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Bill C-55: Submission to the Standing Committee on Justice and Legal Affairs

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Bill C-55 contains proposed amendments to the Criminal Code, the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act, and the Department of the Solicitor General Act. The major amendments are to the Criminal Code, and are designed to enhance society’s response to the danger presented by high risk, violent offenders, especially sex offenders. The amendments to other statutes are proposed mainly in order to make them consistent with the amendments to the Criminal Code, and these latter will not be specifically commented on in this brief.

The proposed amendments will not be dealt with section by section but rather by topic, in order to more clearly portray their content. Following the description of each topic or set of proposals, the brief will contain a discussion and recommendations.

I. Changes to the dangerous offender provisions

1. Currently, at a dangerous offender hearing, the court is required to hear the evidence of at least two psychiatrists, one nominated by the Crown and one by the defence. In addition, the court can order the offender to be directed or remanded for observation. Under the proposed amendments, the requirement for two psychiatrists is dropped. The offender is remanded for up to 60 days for assessment “to the custody of the person that the court directs and who can perform an assessment or can have an assessment performed by experts.”

Discussion and Recommendation: The BCCLA opposes this amendment. A dangerous offender declaration is one of the most severe penalties the law allows. Psychiatric assessments are hardly infallible. It is not too onerous to allow a second assessment by a psychiatrist nominated by the offender.

2. Currently, the application for a dangerous offender designation has to be made after conviction but before sentencing. Under the proposed amendment, an application for assessment could be made within six months after sentencing, so long as (a) before sentencing a notice of a possible intention to make an application for assessment was filed, and (b) relevant evidence became available that was not reasonably available to the Crown at the time of sentencing. The BCCLA has learned that in discussions between the Department of Justice and prosecutors, no instances came to light in which the prosecution received evidence only after sentencing which would have been pertinent to a dangerous offender application. The BCCLA has also learned that the type of evidence which the government had in mind were police reports, witness statements, victims submissions, etc. which were not available at the time of sentencing. No post-sentence behaviour was being considered as relevant to this amendment.

Discussion and Recommendation: The BCCLA does not oppose this amendment. If because of the nature of the crime and the offenders criminal history the Crown wishes to apply for a dangerous offender declaration, but lacks certain crucial evidence, and that evidence becomes available within six months of sentencing, it is in society’s interest that the application be heard. Six months seems to be a reasonable period. We recommend that evidence as to post-sentence behaviour be specifically precluded in the legislation.

3. Currently, if the court finds an offender to be a dangerous offender, it has the option of imposing a definite or indefinite sentence. Under a proposed amendment, this option is removed, and the court must impose an indefinite sentence. So far there have been 176 successful dangerous offender declarations, and in seven of these the court has imposed a definite sentence.

Discussion and Recommendation: The BCCLA takes no position on this amendment. There appears to be little point in having a hearing, making a dangerous offender declaration, then imposing a definite sentence when presumably that sentence was available to the court without the declaration. And a case could be made that it ought to be up to Parliament to say that no one satisfying the conditions for a dangerous offender should get a definite sentence. On the other hand, the trial judge is presumably in the best position to determine whether a definite sentence satisfies the interests of justice and public safety.

4. Currently, when an offender has been declared a dangerous offender, the Parole Board is required after three years, and every two years thereafter, to review his or her detention in prison to determine whether he or she should be granted parole. Under the proposed amendment, this initial period is extended to seven years.

Discussion and Recommendation: The BCCLA does not oppose this amendment. Although approximately one half of the 176 dangerous offenders have served seven or more years of their sentence, not one has been released on parole before seven years. Many dangerous offenders would have received a sentence of 20 or more years if there had been no dangerous offender provision, and so would not have come up for parole for at least seven years anyway. It is a waste of the Parole Board’s resources to have to conduct three and five year reviews where there is no real hope of parole.

II. Long term offenders

Bill C-55 contains several new sections and amendments to other sections to create a new class of offenders called “long term offenders.” Briefly, long term offenders are persons whose crimes are not brutal enough to warrant a dangerous offender classification, but who present a substantial risk of committing a serious sexual offence when released from prison, and whose make-up is such that there is a reasonable possibility of controlling that risk by means of continuing treatment and/or monitoring after their normal sentence has been completed. The proposal is as follows:

1. After conviction but before sentencing, the Attorney General may apply to have an offender remanded for 60 days for assessment if there are reasonable grounds to believe that he or she might be found to be a long term offender. An assessment report must be filed within 15 days, and copies given to the Crown and the defence.

2. After the assessment, the Crown may then apply to the court to declare that the offender is a long term offender. The court may so find when the evidence shows that:

(a) a sentence of two years or more would be appropriate for the crime;
(b) there is a substantial risk that the offender will re-offend; and
(c) there is a reasonable possibility of eventual control of the risk.

There is a substantial risk of re-offending whenever:
(a) the offender has been convicted of an offence under
s. 151 (sexual interference)
s. 152 (invitation to sexual touching)
s. 153 (sexual exploitation)
s. 173(2) (exposure)
s. 271 (sexual assault)
s. 272 (sexual assault with a weapon)
s. 273 (aggravated sexual assault)
or has engaged in serious sexual conduct during the commission of another offence.
and (b) the offender has shown a pattern of repetitive behaviour which shows a likelihood that the offender will cause death, injury or inflict serious psychological damage on others, or by conduct in any sexual matter has shown a likelihood of causing injury, pain or other evil through similar offences.

3. If the offender is found to be a long term offender, the court must impose a sentence of two years or more, and order that the offender be supervised in the community for up to ten years after that sentence has expired.

4. An offender can be found to be a long term offender in two other ways:
(a) By the trial court. If an application for a dangerous offender declaration is not approved by the trial court, the court can treat the application as an application for a long term offender declaration. It can then either find the offender to be a long term offender (and impose a definite sentence and order supervision), or order a new hearing, or find the offender not to be a long term offender and impose a definite sentence.
(b) By a court of appeal. If the A-G appeals a lower court decision that an offender is not a dangerous offender, the appeal court can find the offender to be a long term offender, impose sentence and order supervision. (The judgment of a court of appeal that an offender is or is not a dangerous offender or a long term offender and a supervision order made have the same force and effect as if made by the trial court).

5. If an offender is found to be a long term offender, a copy of all reports and testimony, any observations of the court with respect to the reasons for the finding, and a trial transcript are sent to Corrections Canada. The Parole Board sets such conditions of supervision “that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.” These can include both a requirement to report regularly to a parole officer and to undergo further counselling or treatment. Despite press reports to the contrary, we can find no specific mention of electronic monitoring as a condition of supervision.

6. The offender, the National Parole Board or a parole supervisor can petition the court to reduce or end the period of supervision on the grounds that the offender no longer presents a substantial risk of re-offending. The onus is on the applicant to show this.

7. Failing or refusing to comply with a supervision order is an indictable offence punishable by up to ten years in prison.

8. Appeals:

(a) The offender can appeal both the finding that he or she is a long term offender and the supervision period on any ground of law or fact or mixed law or fact.
On an appeal of the finding, the court of appeal can find the offender not to be a long term offender (and quash the supervision order), order a new hearing, or dismiss the appeal.
On an appeal of the supervision period, the court can change the period of supervision or dismiss the appeal.

(b) The Attorney General can appeal both the dismissal of a long term offender application and the supervision period, but only on a ground of law.
On appeal of a dismissal of a long term offender application, the court can find the offender to be a long term offender (and impose a sentence and order supervision), order a new hearing, or dismiss the appeal.
On appeal of the period of supervision, the court can change the period or dismiss the appeal.

Discussion

At its June, 1996 meeting, in approving a brief on community notification, the BCCLA Board approved the following principles:

  1. The protection of children in the community is paramount. Where an offender’s rights or interests conflict with the protection of children, those rights and interests must give way.
  2. Offenders’ rights and interests should be compromised only when
    (a) doing so will reduce the risk they pose to children;
    (b) there is no less invasive or restrictive way of reducing that risk; and
    (c) their rights and interests are compromised as little as possible, consistent with lowering the risk they pose to children.

Although there is no definitive body of research in this area, there is some evidence that ongoing relapse prevention treatment and close supervision are important factors in lowering the recidivism rate of released child sex offenders. There is also evidence that paedophilia is a life-long condition which can be managed but rarely “cured”. The evidence that supervision and treatment of rapists are effective in reducing recidivism is (to the best of our knowledge) inconclusive. However, the proposal includes a condition that the court be satisfied that there is a reasonable possibility of eventual control of the risk he or she poses to the community. Given these facts, and the principles above, the BCCLA is not on principled grounds opposed to the creation of a long term offender designation.

Nevertheless, the sorts of conditions which will be imposed are invasive and restrictive. The requirement to report to a parole officer would normally involve weekly trips to the parole office, and disclosure of details of the offender’s life (such as his or her home situation, social relationships, use of drugs and alcohol, discussion of relapse prevention efforts, and so on). The fact that the offender is on long term supervision and the conditions imposed would be on local police files and perhaps on CPIC. The requirement for treatment or counselling could involve a significant invasion of the offender’s privacy (not to mention his or her dignity). How invasive would depend on the aggressiveness of the treatment.

On the other hand, being on long term supervision would in some (perhaps many) cases reduce the need for community notification. The practice now is not to conduct or recommend community notification until the offender’s warrant, and so conditions of release, have expired. The thinking is that if the offender poses a substantial risk of re-offending, his or her parole should be revoked. To the extent that long term supervision would reduce the need for community notification, there could be a net gain in privacy.

How does the proposal square with the second principle cited above?

(a) Evidence must be presented at the long term offender hearing that the offender poses a substantial risk of re-offending, and that there is a reasonable possibility of eventual control of the risk. The criteria for “a substantial risk of re-offending” appear to be reasonable, with the exception of “exposure”, which should be deleted. Thus principle 2 (a) looks to be satisfied.

(b) Unless someone comes up with a better idea, the only other ways of reducing the risk these offenders pose are more restrictive or invasive: lengthier prison terms or a dangerous offender designation; chemical or surgical castration, the death penalty. Principle 2 (b) is satisfied.

(c) The conditions are set by the Parole Board. If we assume that the Parole Board would not impose conditions that were not known to be effective, and would choose the least invasive and restrictive measures, then principle 2 (c) is satisfied. We should not assume this. This criterion should be set out in the law.

For the most part, the due process protections appear to be adequate. Adding the following should be considered:

(a) As with a dangerous offender hearing, the defendant in a long term offender hearing should have the option of nominating a psychiatrist or other person to conduct an assessment in addition to the court-ordered assessment.

(b) Provision is made for the offender to petition a court to vary the period of supervision, but there does not appear to be provision for the offender to petition the Parole Board to vary the conditions of supervision.

(c) The standard of proof in both a DO and a long term offender hearing is the civil standard. One court has observed that applying the criminal standard is not required since in the nature of things proof beyond a reasonable doubt would be impossible in almost every case. (R. v. Knight) We are inclined to agree with the court.

The arguments against this proposal are:

(a) that it would in effect extend the offender’s sentence, and regardless of the motive, would be experienced as additional punishment; and

(b) the Crown and the courts might come to regard it as a normal step in the prosecution of sex crimes, rather than as an unusual step in particular cases.

Neither of these arguments are persuasive. It is true that the proposed measure would in effect extend the offender’s sentence, and likely be experienced as punishment. But if it would be effective in reducing the risk, and is the least invasive means, then that is the price to be paid for the protection of children and women. As for the second argument, the BCCLA judges that the requirements for a long term offender finding (serious crime, pattern of repetitive behaviour, reasonable possibility of eventual control) are stiff enough that the feared outcome is not likely. And if long term offender declarations in time became over-used as punishment for sex crimes, the law could be stiffened up.

Recommendation: The BCCLA supports the proposal contained in Bill C-55 to create a category of long term offender, subject to the following amendments:

(a) that provision be made for the offender to nominate a psychiatrist or other person to conduct an assessment in preparation for the hearing;

(b) that if there exists no legislative provision for a long term offender to petition the Parole Board to vary the conditions of supervision, then such provision be made;

(c) that “s 173(2) (exposure)” be deleted from the list of offences which are used to determine whether there is a substantial risk of re-offending; and

(d) there be a legislative requirement for the Parole Board to impose only the least invasive and restrictive conditions consistent with the protection of the public during the supervision period.

III. New judicial restraint provision

Currently, sections 810 and 810.1 of the Criminal Codeallow a court to require that a person enter into a recognizance to keep the peace and be of good behaviour, and comply with reasonable conditions, where the applicant has reasonable grounds to fear that the person will cause personal injury to him or herself and family or damage to his or her property (s. 810), or commit a sexual offence (s. 810.1). The conditions can include:

  • prohibition from possessing firearms, ammunition, explosives or a FAC;
  • prohibition from being at or within a specified distance from a place (such as a person’s home or workplace, daycare centre, schoolground, playground);
  • prohibition from communicating with certain persons; and
  • prohibition from contact with persons under 14 years.

A person breaching a recognizance under ss. 810 and 810.1 is guilty of an indictable offence and liable to a sentence of up to 2 years, or a summary conviction offence.

Bill C-55 adds a new section 810.2 designed to deal with persons who it is feared on reasonable grounds will commit a serious personal injury offence. A “serious personal injury offence” is either
(a) an indictable offence involving use or attempted use of violence, conduct endangering life or safety or likely to inflict serious psychological damage for which the sentence may be 10 years or more, or
(b) committing or attempting to commit sexual assault, sexual assault with a weapon, or aggravated sexual assault.

The Attorney General must lay an information before a provincial court judge. If the judge is satisfied that there are reasonable grounds to fear that the person will commit a serious personal injury offence, the judge may order that the person enter into a recognizance and comply with reasonable conditions as in ss. 810 and 810.1. Such conditions can subsequently be varied upon application by the Attorney General or the defendant.

In addition to the conditions in ss. 810 and 810.1, the judge “shall consider whether it is desirable” to include as a condition:

  • that any firearms, ammunition, explosives, FAC’s etc. be disposed of or surrendered;
  • that the person report to the correctional authority or to the appropriate police authority; or
  • that the person comply with a program of electronic monitoring.

Discussion

The proposed section requires that the Attorney General (or more likely his delegate, a Crown counsel) be the one to apply for the judicial restraint in circumstances not contemplated by ss. 810 or 810.1. Thus it appears to fill a gap and does not duplicate those sections. Since the behaviour feared is at least as grave as that covered in those sections, and since the BCCLA has not opposed sections 810 or 810.1, we do not oppose section 810.2.

Invading a person’s privacy and restricting their liberty based solely on what we think they might do is a dangerous game. We are uneasy about such measures, but concede that where the restrictions are relatively mild—such as agreeing to a peace bond—and the evidence for potential harm persuasive, a case can be made.

Recommendation: The BCCLA does not in principle oppose the creation of section 810.2.

However, two of the conditions which the court must consider in s. 810.2 are troublesome.

(a) that the person report to the correctional authority or to the appropriate police authority:

It is not clear from the wording of the section what is intended or mandated by this requirement—it could be only that the person report once to one of these authorities, or that the person report regularly. We have learned that the government was thinking mainly of the person reporting his or her address to the police, and keeping the police informed of any address changes. It is questionable whether a person who is truly bent on committing a serious personal injury offence would be inhibited by having to report to a parole officer or the police every week, let alone once. In fact, it is likely that anyone who would refrain from committing mayhem just because of the requirement to report would also refrain just because of having to undertake the recognizance. There is therefore little protection to the public offered by this requirement.

Recommendation: The BCCLA is opposed to this section as worded. We would not oppose a requirement for the person to report their address to the police, and keep the police informed of any address changes. If that is what is intended by this section, then that is how the section should be worded.

(b) that the person comply with a program of electronic monitoring:

Electronic monitoring is currently used as a sentencing option for non-violent offenders. The bracelet worn by the person emits signals from a range of 200 to 500 feet to a receiver connected to the person’s telephone, and these signals are stored. Periodically, the receiver dials out to the corrections agency’s computer, which matches the received signals to a pre-determined curfew schedule. If the person was not at home when he or she was supposed to be, a violation report is produced. The system is fairly accurate (about 95%) but not foolproof. Potentially violent persons are specifically excluded from electronic monitoring, for good reason. It operates by reporting violations after the fact, but cannot prevent a person from violating the curfew, let alone from committing a crime.

In its usual form, as described above, electronic monitoring constitutes house arrest. It is invasive of the person’s privacy, and a severe restriction on their liberty. There is no evidence, or reason to believe, that electronic monitoring would be effective in preventing a person bent on committing a serious personal injury offence from doing so.

“Reverse monitoring”—where the receiver is located in the potential victim’s home or workplace and the bracelet warns the potential victim and/or the police should the person come within a range of 200 to 500 feet—is technologically possible, but has not been used in Canada to date. In any case, it would be largely ineffective in preventing an attack by a person bent on harming the potential victim. The person would simply remove the bracelet before nearing the home, or complete the attack before the victim or police could respond.

In addition, “reverse monitoring” could be used as a means of harassment. The harasser could drive by the potential victim’s home or workplace, setting off the alarm and creating panic, then quickly return to a place where he has an alibi. Given the 5% error rate, it would be difficult to prove that he had harassed the potential victim.

Recommendation: The BCCLA opposes the requirement in section 810.2 for the judge to consider that the person comply with a program of electronic monitoring.