Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 61 - Evidence - Morning sitting
OTTAWA, Tuesday, April 22, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-55, to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, met this day at 9:02 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Good morning, honourable senators. We are continuing with our consideration of Bill C-55. Please proceed.
Ms Tamra L. Thomson, Director, Legislation and Law Reform, Canadian Bar Association: First of all, we apologize for the slight delay. It was on account of your security guards doing a very good job of keeping you safe.
The Canadian Bar Association is pleased to appear before the committee this morning in its considerations of Bill C-55. The Canadian Bar Association is a national association representing over 34,000 jurists across Canada, and amongst our primary objectives are the improvement of the law and the improvement of the administration of justice.
It is in that context that the CBA has analyzed this bill and in which we make our comments today. The submission was prepared by the Committee on Imprisonment and Release and the National Criminal Justice section of the Canadian Bar Association. These groups represent, between them both, defence lawyers and Crown attorneys across the country, and the Committee on Imprisonment and Release comprises several experts on those issues.
With me today is Professor Manson of Queen's University who is a member of the Committee on Imprisonment and Release. He will be making the substantive remarks.
Professor Allan Manson, Queen's University, Member, Committee on Imprisonment and Release, National Criminal Justice Section, Canadian Bar Association: I want to express the regrets of the chair of our committee, John Conroy from Abbotsford, B.C., who could not be here, as well as those of Professor Jackson from the University of British Columbia and Helene Dumont from Montreal.
We have a simple message: We are asking you to be the voice of sober second thought. I am sure you have heard that many times before. I hope after you hear our remarks you will understand why we are saying that.
This legislation will constitute Canada as the country with the most oppressive, preventive detention regime in the Commonwealth as well as other jurisdictions in the western world. We think that is a dreadful mistake. To make that point, I will address three separate issues.
The first issue is how this legislation was generated, the original source for it, going back to the tragic killing of the young Christopher Stephenson. The reasons that were relevant in that particular case have been addressed by many other initiatives since then, so that the original source in our view is no longer an issue.
Second, all the other empirical data about the current regime, which is the dangerous offender regime and the Criminal Code sentencing provisions and section 810 of the Criminal Code, are working. There is no evidence of any problems that need to be addressed.
Third, this legislation will, without a doubt, generate constitutional controversies. In the very least, the Supreme Court of Canada decision in Lyons which upheld the constitutional validity of the current regime, can be ripped up right now and thrown out the window. It will be re-litigated, and one can only guess at the results, but certainly if there are violations and the government is forced to justify the change, in our view they will find absolutely no evidence to justify the change.
Let us start with the original source. I will be happy to entertain questions throughout my presentation.
Senator Jessiman: You might tell us about Stephenson.
Mr. Manson: I will start with that. I will leave out some of the technical, consequential amendments, but there are really three parts to Bill C-55. There are amendments to the dangerous offender regime. Our response is, basically: Why? There is no need and the changes are problematic.
Then there is this new vehicle of what they call the long-term offender regime whereby courts in certain circumstances will be able to sentence someone to a minimum of two years -- in other words, a penitentiary term -- and to tack on 10 years of controlled supervision with some very serious penalties. We will talk about that as well.
Then there is the third part which has been amended since the committee hearings in the House of Commons. That is the recognizance, the new proposed section 810.2. We will address most of our remarks to dangerous offenders and long-term offenders.
The Stephenson killing was a dreadful tragedy that took place in Ontario and led to a very long inquest. The young boy was abducted and murdered. Two important features came out of the subsequent inquiry. One was the question of why the killer was never made subject to the dangerous offender regime. The answer was found in a combination of prosecutorial and police and community attitudes at the time of the original offences. In other words, the victims involved did not want to testify, the Crown attorneys were not especially zealous, and they took pleas to other offences for fixed terms.
Senator Jessiman: Of what was he convicted? He murdered the fellow. Was he convicted of murder?
Mr. Manson: The killer was killed in prison before he came to trial. However, there was no question of who Stephenson's killer was.
Senator Jessiman: You are saying that he was murdered, so then the new conditions could not be applied. Was there sex involved in this killing?
Mr. Manson: The reason that Stephenson's killer was on the street was that he had been sentenced to fixed sentences and had not previously been subjected to dangerous offender proceedings. Everyone agrees that the current prosecutorial attitude is very different, and there is now much better information-sharing across jurisdictions. Any prosecutor will tell you, if this case came on their desk today, it would be a dangerous offender case and they would not accept a plea to a specific offence for a fixed term of five years.
Second, the killer was released from prison and not subjected to the detention provisions that are found in the Corrections and Conditional Release Act, and the federal authorities admitted that was a mistake. He slipped through the cracks. The provisions were new and they did not know about them. They did not know their proper ambit. Again that would never happen today.
The biggest point we want to make about Stephenson is the inquest recommended, as a response to concerns about the safety of children, that Canada adopt Washington State-style sexual predator legislation. The federal government constituted a federal-provincial-territorial task force which looked at that recommendation and agreed with the position that many of us had taken that such legislation would never be constitutional in Canada. In fact, it has been also been ruled unconstitutional in the United States.
That same task force and its recommendations helped produce Bill C-55, and I will come back to those.
The major job of the task force was to look at the viability of the sexual predator post-sentence applications. They agreed that those applications would not be constitutional.
Our argument about the Stephenson tragedy is that the reasons that produced it have been addressed by changes in prosecutorial attitudes and by recommendations of the task force about information-sharing. We have had dangerous offender legislation since 1947 in various incarnations.
Another interesting aspect of the Stephenson case surrounds the killer. Stephenson's killer had been in the custody of institutions of the state since before the age of five. The danger that the killer represented, ultimately producing the death of a young boy, is a danger from which the community cannot shy away. It is a danger for which the community must take some responsibility.
Again, our view is that this kind of legislation permits legislators to say, "See, we have done something," when really it does nothing but distract us from real causes and real risks. This legislation distracts us from paying attention to the fact that children are mostly at risk of abuse by family members and friends of family members, not strangers.
Senator Jessiman: However, do they not come within the definition of dangerous offender?
Mr. Manson: They might.
Senator Jessiman: Did this man fall in that category?
Mr. Manson: He did, without a doubt. The reason he was never prosecuted as a dangerous offender was that the family of the boy who had been assaulted many years before said they did not want to go through with the prosecution. I do not think would be the case anymore. A senior prosecutor would now go and visit that family and explain the importance of their help. We have all sorts of new provisions in the Code that make it easier for children to give evidence. It is a very different world than it was in the early 1980s. We have addressed those problems in many ways.
We also have section 810.1(1) in the Code which was not in existence at the time:
810.1(1) Any person who fears on reasonable grounds that another person will commit an offence under section 151, 152, 155 or 159 ... or section 271 --
Those are the sexual assault offences.
-- in respect of one or more persons who are under the age of fourteen years, may lay an information before a provincial court judge...
They can get what is commonly called a peace bond. In fact, there is a case before the courts dealing with the constitutionality of this, the Budreo case. Budreo was serving a four-year sentence and was detained to warrant expiry. Upon release, the police believed on the basis of psychiatric evidence that Budreo represented a risk to children. He was subjected to this kind of peace bond and supervision. Those powers exist now; they did not exist 15 years ago.
I want to look at some other evidence about the dangerous offender regime. We have now about 100 dangerous offenders incarcerated, mostly from Ontario and British Columbia. It is a reverse of where we were at the time of the Ouimet committee in 1969 when British Columbia was the habitual offender capital of Canada. Not that title goes to Ontario.
Senator Gigantès: Elect Harris and that is what happens.
The Chair: Senators, it is appropriate for you to interject. Please make sure your microphones are on.
Mr. Manson: Quebec has disavowed the dangerous offender provisions, and in fact there has only been one application in Quebec history.
Senator Gigantès: What do you mean by that?
Mr. Manson: In Quebec, prosecutors, for the most part, do not look to dangerous offender applications. They prosecute people for a specific offence and seek a specific sentence. There has only been one dangerous offender application in Quebec's history, and I want to read to you from the report of the federal-provincial-territorial task force with respect to the Quebec approach.
This is the report that led to Bill C-55 because of the significance of Quebec's 1995 criminal justice statistics. The rate of violent crime in Canada decreased by 4.1 per cent in 1995. In Quebec, the decrease was 7.5 per cent; so clearly Quebec's decision not to use dangerous offender legislation has not produced a greater rate of violent crime.
Let me read to you what the task force said about Quebec:
...use of Dangerous Offender provisions does not appear to be either a sufficient, or necessary approach. During the past several years, Quebec has developed an efficient, medical/legal system to deal with the problem of clientele coming from the judicial system, including dangerous offenders. They consider that their system functions well and that patients suffering from mental illness, independent of where they find themselves, receive adequate psychiatric treatment. Consistently, the crime rates published for Canadian provinces suggests (sic) that overall crime, and more importantly for the purposes of this discussion, violent crime, is lower in Quebec than in all provinces to their west.
My point is simply that Quebec has put its resources elsewhere. They have not used dangerous offender provisions, and it seems to be a safer place. Yet Bill C-55 not only entrenches dangerous offender provisions; it makes them more rigorous and makes them, in our view, constitutionally defective. I will get to that in a minute.
I want to refer to a very recent case from the Saskatchewan Court of Appeal called Pollock. This is not an especially important case other than it shows exactly how the current system is working and why this legislation is wrong. The case was unanimously decided on December 4, 1996, by the Saskatchewan Court of Appeal. Mr. Pollock was appealing the finding that he was a dangerous offender.
At the trial, there was a dispute between two psychiatrists, not about Pollock's dangerousness but about his treatability and whether he was amenable to treatment. The judge took the conservative view and agreed with the psychiatrist who said he was not sure whether Pollock would respond positively to treatment.
After finding Pollock to be a dangerous offender, the judge was faced with the key question: Should the dangerous offender be subjected to indeterminate detention which possibly means for life or should he be subjected to a fixed-term sentence? The trial judge said he would go along with the psychiatrist who was not sure about Pollock's amenability to treatment. He decided to sentence Pollock to an indeterminate term, possibly life, rather than to a fixed term.
Why is this case significant? What will Bill C-55 do? It will take away the judge's discretion. It will say that a judge can no longer decide on an indeterminate or fixed-term sentence. The sentence will always be indeterminate. The major issue in Pollock which was decided in favour of public safety and security will not even be an issue anymore.
In Pollock, too, we have the debate between the two psychiatrists, both of whom agree that the man represents a danger but they disagree about the intractability to danger, about the amenability to treatment. That will not happen anymore. Why not? The new bill says we will get rid of Crown-appointed psychiatrists and accused-appointed psychiatrists in favour of an overarching assessment. The judge will order the overarching assessment and that will set the tone. The debate between the two experts, mediated at the end of the day by the judge, will no longer exist.
Senator Jessiman: The accused does have the right to have his own psychiatrist?
Mr. Manson: You are absolutely right about that. It is our submission that this assessment ordered by the judge will be the overarching assessment, and it will be virtually impossible to dismantle it. That is number one because it is intended to be the overarching view.
Second, all of these questions about the accused's ability to bring in their own evidence raised questions of resources. Will legal aid fund this? Do the resources exist? Do the resources even exist to provide this one major, overarching assessment? In our view, the answer is no, if you go province by province.
In the task force report, they say they went to the Netherlands and visited a clinic where the experts take a multi-disciplinary approach to dangerousness and confinement. We think that is excellent. I am sure they are right, but, in our view, this multi-disciplinary team of experts, psychiatrists, psychologists, social workers, various other professionals may not even exist in Canada. Do they exist at Pinel? Do they exist at Penetanguishene? Do they exist at the B.C. Forensic Centre? They do not exist anywhere else, and in our view they do not exist in those three provinces either.
Another important feature is the attitude of tolerance which is integral to the Dutch response to confinement. Those experts have a very different attitude than our institutional experts who basically have a conservative tilt. We think this whole notion of the overarching assessment will take away from the process one of the essential aspects of fairness which is the debate between the two psychiatrists, as happened in Pollock.
There is another defect in the current bill. Right now, an accused person who is found to be a dangerous offender can apply for parole after three years. They do not get out after three years. We know of one case where a dangerous offender was released after four years. Most of them are serving in excess of 10, 15 and 20 years. In fact, the release rate of dangerous offenders is 1 per year; less than 1 per cent are being released on any form of conditional release. What will this bill do? It will say, no, from now on you must wait seven years.
Let me read to you what the Saskatchewan Court of Appeal said in Pollock after hearing the argument and after saying they would not interfere with the trial judge's conservatism. There were two views presented in front of the trial judge by the two psychiatrists. The trial judge was entitled to take one view over the other; that is his job. The Saskatchewan Court of Appeal said this at the end of the day because they were worried about this case:
We therefore urge upon those who are responsible for providing treatment for the appellant to conduct a periodic review and that they be particularly concerned with this aspect of his development. This Court would like to be assured that if time has worked to bring about a change in the appellant's attitude or personality, such as would indicate he would benefit from treatment, he will be provided with the opportunity to receive such treatment and to be subsequently assessed as to his suitability for release.
The court was worried and they wanted to be assured that all the safeguards, including the prospect of release, would be applied.
What will this bill do? It will say, no you cannot go to the parole board after three years; you must wait seven. There is not one iota of evidence to support that, especially since in Canada's history we can only find one person who ever got parole in less than seven years.
Why is all of this important? In 1987, the Supreme Court of Canada declared the current regime constitutional.
Senator Jessiman: Is this the Lyons case?
Mr. Manson: Yes. The majority judgment from Mr. Justice La Forest dismissed arguments based on section 11, section 9 and section 12 of the Canadian Charter of Rights and Freedoms. He said, basically, this is a carefully tailored process that targets a very small group of people, and it may not be a perfect process but it provides extensive procedural safeguards.
One of the biggest ones -- and if you like, I can refer you to the numerous quotations -- is the discretion of the trial judge to, at the end of the day, look at the evidence, especially evidence about treatability, and say that whether the person should be sentenced to an indeterminate sentence or a fixed sentence. That was critical to Mr. Justice La Forest, the existence of that discretion. That is what the Pollock case is all about, the exercise of discretion.
Under Bill C-55, the discretion is gone. It is removed entirely. If an accused person meets the criteria, the response must be indeterminacy. Why?
In Canada's history, I am told that there have been about seven cases where a trial judge has said: Yes, you are a dangerous offender, but I will not impose an indeterminate sentence. One case, Robideaux, is outlined in our brief. It tells how Robideaux served his sentence, was released and is now an active and productive member of the community. If it had been an indeterminate sentence, I guarantee you he would still be in jail.
Senator Jessiman: You are saying that it makes it unconstitutional?
Mr. Manson: I am saying, for that reason alone, the Lyons case has to be re-litigated. When Mr. Justice La Forest says that is an integral part of the careful tailoring and the fairness of the process, what else can be done? Mr. Justice La Forest referred specifically to the three-year parole review as was recommended by the Ouimet Committee in 1969. Mr. Justice La Forest said that would be better but that we are not looking for perfection; it is fair enough if there is a three-year parole review. That will now be changed to seven years.
Parole, in the words of Mr. Justice La Forest, is the vehicle that saves this process from unconstitutionality on the grounds, at least, of section 12, being cruel and unusual treatment, and probably on section 9. Let me read to you some of his comments about the importance of the parole review:
... the availability of parole is not as important a factor in deciding whether a determinate sentence is cruel and unusual as it is in assessing the constitutionality...
dangerous offender provisions.
This is so because in the context of a determinate sentencing scheme the availability of parole represents an additional, super-added protection of the liberty interests of the offender. In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection of the dangerous offender's liberty interests.
And later:
However, I believe that the parole process saves the legislation from being successfully challenged under s. 12, for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require.
That is what the Saskatchewan Court of Appeal in Pollock was talking about. The parole process will save this person from an in ordinate length of incarceration. That will be changed from three to seven years.
As well, when Mr. Justice La Forest details the fairness of the process, he makes note of the fact that it currently involved the two psychiatrists. They are gone as well.
So why are we doing this? Why is this bill before the Senate? It beats me. There is no reason. Dangerous offender provisions right now achieve the purpose of both prevention and punishment that the Supreme Court recognized as their "penalogical" objectives.
Let me move on to another problem, the window of opportunity. Bill C-55 attempts to address a question which was raised with the task force: What if new material becomes available which suggests that the person we prosecuted a year ago or five years ago is more dangerous now than we had thought before?
As I pointed out earlier, we have section 810.1 now which did not exist at that time regarding the peace bond. What does this bill do about information that comes to light after a dangerous offender application has been rejected by the prosecution? They will not go that route. They will prosecute for a specific offence and seek a specific sentence. This legislation permits the Crown to come back six months later and say that they will bring a dangerous offender application now even though the sentence has been passed.
What does it require the Crown to do in order to get that six-month window of opportunity? It requires them to give notice at the time of the prosecution that they are thinking about it. Well, if you are thinking about it, do the investigation and do it. If you have served the notice, any lawyer will tell that client, for the next six months not to talk to anyone, not to go into a treatment program, not to meet with a psychiatrist or a psychologist. Why? Because anything the client says could be the new information which will open up this window. The lawyer will tell the client to go sit in the cell for six months until the lawyer calls and says it is okay to start talking. Otherwise the client may tell someone about a dream he had when he was six years old and then find himself facing a dangerous offender application.
These provisions may be counterproductive then in terms of therapy and treatment, as well as being clearly constitutionally defective because of the language of section 11(h) of the Charter. The Department of Justice can try to define this away as much as they like by words in the legislation, but the language of section 11(h) is clear to me and I would hope it is clear to you:
Any person charged with an offence has the right --
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again...
So how in January of 1997, can someone be punished for offence X and then, after six months, be forced to face it again in light of section 11(h)? It is pointless.
We are asking you to exercise the sober second thought and slow this down. Why are we doing this with the dangerous offender provisions? Why does Canada want to be in the vanguard of preventive detention? England abolished it in 1967. In Australian jurisdictions, there are examples of concerns about specific people, and they have passed specific legislation empowering judges on a regular basis of 6 or 12 months to make findings of dangerousness requiring that the legislation be reviewed by both the legislature and the courts because everyone is concerned.
You will see right at the beginning of our submission a quotation from Judge Bazelon who sat for 35 years on the United States Federal Circuit Court of Appeal. He is one of the most often quoted and best respected criminal judges in the United States. It is from his book called Questioning Authority where he referred to any kind of preventive detention in the following words. By its very nature, preventive detention raises "profound moral and legal questions." Why? Because you are asking people to make assessments of future risk and then to impose confinement based on those predictions.
We have a regime in Canada which was held to be constitutional in 1987. It is a rigorous regime, as you can see. The Pollock case demonstrates that. The Lyons case demonstrates that. Lyons was a 16-year-old. The trial judge told the prosecution when they were contemplating a dangerous offender application, that they would have an uphill battle because the criteria are so stringent. They met the criteria even with respect to a 16-year-old. It is a rigorous regime. Why Bill C-55 wants to make it more rigorous and why it wants to generate this new constitutional controversy, I do not know. Lyons has to be re-litigated; there is no question. Its foundations are being removed entirely.
Let me turn to the long-term offender regime. This is the fall-back position if a prosecutor does not believe it can succeed with a dangerous offender application or if the dangerous offender application does not quite meet its mark.
The difference between the long-term offender regime and the dangerous offender regime is in the consequences. The trial judge imposes a penitentiary sentence, a minimum of two years, and then the judge can impose a supervision period of up to 10 years. Since the decision is based on future risk, it is our view that every trial judge will make it 10 years. If I am a trial judge and you can persuade me that this person represents a future risk, is that a risk for tomorrow, a risk for next week, a risk for next year? Will anybody quantify that risk? Can anybody say the person is only a risk for six months or nine months? That will never be. The person represents a risk, a substantial risk, to reoffend. That is the test.
Therefore, if I am the trial judge, I have to make the supervision period 10 years. I cannot say three years or five years. There is no justification for that. If I find the risk, I must go to the maximum.
Along the way, the person can be reincarcerated by the supervisor for breaching conditions -- not necessarily for committing a new offence but for breaching a condition. "Go see your counsellor every Wednesday." If the person misses a Wednesday, they can be reincarcerated and submitted to a suspension process very similar to what we have for parolees.
Remember parolees are serving a sentence on the street. This is a form of added supervision.
During these periodic returns to incarceration, the person can serve up to 90 days, and that can go on for 10 years. As well, you can be prosecuted for the breach. The breach can be a new offence or the breach can be that the person did not see his counsellor last Wednesday. The prosecution of the new offence for breaching the condition carries a penalty of up to 10 years. Is this constitutional?
In Lyons, the Supreme Court talks about carefully tailoring the process to a clearly and carefully described set of people. What is the difference between long-term offenders and dangerous offenders? First, the dangerous offender provision is triggered by committing a serious personal injury offence. If there is no serious personal injury offence, there is no dangerous offender provision available.
The long-term offender regime does not require that. It requires conditions for a set of offences which includes all sexual assaults, serious or less serious, sexual touching, invitation to sexual touching. Is this the carefully designed process with a carefully described target group? No.
Dangerous offender provisions require a threat to the life, safety or physical or mental well-being of a person. Long-term offenders must simply show a substantial risk to re-offend.
Is there a view here that more supervision should be required in some cases? Right now, probation can only be for a maximum of three years and can only be attached to a prison sentence of a maximum of two years. The probation provisions could be expanded to three or four or five years, but, no, we have a new regime that says, boom, ten years.
I want to make one final point about long-term offenders. One of the Justice Department's arguments about its fairness and flexibility is that the prisoner can always go back and ask that this 10-year period be varied.
I do not know from what provinces you senators come, but I would be amazed if you come from a province in which the legal aid plan will fund a long-term offender who is being supervised in the community to make an application to a superior court judge. The legal aid system is in crisis. It is all well and good to put these provisions in the Code and offer the right to go back to court or to make this application. Legal aid plans will not fund it; it is an illusory right.
It is like some of the reviews under the Young Offender Act. Everyone says the young offender can go back to court and ask that that be revisited. Who will provide the lawyers? Or do you expect the people to do it on their own? I would be happy to answer any questions on these issues.
We do urge you to give this a serious, second thought and to say to your parliamentary colleagues that this should be slowed down. This requires a hard look.
Senator Gigantès: You said that only one offender was released in less than seven years.
Mr. Manson: There is one that I know of. I see there are officials here from the Department of Justice to correct me if I am wrong. I am referring to a study done by the Department of Justice a few years ago.
Senator Gigantès: The norm seems to be seven years, but you are objecting to seven years. That perplexes me a little. The argument you gave at the end meets the criterion of Solon who said do not make logic out of force, so I do not know how to answer that.
The discretion of the trial judge is removed, you say; yet it will be a judge that will make what you call an overarching assessment. Right?
Mr. Manson: The judge will order the overarching assessment. That is the expert opinion. That is the single psychiatric report. Then the judge will look at that, yes.
Senator Gigantès: We have to assume that the judge will look at it carefully, that the judge has heard of or has read about the cases you are discussing, Pollock, Lyons, and that he will act in consequence. It will not be a frivolous report by the judge based on this overarching assessment. Nor do I find it convincing that the judge will, of necessity, choose a 10-year period, especially since it is possible to reincarcerate such a person.
You leave me perplexed with such remarks. On the one hand you say there must be an assessment, and you like what happened with the debate between two psychiatrists. On the other hand, you do not seem to give any credit to judges to be as sensitive as you are, to be as well informed as you are, to be as concerned with the well-being of the community and the prisoners as you are.
There are judges whom the British call "hanging judges," but there are other judges -- as you have illustrated with some of the comments, Justice La Forest and so on -- who are concerned about the prison systems and what happens to detainees.
Mr. Manson: My concern is for the judicial discretion on dangerous offender applications to impose a fixed sentence rather than an indeterminate one; that discretion has been removed. The judge will not have that discretion and the ability to assess the material. I am also concerned about the removal of the debate between the two psychiatrists. The judge will have, subject to other evidence that is called, this overarching assessment which the task force describes as coming from a multi-disciplinary team -- if we have those.
We are not concerned that judges may not look carefully and fairly, but, quite clearly, there are debates between the different disciplines -- psychiatry and psychology -- and within the disciplines themselves, about prediction. We have come from an era where, in the 1980s, the American Psychiatry Association, in an amicus curiae brief filed with the Supreme Court of the United States, said: Do not let psychiatrists make predictions about future dangerousness in capital cases because it cannot be done; the predictions are wrong two times out of three.
I accept that science is improving. Even in the most recent literature, people are saying that we doing a better job. However, Monahan and Steadman, the American experts, still say that they have doubts.
We think the judge ought to hear the debate, rather than being handed a single assessment from someone who may represent this school of thought or that school of thought. It does not matter on which side of the divide they fall, they may be subject to their own disciplinary biases. What is wrong with the debate?
Senator Gigantès: You said it would be a multi-disciplinary team that will look at it and make a report to the judges. The report presumably will mention divergence of views, if there is any on that multi-disciplinary team, and the judge, if he is a good judge -- and we have to assume he is a good judge -- will ask if the finding is unanimous. They will have heard of this amicus curiae case of the American Psychiatric Association.
I should think any judge of any experience will certainly not trust psychiatrists. There is no way you can trust the predictive power of a psychologist or psychiatrist. Everybody knows that. Judges know that. So why should that judge, knowing all that you know, automatically apply a 10-year period?
Mr. Manson: We are talking now about dangerous and long-term offenders. You are absolutely right. If we had the kind of multi-disciplinary assessment that the task force said they saw in the Netherlands, I would listen more carefully to your view. The bill does not require that. The bill simply requires an assessment. Our argument is that the multi-disciplinary resources which the task force saw in the Netherlands do not exist in the provinces of Canada.
I can tell you the names of the psychiatrists from province to province who will be asked to make these assessments and I will tell you the kind of views that they often offer, sometimes in this direction, sometimes in that direction.
The Chair: Mr. Manson, surely we could do the same thing with judges. I mean why not have three decide on everything? I find it insulting, quite frankly, for the Canadian Bar Association to besmirch the role of a psychiatrist.
Mr. Manson: We are saying, let us have the debate.
The Chair: Why not have a debate between judges? Why just a debate between psychiatrists?
Mr. Manson: It may be that there are other people who have expertise to offer. When we are talking about locking up for life, say, a neighbour of yours or a friend of yours, because somebody feels they are dangerous, surely you would want the judge to hear the nuance, the subtlety of the debate between experts about dangerousness. These are not easy matters to decide, and we are talking about potentially life-long confinement.
Senator Gigantès: To accept what you are saying is to accept that no judge has thought as thoroughly about these issues as you have and that no judge will be concerned about the system and how it works and that no judge has heard or considered that long-term incarceration without treatment will not necessarily solve problems. It is to accept that no judge will say, "I am not satisfied with this assessment you have given me. Go back and do some more or bring another psychiatrist in who has a differing view." The judge has the authority to do that, as I understand it. It is his court. He can say what he wants.
Mr. Manson: With all due respect, judges must make their decision based on the evidence. Psychiatrists will come and provide their learned opinions. It would be difficult for me or a judge or the members of this chamber to say, "Is that what all psychiatrists think?" It is an expert opinion.
Senator Gigantès: No. The point I was making was that the judge can say, "This overarching assessment does not satisfy me. I want to hear another view." He does have the right to say that.
Mr. Manson: Judges have a very limited role in terms of calling their own evidence. We can go through that jurisprudence if you like.
Senator Gigantès: You mean it might be appealed if he calls for more evidence?
Mr. Manson: There are limits on the judge's ability. The Canadian criminal justice system is based on party initiation. It is the prosecution who carries the ball and the accused who responds. The judge's role is to maintain the integrity of the process.
Senator Gigantès: You might say the integrity of the process is flawed in my view because the evidence is partial. I want to hear another view. The judge can say that and you know it.
Mr. Manson: If I am the judge, how would I know that?
Senator Gigantès: If you know it, why should he not know it?
Mr. Manson: That is not my point. I am not saying this psychiatrist's opinion is worthless. I am saying let the judge hear the debate between experts who may have, like in Pollock, a different view. In Pollock it was not even dangerousness. It was about intractability.
Let the judge hear the debate. Most experts are very impressive witnesses unless there is another view to challenge them. I did not mean to besmirch either judges or psychiatrists. There ought to be a subtle nuance debate. That is the Canadian justice system.
Senator Milne: Are the accused's rights not protected in this bill by the fact that he can ask for his own expert? Does that not fit into the system that we have now? You asked in your presentation how on earth he will pay for this. Our legal aid system is broke. How is his expert paid now and what would be different from the present to the system under the provisions of Bill C-55?
Mr. Manson: Right now the provision requires both the prosecution and the accused to nominate a psychiatrist and the state pays for it. Under this bill, there will be the one overarching assessment. You are absolutely right; the accused can produce their own evidence. It becomes a question whether they have the resources to do that. Will legal aid plans fund that kind of evidence and will it ever dismantle what will become known as the assessment when the bill says, if you are a judge presiding over one of these applications, order the assessment from the local forensic team?
I agree with you, the accused has the right. Whether we will see that played out, I do not know. Whether it will ever dislodge the assessment the judge ordered, I do not know.
It is curious; why are some of these issues being brought forward by the task force? Look at the reasoning. In this case it is the trip to the Netherlands, but that recommendation assumes that we have those resources. Do you know the reasoning of the task force for doing away with the judicial discretion to make the sentence either fixed or indeterminate? There is a comment in the task force report that many prosecutors have advised that it is a bit of a downer to go through the whole process, have the accused found to be a dangerous offender and only walk away with a fixed sentence. It is almost as if, having played the game so well, having put in such effort, they deserve a bigger prize. That is the only argument for doing away with discretion, so integral to constitutionality.
Senator Jessiman: The single psychiatrist, that does not necessarily have to go down on one side or the other. Because he is a psychiatrist, he is not acting on behalf of the Crown or on behalf of the accused, as the lawyers do in our confrontational system. Could he not give the judge both sides of the issue and let the judge decide on the facts?
Mr. Manson: Yes, but it is pretty hard to argue both sides of the coin.
Senator Jessiman: He could say, look, if I were a psychiatrist on behalf of the accused, this is what I would say, and if I was on behalf of the Crown, this is what I would say. Here are the facts and I have given you both arguments. You decide.
Mr. Manson: Let me tell you what a trial judge would do. I have been a trial judge so I will tell you. A trial judge would say, thank you very much; now, what do you think? You always have to come back. Otherwise it is not evidence. It is opinion evidence.
Senator Gigantès: You have been a trial judge, sir?
Mr. Manson: Yes, sir.
Senator Gigantès: It sounds like, if you were on the bench, you would take care of these concerns you have now and say, "I want to hear another opinion, Mr. Prosecutor." Any defendant would have a lawyer.
Mr. Manson: One would hope so, but in Canada the rate of unrepresented accused is going sky high.
Senator Gigantès: However, the judge can appoint a lawyer for the defendant.
Mr. Manson: Who will pay for the lawyer?
Senator Gigantès: The lawyer for the defendant, even if he is only finished three years of law school, will know that this is crucial and he will ask for another psychiatric opinion. The judge can say to the local justice department of the province: I do not care; I need another opinion. Fetch a psychiatrist who disagrees with this one. I want to hear both sides of the case.
You would have done that I am sure.
Mr. Manson: The British Columbia Court of Appeal has recently confirmed that when a judge appoints counsel, the state does not have to pay. There are certain circumstances where the Code specifically authorizes the appointment of counsel. In other circumstances, if that is what the judge does, fine, but the lawyer must be paid. Who will pay the lawyer? These things are very problematic.
Senator Gigantès: The accused who does not have the means, is he not guaranteed a representation by counsel?
Mr. Manson: I would say in Canada right now there is no decision that says an accused is guaranteed counsel. There are decisions that say accused persons are guaranteed a fair trial. If counsel are not there, courts are now entering what are called "conditional stays." They are staying the process until counsel is provided, and if there is no counsel, the prosecution does not go ahead. There is no case in Canada that says you are guaranteed counsel.
Senator Gigantès: I rest my case. You as a judge would say this case cannot go on because there is no counsel for the accused.
Mr. Manson: I would say that, yes.
Senator Gigantès: I assume most judges would be at least as conscientious of the rights of the accused as you are.
Senator Jessiman: You probably know that the public are outraged at these kinds of crimes, sexual assault crimes, and they are also outraged at the courts. Let us deal with the dangerous people. There are a number of people, certainly within the Reform Party and, I assume, in some of the other parties, who would say that the six months is not nearly long enough and that it should extend to the end of the sentence. If a convict is sentenced for a dangerous offence to, say, six years, some people would argue that, throughout the whole piece, the Crown should have the right to bring the application. Now that may offend the Charter of Rights.
The government had to do say then that it may not have the information at the trial but that they would give notice and apply within six months. You say that counsel acting on behalf of the convict will tell the convict to shut up. There may be other evidence that will come up in the six months. If the convict follows counsel's advice and they sit there and say nothing, then they may not cause themselves to be charged, but other evidence could come in so that that effort could be defeated.
Some experts have said that this will withstand a Charter challenge because the Crown must give notice and also, when it makes the application, it must convince the court that, at the time of the sentencing, the information used was not at hand and could not be found on a reasonable search. I guess your answer is that this will not withstand the Charter. The first proposition, to me, seems reasonable. I would be inclined to allow a period longer than the six months.
Mr. Manson: One of the very valuable things that came out of the task force inquiry was the development of a national system of information sharing. A prosecutor who is worried about the future dangerousness and the sexual connotations of an accused's background, can now search for information in every jurisdiction because people are starting to flag these cases. This is not like 10 or 15 years ago when an accused could enter a quick guilty plea and, a month after he is sentenced, the Crown discovers the real background. That has been a very valuable initiative. It was encouraged by the various justice ministries around the country.
Look at this test. It is shown that relevant evidence that was not reasonably available to the prosecution has become available in the interim. This is not the test that courts of appeal use for new and fresh evidence now. They require material evidence that, with due diligence, was not available at trial and which materially affects the significant aspect of the case. It is a much higher test. So this test does not even meet the current law for new and fresh evidence on appeal. How it will support a section 1 justification?
You are absolutely right in saying there are lots of people from various political parties who want this.
Senator Jessiman: It is not really the political parties; it is the public itself.
Mr. Manson: That is not the same as empirical evidence. The government under section 1 must justify.
Senator Jessiman: You cannot go by polls and you cannot go by the mob. There is a feeling out there that the courts and people like yourself, acting on behalf of others, are just too soft on crime, and this is why this is coming about. There is no doubt about it.
Mr. Manson: This is why this is coming about. I agree with that.
Senator Jessiman: Regarding long-term offenders, there is no question that some of these sex offenders are repeating their crimes; yet they do not come within the definition of dangerous offender because their crimes are not violent. They must be charged and convicted and sentenced to at least two years. Then the court can add a supervision period of up to 10 years. You say to us that every court will give the maximum period of 10 years' supervision. That is not true. In many cases where the crime is punishable by up to 10 years, the courts give only six months; sometimes they give probation.
We had a case the other day about pimps; they could be charged for living off the avails of child prostitution. They could face charges punishable by up to 10 years, but the courts are giving three or six months' probation, so they had to bring in a particular act to cover that situation.
I think this is somewhat similar. I do not think -- I may be wrong, I will find out later -- that they will always apply the full 10 years. They will listen to the evidence. They will listen to the psychiatrists and others who say this man is treatable; that with six months or seven months or two years of treatment in the proper facility, there is a chance he could be cured. I do not think the judge would say that, notwithstanding that information, he shall be supervised for 10 years.
Of course, there is always the opportunity to reapply. You say it is difficult.
Mr. Manson: I think you are absolutely right. When the Code says a maximum of 2 or 5 or 10 or life, those are the maximums. Judges do not impose those. There are all sorts of sentencing principles, especially proportionality in respect to the gravity of the offence.
This is different because the supervision period is not based on proportionality as it relates to the gravity of the offence. The sentence, the incarceration period, would be based on those considerations, but supervision is based on risk.
Senator Jessiman: The doctor might say that this accused poses some risk but, with proper treatment over a certain period of time, he should be cured. Hopefully, then he is cured. Maybe they have to reapply. I do not know.
Mr. Manson: It is a principle of sentencing in Canada that the appropriate custodial period should never be increased by a judge's view that a longer period of incarceration would provide a greater treatment opportunity. In other words, if this is the kind of offence that is punishable by six months but the accused needs two years' treatment, the judge may not look to the two years. The six month sentence carries because its appropriateness is based on proportionality, gravity and all these other principles.
This is a new role for judges, to give them this power to impose periods of control based on treatability. Our view is simply, if judges are being asked to make a finding of substantial risk, they will err on the conservative side because they can never say it is a one-year risk or a two-year risk.
We may be wrong. We will see as this evolves. I would be prepared to wager that the majority would be in the 10-year range.
Senator Jessiman: You have agreed that some sexual offences do not come within the dangerous offender definition.
Mr. Manson: Yes.
Senator Jessiman: You say they are covered by some other part of the Criminal Code. That other part of the Criminal Code does not provide for the kind of supervision that they are looking for here. Is that not correct?
Mr. Manson: Yes.
Senator Jessiman: Certainly people are concerned and should be concerned about people who are repeating these kinds of acts. So to that extent at least, this long-term-offender provision is something which the Criminal Code does not have at the present time. They can be charged, but that does not have the same --
Mr. Manson: It certainly does, and this provision is making Canada a participant in what is called around the world, "the criminology of the other." We are demonizing the strange little men, calling them monsters and providing mechanisms to lock them up for life. This is happening all around the world. It gives people a false sense that they are doing something about a problem when in fact it is marginalizing people who are different. Canada ought not to do that.
Senator Gigantès: What do you mean by "different"?
Senator Jessiman: Like a pedophile? Do you think a pedophile is different?
Senator Milne: These offences are certainly different.
Mr. Manson: I am talking about the different treatment that is often given to the tall, handsome, middle-class offender as compared to the strange little man like the accused in the Budreo case. He looks strange. He has marginal intelligence. He is odd. He has played this game in the park where he has touched some children on top of their clothing. He has been doing that for years. That is disgusting. We will lock him up.
Then there is another accused who is not like that. He is a well-educated, middle-class, choirmaster with whom we are very sympathetic and for whom this is "a problem."
Senator Milne: That certainly does not apply to Bernardo.
Mr. Manson: That is not what we are talking about.
Senator Doyle: There is the choirmaster from Kingston.
Mr. Manson: He was not detained. The detention provisions were not brought to bear in that case. They were brought to bear in the Budreo case. I think that is the classic example of what I am calling "the criminology of the other."
Senator Jessiman: Do you mean the choirmaster is getting away with it?
Mr. Manson: No, I am not saying he should get away with it. I am saying he should not be treated differently. It may be satisfying to us to target this group of people whom we want to characterize as monsters because they look different and they are doing these things that we do not like. They are not healthy. However, they are not the gravest source of problems to our children. We create a false sense of security.
The gravest source of problems, as I indicated earlier in the statistics, is not abuse by family members or friends. Rather, it is what are we doing in schools, in hospitals, in our communities for our children. We are taking away their resources. Instead, we are feeling happy because we are dealing with "the problem." We are providing security through things like Bill C-55. This is an illusion.
Senator Gigantès: We are taking away the resources from children in hospitals, in schools? That is what you said?
Mr. Manson: I mean that governments are doing that across the country.
Senator Gigantès: Governments are doing that, but are these resources that will protect children from a pedophile?
Mr. Manson: In many ways they are resources that will permit children to have self-esteem, to be self-possessed and self-confident people in the world.
Senator Gigantès: You are not answering my question. Are these resources which are being taken away the resources which currently protect children against pedophiles?
Mr. Manson: They may prevent people from becoming pedophiles. They may prevent people from becoming sexually abhorrent in the future if we have better resources to deal with this. I hate to go back to Fredericks, the killer of young Christopher Stephenson. This man was almost continuously in state custody from the time he was five years old. He is a product of the community.
What are we doing about those issues? What are we doing in our state institutions? We are taking resources away from them and so we are helping to produce aberration.
Senator Gigantès: You cannot prove, nor could even a psychiatrist prove, that the behaviour of Fredericks was due to his being institutionalized since the age of five. It is deplorable that some people find themselves in those situations; however, only a small minority of them turn out to be pedophiles.
Mr. Manson: Yes.
Senator Gigantès: You are making a big jump in logic there. You sound like a psychiatrist or a judge.
Mr. Manson: I am neither a psychiatrist nor a judge. I am simply trying to suggest that it is too easy for a legislator to say that, in passing Bill C-55, I am dealing with the problem. That distracts our attention from other sources of the problem and other ways of responding to it. That is the only argument I am trying to make.
Quite clearly, developmental psychologists will tell you right now that if you assess children between the ages of six and nine and look at their performance in school, their conduct in school, and the quality of parenting that either exists or does not exist, you can make very accurate predictions about future criminality and future anti-social conduct. If you want to respond to those children, you must respond at each of those levels -- their cognitive development, their school performance, their conduct and behaviour and the parenting that is either present or not. If you do not respond at either of these three levels, you are not doing the job.
We know those things about young people and we are distracting our attention from what we know and what we could be doing by arguing about legislation that will not do anything.
The Chair: I want to ask a supplemental question on your point about marginalizing people who are different. That is very true. We have indicated that deviant behaviour is in fact performed by the people who look strange, but surely we are going through a revolution in perceptions in this country. We see the hockey coach, the choirmaster, the professor at university, the teacher in high school. They, too, are now being considered deviant, even though they look physically fine and have, in most cases, above average intelligence.
Senator Gigantès: Hockey coaches are a little too fat but she is right.
The Chair: Do you agree that we are in fact moving away from the marginalizing of the strange looking person and finally recognizing that this deviancy crosses socio-economic lines and physical beauty?
Mr. Manson: I have to say I think you are absolutely right. In terms of what recognition it is producing in the community, I am not sure, but this is exactly why we see news broadcasts night after night dealing with the hockey coach, because the community does not know how to respond to that. If it is the strange little man, the community has no difficulty.
You are absolutely right. What this will mean in the future, I do not know, but this again is why we are talking about protecting children. When you have children who are self-confident, self-possessed, with good self-esteem, they will come home and tell their parents if something very strange happens to them.
The Chair: Having been there, I wish you were right but I know you are not.
Mr. Manson: I am trying to respond to Senator Gigantès about resources and how they may produce differences in the future as our community is maturing. As I said, 80 per cent of the perpetrators of abuse in children are not strangers. So let us not be distracted from those truths by something like Bill C-55 that is part of "the criminology of the other."
I agree with you. We are learning and maturing as a community, so let us not be distracted in that process of maturation. Let us look for other ways to protect children because that is the concern.
Senator Milne: I find myself agreeing with you about the bleeding away of resources from various things. Unfortunately, funding schools is outside of the scope of the bill which is before us right now. I would like to get back to what you said about taking away discretion from the judge.
Does the judge not have, in the long run, the final discretion as to whether or not this person is a dangerous offender? It is the judge who makes that decision, and he makes it according to what he has heard before him in the courtroom from the overarching assessment and from whatever defence the accused has brought to him. The judge still does have that discretion. It is his decision as to whether the person is a dangerous offender; it just happens a little earlier in the process than the sentencing part.
Mr. Manson: Let us look at the current provision. It is very poorly worded. It is what has been called in the business, "the double may." It has two "mays."
At the end of the criteria for finding that someone is a dangerous offender, the provision in section 753 says:
...the court may find the offender to be a dangerous offender and may thereupon impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender has been convicted.
That is the double "may."
Senator Milne: We are moving it from the second "may" to the first "may."
Mr. Manson: Let me tell you what the Canadian courts have said. We can talk about the actual cases, but I will try to speed it up. The first "may" is a "shall." If the criteria have been met, if the evidence proves the pattern of repetitive behaviour and the conviction is for a serious personal-injury offence, then the Court shall find the person to be a dangerous offender.
Senator Jessiman: It should be found, and in practice is that what happened?
Mr. Manson: It "shall." That is right, currently. Then we go to the "may." After finding he is satisfied that this person is a dangerous offender, the judge has the discretion to choose an indeterminate or fixed period, and one of the crucial issues is treatability.
This bill is taking away the discretion to make it fixed or indeterminate. If there is conviction of serious personal injury offence and pattern of repetitive behaviour that meets one of the various descriptions, then in our view the "shall" will apply and you can take a look at the bill. Appellate courts will say: Trial judge, your real concern was treatability and that has been taken away from you; you should have found the person to be a dangerous offender and you now have no discretion with respects to disposition.
A trial judge cannot say to the Crown, "You have met the case; you produced the evidence; I am not happy. Application dismissed." That case will be in the Court of Appeal before the judge leaves the court house and the Court of Appeal will reverse it. If the evidence is there, the finding must be made. That is my assessment of your question.
If you look at the task force report, there is no argument that supports taking away the discretion, other than the comments of some Crown attorneys that they find it tough at the end of the day to walk away with only a fixed sentence.
Senator Gigantès: It does not have to be 10 years.
Mr. Manson: No, it can be two or four or five.
Senator Gigantès: The judge still has the discretion.
Mr. Manson: No, that is not so on a dangerous offender application, absolutely not. There is no discretion for a dangerous offender application. I am not talking about the long-term offender now. I am talking about the dangerous offender. There is no discretion and there is no justification for that in the task force report. This was central. I can read to you the provisions from Mr. Justice La Forest's decision where he regularly says this is one of the fundamental issues to constitutionality.
Senator Corbin: That is the one you read earlier?
Mr. Manson: This is where he sets out a number of reasons why this is a carefully tailored, valid process. He says that, finally, the court has the discretion, not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met. Later on he repeats the comment a number of times. I could find it if we worked through it.
This was critical to constitutionality. Now it is gone. How will the government justify it? What will be their section 1 evidence? The task force report? Some Crowns think it is tough at the end of the day to only walk away with a four- or five- or ten-year sentence and not with a life term. That is not section 1 evidence. There is no justification.
This part of this bill will be tossed out by the Supreme Court of Canada. I would be prepared to wager on it.
Why will it be tossed? Because in seven or eight cases, judges have said, "I think this person is treatable." I worked on the case of Marlene Moore, an inmate at the Prison for Women. She got less than a two-year sentence even though she was found to be a dangerous offender. She was the first woman to be the subject of a dangerous offender application. There is now a woman in Alberta who has been made a dangerous offender.
Senator Jessiman: Before she died, did she do anything bad?
Mr. Manson: She killed herself at the Prison for Women.
Senator Jessiman: Only to herself.
Mr. Manson: Yes, but the pattern of conduct met the test. Mr. Justice Ewaschuk, who was with the Department of Justice for many years and was a prosecutor for many years, did not find her to be worthy of an indeterminate sentence. He found her to be a dangerous offender. This was one of the cases where the term "shall" was used.
You cannot say, "The criteria has been made but I will not label you a dangerous offender." The Court of Appeal said that if the criteria is met, the term "shall" applies instead of "may," but discretion kicks in at the disposition stage.
There have only been seven or eight cases like that, but now that opportunity is gone. One such case, Robideaux, is described in our brief. The man is now a success in the community. Those opportunities will disappear. Our question for the legislators is: Why? What is the justification for taking away the judicial discretion that is so important to constitutionality? There is nothing in that report.
Maybe Senator Jessiman is right. There are people complaining about it. However, complaining is not the same as showing that it has in any way been improperly exercised. There is not one argument in that regard.
The Pollock case shows how careful judges are. There the trial judge hears the one psychiatrist saying the accused is treatable, another psychiatrist saying he is not sure, and the judge decides to take the conservative view. You saw how uneasy The Court of Appeal was with that conclusion, but they still said they would not interfere with it. The tilt is in favour of that conservative approach to these types of cases. Why take the discretion away?
Senator Doyle: Professor, we believe that those taken into the hands of the law in this country have more rights, protections, safeguards than accused persons anywhere; but we read in the newspapers that that is not necessarily so. You touched on one of the major factors at the moment, and that is the collapse of legal aid. While Senator Milne notes -- and she is quite right -- that this is a provincial matter, it is not a provincial matter when it has effects on how the courts themselves perform.
Could you tell us something of what is happening there? Is there some resolution at hand? Is anyone concerned about the dire situation of legal aid across the country?
Mr. Manson: The funding of legal aid was shared between federal and provincial governments for many years, and that has recently changed. Now, as I understand it, there are block transfers and there is more authority in the provincial governments compared to the days when the federal government wanted to guarantee people who had their liberty at stake that they would receive some form of legal aid to help them present their situation.
The cutbacks in Ontario have been enormous, probably in the neighbourhood of 30 or 40 per cent. There is currently a major review being conducted by Professor McCamus, the former chair of the Law Reform Commission. His report will be due sometime in the summer regarding the future of legal aid in Ontario.
Other provinces have been cutting back on certificates, cutting back on the ability to hire experts, to hire co-counsel. Some provinces are moving more heavily into public defender models. Some provinces are putting out to tender blocks of cases. A lawyer can bid X number of dollars on a 100- or 200-case block. There are all sorts of budget-driven mechanisms.
The future is very scary to me when I read decisions from the Supreme Court of Canada and ask myself, but what if the person is unrepresented?
Let me give you an example. Prosecutors now have an obligation in Canada to make disclosure. Many people argue that this is the answer to Donald Marshall's wrongful conviction in Nova Scotia. If disclosure had been made by the Crown and defence knew all the material, the case would have turned out differently. The Supreme Court of Canada in Stinchecombe has made it clear as part of a right to fair trial and the right to make full answer in defence, that the Crown must disclose.
I have sat in courtrooms both as an observer and as a judge and watched unrepresented accused. The judge asks the Crown whether they have made disclosure, and they say, yes, they delivered a package to the accused. Then the judge looks at the accused standing there with a package and tries to figure out a polite way to ask the accused whether he or she can read. Literacy is a problem. How do you do that publicly without humiliating someone? Somehow, once the judge has figured out how to ask that question, he or she must inquire whether the accused could make much sense out of the package.
Our courts tell us it is the judge's obligation to ensure a fair trial, but the judge cannot step into the arena. The judge cannot take over and say, "I used to be a lawyer; I will cross-examine for you."
So these rights are being provided and, you are correct, they are important rights, but do people have access to them? Do the poor, the illiterate, have access to these rights? These are questions which we must constantly ask.
I was just reading a judgment from the Supreme Court of Canada talking about young offenders and custody and the flexibility of the statute which allows the young offender to go back to court. This is why I made the comment about the need for long-term offenders to go back to court. How do you craft your application? How do you file your notice of motion if you have no lawyer? Who will provide the lawyer? Legal aid plans will not do it even if you write to them and explain your situation and how things have changed and request to go back to court and make the application.
These discretionary areas are being cutback enormously. Providing legal aid in areas where people are being prosecuted, those are being cut back. However, in the discretionary areas, the cut-backs are much greater.
This is a huge problem, Senator Doyle. I do not have an answer for it. The actions are being driven by budgets and deficits. There are models where new regimes are being put in place. The driving engine is the number of dollars. That is what we have. We must be very concerned about illusory rights, a right which cannot be enforced. The judge looks at someone holding their package and tries to figure out if they are literate and can understand what is in it. Stinchecombe and the noble statements from the Supreme Court of Canada just evaporate when you are trying to ask someone, "Sir, can you read what is in the package?"
Senator Doyle: Professor, looking at Bill C-55, would you think that anyone who is accused under that law and who is facing that piece of legislation should go into a courtroom without a lawyer?
Mr. Manson: Absolutely not. I am not trying to make the argument in answer to Senator Gigantès that legal aid plans will deny assistance to those people who are accused. I am certainly optimistic that that will be provided; however, after they have been found to be a dangerous offender or a long-term offender, what help is available?
Let me tell you the story of sentences that never end, the story of the habitual offender in Canada. In 1969, the Ouimet committee said there are too many people in jail who are social nuisances and they are in jail for life. They are not getting out. They are serving indeterminate sentences and they are not dangerous. Parliament listened to that.
The Supreme Court listened in 1976 in a case called Hatchwell and said no one should be found to be a habitual offender who is only a nuisance. We do not care if it is your fortieth shoplifting offence, you are a nuisance; you are not an habitual offender. Dangerousness is at the heart of it.
Parliament responded and created the new dangerous offender regime. What about these old habitual offenders? My colleague, Michael Jackson, did a study called "Sentences That Never End," which led to the appointment of the Leggatt commission where there were approximately 87 men, old habituals who had been in jail for decades. Pardons were granted to 73 of them.
Why are these people in jail for decades? Because they are forgotten. They are marginal people at the start. They have little contact with the community. They have no family. They have no resources. When they go to the parole board and the parole board asks where they will live on release, they do not know what to say. "Where will you work?" They do not know. "Have you ever had a job?" They perhaps held a job 20 years earlier. They will not get parole.
This is a group of people who, without access to legal aid after conviction, will linger and become the forgotten people, especially if they are "the other," rather than the choirmaster. They will have no lawyers to go to the parole board for them. I have a huge fear that we are creating a new class of forgotten people with a class of sentences that never end.
Senator Gigantès: You started the scenario with the person who cannot read. The judge, if he is at all human, will be worried about that and he will insist that this person have counsel. If this person does not have counsel, he will go to jail for a very long time. Then you jump from that and you say he will be like those old habitual nuisances who stay there under sentences that never end. You are comparing apples and oranges.
On the one side, you have somebody who is a dangerous offender. On the other side, we have someone who steals bars of chocolate. I do not think the two are comparable. I regret that there are habitual offenders who are merely nuisances and they do not know how to get out. That is another problem. That is not what Bill C-55 is about. We are talking of dangerous offenders.
The judge's discretion is illustrated as still existing from the very first when he has the right to say, "I am staying this prosecution because this particular illiterate, unfortunate citizen needs a legal defence."
Mr. Manson: I think I have been misunderstood. I am not suggesting that people will be facing these kinds of applications without lawyers. I am not suggesting that.
Senator Gigantès: However, you jump to another category.
Mr. Manson: I am saying that, with the long-term offender, we are widening the net of state control dramatically with a very small trigger. We are creating a new category of people who will be subject to constant reincarceration for up to 90 days and, if they breach a condition -- not commit an offence but breach a condition -- they will be subject to prosecution for up to 10 years for breaching that offence. So we are creating that new category of people who will have enormous difficulty getting out from underneath it because at that stage they will not get counsel. I am not referring to the original hearing.
Senator Gigantès: You are saying that a judge will give a 10-year sentence to somebody for breaching a condition?
Mr. Manson: No, I am not saying that. That is the maximum.
Senator Gigantès: You should be told you have to keep to those conditions. This is a dangerous offender. This is could be a pedophile.
Mr. Manson: This is a long-term offender who has not been found to be a dangerous offender. The trigger of the serious personal injury offence is not there, and this 90-day period is not something inconsequential. If a parole officer decides a certain long-term offender should be suspended or should be brought into custody because they need to chat, then he has the power to do that for up to 90 days. That can happen continuously over a period of 10 years. This is a huge amount of state control.
Senator Gigantès: Are you saying all officers are sort of sadistic tyrants?
Mr. Manson: They are concerned about their careers. This is a new obligation being heaped on people. The most recent statistics that I have indicate that the number of federal prisoners on parole is up between 1990 and 1994 by 36.9 per cent. Now the parole officers are hearing: By the way, over five years, we have increased your supervisory role by 36.9 per cent; take on the long-term offenders as well.
These are people are grossly overworked. They do not want to read in the newspaper that one of their supervisees did something last night. If the convict misses his appointment, he will be suspended. That is the reality.
The Chair: I come from Manitoba where there have been serious cutbacks to the legal aid system. Certainly actions for divorce certificates or separation applications, unless there has been violence in the relationship, have been decimated. There is no question about that.
It seems the same cut-back did not happen with criminal legal aid certificates. There have been changes, for example, in small claims court where the limit was moved from $2,000, to $5,000, and now to $10,000.
Is it your experience across the country that legal aid certificates are still relatively easy to get for criminal matters?
Mr. Manson: No. I do not claim to be an expert on what is happening in Manitoba. I think it was the first jurisdiction to put out to tender, blocks of cases. What I worry about there is not that the cases are being handled, but how well are they being handled.
A lawyer in private practice will have some paying clients and then some 100 files for which he is getting X dollars. He is getting X dollars for those whether the file is closed by pleading the client guilty or by running a two-week jury trial. My fear is with the tendering process -- and I am just offering my view; I do not have data about this. I have seen it in one jurisdiction and I think it affects the quality of the legal services enormously.
In Ontario, though, the rule used to be that counsel was provided if there was a prospect of incarceration. Now that is not the rule. The rule is rather, if is there a substantial likelihood of incarceration, then a certificate will be issued; otherwise, no. At the bottom end, a huge number of applications for certificates are not being allowed.
Then there is what is called the reduction in the discretionary increase which can pay lawyers for doing work above the tariff. That is harder to get and that is the funding used to hire experts. Look at the Morin inquiry in Toronto. Look at some of the material that we are seeing daily about the overarching assessments, Senator Gigantès, and the work of the forensic centre.
Just this morning in The Globe and Mail, a British expert was cited as saying that the court was 100 per cent wrong in the way it handled his material and that it should never have been used in court. That is one of the fears about an overarching assessment from the state institution when there is no counterbalance. If there is no counterbalance, the expert can say that he did all this work and this is his opinion.
They are serious people. I am not besmirching psychiatrists, but other people can have different views. We need the other side saying that they, too, have done serious work also and that they have this view. Then let the judge decide. This is the Canadian system, to have the parties bring the material and let it be debated. Bill C-55 does away with that by doing away with the two-psychiatrist model.
The Chair: It seems to me that where these long-term offender provisions would primarily be used is in cases of sex crimes that have no violent component to them, such as cases of sexual touching or exposure. My general inclination is that I do not much like tightening up the Criminal Code against convicted persons as is found in this bill, but I must say that I am more impacted by the protection of children found here. One must make judgments on pieces of legislation. In my view, if this bill can, in some way, by creating this long-term offender provision, protect children from experiences which will impact on them for all of their lives, then I come down on the side of that protection.
The provision of this long-term offender status and mandatory supervision will, in my view, do that. It will keep those individuals out of parks and out of areas around schools because they will be under mandatory supervision. Do you not think that there is a valid use of it in these circumstances?
Mr. Manson: I agree with much of what you just said and I want to go back to section 810.1 of the Criminal Code, because I think it addresses all of those concerns with one added feature. The order exists for 12 months and must be renewed. It allows for the application to be made by any person, be it a police officer, psychiatrist, neighbour, who has reasonable grounds to believe that a person will commit one of the sexual offences listed there upon one or more persons the age of 14. The risk is carefully targeted. The offences are specified. The victims are specified as being under 14. A judge, if satisfied that there is reasonable grounds for the fear, can:
810.1(3) ...order the defendant to enter into a recognizance and comply with the conditions fixed by the provincial court judge, including a condition prohibiting the defendant from engaging in any activity that involves contact with persons under the age of fourteen years and prohibiting the defendant from attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably expected to be present, or a daycare centre, schoolground, playground or community centre, for any period fixed by the provincial court judge...
The Chair: Is that not the whole point? We are dealing here with something which will happen at the time of their original sentence. Under this section, they get out and somebody has to deal with it after the fact. The point is, it is not being dealt with after the fact; these people are falling through the cracks.
Mr. Manson: I think the Budreo case illustrates that fact. The police brought the application in Toronto. He was subjected to a section 810.1 order and we have never heard about him since.
This was a response to the Supreme Court decision in Heywood where the Supreme Court said the previous power to impose these restrictions at the time of sentencing was unconstitutional for all sorts of reasons.
Parliament came back and said they would do it this way in the future and it can be pre-released but it does not say when. Let the people who have this fear bring the application. If the provincial court judge agrees that the reasonable grounds to support the fear have been made, he or she can impose a recognizance with conditions for up to 12 months. That can be renewed.
A person bound by the recognizance who commits a breach is guilty of an indictable offence, up to two years' imprisonment or an offence punishable on summary conviction. If a person refuses to sign the recognizance, they can be incarcerated for refusing to sign it or refusing to abide by it.
This is a huge power. The advantage that it provides, in my mind, over the long-term offender provision is it must be renewed every 12 months.
Senator Gigantès: Kristen French and Leslie Mahaffey were over fourteen. Fourteen is not enough.
The Chair: That is a whole different matter
Thank you, witnesses, for being with us today. You have given us lots of food for thought.
Senator Corbin has asked for the departmental officials to appear.
Senator Corbin: I was inquiring if they would appear.
The Chair: Is it the will of the committee that the departmental officials should come back to the table at this point? Do you have any questions to the departmental officials?
Senator Milne: Yes.
The Chair: Honourable senators, the departmental officials have returned to the table. Please proceed with your questions.
Senator Milne: You heard the presentations and the witnesses' concerns about whether this law will be thrown out by the Supreme Court because it violates the Charter. I would like to know your response to that.
Mr. Dave Whellams, Counsel, Criminal Law Policy, Department of Justice: There were several areas addressed in the presentation by the Canadian Bar Association in terms of Lyons and constitutionality. One was the question of judicial discretion. Now that we require an indeterminate sentence when there is a deal finally, I would directly take issue with Mr. Manson's point that the court does not have any discretion about the dangerous offender finding.
If you read Bill C-55, page 3 near the bottom, section 753(1), "The court may ... find the offender to be a dangerous offender if it is satisfied..." and then it goes on to list the criteria. Mr. Manson argues that the "may" is somehow a "shall."
He was right that there are two components here. First, the court must decide that the person is or is not a dangerous offender. Then it goes on to sentencing. We have eliminated the discretion as to the sentence that is handed down. Mr. Manson tried to represent that the "may" in the first instance, of whether the person is or is not a dangerous offender, or D.O., is no longer discretionary.
There are several reasons to think that it is discretionary. This is a question of proof. The court must be satisfied; we use those words. What happens if the court is not satisfied? Then the court quite simply says this person is not a dangerous offender.
As I mentioned yesterday, there may be circumstances, if the offences are right and the other criteria are there, where the finding can be almost downgraded to long-term offender. However, in terms of the narrow question of whether the judges have discretion, they do. It says "may."
Second, the criteria must be met. The case must be proven. Look at those criteria; they are lengthy in detail. There must be a pattern of offending. Above all, that person must be found to be irredeemable and to pose an indefinite risk. In other words, if the finding is that the person does present a prospect of rehabilitation, then a fixed sentence is inappropriate. This is what the courts have said.
There have been court rulings that have said if the person is redeemable, I use that word rehabilitatable, you can impose the fixed sentence or not find them to be a DO.
There is another reason to think that we have not eliminated discretion. The Supreme Court of Canada in a case called R vs. Baron said that you cannot completely eliminate the discretion of the court on a judicial order of this kind, a finding of this nature. That case was somewhat different; it related to a court-imposed search warrant in an income tax investigation. However, that case has been broadly applied. So there is discretion. It is very real.
Over all, this is a question of what the law is. This is a procedure to find someone to be extremely dangerous. If all this criteria is met, the court is likely to make that finding. Then the court should be required, in our view, to impose the indeterminate sentence.
That would be my answer to your question. I do not think it would be found unconstitutional.
Senator Gigantès: Will the judge at any point during the proceedings have the right, the discretion, to ask to hear another view than that of the overarching assessment as described by Professor Manson?
Mr. Whellams: That is a difficult question in law. If you are asking whether the court call all kinds of witnesses, perhaps not, but keep in mind that what we are talking about in a dangerous offender hearing is a very specialized, constructed hearing. The court will be very cognizant of the fact that they are potentially going to send away this offender for a very long time. It will insist, in a special hearing with a strong focus on risk, that evidence come in.
I did not understand Mr. Manson's point at all about assessments and the two psychiatrists. We feel that the structure of the law improves the input to the assessment. This is all about risk. We have now structured it to say the court shall send away this person for remand and the court shall determine who the experts are on the possibility of the person being found to be a D.O. or a long-term offender.
Senator Gigantès: The court "shall" determine.
Mr. Whellams: The court "shall," but it probably will at the request of the Crown.
Senator Gigantès: He said he could even name the psychiatrists in each province who will be part of the assessment process.
Mr. Whellams: I think Mr. Manson was boasting that he could name them, but nonetheless the court can hear that.
Senator Gigantès: He also suggested that those particular psychiatrists that he says he could name would find on the tough side.
Mr. Whellams: Unfortunately, there is a shortage of qualified, experienced psychiatrists to deal with these cases, but, in many instances, the Crown and defence do agree with one psychiatrist or, put it this way, one process. So that does happen.
By referring to experts, rather than to medical practitioners, we are very hopeful -- I do not say it is mandatory but we are hopeful that the assessments will actually improve. The court shall determine what experts are needed to make this risk prediction, this risk assessment. I think that is an improvement.
Senator Gigantès: Is it at all likely that such a process would be allowed to take place by a judge without legal counsel for the defendant?
Mr. Whellams: I am not sure Mr. Manson was suggesting that there would ever be a dangerous offender hearing without counsel. It has never happened, and I just cannot imagine it. Of course the person would be entitled to legal aid in a dangerous offender hearing. It is one of the most serious sentences that can be imposed.
Senator Gigantès: How about later when that person, some years along, wants a review?
Mr. Whellams: As we all note, the person must bring an application in court. I do not have a firm answer on whether legal aid would be available. A lot of that, as Mr. Manson admitted, is up to the province in terms of what it does fund and what it does not fund. This is a new provision in the law. I would expect they would be eligible for legal aid, but it does vary.
Senator Doyle: If the application is made after the offender begins to serve the sentence, Professor Manson seemed to feel that this is some form of double jeopardy. Can the Crown officials not say at the outset if they have the intention of requesting a dangerous offender or long-term offender status, rather than waiting to see how the current case turns out and then deciding that this is an offender from whom the public must be protected further?
Mr. Whellams: The safeguard that answers your question and indeed answers Professor Manson's criticism is that the Crown must give notice at the time of sentence. This guarantees that we know who will be potentially pursued in a later D.O. application, and it protects against abuses. In my view, it protects against double jeopardy because the notice is given. It is only a six-month period.
As you may know, there have been demands, and Senator Jessiman mentioned this, too, for a post-sentence detention law that would allow the application to be brought in the last six months of sentence. This is only for the first six months, and it is extremely important to note that the notice must be given at the time of conviction and, of course, it has to be based on new evidence. After the person is convicted and before the sentencing hearing happens, the Crown must file notice of the possibility.
Senator Doyle: You say that is not double jeopardy?
Mr. Whellams: Yes.
Senator Doyle: After the proceedings have started?
Mr. Whellams: The Charter gives you have the right to know and to be finally convicted and sentenced for your crime. We do not put the accused in jeopardy forever. We give six months to the Crown, but there is also notice. So we are not sentencing twice on this one, in our view.
Senator Doyle: Where does it say what the limitations are? I am reading section 4 which says the application is made after the offender begins to serve the sentence -- not before sentencing nor at time of sentence, but after he begins to serve.
Mr. Whellams: That is correct. Otherwise, there would be no sentence at all if the six months expires. You are quite right; the application is made after sentence, but the notice has been given before sentence is imposed. It is a kind of interim sentencing process. It would lapse after six months.
Senator Doyle: Where is that detail spelled out?
Mr. Whellams: Give me a moment to find the section.
The Chair: At the bottom of page 4 of the bill, it states:
753(2) ... (a) before the imposition of sentence, the prosecution gives notice to the offender of a possible intention to make an application under section 752.1...
Senator Jessiman: So he is charged under some other section of the Criminal Code and convicted.
Mr. Whellams: Correct.
Senator Jessiman: He is convicted, but, before sentence is imposed, you advise that although he is convicted of this charge and under this section, we are now giving notice that, within six months, we may bring an application to declare this person a dangerous offender.
Mr. Whellams: That is exactly right. Of course, the conviction must be for a serious personal injury offence.
Senator Gigantès: Why not do it before?
Senator Jessiman: They do not have the evidence or may not have the evidence.
Mr. Whellams: This section is likely to be very narrowly used or infrequently used. It will be the rare case where it was not reasonable -- I think that word is used in the section -- to expect the Crown to obtain all evidence at the time even though they used due diligence. They certainly are expected to prosecute when they have the evidence but we talked about new evidence here. Victims may come forward with new crimes or a past history of crimes.
Senator Doyle: Then there would surely be new charges.
Mr. Whellams: That is possible, I suppose, but we are talking about the dangerous offender consequences which are an indeterminate sentence versus a new fixed sentence.
Senator Doyle: You know what we are trying to find here -- that there is some logic, some justice in this piece of legislation. So you say it is something which will not be used very often, but these things usually create controversy.
Mr. Whellams: There has been a lot of consultation with the provinces over this bill, with prosecutors generally and especially with those who have experience with dangerous offender situations. They have said there are a number of cases where this can arise.
The onus here is really still on the Crown. The Crown must show that they used due diligence at the time of the original prosecution. The onus is on them to prove they could not have found the new evidence, that it is probative evidence and that it is relevant to the D.O. standard.
Senator Doyle: I was looking for the reference to the new evidence.
Mr. Whellams: It follows up from the subsection that Senator Carstairs quoted. It is on the next page at the top:
753(2) ... (b) ...it is shown that relevant evidence that was not reasonably available to the prosecution at the time of the imposition of sentence became available in the interim.
Senator Jessiman: All prosecutions do not take place in Toronto, Vancouver or the big cities. Prosecutions do take place in the smaller communities. Even though they might have faxes and various things, they might not be completely up to date.
Mr. Whellams: Professor Manson is right on one point: Information flow needs to improve, as does record-keeping and awareness between jurisdictions of records. You think it happens all the time. You think it is all on the CPIC system, but, for many reasons, there are many gaps in the system on the non-legislative side.
Mr. Manson mentioned the flagging system. This is a system where prosecutors and police can now flag potential dangerous offenders. They put it into the CPIC system so that when prosecutors come across this person in their own jurisdiction, they will see their status on the CPIC. This is one way to improve awareness between jurisdictions. This is one narrow aspect of the legal side of it.
Senator Gigantès: When the Crown gives notice before sentencing that they may use the six-month period, do they have to explain to the judge that they have some grounds for believing that new evidence will turn up which is not yet available at the time?
Mr. Whellams: The law is not explicit. They do not have to demonstrate at that time. The answer is, no, they do not have to demonstrate the possibility of evidence. That test will come later when they bring forward that new evidence.
The new evidence is crucial. It cannot just be notice that they will do it. They must prove that the evidence is new and relevant to the kind of offending that goes into the standard of pattern of brutality. I do not think they will have to prove at the time of sentencing that their notice is justified.
Senator Milne: This covers Professors Manson's own example of an offender being sentenced before the prosecutor realizes that this offender named Smith is also that offender named Smith. He himself brought up this particular example of why this law is needed.
Mr. Whellams: He also mentioned that the offender will be told to clam up for six months. That is indeed possible. I suggest that the validity of this D.O. window of application will be determined by new offences and by new victims coming forward. He talked about going after an accused just for revealing a dream he had when he was six years old. We try not to prosecute on dreams; we prosecute on offending. If the fantasies are carried out, they are not dreams but crimes.
Senator Jessiman: The new evidence that comes within the six months could be evidence of something that the offender did in the past but of which the Crown was not aware? It need not be evidence of an offence that happened in that six months?
Mr. Whellams: It is not likely to be new evidence in the six months.
Senator Jessiman: So the fact that he is being a good boy for the six months is not relevant. This refers to evidence of something the offender has done but which the Crown has not had occasion to find earlier.
Mr. Whellams: Mr. Manson's concern is what happens with activity or conduct within the six-month period becoming evidence in the application. I think other factors are more important than what he reveals to his counsel or others in the first six months of sentence.
Senator Doyle: My concern is not with new evidence. It is with the same evidence on which he has already been convicted and is serving his sentence when suddenly someone knocks on the cell door and says, hey buddy, you have got a new charge against you.
Mr. Whellams: I would certainly agree that is something which should be safeguarded. In the whole phrasing, "new evidence," the onus will be on the prosecution to demonstrate that it is new and it is not just the same old facts that went into his conviction.
Senator Doyle: As the law is written, it does not say that.
The Chair: Thank you, officials. That clarified some of those points.
Honourable senators, yesterday we engaged in some discussion about the impact on corrections policies with respect to the movement from three years to seven years. We had noted that, in the past, there was frequently no treatment until the three years were almost up. The concern raised by Senator Jessiman was that, as the requirement is increased to seven years, does that mean no treatment will be received until the seven years are almost up?
I asked our Library of Parliament researcher to draft an observation to our report which would read, with your approval, the following:
Your ccommittee understands that, due to limited correctional system resources, priority for treatment may be given to those offenders who are approaching parole eligibility. As a result, your committee is concerned that the treatment of dangerous offenders may be further postponed or delayed by Bill C-55 amendments that will extend their parole ineligibility period from three to seven years. Accordingly, your committee urges the Solicitor General to monitor the effects of Bill C-55 to ensure that there are sufficient resources in place to provide dangerous offenders with adequate and timely access to treatment.
Is that accepted by members of the committee?
Senator Corbin: Would it be proper to ask the officials if they have a comment?
Ms Jennifer Trottier, Senior Policy Analyst, Corrections Policy, Solicitor General of Canada: That would be a very welcome recommendation.
The Chair: Honourable senators, we move to clause by clause consideration of Bill C-55. I would accept a motion.
Senator Lewis: I move that we report the bill without amendment but with the observation as read by Madam Chair to the committee.
Some Hon. Senators: Agreed.
Senator Jessiman: On division.
The Chair: The motion is carried, on division.
The committee adjourned.