was not responsible for their actions, and juries will still convict. They look at it a way of getting out of the responsibility for committing a criminal act, even though you may be lawfully insane or insane in the medical sense.
Mr. DeVillers: Yes, but then these people would be held indefinitely under the lieutenant-governor warrants and it would be reviewed annually.
Mr. Koziebrocki: But the fact is they don't go there, they go to Kingston Penitentiary. That's where they go. And if you go to Kingston Penitentiary, there are probably just as many of the people you would have expected to be in Oak Ridge in Kingston Penitentiary.
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The Chair: Certainly anybody who has practised criminal law, Crown or defence, has come up, I would think, on a weekly basis with people who really shouldn't be in the criminal justice system but who are just plain nuts and need assistance and can't get it the way they could before. Ms Clancy points that some of those are on the bench.
Mr. Koziebrocki: No comment.
The Chair: You just had some publicity around a dangerous offender's application.
Mr. Koziebrocki: One of my few victories.
The Chair: Oh, he's brought his clippings. Don't you love criminal lawyers?
I was going to ask you to tell us about that, but also, Mr. Koziebrocki, maybe you could tell us his background, how many of these applications you've done, and just give us a little outline of how they go.
Mr. Koziebrocki: This one I took to the court of appeal. It was a matter where an accused person was convicted of a series of sexual assaults against a young lady who was related to him. The evidence was from a young lady who had some mental disabilities. There was some evidence that she had, in the past, falsely made accusations of sexual assault and been found guilty of making false accusations of sexual assault with respect to another matter.
There was a jury involved and this jury convicted this fellow, who had a prior conviction for sexual assault of a serious nature. The matter then took about a year to wind through the dangerous offender application, and he ended up spending approximately seven years in jail before we finally we were able to finish with it in the court of appeal, and the court of appeal quashed the conviction.
Now, they didn't deal with the dangerous offender, because they found enough serious things wrong with the conviction. He was then shipped from Kingston back to the Parry Sound area, where he was in custody for another three months before the Crown finally decided they were not going to prosecute him again. He was freed last Thursday, I believe, or Friday. I was down south, so I....
Ms Clancy: Well, that in itself shows your success.
Mr. Koziebrocki: Yes. But don't take headlines as being the truth of the matter. This is a situation where clearly the trial was wrong. There were some real, serious considerations about whether these events could have actually taken place, because factually it was almost impossible for them to have taken place. The young lady, after the alleged sexual assault, went out and had sex with another person whom she picked up that same day, so it was not a.... It was a case that was fraught with difficulties.
But there's a situation where a dangerous offender application took place and there's no doubt that there was evidence that could be used as a basis for that kind of application. But the consequences are so serious that you have to consider very seriously whether to apply this type of legislation. The effect can be very dramatic.
The Chair: Are these applications being used with any greater frequency now, in your experience?
Mr. Koziebrocki: I've been practising for about 22 years now, the first 10 with the criminal appeals and special prosecutions branch of the attorney general's office. We never saw this. Now they're much more frequent.
Now, I'm not saying there are loads and loads of them. They're much more frequent. I believe I'm working on the third one, an appeal-type setting, in the last little while, and before that I never saw them. It was a rare occasion to see them.
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So yes, they are being used more frequently, but statistically there aren't great numbers.
The Chair: Your experience is limited to Ontario?
Mr. Koziebrocki: Ontario.
The Chair: Okay.
Ms Clancy: [Inaudible - Editor]
The Chair: No, Windsor is the centre of the universe, but it's located in Ontario.
Now, are there any other questions? I've not been following our normal rules today. Did you have any other questions, Mr. Langlois? Thank you.
Well, thank you very much. It was an interesting session for us. We appreciate your time.
We're adjourned.