November 9, 2006

BQ

Serge Ménard

Bloc Québécois

Mr. Serge Ménard

Mr. Speaker, I do not think there are fewer drugs or less pornography, but in my experience, I do not think I know anyone who prevents their children from going to the park for fear they will be attacked. And if that really happens in Quebec, the reaction is instant: more police are sent on patrol. I think that is a lot smarter.

The solution is not to hit hard, but to hit effectively. Being effective means trying to understand why people commit crimes and to address the root of the problem.

I do not have a lot of time to explain it, but that is the difference between Quebec and Canada. Thank God we have less crime in Quebec. It would be possible to have even less if they took our example.

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Rob Moore

Conservative

Mr. Rob Moore (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, CPC)

Mr. Speaker, I will be splitting my time with the member for South Surrey—White Rock—Cloverdale.

We have heard all the rhetoric from the other side time and time again. I have seen this in committee. I have the privilege to serve on the justice committee. We have seen on Bill C-10, which would bring in mandatory minimum penalties for gun crimes, how all of the opposition, the NDP, the Liberals and Bloc, are united in opposing getting tough on crime, even though the NDP and the Liberals ran on a platform in the last election of getting tough on crime. Actually, they were promising to bring in measures that were even tougher than what our bill contains. For them to now say that our bill goes too far, is ridiculous.

We saw the same thing with Bill C-9, the bill that would have brought an end to conditional sentences for people who commit serious crimes, like arson, break and enter into a home and car theft. Again the opposition ganged together to gut that bill.

I think Canadians are saying enough is enough. Three of the four parties in the House were elected with a mandate to get tougher on crime. The NDP, the Liberals and the Conservatives said that we would get tougher on crime.

A few months later, we brought forward Bill C-9 dealing with conditional sentences, Bill C-10 dealing with mandatory minimum sentences, and legislation dealing with raising the age of protection. When our party is putting forward the legislative initiatives to protect Canadians, we see the opposition parties dragging their feet, standing in the way and flip-flopping, when they should be cooperating with us so we can make Canada safer.

I reject the premise of some of the remarks today that crime is not getting worse. The crime statistics that were just released yesterday say that violent crime is up, gun crime is up and gang-related crime is up. I do not say that to be an alarmist. It is just that we on this side of the House have decided that we will face the facts that Canadians want us to take crime seriously, that crime is serious and that effective measures need to be put in place.

I want to speak today to Bill C-27, a bill involving dangerous offenders, a bill that addresses the worst of the worst, as it were, when it comes to criminal offenders, those who prey on innocent Canadians, those who have been shown to be perhaps repeat offenders and those who commit the most serious crimes. This is not about any low level crime. It is the most serious crimes and the most serious offenders.

The bill responds to our government's goal of tackling crime by strengthening measures to protect families from offenders who are of a high risk to offend sexually or violently in our communities. Most of these amendments are the result of changes that the provinces, the territories and other stakeholders, including victim's groups, have supported. That is important to note.

The bill amends the dangerous offender and long term offender provisions, as well as sections 810.1 and 810.2 of the Criminal Code dealing with peace bonds.

The dangerous and long term offender amendments in the bill seek to strengthen and enhance those provisions. One of the amendments deals with applications for a dangerous offender hearing under part XXIV the Criminal Code. It requires a prosecutor to advise a court, as soon as possible after a finding of guilt, which is important to note, and before the sentence is imposed, whether it intends on proceeding with an application.

However, for this provision to apply, the prosecutor must be of the opinion that the predicate, or current offence, is a serious personal injury offence as defined in the code, and the offender was convicted at least twice previously of a designated offence as newly defined in section 752, and was sentenced to at least two years of imprisonment for these prior convictions. This person has to have committed a serious crime for which he or she were tried and sentenced twice before for this particular provision to come into play. When that is the case, the crown prosecutor must indicate whether he or she will be pursuing the designation of dangerous offender.

Another amendment ensures that a court cannot refuse to order an assessment where it is of the opinion that there are reasonable grounds to believe that an offender might be found to be a dangerous or long term offender. This was a technical amendment recommended by provincial and territorial ministers of justice.

The bill also imposes a reverse onus on the offender in some situations where a crown prosecutor has sought a dangerous offender designation. If a prosecutor is able to satisfy a court that an individual was convicted of a third primary designated serious sexual or violent offence, one of the most serious offences under the Criminal Code, the crown is deemed to have met its case that the individual is a dangerous offender and the individual must then prove on a balance of probabilities that he or she does not meet those criteria. We are shifting the onus, after a third offence, on to the offenders to show why they should not be designated as dangerous offenders. This brings some balance and fairness into our system.

However, the bill also clarifies that even when the conditions to make a dangerous offender designation have been met, the court must consider whether a lesser sentence, including a long term offender designation, would be adequate and neither the prosecutor nor the offender has the onus of proof in that matter.

These amendments clearly strengthen the dangerous and long term offender provisions and will ensure that prosecutors can more readily seek a designation for violent and/or sexual criminals who will in turn receive some of the toughest sanctions in the Criminal Code.

I also want to touch on peace bonds. Bill C-27 seeks to amend the provisions related to section 810.1 peace bonds for the prevention of sexual offences against children. The member for Wild Rose spoke passionately about his desire to protect children from sexual offenders and this bill deals with just that. I commend him and all members who have taken this up and are concerned about protecting children. Also, section 810.2 peace bonds target more serious violent and/or sexual offences.

These types of peace bonds are preventive in nature. They are instruments that are available to law enforcement officials to protect the public. It is not necessary for an offender to have committed a criminal offence for a judge to make such an order. These orders require individuals to agree to specific conditions to keep the peace and be of good behaviour. They aim to protect individuals and the general public from persons who are a danger of committing sexual offences against children or are likely to commit a serious personal injury offence. These situations we know all too often do exist.

Once granted, failure or refusal to enter into peace bonds could result in an immediate term of imprisonment not exceeding 12 months. They can be renewed and breaches of any of the conditions in the peace bond would be considered a criminal offence and can be prosecuted in any provincial or territorial court with criminal jurisdiction, providing up to a two year prison sentence.

Specifically on a peace bond, where there is fear of a sexual offence, the current section of the code allows anyone who fears, on reasonable grounds, that another person will commit an offence under specific provisions of the code against a person under the age of 14 years, may lay an information before a provincial court judge for the purpose of having the defendant enter into a peace bond. The specific offences covered include sexual assaults, sexual assaults with a weapon, sexual interference, invitation to sexual touch and child pornography offences.

Obviously, those are very serious offences and this bill seeks to protect young children from them. The peace bond can set out certain areas, for example, where an offender is not allowed to go.

Bill C-27 also clarifies and outlines several additional conditions available to a judge if the judge considers it desirable to secure good conduct from the offender.

Our new government was just elected in January. We said that we would tackle crime to make our streets safer. What is a bit ironic is that the NDP and the Liberals also said that they would take steps to tackle crime but we have seen no evidence of that so far in this session.

Bill C-27 is one of the many initiatives the government has taken toward attaining the goal of making our streets safer. We consider offenders, who are at high risk of offending sexually or violently, to be a very serious threat to public safety.

I support this bill, as do all members on this side. I hope other members of the House will see how important these provisions are and how they are necessary measures that can be implemented as soon as possible to protect Canadians, protect children and protect society from the worst offenders.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
CPC

Myron Thompson

Conservative

Mr. Myron Thompson (Wild Rose, CPC)

Mr. Speaker, what a pleasure to hear a speech that makes sense on this particular issue. It sort of gives one a little more confidence after what has been happening over the past little while.

I wonder if the member could comment on what happened in my riding during the last election. I think most people in this place know that I have been working on a lot of justice issues for quite a few years. Yes, I am pretty passionate about some of them, particularly crimes against children. However, when I was campaigning in the last election we hardly ever entered into any debates on the subject because the Liberal candidate and the NDP candidate could only agree and cheer along with me on everything that I said with regard to getting tough on crime. I thought to myself that this would work out pretty good because, if I and my party went back to Parliament as the government, we would get things done knowing we had the support of the guys on the left. I thought this was looking good for Canada but, from what I am hearing today, it is looking sad for Canada. I wonder if the member would agree with me.

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Rob Moore

Conservative

Mr. Rob Moore

Mr. Speaker, I have consulted with many of my colleagues and we found, disturbingly, that was the case in many of our ridings. I know it was the case across the country. It was certainly the case when we looked at the platforms of the national parties because both the NDP platform and the Liberal platform called for getting tough on crime.

I want to use one quick example. Our bill on mandatory minimum sentences would bring in, for the most serious offences involving gun crimes, three, seven and then ten year escalating sentences. The proposal put forward by the NDP was to have a four year mandatory minimum sentence for any firearms offence, serious and non-serious, on the first offence. The Liberals were proposing a doubling of the current mandatory minimum sentence from four years to eight years. Our bill brings in what we feel are constitutional measures, proportional measures, escalating so that on the first offence the sentence would be less severe than on the second and so on. It ramps up in severity. The more someone repeats the offence, the more severe the penalty.

The NDP and the Liberal platform went way beyond what we are proposing right now and yet they are not supporting any of our legislation that is designed to protect Canadians. Why will they not get on board?

Topic:   Government Orders
Subtopic:   Criminal Code
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NDP

Pat Martin

New Democratic Party

Mr. Pat Martin (Winnipeg Centre, NDP)

Mr. Speaker, I just have to point out, from an NDP point of view, that sometimes the government does not go far enough in getting tough on crime.

My colleague has not been listening if he has not heard some of the speeches from colleagues on the benches at this end of the House on the bill seeking to seize the proceeds of crime, the assets of terrorists, because we cannot understand why the government has gone soft on that bill. We think we should be able to seize the proceeds of crime, whether it is a motorcycle from the Hell's Angels or some other item from an organized crime figure. We should not just be able to seize their bank accounts. We should be able to seize their luxury mansions, their speedboats and their tricked out Escalade cars. If they cannot prove they purchased those luxury items through legitimate earnings, we should be able to seize them and put the reverse onus on the crook to prove they did not buy them through the proceeds of crime.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
CPC
NDP

Pat Martin

New Democratic Party

Mr. Pat Martin

I am only pointing this out, Mr. Speaker, because the member down there wandered way off the subject of the day to accuse us of not being tough enough on crime when in actual fact it is those members who are going soft on organized crime. I do not know who they are worried about making angry.

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Rob Moore

Conservative

Mr. Rob Moore

Mr. Speaker, that is a little rich. I can understand the hon. member's concern about his party having a record of being soft on crime. We only need to look at the evidence. The Liberals, the NDP and the Bloc are ganging up in committee to frustrate any attempt to get tough on crime. They gutted Bill C-9 on conditional sentencing. They opposed mandatory minimum sentences when they said during the election that they would be in favour of them. Now, on Bill C-27, which deals with the most violent and most serious offenders, people who have a third time serious offence, those members are not willing to get tough on these individuals. However, we are.

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Russ Hiebert

Conservative

Mr. Russ Hiebert (Parliamentary Secretary to the Minister of National Defence, CPC)

Mr. Speaker, I rise today to speak to Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace).

Our government has already presented a number of important measures aimed at furthering our key election commitment to tackle crime. Among many other promises in our election platform, we said we would “create a presumption-of-dangerous-offender designation for anyone convicted and sentenced to federal custody for three violent or sexual offences”. Bill C-27 seeks to fulfill this specific election promise. We said we would do it, and we are doing it.

Our Conservative government believes in treating criminals justly, but justice demands that after repeatedly offending against society, violent criminals must be stopped. After three strikes, the onus is on the violent criminal to prove he is no longer a danger to society. We do not believe in the revolving door justice that the Liberals promoted over the past 13 years, a system whereby serious offenders were able to commit violent and sexual crimes repeatedly and then were set free repeatedly to victimize even more Canadians.

We believe the primary responsibility of government is to protect Canadians. That is exactly what Bill C-27 will help us do. Bill C-27 strengthens existing measures that are available to protect our loved ones, our neighbours and our communities from repeat offenders.

I am going to get into some technical aspects of the bill, but they are actually very important.

The first portion of the bill deals with applications for dangerous and long term offender hearings under part XXIV of the Criminal Code. The amendments impose a duty on prosecutors to advise a court whether they intend to proceed with a dangerous or long term offender application as soon as possible after a finding of guilt, and before sentencing, when the following criteria have been met: first, they are of the opinion that the predicate or current offence is a “serious personal injury offence” as defined in section 752; second, the offender was convicted at least twice previously of a “designated offence” as newly defined in section 752 and was sentenced to at least two years for each of those convictions.

Under the current legislative framework, a court will order a designation hearing based on whether the individual has been convicted of a serious personal injury offence and whether there is a reasonable likelihood that the individual will be found to be a dangerous or long term offender.

An amendment recommended by provincial and territorial ministers of justice ensures that a court cannot refuse to order an assessment when it is of the opinion that there are reasonable grounds to believe that an offender might be found to be a dangerous or long term offender.

As well, an amendment is made to mandate a court, following an application by a prosecutor if there are reasonable grounds to believe that the offender might be a dangerous or long term offender, to order a psychiatric assessment before the hearing can proceed. This was previously done at the discretion of the court, but no longer.

Another amendment allows the court to extend up to 30 days the period within which a report must be filed if there are reasonable grounds to do so.

Of particular interest to members of the House may be the amendments in the bill providing for a reverse onus in dangerous offender designation hearings.

The amendments provide that the Crown is deemed to have satisfied the court that the offender meets the prerequisites for a dangerous offender designation once the court is satisfied of the following four principles: that the offender has had two prior convictions from the new list of 12 serious sexual or violent primary designated offences in section 752; that the previous convictions carried a sentence of at least two years; that the current or predicate offence must also be one of those primary offences; and finally, that the predicate offence would otherwise merit at least a two year sentence.

There are some serious hurdles here that need to be overcome, but we are confident that they can be overcome.

However, the amendments give the offender an opportunity to rebut this presumption on a balance of probabilities. The bill also clarifies that even when the conditions to make a dangerous offender designation have been met, the court must consider whether a lesser sentence, including a long term offender designation, would be adequate, and neither the prosecutor nor the offender has the onus of proof in that matter.

These amendments will enable prosecutors to more readily seek a designation for violent and/or sexual criminals. They will also encourage consistency in prosecuting when considering a dangerous or long term offender designation.

I would now like to speak briefly about the amendments to the provisions dealing with peace bonds. Bill C-27 amends section 810.1, dealing with peace bonds for the prevention of sexual offences against children, and section 810.2, dealing with peace bonds for more serious violent and sexual offences.

Peace bonds are tools available to law enforcement for public protection against high risk individuals who are likely to commit a sexual offence against children or personal injury to others. Current sections 810.1 and 810.2 of the Criminal Code may allow anyone who has fears on reasonable grounds to lay an information before a provincial court judge for the purpose of having the defendant enter into a peace bond to keep the peace and to comply with any other conditions the court might impose that are designed to protect the public from future harm.

The section 810.1 peace bond is designed to protect against sexual offences against children under the age of 14, while section 810.2 targets individuals who may commit “a serious personal injury offence”. A serious personal injury offence is defined in the Criminal Code as including offences that are pursued by way of indictment, such as first degree or second degree murder involving violence, or conduct endangering or likely to endanger life or safety, or where the offender could be sentenced to 10 years' imprisonment or more.

Alternatively, a serious personal injury offence also includes a conviction for sexual assault, sexual assault with a weapon or aggravated sexual assault. Under the current legislative framework, a judge may order that a person enter into either of these peace bonds for a period not exceeding 12 months if the judge is satisfied that the informant has reasonable grounds to fear that another person will commit a relevant offence. This means a sexual offence against a child for the section 810.1 peace bond or a serious personal injury against another person for the section 810.2 peace bond.

The amendments that we are bringing forward significantly extend the maximum duration of these peace bonds, from 12 to 24 months in certain situations.

For the section 810.1 peace bond, this longer peace bond will be available where a judge is also satisfied that the person was convicted previously of a sexual offence in respect of a victim who is under the age of 14.

For the section 810.2 peace bond, the longer duration can apply where the court is satisfied that the offender has previously been convicted of a serious personal injury offence. Currently, the judge can also order that the defendant comply with any conditions that are reasonable in the circumstances to ensure the offender does not commit harm. These often include conditions to not have contact with potential victims or to stay away from certain places and to report regularly to the police or probation workers.

The amendments that we are putting forward will clarify that broader conditions can be imposed on defendants than those that are currently described. The additional conditions outlined in the amendments relating to both types of peace bonds include requiring a defendant to, for example, participate in treatment programs or wear an electronic monitoring device if the Attorney General consents, or remain within a specific geographic area unless permission to leave is granted by a judge, or remain at a residence at specific times, or abstain from consuming illegal drugs, alcohol or intoxicating substances. Clearly we are placing more options before the courts to prevent people from reoffending.

In addition, the very subsections in the two provisions regarding the types of conditions that can be considered will be amended so that they are worded more consistently. There are a number of wording differences between sections 810.1 and 810.2.

While there are certainly differences in who these provisions target, many of the wording differences have caused some difficulties in interpretation in the courts. As such, all provinces and territories have requested amendments that would provide a more uniform approach.

It is proposed, for example, that the judge must now consider, for both types of peace bonds, where they previously did so only for 810.2, whether it is desirable in the interests of safety to prohibit the defendant from possessing certain items, including firearms, or whether it is desirable to require the defendant to report to the correctional authority of a province or police authority.

The amendments in Bill C-27 will aid prosecutors considering a dangerous or long term offender designation. The bill will also enhance the ability of law enforcement officials to supervise and control offenders longer and more stringently if they are at high risk of reoffending.

Our three strikes law, Bill C-27, puts the protection of the public first, ends revolving door justice for violent offenders, and meets our election promise to Canadians. I ask all members to support this bill.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
CPC

Tom Lukiwski

Conservative

Mr. Tom Lukiwski (Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform, CPC)

Mr. Speaker, I would like to ask my hon. colleague to clarify something, not only for me but for any Canadian who may be observing these proceedings.

My understanding of the provisions contained under Bill C-27 is that if someone is convicted a third time for a dangerous or sexual offence, the onus will be on that individual to try to demonstrate or prove to the courts why he or she should not be considered a dangerous offender.

In other words, if someone has been convicted of a rape for the first time, goes to jail, gets out on parole, again rapes another child or young person, is convicted the second time, goes to jail, gets out and is convicted a third time for rape, that individual would have to prove to the courts why he or she should not be considered a dangerous offender. That seems to me to be eminently reasonable.

What I would like the hon. colleague to comment on is this. My understanding is that the NDP, the Bloc and the Liberals will be voting against this bill.

Once again, if someone is a convicted three-time rapist, not accused but convicted, that person would then have to make application to the courts as to why he or she would not be considered a dangerous offender. The onus would be on that individual under this bill.

My understanding is that the opposition parties, all of them, for some strange reason that is totally unfathomable to me, will be voting against this legislation that is designed to protect citizens and victims. I ask my colleague if I am on the right track. Should I believe my ears? Is that exactly what is going to happen? Are they going to vote against this legislation?

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Russ Hiebert

Conservative

Mr. Russ Hiebert

Mr. Speaker, his ears are working fine, regrettably. It is incredibly unfortunate that this is in fact the case. For many months now this bill has been coming forward. I do not know about the hon. member or my colleagues, but I know that during the last election I had numerous debates with members of the Liberal Party and the NDP. They all came forward saying yes, they were going to get tough on crime. They said yes, they supported mandatory minimum sentences. They said yes, they supported dangerous offender legislation.

Now here we are in the chamber with an opportunity to pass the very bill that the member describes, one that would prevent somebody who has already committed horrible offences from being able to recommit those offences, and the members opposite and to my right, or should I say to my left, simply refuse to come along with us and support this proposition when we know Canadians want this.

Last fall, on our safe streets and communities task force, I spent many months with the current finance minister travelling across the country talking to members, police officers, families and people who have been victimized by crime Everywhere we went, at every stop across this country, Canadians demanded that we get tough on crime, that we do not allow people who have committed horrible crimes to reoffend. Once we know they are dangerous, they should not be let out again, yet that is what the previous Liberal government has allowed for so long.

Here we now have the opportunity to correct this huge problem within our justice system. Those members are sitting on their hands in this empty chamber, as I see when I look across, and are doing nothing to support the measures that we have come forward with in a mandate given to us by the Canadian public.

I implore the members opposite, the few who are here, to support this measure.

Topic:   Government Orders
Subtopic:   Criminal Code
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LIB

Derek Lee

Liberal

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Mr. Speaker, I have to say that the government benches look pretty empty too.

I am waiting for the day when members of the Conservative Party and that government will be able to govern without having to mention the opposition parties. I wait for the day when the government will be able to stand on its own feet as a mature government and articulate public policy on its own merits, when it does not require reference to the Liberals this, the NDP that, and the Bloc the other. When is the government going to grow up and articulate good public policy from the floor in the House? That is what I am waiting for.

I note in regard to a lot of what the member was just referring to when describing the circumstances surrounding rape that those conditions also exist in the Criminal Code and allow the designation of a dangerous offender now.

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Russ Hiebert

Conservative

Mr. Russ Hiebert

Mr. Speaker, coming from a member opposite who calls our border officers wimps, I do not think he has a lot of credibility on criminal justice issues.

I can assure him that we have tremendous support for this legislation. He may be embarrassed at what his government has not done over the past 13 years and may want us to not refer to its failures going forward. We have no other alternative but to look at the problems that party has left with our society that we are here now to correct. I would encourage the member and his colleagues to support this measure.

Topic:   Government Orders
Subtopic:   Criminal Code
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LIB

John McKay

Liberal

Hon. John McKay (Scarborough—Guildwood, Lib.)

Mr. Speaker, before I get started on this particular bill, I want to remind the minority government of neo-cons that in fact more people voted against them than voted for them. Sometimes that is just a little lost on members opposite. If we were to look at the polls today, even fewer would vote for them than voted for them during the election. The consequence of that is that the new minority government has to solicit the cooperation of the parties opposite.

I want to note that the government dropped 11 bills on the floor of this House and the Liberal Party consented to six of them. Like that, we consented to six of them, largely because they mirrored legislation that was put forward by the Liberal government in the last Parliament. Poor fellows, like they cannot take success. Is that not what it boils down to? They cannot take success. They got six free bills.

The Conservatives talk about being tough on crime. Well tough does not mean stupid on crime at the same time. This is one of those bills that is just plain stupid because it will not survive any kind of constitutional challenge. It is a classic.

The Conservatives whip up a fear, get people all wired about how dangerous it is out there, that the whole nation is just going down the tubes, and then put forward another dumb bill. Here we have one more dumb bill that somehow or another is going to save the nation from this massive crime rate.

I listened to the member for Wild Rose being rebutted by the member from the Bloc Québécois because the member for Wild Rose is absolutely convinced that we are in fact under a massive crime rate in this country. The statistics of course do not bear him out. They have not borne him out for the last decade, but that really does not much matter to him. It does not seem to much matter to the members in his party because they basically traffic in fear and smear. They get the population worked up about something that does not exist and then propose a solution to a problem that does not exist. They then run away from it because the crown attorneys, the defence counsel, the accused, the victims, and the judges will have to clean up the mess afterward.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink
?

Some hon. members

Oh, oh!

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Andrew Scheer

Conservative

The Acting Speaker (Mr. Andrew Scheer)

Order, please. I am having difficulty hearing the member for Scarborough—Guildwood. I think all hon. members would want to keep their questions and comments until after the member's speech, when there will be an opportunity to ask him questions or provide him with some comments. Let us allow the hon. member to continue with his speech.

The hon. member for Scarborough—Rouge River on a point of order.

Topic:   Government Orders
Subtopic:   Criminal Code
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LIB

Derek Lee

Liberal

Mr. Derek Lee

Mr. Speaker, I want to support you on that. There has not been a five second window since my colleague began his speech that the members of the government have not been yelling and interjecting. I simply ask for the courtesy to let the member deliver--

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Andrew Scheer

Conservative

The Acting Speaker (Mr. Andrew Scheer)

I thank the hon. member, but I think I did just mention that. The hon. member for Scarborough—Guildwood.

Topic:   Government Orders
Subtopic:   Criminal Code
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LIB

John McKay

Liberal

Hon. John McKay

Mr. Speaker, I appreciate the intervention on the part of the Speaker and my hon. colleague from Scarborough—Rouge River. Certainly, the hon. members opposite have no interest in dealing with facts or in dealing with the Constitution or in dealing with the Charter of Rights and Freedoms. For whatever else the Liberal Party stands for, it is the party of the Constitution and the party of our Charter of Rights and Freedoms.

Let me turn to the bill which, I submit, is deeply flawed. Members who might be watching this debate, and I cannot imagine why they would be, but maybe they are, should know that in the Criminal Code, as it presently exists, there is a dangerous offender section. It is section 753. It says:

--definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence--

That is evidence, gentlemen:

--establishing

(i) a pattern of repetitive behaviour--

(ii) a pattern of persistent aggressive behaviour by the offender--

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;--

That already exists in the Criminal Code. This bill does not change that. This bill stays with that standard of behaviour.

What is going to happen if this bill passes? First of all, a crown attorney is going to have to give a notice. He is going to give a notice presumably after two convictions. Right now there does not need to be two convictions. It can be done after one conviction, if it can be established that the individual is going to be a threat to society. In fact, an indeterminate sentence can be obtained based upon simply one conviction. The crown attorney is still forced to prove beyond a reasonable doubt that those elements of that individual's behaviour threaten society at large.

What will happen here is that the crown attorney is going to give notice. Think about that for a second. The defence counsel probably has someone who is a pretty bad person, probably has evidenced behaviour so much so that he or she has been convicted of at least two offences. That person is now looking at an indeterminate sentence, not a determinate sentence. In other words, throw the person away.

Now the defence counsel is going to say to himself or herself, “Well, we are going to fight this and we are going to fight this hard”. There are no deals and no convictions.

What will happen then? The defence counsel is in effect going to force the crown attorney to accept the plea to something lesser than possibly is appropriate under the circumstances. Now we are looking at an indeterminate sentence rather than a determinate sentence. Instead of the individual going away for an appropriate period of time on the apprehension that they may go away for a much longer period of time, the defence counsel will try and plead it down to something less.

Purists in the chamber may think that this is not very good at all. On the other hand, that is the way the court system works. I do not see that changing any time soon.

We will have a perverse consequence. In fact, the courts are going to get clogged, the crown attorneys are going to have to make deals that they do not want to make, and the courts, ending up clogged, are going to actually process fewer people who have been charged with offences.

The reaction of the crown attorney is either twofold. The crown attorney can either say, “Okay, let us bring it on and let us have the fight” or it is going to be, “Let us make a deal time”. Those are the two choices that the crown attorney will be faced with. The likelihood is that the crown attorney is going to accept something of a lesser plea because in fact the provinces are not going to be greatly more resourced in order to be able to deal with this legislation.

We can ignore that kind of advice on the part of the experts that come before or will come before the committee, or we can take it into consideration when drafting a piece of legislation.

The risk is that it puts the entire section 752 in jeopardy. One can go to the bank on it. It will be absolutely certain that if in fact this section were to pass, if in fact an individual were to be convicted under this section, this legislation would be challenged by defence counsel in court under a charter application. There is an absolute certainty of that.

We put at risk the entire section 752. The court might either strike this bill or it might strike the entire section. We again have an ironic consequence that we would lose the entire dangerous offender section and have nothing, which I do not think any party in this House would support that kind of consequence.

We are playing a high stakes game here with things that clearly are of serious consequence. I do not think hon. members need to take my word for it or anybody else in this chamber. They might actually listen to what other people who have expertise in this area actually say about it.

If I may take some time, I would like to reference David Paciocco, a professor of law at the University of Ottawa. He begins his speech by saying that the best that could be said about this bill is that it is an amalgam of unenforceable and constitutionally suspect provisions. It puts the burden of three strikes on the accused to prove that he or she does not pose that kind of danger that the dangerous offenders do.

In other words, it reverses the burden. We are reversing the burden on somebody who has to prove that they will not likely do this action. When we do that we, in effect, are having to prove a negative. If we are having to prove a negative, the courts that are constitutionally charged with reviewing this under the Charter of Rights and Freedoms will find it very difficult to accept that this is constitutionally acceptable.

The individual accused and convicted has to prove that he or she is incapable of restraining himself or herself, likely to cause death or injury in the future, have a substantial or general degree of indifference to the consequences of his or her behaviour, and be marked with an incorrigible brutality.

The professor goes on to say that, in effect, judges are forced to find that offenders pose the kinds of risks I just described not only in cases where there is a reasonable doubt but even in cases where it is equally probable that the offender poses no such risk. Therein lies the difficulty that this bill poses for those members in this party who actually have to read the bill in the context of the Constitution and in the context of how courts actually behave.

I listened to some of the rhetoric from the other side and I wondered whether in fact those members ever actually go to courts and actually see how they operate. Do they see what the dockets are like for these judges, some 200 or 300 cases on a docket at any given time? Do they realize that plea bargaining is in fact a way of life in courts and that we would have no justice system at all, that it would grind to a halt if in fact every section of the Criminal Code was constitutionally challenged? All we have done is raised a huge flag for defence counsel to challenge this constitutionally.

The professor goes on to say that if this were true, the provision would not only fail to meet the rational connection test, it would also fail to meet the ultimate balancing that is done under the proportionality test. The provision costs to the liberty interest of the convict would outweigh the benefits the provision would produce. In either event, section 1 would not justify the reverse onus.

The court is continually balancing the rights of the accused versus the safety and security of society. It is called the proportionality test, and it is a constant factor in any judge's mind. Does the sentence or the proposal for an indeterminate sentence weigh against the legitimate concerns for the safety and security of the larger society?

I hear the rhetoric about getting tough on crime. I respectfully submit to members opposite that they should get a little smarter on crime. They should not put legislation on the floor which will almost inevitably be challenged in the courts or which will almost inevitably see charter challenges from defence counsel.

I submit from our side of the aisle that there is no way we can support this legislation. It does not meet the proportionality test. It does not meet the constitutional test. We cannot reverse the onus in a situation of this kind. We are, in effect, saying to the courts that the person should be put away indeterminately and that person would have to prove they would not offend in the future. This is very poorly drafted legislation. It deserves to fail.

I would be interested in any questions that members opposite may want to propose.

Topic:   Government Orders
Subtopic:   Criminal Code
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CPC

Dave MacKenzie

Conservative

Mr. Dave MacKenzie (Parliamentary Secretary to the Minister of Public Safety, CPC)

Mr. Speaker, I have listened to a great deal of what my colleague across the floor had to say. I may have spent more time in courtrooms than most lawyers have. One of the things I noticed during that 30 year career was the fact that lawyers continually challenged the law. I do not think we should be concerned about that.

He is fully aware that reverse onus provisions in the code already have been challenged and upheld as constitutionally strong.

The member talked about plugging up the courts. The courts do not continually deal with these people, but they deal with them enough times that we need to do something. We are talking about the worst of the worst offenders. They are not shoplifters or people who break windows. These people have run afoul of the law in the most heinous way. We should not, as a society, necessarily have to wait for them for a fourth, fifth or sixth time. This is a law that only makes sense to ordinary Canadians.

What do we have to fear if someone does challenge it in the courts, being that a lawyer's role is to continually challenge the law? We should not prejudge what the courts would say.

Topic:   Government Orders
Subtopic:   Criminal Code
Permalink

November 9, 2006