[Recorded by Electronic Apparatus]
Wednesday, February 5, 1997
.1639 
[English]
The Chair: Well, we're back. This is Wednesday. We're dealing with Bill C-55 andMs Meredith's private member's bill, Bill C-254.
We have a witness with us from the African Canadian Legal Clinic, Michelle Williams, who's been with us before. Welcome. Michelle is the policy researcher and analyst with the African Canadian Legal Clinic, which I think is in Toronto. Is it, Michelle?
Ms Michelle Williams (Policy Researcher and Analyst, African Canadian Legal Clinic): Yes.
The Chair: And by video teleconference from Vancouver, from the B.C. Civil Liberties Association we have John Westwood, executive director, and Kay Stockholder, president; and we also have Steven Mainprize, a sociologist at Douglas College in Vancouver.
I want to welcome everyone. We're going to hear from B.C. first. We'll hear everybody's presentations and then we'll have questions after.
Ms Kay Stockholder (President, British Columbia Civil Liberties Association): First of all I want to thank you very much for allowing us to make this presentation.
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I'm Kay Stockholder, president of the British Columbia Civil Liberties Association. With me is John Westwood, who is our executive director, and Steven Mainprize, who teaches sociology at Douglas College in Vancouver.
The Chair: Could I interrupt for a minute? Could you put the camera back on John Westwood, please?
John, I'm Shaughn Murray, University of Windsor, 1966. How are you? It's nice to see you.
Mr. John Westwood (Executive Director, British Columbia Civil Liberties Association): I was wondering whether you were going to remember me or not.
Some hon. members: Oh, oh!
The Chair: We can go back to work now.
Ms Stockholder: The British Columbia Civil Liberties Association has existed for 35 years; this is our 35th year. We were the first civil liberties association in Canada. Though we are a British Columbia organization, we have addressed a variety of federal issues that obviously also have bearing on British Columbia as well as all the other provinces.
In recent years we have made presentations to Standing Committees on Justice and Legal Affairs, one of them to do with the rape shield law. We made a presentation to a special Senate committee on assisted suicide and one to the federal commission having to do with the Young Offenders Act. We've also been involved in crafting a complaints process for the Vancouver Police here in Vancouver.
As that very abbreviated list indicates, in recent years we have been very concerned by the increasing ``get tough on crime'' attitude that has developed. Ironically this has developed even as the rate of violent crimes has fallen. As a consequence there have been longer sentences, which have led to overcrowding in prisons and problems that arise from double-bunking, on which we have also made a submission. It's led to tougher parole policies and changes in the Young Offenders Act.
Often these responses ignore or are indifferent to infringements of civil liberties, particularly citizens' rights to due process. These developments therefore concern us.
We also fear these attitudes are spawned by an exaggerated response by the media to individual events, which then can lead to policies shaped by political considerations rather than by careful attention to their social and economic consequences and their consequences for the democratic rights of all citizens.
The coincidence of increasing public awareness of crime and attention to it and the actual decline in violent crime leads one to wonder whether this spectre of criminality is not being used as a diversion from the social ills spawned at a time when the rich are getting richer and the poor are getting poorer.
That's all I will say in general. I will now turn this over to John Westwood, our executive director, who will talk about our specific recommendations in relationship to Bill C-55.
Mr. Westwood: Thank you, Kay.
I would like to briefly run through the thoughts and recommendations of the B.C. Civil Liberties Association with regard to some clauses of Bill C-55.
First of all, with regard to the changes to the dangerous offender provisions, the B.C. Civil Liberties Association opposes dropping the requirement for a defence-nominated psychiatrist. The dangerous offender designation is one of the most severe penalties the criminal justice system can mete out, and psychological assessments of offenders are certainly not infallible. In our view, the minimum due process requirement for persons facing a dangerous offender designation would be that they be allowed to and in fact required to nominate a psychiatrist to testify at the dangerous offender hearing.
On the other hand, we do not oppose another change that has been proposed: that the crown be able to apply, within six months after a definite sentence has been handed down, to have a dangerous offender hearing take place.
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We had some discussions with the Department of Justice as to why this particular proposal was being made. To our knowledge, there's no evidence of any problem here; that is, there's no evidence that crown prosecutors across the country have had any difficulties with not having applied for a dangerous offender designation and subsequently finding information that would have prompted them to do so had they had that information at the time.
Notwithstanding the fact that the system doesn't appear to be broken, in our view it would be in the public interest that a dangerous offender hearing take place if it ever did come to pass that the crown was in possession of information within six months of the period in which a definite sentence had been handed down, information that would have prompted them to apply for a dangerous offender hearing. So we don't oppose the change.
We also don't oppose the increase from three years to seven years for a parole board hearing. As it stands, the parole board must conduct the hearing within three years of the dangerous offender designation. We have discovered that out of 176 persons who have been given dangerous offender designations and who have been dangerous offenders for seven years, not one of them has been granted a parole before the seven-year period. It then seems to be reasonable that the requirement should be set at seven years and not at three years, basically as a way of saving scarce resources.
The second area of Bill C-55 that we would like to comment on is the clause that creates a new class of offenders termed ``long-term offenders''. The B.C. Civil Liberties Association does not, in principle, oppose the creation of this designation. We understand that this is here primarily for serious sex offenders and primarily, in fact, for child sex offenders. Our research has shown that it is child sex offenders who tend to do much better under supervision in the community and who tend to do much better with ongoing relapse prevention treatment.
That being the case, it makes sense that for those who satisfy the criteria for the long-term offender - and we judge that those criteria are strict enough, for our requirements anyway - provision for supervision within the community up to ten years after their sentence or warrant has expired could be effective.
We are skeptical that it's going to be very effective for other sex offenders, primarily rapists. As far as we can tell in surveying the research, there's very little evidence that community supervision and relapse prevention or treatment programs have any effect whatsoever on the recidivism rate of rapists.
Notwithstanding that, there is a requirement in the crown's attempt to have someone classed as a long-term offender. The crown must show that there's a reasonable possibility of eventual control of the risk that offender poses to society, and we take some comfort from this if in fact the courts will be applying this requirement strictly and requiring the crown to demonstrate, in these particular cases, that there is a reasonable possibility of eventual control.
We would caution you that although this sounds good on paper, it's not going to be effective and it's not going to assist us in protecting our communities if the resources aren't there for effective supervision and effective treatment of people who are classed as long-term offenders and who will be under supervision in the community.
The one point that I think finally persuaded us was that many of the people who would be termed long-term offenders under the new provisions are exactly the offenders about whom the community wants to be notified, just because they are released into the community without supervision. And insofar as the long-term offender designation would reduce the need for community notification, in our minds, at least, that's a point in its favour.
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We do have several specific recommendations.
We think the inclusion of exposure as a criminal offence for the purposes of this section ought to be deleted; it ought not to be there.
We would again add a requirement for a defence-nominated psychiatrist. We see this as a minimum due-process protection for people who face what is basically up to a ten-year extension of their sentence.
For someone who is termed a long-term offender, we would also like to see a legal right to petition the parole board to vary the conditions under which that offender is in the community under supervision, as well as a legal requirement that the parole board impose the least restrictive conditions consistent with the protection of the community.
Finally, the third section that we comment on is proposed section 810.2, the new judicial restraint procedures. As an association, we are extremely uncomfortable with any judicial restraint procedures that are based not on what a person has done, but on what we fear or think they might do. We judge that the criteria for application of this section 810.2 are quite weak. ``Reasonable grounds to fear that another person will commit a serious personal injury offence'' is in fact a very weak threshold. It does not mean, as some commentators seem to think, that the person is likely to commit a serious personal injury offence. All that's needed is for someone to have a fear, and for that fear to not be unreasonable. To take an example, I may have a reasonable fear that interest rates will go up, but that doesn't mean that interest rates are likely to go up at all.
Despite these concerns, in the end we have decided as an association to not oppose the new judicial restraint procedures, but only if the conditions that can be imposed by a judge are only mildly invasive of liberty and mildly invasive of privacy. The kinds of conditions that can be imposed under sections 810 and 810.1 - keeping the peace; being of good behaviour; surrendering of a firearms acquisition certificate, firearms or explosives, if one possess them; not having contact with children under 14 years; and so on - seem to us to be reasonably mild restrictions on liberty, given the particular factors or circumstances of the case that would be before the court.
However, we are absolutely opposed to the requirement for reporting to the police or to a parole officer unless reporting simply means that you keep the police advised that you have changed your address. If it means anything else, such that a person has to report regularly to a parole officer as if they were under supervision in the community, or must report regularly to the police for some reason or another - it's unclear to us what that reason would be - we would oppose that. If all Parliament wants here is for the person to keep the police advised of a change of address, then that's what the recommendation or subsection should say, but it's not what it does say.
Finally, we see no justification whatsoever for electronic monitoring as a condition that could be imposed by a judge under this proposed section 810.2. Under the current technology, electronic monitoring means house arrest. It is extremely invasive of liberty, and extremely invasive of a person's privacy. Further, there is no evidence whatsoever - and I think Steve Mainprize will speak to this - that putting someone under house arrest is going to prevent them from committing mayhem if they're bent on committing a serious personal injury offence. In fact, under current conditions, electronic monitoring is specifically not used with dangerous or potentially violent people. It's not used precisely because it doesn't prevent anyone from committing violence. The B.C. Civil Liberties Association would support an amendment to this bill that specifically prohibits a judge from imposing electronic monitoring as a condition under proposed section 810.2.
I pass you on to Steve Mainprize.
Mr. Steven Mainprize (Department of Sociology, Douglas College, Vancouver): Thank you, John.
Let me be very brief in my remarks about electronic monitoring. My background of expertise regarding electronic monitoring derives from a doctoral thesis I wrote concerning the B.C. pilot project that was run from 1987 through 1989, as well as keeping up on the literature and academic publications in research.
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Let me say this about the knowledge of the practical aspects of electronic monitoring - what it can do and what it can't do - because I think it's important for members of your committee to understand that clearly. There's a lot of misinformation that circulates in the media that does not adequately characterize the functioning of current electronic monitoring systems.
There are proposed second-generation systems that would track offenders in the community. And I understand that the Westinghouse Corporation of Pittsburgh, Ohio, is charged with creating a prototype system by the National Institute of Justice in the United States. That prototype system is still not in existence, and it will probably be another two to five years before we see actual tracking being possible in connection with correctional populations or offenders.
Current first-generation technology, as John stated, is used almost exclusively for house arrest verification. The typical system in operation is a so-called continuous signalling system that has three components - a radio frequency transmitter powered by a small battery attached to the ankle, arm, or around the neck. This device emits a coded RF or radio frequency signal and the receiver dialler that's hooked up to the offender's home telephone constantly monitors that RF signal transmission when it's present and when it's not. When the offender leaves home to go to an approved activity, such as work or therapy, the individual goes outside the range of the effective monitoring zone, which varies because of the material geographical circumstances between individual cases, but it's somewhere between approximately 200 and 500 feet.
Once the individual offender leaves his or her zone where the monitoring takes place, effectively no monitoring occurs of the offender. If correctional personnel want to confirm that the offender did go to work or to the hospital to visit an elderly parent, etc. - approved activities - it would have to be verified manually by someone checking to make sure that occurred.
The current system emits the signal to the receiver-dialler, stores that information and then periodically the receiver-dialler dials out and exchanges that information with the central computer. That's the third component. So there are two levels of monitoring going on. One is the ongoing monitoring of the presence or absence of the signal in relation to the home environment. The second level occurs when the receiver-dialler periodically dials out to convey that coded stored information.
It can only confirm whether the offender is or isn't home. That's all it can do. It can't do any more than that under the current first-generation, three-component, continuous-signaling system. It confirms or verifies presence or absence in the home. It doesn't track offenders in the community. It can't tell whether an offender in the home is doing some illegal activity such as taking drugs or engaging in sexual misconduct. It cannot tell when the individual is beyond the range of the receiver-dialler. It cannot detect any behaviour other than whether the individual is within 200 to 500 feet of the secret dialler. So it does nothing more than verify that the offender is within range of the receiver-dialler. It is not currently used with violent offenders, as John said, nor can it monitor behaviour, at least under current technology.
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As I suggested, the second-generation systems probably will not be up and running for another two to five years. They're currently having problems with how to construct a battery that's small enough to fit around the ankle and powerful enough to operate the more energy-consuming uplink and downlink procedures that would be part and parcel of ongoing tracking in the community. There's also a signal loss with some of the systems when a person goes into a building. So there are problems that need to be worked out before actual tracking can be accomplished.
There is a lot of misunderstanding about what the capabilities of the technology are, and my presentation here is to attempt to demystify some of those illusions, I suppose.
To hammer home the point, current programs in the United States and in Canada, in most cases, with some exceptions, specifically preclude violent offenders. It has been a strong point made in the literature and a basis of legitimacy for these programs in the application and use of this technology that it be used only on non-violent offenders. It will not stop someone, as John said, from doing something they want to do.
I understand that a first-generation system has been reversed in the United States. They call it reverse electronic monitoring. It's being used on a very limited basis in a few regions and very carefully watched, I understand, by the people who are operating the human supervision. This involves having the offender wear the radio frequency transmitter, and the prospective stalking victim would have the receiver-dialler in her home. In most cases it's a woman; it could be a male as well.
But this particular configuration, if anything, it would seem to me, on wider use would feed into a possible mischief on the part of the offender, who could drive by at 3 a.m., have the signal go off, and then go off to the nightclub where he or she was going and the police would be released to the offender's home to pick him or her up. With the technical problems that do continue to exist with the technology, one could not be sure whether it was a technical problem or mischief on the part of the offender. So in some cases, with the reverse electronic monitoring, these mischievous possibilities arise.
In any case, I'll leave my remarks on the technology, and I would be happy to answer any clarifying questions that members of the committee might have.
The Chair: Thank you.
While B.C. stands by, we'll go to Michelle Williams, who is a policy researcher and analyst for the African Canadian Legal Clinic in Toronto.
Ms Williams: Thank you, Madam Chair and honourable members of the standing committee. The African Canadian Legal Clinic greatly appreciates appearing before you today to make submissions regarding Bill C-55.
You have before you a written brief prepared on behalf of the ACLC. I should note that in the printing, pages five and six were switched. If you're trying to follow along, you might want to note that.
I want to highlight the important points contained in the brief. I won't go through it in its entirety. I'll talk basically in three areas: the first is a brief introduction of the African Canadian Legal Clinic, followed by a short comment on the dangerous and long-term offender provisions, and then a more detailed look at the proposed judicial restraint provision.
The African Canadian Legal Clinic, or the ACLC, and its work are described in the preface of our brief. We're a not-for-profit legal clinic incorporated under the laws of the province of Ontario, and we're established to address anti-black racism and other forms of discrimination in the justice system, education, employment, housing, health and other spheres of Canadian society.
Our main strategy for carrying out our work is through test-case litigation, but we also work as a community-based legal agency to address government policies and legislation that may have an impact on African Canadian and other racialized communities.
I've highlighted in the brief, as well, some of the work we've done to date. We appeared last fall before this committee on Bill C-27. We also have standing before the commission of inquiry into the deployment of Canadian Forces to Somalia, or the Somalia inquiry. Since we last appeared before you, we've been granted intervener status in two Supreme Court cases that will be heard later on this spring.
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Following from there, my comments regarding the dangerous offender and long-term offender provisions are actually quite general. In a sense they echo some of the comments that have been made by the B.C. Civil Liberties Association in that we want to caution the government against an overzealous pursuit of law and order at the expense of Canadians' constitutional rights and civil liberties.
Again, we would certainly encourage that whenever any initiatives are undertaken, there's a comprehensive study of them and they're well thought out. Legislators should also consider the very real social context in which legislation is introduced and really take a look at whether increasingly punitive measures will actually prevent crime or decrease crime.
A singular pursuit of law and order can lead to the erosion of civil liberties if the government is not careful. We would certainly encourage the government to look at some of the social causes of crime and to look at prevention. To that end, we are pleased the government has recognized the importance of alternative measures and other programs for non-violent offenders.
I'd like to move right away to the judicial restraint provision in proposed section 810.2. By far we find this the most disturbing aspect of Bill C-55. It is our position that as it currently stands, it's likely unconstitutional, a violation of civil liberties, and also likely to have a discriminatory impact on African Canadians and other racial groups. I'll explain that further on.
The power provided under proposed section 810.2 is an infringement of individual liberty, is a violation of the presumption of innocence, and is not consistent with the principles of a free and democratic society. The fact that a person's freedom can be taken away without even having been charged with an offence cannot be justified.
Indeed it led me to ask why the government would introduce this in the first place. In thinking about that question and in going through some of the other submissions that have been made, for example on the part of the Canadian Police Association, I found that this provision has been described as a post-sentence intervention order, which obviously begs the question of whether we're getting into clear double jeopardy here.
Even if the suggestions that have been made by Minister of Justice Rock as to how you could change the bill are implemented, you're still probably into double jeopardy. I refer specifically to perhaps restricting the provision to those who have had a past conviction for a violent criminal offence or who have a history of violent behaviour, or creating a list of factors that include those sorts of considerations.
No matter how you shape it, you're going to come up against that sort of issue in that a person may very well be subject to double punishment.
I want also to talk a bit about the most relevant case that you're probably aware of on this issue, and that is Budreo v. R., which is now before the Ontario Court of Appeal. It dealt with section 810.1 and held that the appropriate standard of proof on an application in that section is the balance of probabilities.
The reasoning behind that was echoed by the Minister of Justice, and I'll quote from his remarks:
- This is a civil onus, because the person is not facing incarceration and punishment. The liberty
of the subject in that sense is not in jeopardy.
Many Canadians would find the restriction of their freedom to associate with certain people or go certain places and the requirement to submit to electronic monitoring as a very extreme form of punishment. Further, as you are aware, there's a very real chance of incarceration if you refuse to enter into this recognizance. If you breach the recognizance, you could be subject to up to two years' imprisonment. Therefore the liberty of the subject in any sense is in jeopardy and the appropriate standard as submitted would not be a balance of probabilities.
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On a general note, I'm referring again to the Boudreo case, which says that section 810.1, which is similar to proposed section 810.2, was not a violation of the presumption of innocence found in paragraph 11(d) of the charter because the person was not formally charged with an offence. It doesn't seem logical that if you're not charged with an offence you could have your liberty restricted on a lower test than if you were charged with an offence. I would just ask that the government consider that particular argument as well.
I'd like to talk briefly about electronic monitoring. It's already been canvassed quite well by the Mr. Mainprize from the B.C. Civil Liberties.
Obviously one of the conditions that could be imposed upon a successful application under proposed section 810.2 is a requirement that the defendant submit to electronic monitoring. This is an extreme form of intervention. It potentially infringes on the right to control one's body, the right to privacy and the person's mobility rights. The infringement of liberty becomes even more exacerbated by the fact that the monitoring can be imposed upon someone who has not been charged with an offence or has been found not guilty of an offence.
Mr. Rock has suggested that at least two approaches could help alleviate the concerns about electronic monitoring. One was to restrict the availability of electronic monitoring to the most serious cases, and the second was to limit the monitoring to certain types of electronic intervention. However, at this point it's obviously not clear what that type of intervention would look like.
The ACLC submits that because we're not clear on what the technology looks like, it would be irresponsible at this point to include electronic monitoring in that provision on a sort of wait-and-see basis, or leave it to the judge's discretion to implement electronic monitoring based on what technology might be available in the future. It's very difficult for us to even critique what that might look like, given it's not clear what's contemplated by electronic monitoring in this provision.
Finally, I want to draw your attention to the potential discriminatory impact of the judicial restraint provision. It's incumbent upon a federal government to consider the potential and equitable impact of legislation in light of the constitutionally entrenched right to equality in section 15 of the charter, and the preservation and enhancement of multicultural heritage of Canadians found in section 27 of the charter.
The ACLC is particularly concerned about the potential discriminatory impact of this type of provision on African Canadians, and our concern arises as a result of three areas. One is the general broad discretion with which this provision could be used by the Attorneys General, and in turn by crown prosecutors as their agents. Second is the fact that other preventative powers that currently exist under criminal law have been shown to have a disproportionately negative impact against African Canadians.
Finally, the third concern arises around the suggested procedural safeguards that are currently contained in the provision. In light of the extreme cutback to legal aid, for example, it's not clear whether, even if those procedural safeguards existed, a person would have the benefit of proper representation, especially where he or she hadn't been charged with an offence in this case. It's already difficult to get representation if you've actually been charged with an offence, so trying to get legal aid under a hearing such as this could be even more difficult.
I want to touch briefly on the discriminatory impact other preventative powers have had on the African Canadian community. I'm referring particularly to the recently released report of the commission on systemic racism in the Ontario criminal justice system, which I'll refer to as the commission report.
In Mr. Justice Then's decision in Boudreo, he says on page 9 that
- Preventative powers that require an individual's risk to society to be evaluated arise at three
stages...on a dangerous offender application...through the secondary ground at a bail
hearing...in the peace bond provisions
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The preventative provisions arise on the secondary ground of a bail hearing. The judge considers whether detention is necessary prior to trial, in the public interest - although that's been struck down - for the protection of society and the public, having regard to all of the circumstances. The judge is trying to consider whether there's a risk and whether he should let this person out prior to trial.
The findings of the commission show that blacks, Asians, South Asians and Arabs are admitted to prison at much higher rates before trial than they are after conviction, while whites and aboriginals are admitted to prison before trial at about the same rate as they are after conviction.
So what we see is that there are more people who come from racialized minorities held on these sorts of preventative bail provisions than there are from white and aboriginal communities. Something is at work when we're implementing these preventative provisions that has a disparate impact on racialized communities. And keep in mind that while more people are held before trial, it doesn't mean that all those people are ultimately convicted. That's explained on page 9, and it's also explained in quite a bit of detail in the commission report.
The reason this particular report and the findings on the bail hearing are so relevant is that in this judicial restraint provision we're dealing with the same type of preventative test that is used to hold people on bail. We have grave concerns that the result may be that these types of provisions, especially if they're left as broad as they currently are - I'm referring to the judicial restraint provision, of course - may have a disparate impact on African Canadians and other racialized minorities.
The situation is made much worse by the fact that many accused are forced to proceed, even at bail, with no legal representation, or they're represented through a very taxed duty counsel system at this point. The commission clearly stated that high quality representation must be provided at bail and that bail programs should be strengthened. In response, the Ontario government has cancelled the bail program and the accused are not receiving representation at bail hearings.
Again, the procedural safeguards are unlikely to be made available to people under this judicial restraint provision.
That goes back to my initial point: you really have to look at the social context in which these provisions will be implemented. The fact that there is a potential discriminatory impact, the fact that there's a weak standard through which you could be slapped with one of these provisions, the fact that it may be likely that people without money will not have proper representation and therefore will not be able to take proper advantage of the procedural safeguards, along with the fundamental flaws with the provision, that is, the extreme deprivation of liberty in light of not even being charged with an offence...all of these facts have caused the African Canadian Legal Clinic to take the position that the judicial restraint provision, as it's currently drafted, should be removed from Bill C-55.
Thank you.
The Chair: Thank you very much.
Now we'll go to questions, first with the Bloc Québécois.
[Translation]
Mr. Langlois (Bellechasse): I won't deal at length with the dispositions I agree with, but to get to the heart of the matter, I'll follow up on the few remarks by the B.C. Civil Liberties Association's representatives regarding the imposition of a definite sentence that could now take place within six months of the verdict following an initial indeterminate sentence.
After reading Bill C-55, it is my understanding that sentencing would not take place immediately after a guilty verdict has been handed down, but rather that the Crown attorney could ask the court to be granted up to six months to prepare his argument to make representations on the sentence, since the accused would have been convicted anyway of an offence or a crime punishable by six months or more.
Do you also understand that there would be a period not exceeding six months during which the convicted individual would be in some kind of legal limbo and you would have to wait for that period of up to six months to be over before knowing what the Crown's intentions are regarding the sentence or whether an initial sentence would be handed down and the offender would have to go back to court at a later date?
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[English]
Mr. Westwood: Perhaps it's a misunderstanding. I don't know. My understanding of the bill as it's written is that if the crown has expressed an intention of applying for a dangerous offender designation, but does not do so for lack of evidence, let's say, a definite sentence is handed down.
There is a six-month period within which, if evidence should arise - and here our association would strongly argue that this should be evidence not of activities or behaviour that have occurred within that six months but prior to the initial charge - such as police reports, let's say, that took too long to get to the crown or a witness turned up who wasn't expected to turn up or who has been out of the country and returned, and if that evidence was sufficient for the crown to want to go ahead with the dangerous offender hearing, it's my understanding that this would be legally provided by the change in Bill C-55.
[Translation]
Mr. Langlois: Up to now, it had been my understanding that sentencing could take place up to six months after a reserved sentence has been handed down. In that sense, the Crown reserved its representations on the sentence until later. It is still unclear whether there has to be an initial representation on the sentence and whether the Crown, after considering the case as a whole, could come back with an application for an indeterminate jail sentence.
Would we end up with such a process that there would necessarily be two sentences: a definite sentence and an indeterminate sentence that would be handed down 4, 5 or 6 months later upon an application by the Crown or could the Crown just advise the court after the guilty verdict that it wishes to reserve its representations on the sentence?
It would be somewhat similar to what has been in place for several years with regard to bail applications. The Crown may peremptorily advise the court of its wish to take 3 days for its representations. The judge cannot adjourn the hearing for more than 3 days and he then has to hear the application for release. I thought the mechanism was the same, but I might be totally mistaken.
[English]
Mr. Westwood: I might be mistaken too. All I can tell you is what my understanding is after having read the bill. And my understanding is that was that if the crown expresses an intention of applying for a dangerous offender designation but does not do so, and if a definite sentence is handed down, within that six-month period the crown can reactivate their application for a dangerous offender hearing if evidence comes to light that they didn't have at the time and that would prompt them to think a dangerous offender designation was the appropriate response to the person and to the person's crime.
The best I can do is to repeat myself. Perhaps I'll take a closer look at the bill when I have some time.
[Translation]
Mr. Langlois: I'll take a closer look at the bill as well because I have a serious problem trying to understand it.
My second question is on section 810.2 which I believe to be hard to accept. It does challenge my legal mind and what has always been my understanding of criminal law. With section 810.2, we are faced with an individual who hasn't been convicted of any criminal offence, an ordinary citizen one wants to be subject to what amounts to an improved peace bond. Yet that individual hasn't committed any offence. He or she hasn't been charged with anything. One can only be suspicious of his or her future behaviour. But one can be suspicious of anybody's future behaviour in society. Can one be suspicious of some people just because of the clothes they are wearing, their skin colour, their place of residence or the people they hang around with. One can be suspicious of a whole lot of people.
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What I find hard to accept, if not totally unacceptable, is that we are violating what seemed to be a cardinal rule in our criminal law. When I studied it, we were always told that one ton of suspicion weighs less than one ounce of evidence. But now, section 810.2 seems to lead us backwards and destroy without any second thoughts, as other bills have done during this Parliament, some cornerstones of our criminal law system, particularly the presumption of innocence which is being merrily assaulted in some places.
In this instance, based upon a mere preponderance of evidence against some people who haven't committed any criminal act but against whom we entertain some suspicions, we can bring them to court and obtain an order that will restrict their mobility; they will be forbidden to communicate with certain people or to visit certain places. Since there have been peace bonds in common law for quite some time, this order under section 810.2 is apparently introducing in our statutes a concept that and individual, who might even end up being found not guilty, would still be imposed some conditions.
I'll tell you about the following scenario. Someone has been charged with attempted sexual assault and chooses a trial by judge alone. That individual comes before the judge in your province, in British Columbia. The judge acquits him because the guilt of the accused has not been demonstrated to him beyond any reasonable doubt. However, the same judge, sitting for instance in the afternoon, is being presented with a request under section 810.2 and, with the attorneys' consent, he could say that the evidence entered in the criminal trial should be used for an order under section 810.2, and that he hasn't been convinced beyond any reasonable doubt, but that, based upon a preponderance of evidence, he thinks that the same individual that was brought before him as the accused and that is now before him as the defendant did commit the offence. He couldn't convict him, but since he is now using a different test, i.e. the preponderance of evidence, he decides to issue the order.
I find it somewhat bothersome that, in our society, we would restrict the mobility of someone who has been acquitted of a criminal charge. You are either guilty or innocent. Even though this issue hasn't been debated in depth, I believe that the presumption of innocence is seriously undermined by section 810.2. I'd like to hear your comments on this since you seem to support, in principle, section 810.2.
[English]
Mr. Westwood: I think I said at the beginning of my discussion of 810.2 that our association is extremely uncomfortable with judicial restraint provisions of this kind, and 810 and 810.1 are of a kind, if you like.
I agree that the imaginary case that you have described presents a very troubling scenario.
One of the concerns our association has had from the beginning with proposed section 810.2 is the broad potential for misuse of judicial restraint - partly, I think, because of the threshold test. You mentioned the balance of probabilities. As it's written, a reasonable fear might even be lower now, but apparently it's now before the courts as to what that test should be. In any case certainly it is lower than the criminal standard of proof.
The other concern is that if the potential ramifications of being given an order under proposed section 810.2 - or for that matter 810.1 or 810 - were such that one's liberty were profoundly restricted, I think our association would oppose that proposed section.
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However, there is I think a long tradition in our society, and not a tradition that our association opposes, requiring peace bonds - for women being able to get restraining orders, for example - based on reasonable judgments about the potential for mischief that a person might commit.
Our position on proposed section 810.2 is that only if the restrictions on liberty are mild would we not oppose 810.2, just because there are also situations - and I will describe one for you - where we have a person who has been convicted, let's say, a number of times of child sex offences, whose warrant has expired, who is out in the community, who has been observed driving around school yards and playgrounds and so on, where there's evidence that the person is drinking again, and the person's criminal history indicates that drinking and offending go hand in hand. There is a situation where it's not unreasonable for society to try to put some kind of restraint on the person's behaviour that is tailored to kind of harm that might arise.
We can balance those kinds of scenarios with the kind of scenario you described. I think, and I think our association thinks, that the only way to cut the pie is to require very minimum restrictions on liberty. That is why we would oppose electronic monitoring as one of the conditions. Continuous reporting to the police seems to be out of line. We would restrict it to the same kinds of conditions already there in sections 810 and 810.1.
The Chair: Ms Meredith, ten minutes.
Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.
My first question will go to the B.C. Civil Liberties Association. It's unclear from your presentation whether you do support Bill C-55 or you do not support it. I get the impression that there are elements of it you're okay with, but there are elements of it you would rather not see. Is that a fair assessment?
Mr. Westwood: Yes.
Ms Meredith: Going through your brief, I get the impression that you don't have a problem with the extension of six months for the sentencing provision for dangerous offenders. I get the impression that you do not oppose the increase from three to seven years as far as parole eligibility is concerned. I don't want to pit you against your association in eastern Canada, but there seems to be a difference of opinion from civil libertarian associations. Can you maybe explain to me why?
Mr. Westwood: I can tell you that the B.C. Civil Liberties Associations is a different organization from the Canadian Civil Liberties Association. There is not in Canada, like there is in the United States, a monolithic organization like the ACLU. There are quite a large number of smaller and larger civil liberties associations in Canada, each of which has a board of directors who sets policy, and people differ on issues, just as they do in other kinds of communities.
I can understand full well that a different civil liberties association would come up with a different answer in some cases with regard to the two sections you mentioned. It seemed convincing to us that there was virtually no possibility whatsoever that a person who'd been labelled a dangerous offender would be released by a parole board shorter than seven years into their sentence.
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Out of the 176 people who had reached the seven-year term that we knew of, none of them had been released. And yet the parole board was required, at some cost, to go through these three- and five-year reviews. It seemed to us to be an unnecessary waste of money, a requirement that did not seem to violate any due process rights of a person who had been labelled a dangerous offender. So that's why we made the decision.
I can't tell you what happened at the board at the Canadian Civil Liberties Association, or what's in Alan Borovoy's mind, but that was our view on that particular topic.
Ms Meredith: Thank you.
Do you feel that dangerous offender designation is a fair response to that type of offender who needs to be kept from re-entering society? Do you feel that the existing method of designating these 176 individuals is the right way to go?
Mr. Westwood: When we reviewed Bill C-55, we did not review the whole of the dangerous offender provisions, as of course the bill didn't either, and that really wasn't considered. Our association has not, in principle, opposed a dangerous offender designation. That's the best answer I can give for you at this point. I can't get into the details of all the due process protections that are there.
Kay, did you want to say something?
Ms Stockholder: Only about the issue of evidence presented after the six-month period. We want to be very clear that the evidence that should be allowed in the period following the conviction be evidence based on behaviour that occurred at or before the time of conviction, not evidence based on any behaviour that occurred afterwards.
Ms Meredith: As an organization, do you not have some concern that other people's liberties are challenged when society knowingly releases individuals who are posing a threat to particularly children and women out on the street? Are you not concerned that children who are no longer allowed to walk to school, who are no longer allowed to play in a playground without adult supervision - that their freedom of movement has been deeply restricted because of the potential threat of individuals who in some cases we knowingly release back into society, knowing that they're likely to find further victims?
How do you balance the rights of those individuals, those young people, who are being restricted in their movements, with those of that individual whose behaviour is posing a threat to these young people?
Ms Stockholder: I don't really know what issue, what particular legislative proposal you are addressing. We had not opposed the dangerous offender legislation, precisely on the grounds that it does serve the interests of society at the same time as it preserves the basic legal protections that are a fundamental part, and ought to be a fundamental part, of the Canadian Criminal Code. We've also not opposed the introduction of the designation of long-term offender, again with due care for its social implementation, for its due process provisions.
So if you're suggesting that the concerns for children and so on ought to justify a kind of wholesale disregard of citizens' civil rights and due process concerns, then I think all of us would be in a position to fear from our government, at least as much as the children have to fear from possible dangerous people.
John, do you want to add something?
Mr. Westwood: I would add only that in not opposing the long-term offender provisions, what I think the government is trying to do is to address the issue of people who we have strong evidence are at a high risk to reoffend, and to reoffend in a way that threatens the security of children and women or people in society, but to address it in a way that addresses the risk they pose without simply keeping people in jail, gating them at the end of the warrant and keeping them indefinitely in jail. That is where you can demonstrate that certain kinds of supervision and treatment in the community would reduce the risks they pose, that it's an option that is workable. It's a period of supervision that has a definite end and it's a response tailored to the kind of risk that person poses.
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If, on the other hand, what you want as a desideratum is to try to eliminate dangerous people from the community, I'm sorry, but that's just not possible in our society. In our view, the long-term offender designation is one way in which Parliament has tried to address that, and as I said, we don't oppose that.
Ms Meredith: The reason I am bringing this up is we're also dealing with my private member's bill, Bill C-254, which deals with post-sentence detention for a dangerous offender, allowing an application for a dangerous offender assessment after the person is already incarcerated.
The reason I bring this up is there is a concern that when you have the rights of the offender versus the rights of society or the rights of women and children to security of person, the right of the individual Canadian or the society as a whole is being placed behind the rights of the offender. What you're basically telling me, as I understand, is that the risk is worth putting the rights of the offender before those of society, that the risk is best left there.
Mr. Westwood: I don't believe that's what I said at all. What I said is that short of locking away everybody who one suspects or believes, on reasonable grounds or whatever test you want to apply, may commit a violent offence if they are left in the community - short of building 10, 20, or perhaps 100 times more jails than we have in order to keep people in jail for the rest of the lives - the best way to address the risk some people may pose to the community, while at the same time not taking such an extreme view as to just simply lock them away and throw away the key without any protection for their own rights, is to try to lower the risk they pose to the community.
Ms Meredith: I don't think anybody is suggesting - and certainly not through my private member's bill am I suggesting - that they wouldn't have a judicial process to go through where their rights would be protected or defended at that time.
You've given us the number of, I believe, 176 individuals. We're not talking about a lot of people here. When you deal with a dangerous offender application, you're talking about a very few when you look at the numbers of people who come through our court system.
I don't want people to get the impression that we're talking about locking up everybody we don't like and throwing away the key. What we're talking about is those most dangerous individuals who are predators, who are out there looking for victims, and they're very small in number.
The Chair: Thank you, Ms Meredith.
Did you have a comment on that?
Ms Stockholder: Well, we already indicated that we are not opposed to the dangerous offender act, though we consider it much more in accord with the principles of justice for the designation of ``dangerous offender'' to be made at the time of sentencing, rather than to be made and added on after the penalty and the punishment have already been served.
That is, if a definite sentence has been given and a person has served that sentence and then is designated a dangerous offender, essentially they are being punished again for a crime the punishment for which they've already served. That may be necessary in some unusual circumstances, but it's certainly preferable to have a designation of ``dangerous offender'' given at the time of conviction and sentence.
The Chair: Mr. Telegdi, you have ten minutes.
Mr. Telegdi (Waterloo): Thank you, Madam Chair.
Professor Mainprize, what's the per diem cost of monitoring somebody electronically?
Mr. Mainprize: The figures vary. In the most recent figures I've seen, it's a kind of economy of scale: the more people you have, the lower it goes. I believe the rates are somewhere around $35 to $40 per individual per day. That's the cost of the leasing or ownership of the equipment, correctional staff, and so on.
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Mr. Telegdi: Okay. In terms of the information you provided, you said that they were basically 95% accurate. Do you have 95%?
Mr. Mainprize: Are you referring to technical problems that may compromise the reliability of the equipment?
Mr. Telegdi: It's on the back page of the submission I have. It says the system is fairly accurate, about 95%, but not foolproof.
Mr. Mainprize: Correct. There are, under circumstances.... Maybe I could tell a brief anecdote or two of the research I did on the electronic monitoring program here in B.C. when it was getting under way in the pilot phase.
It was discovered, for example, that one female offender set off a false alarm every time she had a bath, and they discovered it was the material in the bathtub that seemed to elicit the false alarm.
For another offender, there's a particular kind of metallic substance that's in some wallpaper, and it seems to have an effect on impeding the transmission.
Sometimes people sleep in fetal positions, and that will temporarily impede the transmission of the signal.
In the house arrest situation, there are clearly anomalies or technical problems that arise, and the significance of that is that the people who run the programs have to cross-check manually in order to verify what the electronic equipment is telling them.
Mr. Telegdi: If the electronic equipment indicates that this individual is not at home, say under curfew, then is there a check made on that right away by probation or some security services to verify as to that person not being there?
Mr. Mainprize: Typically - and again there are different protocols of response for different programs - I know that the program in British Columbia, which is a province-wide program with somewhere around 350 to 400 offenders on any given day under monitoring, the default or automatic response would be to verify.
If, for example, the curfew time of 5 p.m. passed and the individual receiver-dialler wasn't registering and communicated as much to mission control, the corrections branch computer control centre, the response would be to phone the offender or to attend the residence to verify whether or not it was in fact a reliable indication, or whether or not there was some kind of electronic anomaly that accounted for the violation report read-out.
Mr. Telegdi: Thank you.
Ms Williams, I would like to switch my next question to you, and particularly where on page 9 you refer to the bail programs in the province of Ontario and how those programs have stopped receiving funding.
May I say that yesterday we had people from the Canadian Bar Association. One of the things they suggested to us was that we had better be careful as to how we dedicate scarce resources, so that we can actually spend some money on preventive programs. It seems to me that the bail programs, on all sorts of grounds, are very successful, both in terms of costs - I believe the cost is $4 a day - and certainly it helps out with social problems, racial problems, as well as debilitating problems that an individual might find themselves in and therefore get in trouble with the law or stop them from complying with conditions because of lack of resources.
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From your experience, can you expand on the long-term outcome of stopping those programs that enable people to function well within the community and having better public safety within the community?
Ms Williams: I did mention the bail program as an example of what to fear in terms of preventative powers.
In terms of the bail program and also legal representation for people who need to appear before a bail hearing, which is just as if not more important, clearly if you don't have representation, it's very difficult to put evidence before the judge as to the fact that you will actually be able to operate safely in the community until the time of your trial. If you're incarcerated after being charged with an offence as a result of not having proper representation or not being able to get your employer to the trial to say ``Yes, he has a job'', or those sorts of things, then obviously all of your problems are exacerbated. You are sitting in jail, and in a lot of cases you're sitting in jail for a long time.
As the commission report shows, African Canadians disproportionately sit in jail for a long time and then are ultimately acquitted. So the types of programs you have mentioned - including the bail program and also including programs such as alternative measures, which I know this government has been looking at very closely, and other programs that assist people in dealing with the social causes of very minor crime, getting them into training programs that help them find employment and keep them out of trouble, and those sorts of things - are less costly than keeping somebody sitting in jail and not contributing to society during the time in which they are incarcerated.
The long-term effect of rolling back all of those programs will be an extreme cost, both in actual monetary cost and also in societal costs, in that we know that people who sit around in jail are not necessarily getting a great influence in terms of their development. If you're able to keep them out and get them in positive programs, it's less likely that they'll reoffend.
I don't know if that answers your question.
Mr. Telegdi: Would it be fair to say that in a misguided perception of short-term savings, the Province of Ontario, by its decision, is creating a very costly long-term problem? As you mentioned, people can end up being in custody for no other reason than they don't have resources and finances. They end up being exposed to bad influences and then involve themselves in crime when they get out. Often jails are referred to as the university for criminals, if you will.
Ms Williams: Yes. I don't mean to suggest that everyone who's sitting in on bail is necessarily picking up negative habits. However, there are also studies that show that one of the determinants in whether you're found guilty and also in sentencing is the degree to which you had to spend time in jail prior to your trial. That is, you're going to look better on sentencing if you were not incarcerated prior to trial, were able to continue with your employment, were able to show you can function in society, and so on. So in fact the pre-incarceration can also influence the ultimate length of sentences as well.
Going back to your original point, surely there is room for more preventative measures and there is room for more community involvement in rehabilitation, especially on the less violent offences and non-violent offences. Without being too political, it's a position of the African Canadian Legal Clinic, I think I can safely say, that putting money into super-prisons that are going to remove people even further from their community and potentially create even more harsh environments, such as the type we see in big prisons in the United States, is not necessarily going to help us with our ultimate problem of crime in Canada.
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The Chair: Thank you, Mr. Telegdi.
The time is drawing to a close, so I want to thank Ms Williams and the people from British Columbia, especially a graduate of the University of Windsor, John Westwood. It was nice to see you again.
Ms Torsney (Burlington): Another promotion for the University of Windsor in Ontario.
The Chair: Thank you. We'll see you. Bye bye.
Mr. Westwood: Bye.
The Chair: We're adjourned.