Bill C-27 (Historical)

An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace)

This enactment amends the dangerous offender and long-term offender provisions of the Criminal Code
(a) to require the prosecutor to advise the court whether the prosecutor intends to proceed with an application for an assessment under those provisions when the prosecutor is of the opinion that the offence for which the offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions;
(b) to remove the court’s discretion to refuse to order an assessment when it is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long-term offender;
(c) to provide that, if the court is satisfied, in a hearing for a dangerous offender designation, that the offence for which the offender has been convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions to make the designation are presumed to have been met unless the contrary is proved on a balance of probabilities; and
(d) to clarify 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 adequately protect the public and that neither the prosecutor nor the offender has the onus of proof in the matter.
The enactment also amends sections 810.1 and 810.2 of the Criminal Code
(a) to allow the duration of a recognizance to be for a period of up to two years if the court is satisfied that the defendant was convicted previously of an offence of a sexual nature against a child or a serious personal injury offence; and
(b) to clarify that the scope of conditions available for recognizances is broad and that those conditions may include electronic monitoring, treatment and a requirement to report to a designated authority.

Criminal Code

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Yes, I am getting old, Mr. Speaker. There are only five MPs in this House who are older than I am, so I will take my time getting up.

The member opposite, speaking on behalf of the Liberal Party, misses a whole bunch of points. One thing he said, to which I took great offence, was that he mentioned that our party just wants all of them to go to jail. This is not accurate. It is a downright misrepresentation. I will tell him personally and all who are in the House and anybody else who will listen that I think the saddest thing in the world is for people to get into in crime and end up wasting their lives in jail. That is absolutely true.

There is a maximum security institution in my riding. I visited it a number of times even before the boundary changes put it in my riding. It is incredibly sad in there. No one knows how I wish that every one of those people, mostly young people, although some are older, would have had a decent, moral education when they were growing up so that the type of activity they were involved in was just so wrong they would not contemplate doing it.

Where do we get the idea that it is all right to bludgeon a person to death? We get that in our society. Where does that come from? That would be impossible for me. I venture to guess that it would be impossible for my children because of what we have taught them about what is right and what is wrong.

I think that is the part that is missing in our society. In regard to anything moral, we have decided that we cannot impose our morals on anybody. However, we impose morals on people when somebody comes up to a member of my family and kills them. That has happened. It is not acceptable. That is an imposition of morality. Teaching of a morality and having them make their own choices because they have been taught correctly is valid and good.

I take great umbrage at that remark of the member.

I went to a youth incarceration centre and saw 13 year olds and 14 year olds who were there because they knifed somebody. Where did they get that idea?

This is not the venue in which we can contemplate this, but I absolutely believe that we need to do more to prevent people from going to jail.

When they do go to jail, we give them a sentence and we say, “Yes, they have another chance”. They go out and do it again and we say, “Okay, one more chance”. We are talking about serious crimes here, not just petty theft or things like that, as bad as that is. We are talking about attacks on human beings, brutal attacks. We are saying to them that obviously after someone has been convicted the third time, that person is a dangerous offender. Unfortunately, as much as we regret it, we tell criminals that for the good of society and the protection of law-abiding citizens, they are going to find some way to spend their lives usefully behind bars because we cannot trust them.

To me that is dreadful, but it is a valid choice we have to make if we are going to have a society in which our citizens feel safe.

The member is just wrong in his approaches and some of his statements.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, unfortunately I think the member set up a straw person to burn down. I do not think I said or suggested in any way that the Conservative government wants everyone in jail. I do not believe that and I did not say that.

However, the member makes a very good point in terms of the life chances of young people and the tragedy that occurs when, because of a lack of life chances, they get into criminal activity and end up in jail. I cannot think of anything that could possibly be worse for a child of mine or any other children.

When I hear comments like this that make perfect sense to me, I wonder how that could equate to the decision to cut literacy programs, which actually give people life chances so that they do not end up in poverty or despair. I wonder how the court challenges program could be cut when over the years it has championed charter rights for people who sometimes are in the greatest despair in our society and in the most marginalized groups. It is those people, of course, who are most at risk, through despair, poverty and exclusion, of ending up involved in criminal activity.

I agree partially with the member opposite. We need to improve and we need to do do everything we can for real early childhood education and development, for instance, to ensure that the life chances of our young people steer them away from crime, not toward crime.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Mr. Speaker, I want to pick up on the hon. member's distinction between being smart and being tough. I do not think there is any argument about being tough on crime. The question is whether we are smart at the same time. Any fool can be tough. It is much more difficult to be smart.

It seems to me that there is a pattern here. I want my hon. colleague to comment on it. The pattern is that we create a fear, which the party opposite seems to be particularly skilled at, we propose a solution to a fear, and then we pat ourselves on the back and walk away, having created a whole bunch of unintended consequences.

I want the member to comment on why he thinks this is a stupid bill. It is tough, but it is stupid. Why does it not make Canadians any safer? What are the unintended consequences? What is it really like, if one has three convictions, to try to prove, either on the balance of probabilities or beyond a reasonable doubt, that one will not likely commit the fourth crime?

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, if I may correct the hon. member at the outset, I did not call this stupid. I called it superficial. I think that is the danger. I do not attribute this intention to the government, but I do warn of the consequences. When we raise fears beyond reality in order to justify, for whatever reason, having tougher laws in terms of putting people in jail for a longer time, and having more people in jail, which is a hateful and depressing situation for anyone to be in and a very poor place for people to actually recover balance in their lives and become responsible citizens, then we waste money. In fact, we cause more dangerous people to get out of those prisons sometimes.

As I say, the vast majority of them get out eventually. They are not all Clifford Olsons. If these people are not treated in the context of their lives and measured against their contribution and their determination to improve their lives with the prison correctional programs that are available, if they are treated improperly because they do not have proper legal representation due to legal aid funding cuts and do not get a balanced trial and feel as if they have been stuck in a place where they are being improperly punished, they perhaps in the end will come out being more dangerous. That is one of the unintended consequences.

The other, which we see in minimum sentences as well, is that the prosecutors simply do not charge at the appropriate level sometimes when they do not believe that the minimum punishment, or in this case the dangerous offender designation, is appropriate. They will undercharge and the person may get away with an inappropriate sentence because it is a lesser charge, so then the streets are more dangerous as well.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, I was somewhat dismayed and rather surprised and shocked to hear the comment made that this side of the House is creating fear. With all due respect, there is fear all across our nation because victims of crime are just afraid to come out onto the streets.

What do we tell the family of the woman in Winnipeg who was swarmed the other day by children 12 years of age and under who kicked and beat her until she died? What about her rights?

What about Mr. McLaughlin? What do we tell him when his son is murdered behind a hotel in Fort Garry because he was beaten up and the offender gets out in a very short time?

What about the rights of the victims of crimes, the rights of Canadian citizens who want to live and work in their communities and walk on their streets at night? What about their rights?

[The Acting Speaker, Royal Galipeau]

The hon. member for Vancouver Quadra, a short response, please.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Yes, Mr. Speaker.

The member opposite raises an excellent point. I thank her for doing it. There are dangerous people in our society and there are horrible crimes committed, but what we as legislators have to be very careful of is not to take those horrid examples where people are terribly victimized and spread the idea that this is a general situation in society, because then we get public pressure to overreact and we create the more dangerous situations that I have already described.

[Helena Guergis, Conservative, Parliamentary Secretary to the Minister of International Trade]

Mr. Speaker, I am splitting my time with the member for St. Catharines.

I am very pleased today to speak to Bill C-27, an act to amend part XXIV of the Criminal Code, dangerous offenders, and sections 810.1 and 810.2, peace bonds.

Few issues trigger more emotion than how the government treats our most dangerous criminals, especially when it comes to sex offences against children. While it is one thing to be convicted of such a crime, it is quite another to see someone commit a child sexual offence who has been convicted three, four, five times or more and is back out reoffending.

As such, I support this legislation. I urge every member of this chamber to do the same. It is time to move forward with tougher legislation that protects Canadians and their families.

Quite simply, the current provisions are not working as well as they should. It saddens me to think of the Canadians whose lives have been changed forever because of a hardened repeat offender. We can and we should do something about this now.

I have looked over the bill and I wonder how anyone can stand against these reforms. I look at the requirement for a crown to stand in open court and declare whether, on a third serious violent conviction where the prior offences received a two year sentence, a dangerous offender designation would be sought, and I ask “why not?” Why we should not require a crown to specifically consider this issue and declare his intention?

I see the proposal to reverse the burden of proof onto the offender convicted for a third time of a third serious sexual offence in a dangerous offender hearing. I look at the reform of the peace bond provisions that seek to extend the duration from 12 months to 24 months for convicted offenders in the community. I note that judges will be called upon to consider more vigorous conditions to ensure the public safety. Again, the question should not be why, but why not.

So far the only real reason given by members opposite as to why the bill should not be supported has been that the rights of the offender have been compromised. I find myself greatly disturbed by the claims of the opposition. In my opinion, the opposition members, who cite the rights of offenders being that more important than the rights of victims and survivors, should be ashamed of themselves.

I listened to the comments of the Minister of Justice. He indicated that these provisions were carefully crafted to ensure constitutionality. He has indicated, for example, that the provision imposing a reverse onus on the offender where there has been a third violent or sexual offence conviction is constitutional.

He indicated it was constitutional because it was narrowly designed, that it reflected the types of convictions that commonly led to a dangerous offender designation. He said that these offences were violent and harmful by their very nature and that they all required intent to harm another person. He spoke of how these qualifying offences were restricted to instances that carried a two year or more sentence. It appears to me, therefore, that the criteria to trigger the reverse onus were not simply drawn from a hat. These were not randomly chosen offences, nor should they be.

As I understand it, the inclusion of any offence on the primary list of offences is based on the following criteria: that there is at least a 10 year maximum sentence allowed; the nature of the offence is such that there is a sufficient element of brutality and harm intended; there is a common occurrence of the offence in the historical application of dangerous offender applications: and, the offence is not so overly broad by its nature so as to possibly allow an absurd result by its inclusion in the primary list of offences.

I looked closely at these offences. I wanted to know what would justify triggering the reverse elements. After checking, I completely support the Minister of Justice.

In the first place, I note that of the 12 primary designated offences that trigger reverse onus, 7 are sexual offences, divided between sexual offences committed against adults and offences against children.

It was 15 years ago that I entered into the rape crisis centre and received training in crisis intervention. I volunteered there for seven and a half years. I want every member of the House to know that the statistics, which were so alarming back then, have not changed. I suggest to the opposition parties that are so opposed to the bill that what we have been doing for the past decade has done nothing. It has not worked. It is time to change the strategy.

I note that according to analysis from Correctional Services Canada, over 80% of all dangerous offenders were designated as a result of a predicate conviction for one or more of the seven listed primary offences. About half of these offenders committed their offences against adults and half against children. Of the remaining 15% to 20% of offenders who were designated as dangerous offenders for other offences, about three-quarters of them were so designated as the result of a conviction for one of the five remaining listed primary offences. The remaining handful of offenders were convicted of a wide variety of offences including, for example, arson and fraud.

This seems to illustrate that there is a clear and precise logic behind the design of the primary offence list. For example, I look at the kidnapping offence. Interestingly, a quick look at existing case law indicates that a large number of non-sexual dangerous offender designations had one or more kidnapping convictions, but also many of them had sexual assault offence histories prior to the dangerous offender application.

A review of case law indicated that a total of 15 individuals were subject to a dangerous offender application since 1997 based on a kidnapping offence. Fourteen were designated as dangerous offenders and one was a long term offender. Again, this illustrates that kidnapping belongs on the list.

Then I looked at the same period for the offence of forcible confinement. I could see only five incidents of a dangerous offender application being sought in those cases. In four of those cases there were one or more of the other primary offences also listed. In addition to the low incidence of such an offence triggering a dangerous offender application, I noted that in half of these cases the dangerous offender designation was denied.

Finally, I note that while there are typically about 1,500 convictions each year for forcible confinement according to Statistics Canada, there are less than 100 per year on average for kidnapping. While forcible confinement offenders receive an average sentence of about six months, the average conviction for kidnapping is about three years. What this tells me is that the offence of kidnapping should be a triggering offence for the reverse onus, but forceable confinement should not. Kidnapping meets the criteria; forceable confinement does not.

The bottom line is the list of triggering offences makes sense. While I am sure there will be much discussion in the chamber and at committee about which offences should be in or out, at least it is clear to me that there has been some consideration in the development of the list.

I have the utmost confidence that these reforms will accomplish what the Minister of Justice has set out to do. A lot of concerns have been expressed by police, by victims, by many volunteers in crisis centres and by provincial ministers of justice that in too many cases individuals were being set loose in the community even though they were clearly uncontrollable.

There was a broad consensus that since 2003 the dangerous offender provisions had become difficult to use even as the shield of last resort against predators who were bound to reoffend if released. I believe these reforms address those problems, but I also belive they do so in a very measured and balanced way that fully respects fundamental principles of justice and human rights.

As such, I fully support these measures that seek to restore to a reasonable level the protection that Canadians want and need against the very worst sexual and violent offenders in the country.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Mr. Speaker, I am a very strong supporter of the efforts to protect Canadians and punish repeat offenders. My riding of Newton—North Delta used to be called the capital of car thieves.

The legal community has come to me and raised some issues. In Canada an individual is considered to be not guilty until proven guilty. In this bill the people would be considered guilty until they prove they were not. How would we handle this situation?

[Helena Guergis, Conservative, Simcoe—Grey, ON]

Mr. Speaker, I appreciate the concern of the hon. member and I sense some support for what we are attempting to do here. However, he is in fact incorrect. I think he is referring more to the “three strikes you're out” law in the United States. With this legislation, it is not an automatic sentence on a third conviction. People need to have the convictions before a crown can go forward to seek dangerous offender status. Once they have been convicted of a third crime, afterwards a crown can seek the dangerous offender status.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Speaker, I applaud my colleague's remarks and I note her experience in the rape crisis centre. As the father of a daughter, who is long grown now, one of the things I always feared was a sexual offence against my daughter.

We talk about the rights of victims as well and the things that victims carry for years and years. Has the hon. member any personal experiences in dealing with victims, which I am sure she has, which might illustrate that point?

[Helena Guergis, Conservative, Simcoe—Grey, ON]

Mr. Speaker, after seven and a half years, I have a great deal of experience, some things I wish perhaps I had not had the opportunity to experience. Nonetheless I value the experience and the education I gained from my volunteer work at the rape crisis centre.

It was very much a learning experience for me. I will explain one specific situation to try to get my point across as to why I am specifically supporting this legislation from my personal experiences, unlike listening to the Liberals who are suggesting we are doing this based on slogans or trying to create fear that goes beyond reality.

I have seen too much of the reality. Part of my responsibility as a rape crisis volunteer was to provide support in the courtroom for victims who were survivors. All the volunteers in the centre became very close and very supportive of each other.

I remember a volunteer who was working with one of the survivors in court. She was a survivor herself. She sat there for two weeks, listening to testimony and supporting the survivor. She listened to what the victim had to say about what happened to her. Then this woman, who became a good friend of mine, broke into a cold sweat. It was at that very moment during the trial when she saw the accused that she realized the person was the exact same person who committed the crime on her. It was a very violent crime.

It is for those reasons that I support this legislation.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I represent a low income inner city riding of downtown Winnipeg Centre where 47% of all families live below the poverty line and 52% of all children. While there is no direct connection, it is statistically proven that low income people are more likely to be exposed to or victims of something to do with crime, violence or the criminal justice system. That relative connection cannot be denied. I can say without any fear of contradiction that crime and safety are the number one top of mind issue for the people I represent.

I have been listening to this debate all through the day as we try and get our minds around the reverse onus concept. I would ask my colleague perhaps to consider one thing. Overwhelmingly, the face of poverty in my riding is North American Indian, aboriginal. We cannot discuss crime and justice without at least recognizing the appalling overrepresentation of aboriginal people in our criminal justice system and in our prisons.

Does she not agree that the bill will exacerbate and even compound that social inequity, which exists in our prison system today, that overrepresentation of poor aboriginal people from places like the inner city of Winnipeg?

[Helena Guergis, Conservative, Simcoe—Grey, ON]

Mr. Speaker, first, if the hon. member had been listening to my remarks today, most of my focus was on the sexual offences. He is absolutely wrong if he was trying to explain to the House that perhaps an economic situation of someone would perhaps be more inclined to be sexually offended. One of the biggest myths out there, with respect to sexual assault and sexual violence, it is geared to only one person in society or one group. It actually happens to anyone and everyone and it is very unreported, so we also need to address that.

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Speaker, among the many duties of government perhaps none is more important than the protection of our citizens from crime. Not only is it our duty, it is also part of the commitment the Conservatives made to the citizens of this country. It also flows from what was learned in my community earlier this summer when the Minister of Justice participated in a round table discussion with people involved in or affected by our justice system. This bill is a crucial part of our justice package aimed directly at that goal.

Those of us who live in St. Catharines understand all too well the absolute necessity of effective dangerous offender legislation. It was 15 years ago that our city was gripped by fear, sparked by the horrific crimes of Paul Bernardo and Karla Homolka. The brutal murders of Kristin French, Leslie Mahaffy and Tammy Homolka have not been forgotten in St. Catharines, and I doubt that they ever will be.

Arising out of this horrific situation was the fact that Paul Bernardo was determined to be a dangerous offender and will remain in prison indefinitely. The people of St. Catharines breathed a huge sigh of relief when that decision was made. We know that some people, like Bernardo, are not capable of being rehabilitated. We know that for some criminals reoffending is not just a statistical probability, it is a certainty.

Many Canadian communities have been victimized by repeat sexual or violent offenders who have somehow slipped through the cracks of the justice system and have been allowed to repeat their crimes again and again. This cannot stand. Catch and release is a great way to spend an afternoon fishing. It is not the way to protect Canadians.

An article in last Thursday's Edmonton Journal underlines the glaring hole in our justice system that Bill C-27 is needed to fill. The article is entitled “Notorious rapist deserves prison forever, 1969 victim says”. It details a lengthy criminal record of Stephen Ewanchuk. His 1969 victim was choked, beaten and raped. He was later convicted for that rape and sentenced to three years in prison. Between that rape and the later conviction, he was again convicted in 1969 for a different rape.

In 1972 he was sentenced to 10 years for yet another rape. In 1986 he was convicted of sexual assault and sentenced to 15 months in prison. In 1994 he was convicted of another sexual assault and sentenced to two years. I am not done. In 2005 he was convicted of sexually assaulting an eight year old girl. There is an old saying that says once is chance, twice is coincidence, three times is a pattern.

With Ewanchuk it has been six times and that is a farce and a mockery of justice. Now, after six sexual offences, it is the Crown that must prove that Stephen Ewanchuk is a dangerous offender. After six offences, this should not be a question. Under our legislation it would be Mr. Ewanchuk who would face the burden of proving that he is not a dangerous offender. Justice demands no less.

In addition to this reverse onus provision, this legislation will strengthen sections 810.1 and 810.2, high risk peace bonds, by doubling the duration to 24 months and clarifying that a broad range of conditions may be imposed in order to protect the public. It should be obvious that no one's rights are more grievously violated than the victims of violent sexual offences, but for 13 years the rights of victims were ignored. Today we are taking an important step toward rebalancing the scales of justice. Canadians want these laws in place. They know that the coddling of violent criminals must end.

A couple of weeks ago I received an email from a constituent named Les Hulls. He was forwarding me a message that he had sent to the member for Mount Royal. Mr. Hulls was upset that the Liberal member had criticized Bill C-27. He wrote, “If you look to the United States for the 'three strikes you're out parallel', you'll find that they've been moving away from it...”

In his email to the member for Mount Royal, Mr. Hulls also said, “Canadians want tougher laws when dealing with repeat offenders of violent and sexual crimes. I am a voter and I do not care what the Americans are doing”.

I could not put it better myself. Canadians are fed up reading stories about crimes committed by five, six and seven time violent offenders, and rightly so. Canadian streets belong to hard-working and law abiding citizens. This legislation is a big step toward winning those streets back. It is, quite simply, the right thing to do.

Of course, not everyone agrees that the legislation is the right thing to do. A Toronto defence attorney, Clayton Ruby, had this to say about our bill: “The Tories get votes from bashing criminals and Canadians simply seem stupid enough to bite on this again, and again and again.” Judging by the slipshod logic of some of the criticisms I have heard of the bill, Mr. Ruby is not the only one who thinks Canadians are stupid.

At this point I would like to discuss two criticisms. In particular, that Canadians are far too smart for them. One criticism made by a number of people, including the member for Windsor—Tecumseh, is that the reverse onus provision will be struck down by the Supreme Court as a violation of the charter guarantee of the presumption of innocence.

I would note first of all that this is a peculiar position for my friend from Windsor—Tecumseh to take when one considers his party's platform from the last January election. That platform claimed that the NDP would introduce an omnibus safe communities act. It went on to list a number of measures, one of which was, “Support a reverse onus on bail for all gun related crimes”.

We believe that was a good idea, so you can understand my confusion, Mr. Speaker, upon hearing that the member for Windsor—Tecumseh, the NDP justice critic, now believes reverse onus provisions are unconstitutional.

More generally, I think anyone who claims the bill violates the principle of innocent before proven guilty is being disingenuous. Unlike Mr. Ruby I recognize that the Canadian people are anything but stupid. They cannot help but see, therefore, that the provisions of the bill apply only to those offenders who have already been proven guilty. Again, for those who have already been proven guilty for a third time no less of designated sexual or violent offences, the presumption of innocence has nothing to do with sentencing. Sentencing is the only area that the bill will affect.

I know this is clear enough for Canadian voters because a number of them have contacted me to express their strong support for the bill. I hope I have made this clear enough for my friends across the aisle.

There is a second criticism that has been levelled at the bill. I know that Canadians are too smart to buy this one as well. That criticism is that California's three strikes has not worked, so therefore our legislation will not work. The problem with this line of reasoning, of course, is that our bill barely even resembles the California law.

Under California legislation, any third felony conviction automatically results in a life sentence. Our bill however significantly improves on that legislation in two crucial aspects. First, it is not automatic. Offenders will still have the opportunity to prove to the judge why they should not be labelled dangerous offenders.

Second, and unlike California law, our legislation will only apply to violent or sexual offenders. It is true that we will not declare anyone a dangerous offender for stealing a slice of pizza, not even three slices of pizza.

According to the justice policy institute, an American think tank, approximately two-thirds of convictions under California law were for non-violent offenders. By avoiding that defect, our bill would avoid all of the associated problems while still acting as an effective deterrent against violent and sexual offenders.

Again, unlike Clayton Ruby, I do not believe that Canadians are stupid. I know that Canadians understand the points I have just made, but I hope the members opposite do as well. Our job is to protect Canadians. I stand here in my place and say that we will fulfill that duty by passing this important piece of legislation.