Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 23 - Evidence for March 9, 2011
OTTAWA, Wednesday, March 9, 2011
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-30, An Act to amend the Criminal Code, met this day at 4:31 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We begin our study of Bill C-30, An Act to amend the Criminal Code, or response to the Supreme Court of Canada decision in R. v. Shoker act. The Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada, is our first witness. Welcome back, minister. I expect you have an opening statement.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: I do. I am joined by Doug Hoover, Counsel, Criminal Law Policy Section and Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section.
I welcome the opportunity to appear before you on Bill C-30, the response to the Supreme Court of Canada decision in R. v. Shoker act. The objective of the bill is to ensure that offenders in the community comply with court orders to abstain from drug and alcohol consumption. Amendments are necessary, given that the ruling by the Supreme Court of Canada in R. v. Shoker effectively ended the ability of a sentencing court to order an offender to provide bodily samples to ensure compliance with drug and alcohol abstinence conditions.
The Supreme Court of Canada ruled that section 732(1) of the Criminal Code fails to provide express authority for a court to impose probation condition for offenders to provide bodily samples on demand. As a result, sampling conditions failed the first arm of the test laid out in R. v. Collins, the leading case on the Canadian Charter of Rights and Freedoms, safeguarding against unreasonable search and seizure.
While the decision in R. v. Shoker did not stop the courts from imposing conditions to abstain from the consumption of drugs and alcohol, it did stop the use of this tool to ensure compliance with the abstinence conditions.
The importance of these types of conditions and the need to enforce them cannot be overstated. Drug and alcohol abuse is one of the leading contributors to criminal conduct in Canada. The Correctional Service of Canada estimates that of the approximately 250,000 annual criminal convictions per year, approximately 50 per cent are related to substance abuse.
Furthermore, almost 80 per cent of offenders sentenced to a term of two years or more cite substance abuse as a factor in their criminal conduct. To manage this problem, conditions are commonly imposed by courts on the offender to abstain from drugs and alcohol. These conditions are critical in addressing the root cause of criminal offending in many cases. According to Statistics Canada, as many as half of all probation orders include a condition to abstain from the consumption of drugs and alcohol.
Ensuring compliance with probation conditions is a significant problem for police and correctional officials. In 2008, more than 53,000 convictions were registered for the offence of breach of probation.
This situation is the context for the need to require bodily samples to be provided to ensure compliance with drug and alcohol prohibitions. Bodily samples are necessary, as a positive analysis of a body sample makes a prosecution much more efficient. Without hard evidence provided by the analysis of a bodily sample, prosecution for a breach is inherently difficult. Without the ability to take a breath sample, imagine the burden the Crown would have in impaired driving cases.
An order by a court that an offender provide a bodily sample on demand acts as a highly effective deterrent. An offender under such a condition is more likely to control previous habits, which will make their rehabilitation more likely. Bill C-30 is drafted to allow a court, where it imposes a drug and alcohol abstinence condition, to require the offender to provide bodily samples.
While the R. v. Shoker decision resulted from a challenge to the probation provisions, please note that we are providing sampling authority not only for probation orders but also conditional sentences and peace bonds. This provision is necessary due to the similar principles in play for these two other types of provisions.
I will provide you with a brief overview in terms of how the bill is structured. It is divided into three sections: amendments to section 732.1 regarding probation orders, to section 742.3 regarding conditional sentences and to section 810, and related sections in that area, regarding peace bond provisions.
All three of these areas of the code are amended in the same way. For example, in clause 3 of the bill, the authority is given for a court that has already imposed a probation condition to abstain from the consumption of drugs and alcohol, to impose a condition requiring the offender to provide a bodily sample on the demands of a police or probation officer, should the officer have reasonable grounds to believe that the offender has breached the consumption condition. This same amendment is found in clause 4 for conditional sentences and in clauses 7 to 10 for the peace bond provisions.
The bill will allow the court to impose conditions requiring offenders to provide bodily samples at regular intervals. This condition ordinarily would be imposed where there is evidence that the individual's risk of reoffending is high due to substance abuse. I emphasize that, while the court has given the authority under this legislation to impose those conditions, the decision as to when and how to take these samples falls to our front-line justice officials.
When sampling conditions are imposed, the legislation is not intended to impose a mandatory duty on officers to take samples at every opportunity. The discretion is left to the police and correctional officers who are dealing directly with the offender. They are given the authority to demand a sample when they deem it appropriate in the circumstances.
I draw your attention to a couple of features of this legislation that ensures that the sampling regime established under the bill is not only respectful of the constitutional rights of the individuals being sampled but also flexible enough to allow for all 13 provinces and territories to establish individually tailored structures to allow for effective and efficient operation.
First, we have provided a residual regulatory authority in the bill to allow the federal government to apply it if and when necessary. Minimum standards exist across the country in all aspects of the demand — the taking, handling, testing, storage and destruction of bodily samples. At the same time, the legislation allows each province and territory to establish its own specific operational parameters, such as limiting who may collect what type of samples, when and where they can be collected, how they are handled, and how they are stored and destroyed.
I emphasize that these local parameters can be established without resort to regulation. They are intended to be flexible and able to evolve over time as conditions change. This flexibility ensures that local police and probation officers will be able to establish specific procedures that work in their communities and to change them quickly as the environment changes.
For example, while the federal government can pass a regulation stating that a sample taken must be destroyed within a year of it being taken, the provincial attorney general has responsibility to stipulate who has the responsibility for the sample's destruction, how the destruction is to be carried out, and how to ensure it is done properly.
Finally, I will highlight the measures contained in the bill to ensure they will withstand constitutional challenge. These measures include limiting the use of any sample obtained by police or probation officers to the sole purpose of ensuring compliance with the condition; allowing the offender to receive the results of an analysis of their sample; ensuring full notice from a probation officer in writing to the offender of any requirement to provide a sample at regular intervals, including where and when the sample is to be provided; requiring all jurisdictions to establish specific rules to be followed in the taking, testing, handling, storing and destruction of samples; requiring that all samples and records of analysis be destroyed once the prohibition condition lapses, unless the analysis is to be used in a breach proceeding; and, finally, requiring that a sample demand can be made only when there are reasonable grounds to believe that a breach has occurred for probation orders and peace bonds.
For conditional sentences, the less onerous ``reasonable grounds to suspect'' is the test given, because it is a sentence of imprisonment, albeit served in the community, and thus carries a lesser expectation of privacy than a probation or peace bond condition.
In conclusion, this bill is an appropriate response to the decision of the Supreme Court in R. v. Shoker. It gives police and probation officers the tools they need to ensure offenders comply with prohibition conditions, it ensures efficient and effective sampling, it is fair to the offenders being sampled, and it has the support of the provinces and territories.
Thank you for the opportunity to testify. I look forward to any questions you have.
The Chair: Thank you very much, Mr. Minister. As always, we do have questions.
Senator Angus: Welcome, minister, Ms. Kane and Mr. Hoover. Thank you for coming.
Mr. Minister, I have had discussions with my colleague from the other side who is not here today, the well-known Senator Baker. Having had those discussions, I concluded that I think you and your colleagues might have gotten it right this time. Senator Baker has even used laudatory language.
Mr. Nicholson: I hope that is not the reason he is not here.
Senator Angus: He has delegated the responsibility to me. Having said that, you are aware that I spoke to the bill in the chamber at second reading. There seems to be general approval. However, there have been a few criticisms and I want to address two of them, as I did with your officials today.
One is the delay. We call this bill a response to R. v. Shoker. A substantial amount of time elapsed before it started moving quickly in the House of Commons. I understand that time lag was due to the consultations with stakeholders and various regional interests to ensure you did get it right and to ensure these different standards you describe as ways and means of taking local parameters into account, so that the people in the front lines can execute the legislation in a way that is consistent with their environments.
Can you give us a bit of detail on these consultations that would justify such a delay and that would address these criticisms?
Mr. Nicholson: You made a couple of interesting points, Senator Angus. Also, thank you for your comments in the chamber. As you know, I made reference to them in my opening remarks.
I think it is important to have those discussions with the provinces and territories. As you know, under our Constitution, the administration of justice falls, for the most part, within their jurisdiction. It is therefore important to ``get it right,'' to use the term apparently you and Senator Baker used. I believe these discussions are helpful for their purposes in administering these laws.
Their support on these bills makes the next part easier, which is to move the bill through Parliament. As I said when we were eliminating the two-for-one credit for people awaiting the disposition of their cases, I believed it was considerably helpful to be able to say that every provincial and territorial attorney general was on-side with that support. It helped make my job easier and the jobs of those within the government who are working to have these bills passed. The situation is likewise with this bill. I have received positive feedback with respect to this bill because, again, much of the responsibility will fall within provincial jurisdiction.
Moving legislation through both Houses of Parliament has presented a bit of a challenge, which is perhaps an understatement. That being said, I think approximately four bills now have been passed within the last couple of weeks, so I am becoming more optimistic by the day about the legislative process and the procedures we go through. Regardless, I think moving this bill through Parliament will be welcomed by everyone involved with law enforcement, and certainly by my provincial and territorial counterparts.
Senator Angus: I hope that to be the case, sir.
I wanted to raise another point with you. As we noted, Senator Baker is profoundly interested in legal antecedents of some of our laws in this country, the evolution and the legal history. I must admit my own rather latent interest in that regard has been awakened, almost by association.
We are both wondering why this lacuna in the law, which the Supreme Court found extraordinary, was there. Other officials from your department have described to us on earlier occasions the efforts underway to scan all the laws to ensure English and French are consistent and there are not gaps like the one this bill fills.
In this case, I believe it is a good thing the gap was found because it is such an important matter. Do you have a comment?
Mr. Nicholson: The case that was made by the lawyers for the Department of Justice was that once it was decided or acknowledged that we can make conditions with respect to the abstinence from alcohol or drugs, it would be implied that there would be a process by which to determine that abstinence. That argument was lost, so it became incumbent upon us to legislate it specifically and that is what has been done.
The modernizing and closing of gaps in the Criminal Code is a continuing process. For the bill that you passed recently requiring Internet service providers to report information with respect to child pornography, 25 years ago when I became a member of Parliament, no one would have known what you were talking about. At that time, it was illegal to produce child pornography. Then, the process by which it was tracked down was through the money that changed hands; people were selling it.
With the advent of the Internet — the downloading of child pornography and the production offshore — we must continuously revisit the Criminal Code to ensure that it covers what is taking place: for example, with respect to identity theft, auto theft, child sexual exploitation, et cetera. That is part of the job we have. Getting that message out is an important job I have to do. We are moving into areas that most people would acknowledge overwhelmingly are wrong; therefore, it is incumbent upon us to address those gaps and make those changes.
Senator Cowan: With respect to this response, Shoker was the case of a person who had been convicted of breaking and entering a dwelling house with the intent to commit sexual assault. In your opening comments, you referred to the need to provide the resources to enable the authorities to ensure compliance with conditions imposed. You referred repeatedly to ``offenders,'' which is something that is in the background documents we have been provided.
Of course, the legislative response goes beyond that case. It deals with people who have not even been charged — peace bonds. Many of those people might not have been charged, much less convicted. That situation raises the issue of the Charter.
Can you speak — and perhaps your officials can comment as well — on what assurances we have, although we cannot prevent Charter challenges, that the bill is as Charter-proof as it could be. This issue, on the face of it, seems to have gone further than was called for by the Supreme Court in Shoker. Can you comment on why you have done that, and what assurances we can have that this bill is as Charter-proof as anything can be?
Mr. Nicholson: We expanded it beyond the circumstances surrounding the Shoker case to the other provisions with respect to conditional sentencing and peace bonds because we do not want to wait until we find a gap there. It is legitimate for a person — for instance, on conditional sentence — to be required to abstain from alcohol or drugs, if that is part of the problem.
You know of the challenges that come about when peace bonds are imposed — and sometimes the dangers to innocent individuals that are involved. Rather than wait and see if there is a decision saying there is nothing specific that would authorize that imposition, we felt this bill was an appropriate time to address that issue.
That being said, with respect to the constitutional implications, I think I mentioned at least six different provisions in the bill to protect the privacy of the individual. They include: making sure the individual is aware of the results of the tests that have been taken; making sure the samples cannot be used for purposes other than what has been prescribed by the court; and making sure that the samples will be destroyed eventually. All those provisions are included in an effort to make sure that this legislation will withstand constitutional examination.
Senator Cowan: Do you have assurances from your counsel that those provisions are sufficient?
Mr. Nicholson: I will let them speak for themselves, if they like; but any time we put these bills together, we want them to be in compliance with the Charter and the Canadian Bill of Rights. That is one of the questions that I ask.
Senator Cowan: Do I have time for a second question?
The Chair: Quickly, but the grounds rules will be to hold officials' answers until the minister leaves.
Senator Cowan: Senator Angus, in his speech at second reading, spoke about the advantages of flexibility and you raised that point in your introductory remarks. Flexibility is always good but we are dealing here with the criminal law, which is a federal law. When you speak about flexibility, operational parameters and that sort of thing, are you concerned, or should we be concerned, about the unequal or uneven application of this law from coast to coast to coast?
I am thinking particularly about Aboriginal communities and more remote communities. It is easy to see that police departments in the larger urban centres might face common problems and have common operational parameters; but can you address the application or potential unevenness, and perhaps unfairness, if we carry this flexibility too far.
Mr. Nicholson: As I indicated in my opening remarks, one thing provided by the legislation is that the federal government can pass regulations. However, something that impressed me, looking at the background to this whole area, was the extent to which the provinces and territories had been in this business for many years. They are well acquainted with the procedures and the processes, so it seems to me that it is a good fit.
That being said, there is the ability of the federal government to bring forward regulations in this area. In my discussions with my provincial and territorial counterparts and, indeed, from the background information I have read — because this is not a new procedure; it has been taking place for some time — it generally works well.
[Translation]
Senator Boisvenu: I want to thank the minister and his associates for being here. I have a lot of questions to ask them because this is a matter that concerns a lot of Canadians.
If we conducted a survey in the streets across Canada to ask Canadians whether they would be in favour of releasing criminals with substance abuse problems without providing any monitoring after the fact, I doubt we would find a lot of people in agreement with that way of doing things, except for the criminals and their defenders.
Eighty per cent of people who commit crimes, especially sex crimes, are suffering from substance abuse problems at the time they commit the act. I have just completed a tour of federal penitentiaries in Quebec. I learned that 80 per cent of inmates in our federal penitentiaries have substance abuse problems, even on the inside. Most of the people we release, at one-third or two-thirds of their sentence, have substance abuse or alcohol dependence problems.
To think that we would be releasing criminals tomorrow morning without any control mechanism while they are on probation is appalling.
My first question is this: you have secured majority, even unanimous, support among the provinces for this bill. In the discussions you had with your provincial counterparts, what was their main argument in favour of adopting this bill?
[English]
Mr. Nicholson: Those topics are interesting ones. Certainly, it is the wide prevalence of substance abuse among people who are convicted and who become involved with the criminal justice system. Our hope is that the implementation of this bill will act as a deterrent to the individuals who know that they will be tested. If they fail that test, they are open to a breach of their probation, the terms of the peace bond or conditional sentencing. This testing will be a considerable deterrent to the individuals so that they may clean up their act and get their lives together again.
My provincial counterparts believe that the system works well at an operational level. However, they were concerned about this gap in the criminal law. Their recommendations and encouragement to me were to come forward with a bill to give the specific authorization that was called for by the Supreme Court of Canada decision. Opinions were not divided; it was as if there was a consensus. The exploration and research into what had been done across the country was impressive. They are in that business and this bill is something they will welcome.
[Translation]
Senator Boisvenu: Mr. Minister, I would draw your attention to two articles on forensic psychiatry in Quebec that appeared in the Journal de Québec this morning. The first is entitled ``Absolute mess'' and the second ``Drugs aggravate the problem.'' In the first article, I am going to cite Dr. André Delorme, whom I know well because I have had to speak to him about all the schizophrenics who have killed their fathers and mothers in Quebec. There have been 60 since 2001. And I quote:
. . . what I have observed among my patients, who consist essentially of schizophrenics and manic depressives, a number of whom have gone through the legal system, is that there is increasing substance abuse, they are increasingly young, and the substances are increasingly. . . toxic.
I was looking at the statistics. The number of people who have psychiatric problems in Quebec and who have gone through the legal system doubled between 2002 and 2009. These people wind up back on the street after their sentence. There has been deinstitutionalization, as a result of which these people are no longer under medical supervision, or at least very few of them are. How will this bill help police officers, among others, monitor a little more these individuals who have psychiatric problems, but also substance abuse problems, and who in many cases have been through the legal system?
The Chair: Senator Boisvenu, I am going to ask you to provide copies of those articles to the clerk.
Senator Boisvenu: Perfect.
[English]
Mr. Nicholson: There are people with greater expertise than me in this matter. However, I have been told that those psychological problems or psychiatric problems are exacerbated exponentially when alcohol and drugs are mixed into the equation. These factors make the problem much worse. A system, or provisions, that allow for the taking of bodily samples will be helpful. These people will not receive the help and rehabilitation that they, their families, and society want unless something is done about the substance abuse problem.
Substance abuse plays a role in over 80 per cent of criminal activities. When interviewed, criminals say that substance abuse was a factor in their behaviour. The problem is compounded in those individuals who are otherwise challenged. This abuse is one part of the problem. When people are in prison, they must be given the help they need to deal with these problems. There must be rehabilitation programs and education to help them. This bill is one component; however, it is a necessary one.
Senator Joyal: Senator Cowan raised a valid point, which deals with the constitutionality of extending the R. v. Shoker decision to those on bail and on preventive order. In extending the provision of the bill to those two sections of the Criminal Code, a fundamental point is raised that, in the case of R. v. Shoker, the person has already been found guilty beyond reasonable doubt.
In the case of a preventive order, there is no decision of the court that the person is guilty of anything. The person might represent a risk; however, there is no decision that the person is guilty of anything.
I understand your answer. You said that there are six points that frame the taking of the body sample. However, the bill goes beyond the fundamental Constitutional issue that the person has not been found guilty beyond reasonable doubt.
How would you address a court case to challenge the bill on those grounds of extending the decision in R. v. Shoker to those on preventive order?
Mr. Nicholson: One thing you said is that the bill is extended to bail. It is not extended to bail.
Senator Joyal: I agree.
Mr. Nicholson: The argument is the same one that is made with respect to all peace bonds. It is a certain restriction that has been determined to apply to an individual. This provision is a logical extension of what has already been decided. Someone who believes they are in danger, being threatened or stalked by someone may obtain a peace bond. One could ask who has been found guilty, and of what. A determination has been made that the individual is a threat to the victim.
This provision is another logical extension in terms of what is appropriate for the court. If drugs or alcohol are a problem, or a factor in the threat to an individual, this provision is reasonable. I have mentioned the six conditions that frame the taking of the body sample.
Senator Joyal: I agree with those conditions. Some of them came as recommendations from this committee when we reviewed the DNA legislation. I commend you for those six. However, the fundamental principle that exists with someone who has been found guilty does not exist in relation to a preventive order that shows reasonable ground to believe that someone could be a risk.
There is a level of distinction between the two that could be challenged on its constitutionality. An essential element that exists in the first case does not exist in the second. In the first case, the person has been found guilty beyond reasonable doubt.
Section 8 of the Canadian Charter of Rights and Freedoms protects intrusions into a person's privacy. The bill could be open to challenge on that basis. What kind of additional arguments has your department given you beyond the policy and the objective of doing the right thing? According to the Charter and the protection it affords to the privacy of an individual, there are limits to what we can do in thinking that we are doing the right thing.
Mr. Nicholson: That is a fair question. There is a higher test when dealing with individuals on peace bonds and probation officers, and a lesser test on a conditional sentencing. The test is ``reasonable grounds to suspect'' a breach has occurred. That test is for a conditional sentencing. However, a higher test is ``reasonable grounds to believe'' that a breach has taken place. Therefore, we do make the distinction with a conditional sentence for an individual who has been found guilty. This sentence is part of the ``punishment,'' if I can use that term, of an individual. That is one test.
Another test exists for the other two. Again, you will have the opportunity to question the officials. I think they will confirm that, all things considered, this bill will stand the constitutional test.
Senator Joyal: The ``reasonable grounds to believe'' means that the conclusion is reasonable, so they have to come to a determination on the basis of the facts. The ``reasonable grounds to suspect'' means they might be wrong or they might be right, because of the word ``suspect.'' There is a level of uncertainty.
Mr. Nicholson: That is why the test applies only to conditional sentencing and not to the others.
Senator Joyal: That is the point. To establish the constitutionality of the bill, we have to ask if it is an intrusion into the privacy of the person. The answer is yes. Is it acceptable under the reasonable grounds of section 1 of the Charter? Then the court goes a step beyond. In the Shoker case, it says yes, provided that the reasonable grounds are clearly spelled out.
However, in the other case that we are dealing with, which is the preventive order, we are in a totally different kind of legal context. There are limits to what we can do with someone who has not been found guilty beyond reasonable doubt.
Mr. Nicholson: There is no question there are limits when a peace bond is issued. I think this bill is a reasonable extension of those limits. If this prohibition is reasonable, then it will come under the tests and the guidelines that we have established. We are confident that the courts will say this extension is reasonable.
The Chair: Senator Joyal, I know this area is fascinating and important. If necessary, we will try to squeeze you in on a second round with the minister, but we must move on.
Senator Wallace: Thank you, Mr. Minister. As you pointed out, the bill is in response to the issues that were raised in the Shoker case. For the record, I want to be clear: Does the bill address every issue and concern that was expressed by the court in the Shoker case?
Mr. Nicholson: That is a valid question. I believe the bill addresses every concern; I think it directly responds to the Supreme Court of Canada decision that there must be specific authorization. It was not called into question, or it was not found to be inappropriate to impose conditions on an individual with respect to alcohol or drugs. However, it is appropriate on that one issue; namely, authorization. We have dealt with that issue.
However, as we have discussed here in some detail, the bill goes beyond only that authorization. We cover everything: the peace bonds and the conditional sentencing, as well as probation. The bill goes beyond that authorization, but the principle is still the same that we better have a specific authorization on a conditional sentencing, for example, or we might find ourselves in the same position, and I will be back before you in another three years saying, we have to provide this authorization.
I would be glad to be back here in three years. However, that being said, if we can head off some of these challenges, I think we should.
Senator Wallace: From my reading of the bill, I felt that the bill addressed the case, but I wanted to be certain there was not unfinished business in that at some later day we might be revisiting Shoker. Thank you for that.
I have one further question. As you point out, there were extensive consultations with the provinces, and Bill C-30 seems to establish specific minimum standards. However, there is flexibility for the provinces to designate operational standards and requirements under those minimum standards.
Do you wish to add anything more? As a practical matter, how does this relationship work as it exists between the federal government and the provincial governments in relation to this serious issue? As you point out, the objective is to provide the public with greater safety and protection.
Mr. Nicholson: When we look at procedures with respect to handling and administering provisions such as that one, there are differences across the country in terms of either physical location or the provincial designation as to who, where and how. Downtown Toronto is not exactly the same as Yellowknife.
When I am told by my provincial and territorial counterparts that we are all on side with moving forward, and that we all are part of the same goal, which is to have rules with respect to this challenge, I respect that information. We administer the provisions in slightly different ways, and we have different procedures. However, the overall objective is being met.
Therefore, I respect that information. When they said that to me, I thought it was reasonable and I could understand it. However, if for any reason the regulations are not forthcoming, there are provisions with respect to the federal government in its area of responsibility to move forward.
I think it was appropriate, and why not? The provinces and territories are the ones who administer these provisions under the Constitution of this country and I think that role must be respected. It is our responsibility to pass these laws, but we want to work with the provinces and territories.
They will be pleased with this bill. That has been the consensus I have received, and that has been my reading of their concerns in this area.
Senator Wallace: As with a lot of things, when the rules are determined from above and they work their way down to ground level, one-size-fits-all can cause problems in this country due to the different nature of areas. As you said, the Yukon circumstance is not the same as downtown Toronto.
This bill seems to be responsive to that difference.
Mr. Nicholson: I remember being on a committee looking at the area of daycares. There was a call for national standards. I always remember that someone said, Your national standards for downtown Toronto do not exactly work in Snowbank; if you come up with national standards to say the children should be playing outside for an hour each day, they might die in my neighbourhood.
That difference underscores the responsibility we have. Not every area is the same, and we have to respect the differences within the country as long as we are all moving in the same direction. I believe we are with this bill.
[Translation]
Senator Chaput: My first question concerned the consultations you held in the 13 provinces and territories and whether you obtained their support. You answered that. I am aware of the energy and work that this initiative required. I would like to congratulate you on your success.
My other question concerns the impact that Bill C-30 might have on certain segments of the population dealing with substance abuse, youths and Aboriginal persons, among others. In your discussions, did you consider that impact and did you think about increasing the resources necessary to assist these drug addicts?
[English]
Mr. Nicholson: The federal-provincial-territorial meetings we have each year are supplemented by meetings at the deputy minister level. I meet with provincial attorneys general on an individual basis. It is important to run all these ideas through so that they work and for the attorneys general to be aware of what we are doing.
With respect to the prevalence of addiction, one thing that surprised me, to a certain extent, was that addiction covers almost everyone. They tell me that for about 80 per cent of people who are involved with the criminal justice system, there is some issue with respect to substance abuse. It is not something that is confined to young people, as opposed to middle-aged criminals, and Aboriginal or non-Aboriginal Canadians.
Of course, we have a special responsibility with respect to Aboriginal Canadians. I know my colleague, the Minister of Health, works on a regular basis with respect to issues related to this group. However, at the same time, addiction is widespread.
Going back to the question of peace bonds, often substance abuse plays a big part in the applications for people who believe they are being threatened by another individual.
Senator Angus: My question is one that is probably on the chair's mind because she raised it in the chamber. The question has to do with the destruction of samples. The samples contemplated in this bill, as we understand it, are to be used only for the express purposes of checking these people to ensure they are complying with the order.
I was asked the question in the Senate if I was comfortable that the samples would be used only for the purposes prescribed in the law and then destroyed. We have had a lot of experience here at this committee with DNA generally. We have visited the National DNA Data Bank at the RCMP headquarters; and we have reviewed the legislation and reported. We are conscious of the dangers and risks, and the issues.
I was slightly troubled tonight when, in your comments, you threw out that, insofar as the sample destruction is concerned, this responsibility is being left to the provincial attorneys general. Even with my blue background, the red light went on in my mind.
The Chair: I think it is also the storage.
Senator Angus: Exactly, sample destruction and storage: I would like you to reassure us.
Senator Joyal: It is at page 6 of the bill.
Mr. Nicholson: Since the provincial authorities are the ones that have the sample, the requirement on them is to destroy it rather than turning it back to the federal government. That being said, it is clear that these samples can be used only for the purpose of ensuring compliance with the condition, and then they have to be destroyed; they cannot be used for other purposes. I am adamant about that point.
The provincial authorities have the responsibility with respect to those regulations, but we have the ability to pass those regulations ourselves. For example, the sample must be destroyed within one year. We are clear in the legislation that authorities can use the sample only for the purposes for which it is taken. They have to inform the individual of the reading, but the sample has to be destroyed when it is no longer necessary, except if it was evidence in a breach of probation or other legal proceeding. I am with you on that point.
Senator Angus: You are comfortable?
Mr. Nicholson: I am comfortable; it has to be done. It says that at the provincial level, they have to do it; but if necessary, we would do it ourselves.
The Chair: Their regulations about the manner of destruction, for example, would be whether they burn it or chop it up and put it in the compost.
Mr. Nicholson: Exactly.
Senator Joyal: On the same point, Mr. Minister, if you take the bill at page 7, proposed subsection 742.3(10):
The Governor-in-Council may make regulations
(c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (9); . . .
Is it your intention to adopt those regulations? If so, what delay do you contemplate to order provincial ministers to destroy the sample?
Mr. Nicholson: We would be in consultation with the provinces and territories once the bill is passed. Our expectation is that provincial regulations would be in place across the country and we would have an examination of those regulations.
Senator Joyal: It is your regulation. It is the Governor-in-Council, not the lieutenant governors; the regulation is federal.
Mr. Nicholson: You are right; I will have Mr. Hoover comment.
Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice Canada: We are looking at a year only because that is the rule of Correctional Services of Canada. Most provinces have expressed comfort with that rule; so unless we receive concerns about it, the regulation proposed would be a year.
The Chair: I am sorry, now I need more clarification. Is it a year from taking the sample, the expiration of the order or what?
Mr. Hoover: It is a year from taking the sample, unless the sample is contemplated to be used in a proceeding.
Senator Joyal: As mentioned in subsection 742.3(9).
Senator Joyal: The letter that the Barreau du Québec sent to you, dated November 17, 2010 — and our colleague, Senator Angus, is a eminent member of that bar; he received a prize last year for his meritorious contribution — in relation especially to the peace bond, highlights an element on page 2 of the letter, in the middle of the last paragraph. I can translate it for you freely if you like. The tribunal that orders such an instruction does not decide beyond reasonable doubt. Moreover, the persons who are the object of those orders, most of the time, are not represented by lawyers.
In my opinion, if the person who is under a peace bond is represented by a lawyer, there is a chance that at least the person will understand what the order to provide the DNA is all about. I wonder if one way to protect the constitutionality of the bill in relation to persons who are under a peace bond is to ensure they are represented by a lawyer, so they know the consequences of what is taking place.
Mr. Nicholson: That would mean a complete overhaul of the law with respect to peace bonds, senator, if you are saying that if this particular provision kicks in, they have to have a lawyer present. Many of these people are taken in almost an emergency situation and officials have to move quickly for the protection of the individual who is benefiting from the peace bond.
However, there are provisions for individuals to make the application for change or to get rid of the peace bond. That being said, I believe the peace bond is a reasonable extension. You will notice, the Barreau du Québec notes the distinction that we make between the higher tests applied with respect to a peace bond than, for instance, conditional sentencing. The reason is that conditional sentence is someone that has been convicted and the sentence is part of their punishment, in a sense. The higher standard is for the peace bond, and it seems to me that higher standard is a reasonable extension of the protections we want to have for an individual.
The Chair: Senator Joyal, I am sorry but we are almost out of time.
Mr. Nicholson: You will have a chance to supplement that answer from the officials.
[Translation]
Senator Boisvenu: Mr. Minister, I have a question further to Senator Chaput's remarks. The measures contained in this bill will apply to people who are on parole, will they not?
[English]
Mr. Nicholson: No: As I indicated to Senator Joyal, the bail and parole provisions are already covered by Correctional Services of Canada and there is a regime in place that governs these provisions.
These provisions are strictly with respect to probation, peace bonds and conditional sentences. The other provisions, such parole and bail, are already covered by correctional services.
[Translation]
Senator Boisvenu: These are people who are under the responsibility of the Department of Public Safety?
[English]
Mr. Nicholson: That is correct.
[Translation]
Senator Boisvenu: If we do not have this bill or measures of this kind to control individuals who have substance abuse problems, what other tool could we have?
There is a directive for the purpose of controlling these people who have substance abuse problems. So what other tool could we suggest to replace it?
The question is a bit meaningless because, if we did not have this act, it would be impossible to control these individuals.
[English]
Mr. Nicholson: Without this bill, we are in a bad situation. It is one thing to prescribe someone from taking alcohol or drugs; however, if there is no way of enforcing that prohibition, people will understand quickly that it is useless. Some people will comply on their own if they are given this prohibition. However, there are thousands of breaches of conditions every year. People will say, if you cannot figure it out or test me, what incentive is there for me to comply? The obvious incentive is to get one's life back together. However, there will be abuse of the prohibition. It must go hand in hand with the ability to set these conditions.
The Chair: The R v. Shoker case was four and a half years ago.
Mr. Nicholson: That is correct.
The Chair: Have we any evidence, between that decision of the Supreme Court and now, that there have been problems because of the R. v. Shoker case? We understand the natural tendency of a human being. However, do we know of specific cases?
Mr. Nicholson: I have only anecdotal evidence referred to me by provincial attorneys general claiming it is more of a problem than it was before the R. v. Shoker case. However, I do not have statistics.
The Chair: Thank you; as usual, you launch us into fascinating discussions, minister.
Mr. Nicholson: Thank you.
The Chair: We are grateful. Honourable senators, we welcome back Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, and Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice. We continue our study of Bill C-30, An Act to amend the Criminal Code, or the response to the Supreme Court of Canada decision in R. v. Shoker act.
Senator Cowan, please go ahead.
Senator Cowan: First, I want more confidence that we are on solid ground with respect to the people who have neither been charged nor convicted.
Second, there will be many more of these samples taken, processed, stored and destroyed. A cost is attached to all this process, most of which will be borne at the provincial level. What volume do you anticipate, and what costs might be associated with the implementation of these measures?
Mr. Hoover: In regard to the peace bonds, we have leading cases out of Ontario and Quebec Ccourts of Appeal. For example, Budreo in Ontario, 2000, and R. v. Teale in Quebec, which the Supreme Court of Canada denied, affirmed the constitutionality under section 7 and other sections of those two particular peace bond applications. In those cases, the court said that while these individuals had not been convicted of a criminal offence and their liberties were prima facie impacted by the restrictions placed on them because of the risk they posed to public safety, demonstrated by evidence in court and adjudicated by a judge, it was reasonable and overcame the section 1 arguments. Therefore, they could withstand the Charter's scrutiny.
Senator Cowan: Is that with respect to the imposition of the requirement to abstain from alcohol or drugs?
Mr. Hoover: It is with respect to any type of condition in peace bonds.
Senator Cowan: Were they talking about taking samples?
Mr. Hoover: No: However, in Budreo, it was a section 810.1 application by the Crown for fear of a sexual offence. The individual in question had a number of restrictive conditions regarding where and when he could go and how far he had to be away from a school. He was not able to walk home without taking a mile detour.
These conditions were considerable impacts on his liberty. R v. Teale was a celebrated case in Quebec. The individual was subject to a large number of conditions that directly impacted on her liberty. Granted, they did not have a condition in either of those cases that the individual provide bodily samples. However, I believe in the Budreo case, there was a prohibition against consuming alcohol.
Nonetheless, I think the principles apply fully in that if you can demonstrate to the satisfaction of a judge that, in order to protect public safety, this individual not only needs the condition to abstain from drinking or taking drugs, but also to provide bodily samples to ensure compliance, as long as that case is made adequately, the same type of reasoning will apply in a constitutional challenge as applied in Budreo and Teale.
Senator Cowan: You are satisfied that expressly authorizing the taking and testing of bodily samples is enough to take you over that constitutional hurdle?
Mr. Hoover: If it is a section 8 challenge on the peace bond, which we would expect in that type of case, certainly the authorization satisfies the first arm of the three-part Collins test. However, in addition, the law would have to be proved to be reasonable, and to have been applied reasonably in the circumstances. As far as the reasonableness of law, the minister went through the number of specific —
Senator Cowan: I understand.
Mr. Hoover: In terms of whether the law is applied reasonably, that is a matter of circumstances. In the Budreo case, they are explicit and talk about even if the condition not imposed against this individual is unconstitutional, they would not strike the authority of the peace bond to impose the conditions. Rather, they would strike only the condition in that circumstance. We are perhaps getting into the third arm of the test if it were a Collins type of situation.
Senator Joyal: However, there is no court decision in Canada specifically in relation to that situation, is there?
Mr. Hoover: No: Shoker was the first. There were a number of challenges prior to the Shoker case where the condition to provide a bodily sample was upheld by lower courts. However, in the B.C. Court of Appeal, they held it was a prima facie section 8 breach that could not withstand section 1, whereas the Supreme Court on appeal overturned part of that decision. They said it does not get that far because there was no lawful authority, so they declined to rule on the issue of section 8.
However, I think two of the justices, Justice LeBel and Justice Bastarache, ruled that they would have found it to be noncompliant with section 8 because of the lack of statutory and regulatory framework to ensure the environment is proper and protects the privacy of the individual.
We believe that we have addressed those issues in this bill. The combination of the regulatory ability and other factors mentioned, and the absolute prima facie obligation on the attorney general and minister of justice of each province and territory to put rules in place that ensure privacy of the individual and integrity of the sample, address those issues.
Senator Cowan: What is your comment on the other question: How many people are we talking about, what are the costs, and who pays?
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: It is difficult to say how many will be impacted because we have to start with how many orders will be imposed on people under probation conditions, conditional sentence of orders or peace bond conditions that will have the abstention clause. We know it is a common provision and was common even in the pre-Shoker days. The enforcement — how they enforce — will be up to the local authorities, as are all matters of enforcement. Based on the standard of ``reasonable grounds to suspect'' a breach or ``reasonable grounds to believe'' a breach, if that occurs, the police would decide whether to demand the sample and whether to pursue charges. Those estimates in terms of possible additional costs would have to come from provinces based on their pre-Shoker regime.
We feel this provision basically restores the status quo for those jurisdictions. We do not anticipate any major increases in enforcement costs or otherwise, because we are giving back the authority they thought they had before the Shoker case.
Senator Cowan: How many people were there before? If we are restoring the status quo, what was it?
Ms. Kane: I do not have the statistics on the number of people that were subject to those particular orders under probation order.
Senator Cowan: Before this case, I would have expected that, in most cases where the court ordered that someone refrain from involvement with alcohol or drugs, the court would also give the right to test or to take a sample? Was that right usually given?
I do not have any experience in this area, so I do not know if that involvement was 1 in 10, 1 in 5 or for every case?
Mr. Hoover: We know that, for example, of approximately 250,000 annual convictions in Canada, a little less than half receive a probation order. We are looking at approximately 120,000 probation orders per year. Statistics Canada undertook a limited study a few years ago. Four provinces participated. The result of the study showed that, in the majority of optional conditions given, when there was an optional condition besides ``keep the peace and be of good order,'' it was either a treatment condition or a drug and alcohol abstention condition.
Based on that study, twenty per cent would be a ballpark figure of the abstention conditions. Based on our own survey of Crowns, police and probation officers that we conducted prior to drafting the legislation, it looked like at least half those probation orders also included a condition to provide bodily samples. The estimate is rough, so we really do not have the data; it is not collected by the provinces. It is not in every case but it looks to us to be somewhere between maybe 15 per cent or even as high as 30 per cent of cases of probation.
Senator Cowan: Are there facilities in Canada to handle that kind of volume?
Mr. Hoover: As Ms. Kane already pointed out, this legislation will not change the lay of the land that existed prior to Shoker. It was drafted intentionally to restore what was already there. We do not expect, and we are not hearing, that there will be a flood of new testing as a result of this legislation.
Prior to the decision in the Shoker case, if they took a sample, the jurisdiction that took it had a contract with a private lab that would manage the testing and analysis. That testing was for urinalysis and other types of samples. Breathalyser samples are analyzed by the machines maintained by most police services and correctional agencies.
Where the sample was taken will dictate what the capacity is and how much money the provinces are spending. It is unfortunate, but we really do not know their costs. A provincial representative may be able to appear before committee and discuss that question, but it is not in our capacity.
The Chair: I have a couple of questions.
Under this bill, the provinces can designate the persons or classes of persons that may take samples of bodily substances. I am looking at proposed subsection 732.1(9). The bill will allow a peace officer, probation officer or someone designated under proposed subsection 732.1(9) — ``person or classes of persons'' — to take samples. Proposed subsection 732.1(12) says the Governor-in-Council may make regulations respecting the designations.
What are we talking about? What classes of persons are we talking about and who will have the last word on who takes the samples?
Mr. Hoover: The statute itself is the first word. It says that ``police or probation officers'' can demand the sample. As far as who takes the sample, you interpret the legislation correctly: the statute gives the attorney general of a province the ability to designate. They can narrow down that field or add to that field. For example, they can say certain individuals will take a certain type of sample.
Let us talk about a blood sample, for example. I expect that all provinces and territories will come out with a designation that says only qualified medical and trained personnel can take a blood sample and only in this manner.
Further, if there was a concern that provinces were not following that basic tenet that I think everybody understands is there, the federal Governor-in-Council could pass a regulation that said the same thing, and that regulation would be a minimum standard that would apply.
The Chair: In addition, still using clause 3 of the bill as my model, the demand for a sample can be made by ``a peace officer, a probation officer or someone designated under subsection (9).''
Mr. Hoover: That is correct.
The Chair: What classes of persons would be able to demand a sample, other than those named?
Mr. Hoover: In a provincial environment, for example, if correction officers are dealing one on one with probationers; the online personnel dealing with these individuals varies from province to province. If a province has these individuals who do not meet the formal classification as a peace officer or probation officer, the province can designate those individuals to make the demand where they have the requisite grounds.
The Chair: However, if no such designation had been made, for the purposes of clause 3, we are stuck with peace officers or probation officers, correct?
Mr. Hoover: That is right. However, it is easy for the Attorney General to make the designation, if need be.
The Chair: When would you expect this bill to be brought into force, assuming it passes relatively speedily?
Mr. Hoover: There would have to be consultations with provinces to firm up exactly what the expectation is of federal regulations. Then, there is the process of the drafting of the regulations. Ordinarily, drafting of regulations and publishing them in the Canada Gazette and then having them come into force would take about six months. That is my guess; it is rough though.
[Translation]
Senator Boisvenu: Perhaps you do not have the figures — perhaps I should speak to Statistics Canada — but I would like to have some statistical information.
When I toured the federal penitentiaries, I observed that 50 per cent of the criminals were on their second term and that 35 per cent or more were on their third. And I am not counting those who were serving their first term or those who had already served time in provincial prisons because we could reach a reincarceration rate of approximately 60 to 70 per cent.
Do you have any figures on the rate of reincarceration, not recidivism — that is not the same notion — for people who have been subject to this order to undergo tests? Do we have any statistics on the percentage of people who have been reincarcerated for breaching their order?
[English]
Ms. Kane: Permit me to answer in English so that I can convey the information. I cannot answer your question exactly; Mr. Hoover may have additional information.
You are referring to people who are in prison, so I assume you mean in federal penitentiaries. In that case, the Corrections and Conditional Release Act has a specific regime where such conditions are imposed on the people under their supervision for the follow-up on the testing. There are different penalties whether they are in the jail and breaching those conditions, or out on the street in the community.
In Bill C-30, if a person is on a conditional sentence, for example, and they breach the condition of abstaining from alcohol and drugs, they are in breach of their conditional sentence order. As a result, they can be jailed because a conditional sentence is a jail sentence served in the community. Breach of any conditions will result in that person's return to jail; but in that case, it will be a provincial institution because the conditional sentence is less than two years. There will be that consequence.
In addition, they can be prosecuted for breach of the noncompliance order. If a person were on a peace bond, and breached that condition of the peace bond, they can be charged with that particular offence. Obviously, they can also be returned to the judge for other conditions imposed on them attached to that peace bond. The regime is different for those who are in jail than for those who are not.
[Translation]
Senator Boisvenu: I understand that Bill C-30 is intended to correct a pre-existing procedure. Let us talk about the former system. Do we have any statistics on the number of criminals who have been subject to substance abuse orders and the number of criminals who have been incarcerated for breaching those orders? Or do we have statistics on non- compliance with orders as a result of controls that have been done?
[English]
Mr. Hoover: Part of the problem in terms of an empirical review of the situation is that the province and Statistics Canada, while they have good data on the offence of breach of probation, which is section 733 — we know how many people are charged and convicted — we do not know why they are convicted or which breach it was, and it can be for a large range of conditions. All we can do, at best, is estimate.
For example, in 2006 there were about 20,000 convictions for breach of probation. We would like to know how many were for drug and alcohol breach and, even better, prior to the Shoker case, how many were for failure to provide a sample where the sample was used in evidence. However, that information is not available. All we can do is suggest by extrapolation that we know that many times a condition like this one is imposed, so we can only assume at least some of these 20,000 convictions were related to drug and alcohol breaches.
One thing I can also tell you is, it is most common that when an individual is charged with breach of probation, in the majority of situations I am aware of, they are also charged with some other offence. There seems to be a commonality that an individual is not charged with breach of probation alone; perhaps it is a technique of managing the offender when they start to breach to try and get close to offenders and help them rehabilitate. If they cannot, then the breach charges come, along with some other charge for an offence. Other than that, I have nothing to add.
[Translation]
Senator Boisvenu: I believe it is the practice of the Department of Public Safety and the Department of Justice to assess these acts every five years. A statutory performance evaluation is done, is it not? If this measure is adopted, it would be interesting to see whether it is effective. To determine whether it is effective, we would have to know whether, of the people subject to that order —
[English]
How many will fail and how many will succeed?
Ms. Kane: Often law reform bills include a review clause. Often those clauses are inserted by the committee so they have another opportunity in the future to see how the bill has worked in practice.
Even without such a clause, we can ask our colleagues at the Canadian Centre for Justice Statistics — if this bill is enacted and in force — if they can assist us to gather that information. I am not saying it is possible, but we can ask them if there is a way that they can flag the breaches of probation related to a noncompliance order.
Senator Lang: I find it hard to understand or believe that we do not have the statistics of how many individuals breached their probation and for what reasons they breached it. I find it hard to believe we do not have that number at our fingertips in this day of the Internet.
Going forward, are we creating a national system across the country so we have that information — primarily for the court systems and the judiciary, especially for repeat offenders? Will we eventually have a system when we ask this question, so you can provide the information?
Ms. Kane: We have a good system. The Canadian Centre for Justice Statistics gathers the available data. However, the centre relies on a variety of sources such as the Adult Criminal Court Survey and the Uniform Crime Reporting Survey.
The data with respect to probation statistics comes from the provinces. The CCJS gathers information collected in the provinces. They do not all collect exactly the same thing and in the same way. However, a federal-provincial committee meets regularly to ensure that the data is collected in a consistent manner so that CCJS can roll up the data into a national data format. That question is better put to them when they next appear before you. They would be happy to answer that question because they have made significant efforts to collect the best data possible.
Senator Joyal: Mr. Hoover, in the court case to which you referred, with regard to the variety of conditions that were imposed on a person under a peace bond, do you agree that none of the conditions were as intrusive as the order to provide a bodily substance sample?
Mr. Hoover: That is subjective. One would have to ask the individual under the condition. In both cases, they were willing to take the fight all the way to the Supreme Court of Canada to assert that they believed they were being treated unfairly. In both cases, the appeal to the Supreme Court was refused. The question is difficult to answer one way or the other. As a former defence counsel, I suggest that when the offender is willing to fight that far with their own resources, the issue is a significant one to be aware of. However, as to the weight of one Charter right versus another, I cannot make any suggestions.
Senator Joyal: For someone not to come close to a school yard or a public domain, it is a limit to the freedom of movement that is guaranteed by the Charter. On the other hand, when one has to provide hair or a bodily substance, this is something different. The sample is submitted for analysis and one has to trust that the sample will be destroyed. We have cases where it has not been destroyed. In our review of the DNA legislation, there was a court case in Ontario whereby the destruction order was never complied with and the samples were still in the bank.
There is an element of continuity in the invasion of privacy with the order to provide a bodily substance sample. This invasion of privacy does not exist in the order not to come close to a public place. I question the legal basis on which one would contend that order would survive a section 1 challenge of the Charter.
Mr. Hoover: The B.C. Court of Appeal and the Supreme Court of Canada said that these orders are, prima facie, section 8 intrusions. This is undeniable. I cannot say whether it is worse or better than section 7 or section 12. Certainly, we are responsive and alive to the issue that it is, prima facie, a section 8 intrusion. As such, we did our best to design the legislation to respond specifically to that concern while, at the same time, acknowledging that this tool is necessary and has to be provided to law enforcement and probation workers to ensure compliance with this issue.
The analogy of impaired driving is apt. If there is a problem with impaired drivers on the road and it is made law not to drive while impaired, without the legal ability to take a breath sample to ensure compliance, where would we be? There would still be a law and offences. However, would we be better off? These, too, are potential, prima facie intrusions that are justifiable in section 1. The issue is whether this order is justifiable.
A peace bond and a section 8 intrusion are major concerns. We have not closed our eyes to that issue. However, these peace bonds target individuals who have been found to be at reasonable risk to commit a sexual offence against a child, and terrorist and organized criminal offences. These offences are not minor offences where a judge has said, ``I find that you are of reasonable risk to carry out this offence, and I will impose this type of condition for public safety.''
The issue is whether the condition is justifiable within the circumstances.
Senator Joyal: I understand that you did your best at the department to provide for a process and to ensure that the bodily sample is taken under the proper conditions, and that the sample will be destroyed. In practice, one has to start from the principle that that person has not been found guilty of anything. That is why steps are provided in the Charter. The objective of the policy is unquestionably sound. However, the Charter has determined steps to be taken for someone found guilty or under charge. Other countries have a different system, as discussed in our review of the DNA legislation.
Mr. Hoover: It was the sex offender registry and my colleague Greg Yost. While he is smarter than me, he may not be as good looking but I can understand the confusion.
Senator Joyal: Even so, you understand the nuance there. The door is open for a challenge on this one.
Mr. Hoover: Undoubtedly, someone, somewhere, will bring that challenge forward. We have done everything possible to provide the tool and to ensure that the rights of the offender are respected in the process.
The Chair: Ms. Kane and Mr. Hoover, thank you. You have been helpful to our work.
[Translation]
The Chair: We are continuing our study of Bill C-30, An Act to amend the Criminal Code. It is our pleasure this evening to have Professor Sanjeev Anand, testifying as an individual and as an expert.
[English]
I believe colleagues have all received a copy of the learned article he has written on these matters.
Do you have an opening statement, sir?
Sanjeev Anand, Professor, as an individual: I have a brief one. Then I would like to open it up to questions. I want to be of as much benefit to you as possible and I think that is probably best served by answering your queries.
The Chair: I will interrupt to say that you might find life easier if you do not have your earphone on while you are talking.
Mr. Anand: Thank you.
I believe everyone in this room can agree we need an effective way to enforce abstention provisions. Eyewitnesses are not an effective option, particularly in the case of an allegation of breach of probation when the ``beyond a reasonable doubt'' standard is utilized.
Let us say we have an offender caught by a probation order and that probation order has an abstention provision that the offender abstain from alcohol, other intoxicating substances, et cetera. Eyewitnesses see the offender acting strangely. They contact the police. If all the police have is the eyewitness testimony of these individuals, it will be difficult in many circumstances to obtain a conviction for breach of probation that utilizes the ``beyond a reasonable doubt'' standard because it is a criminal offence.
Although the individual is acting strangely, that same individual can say, ``I have mental health issues and that is why I was acting strangely'' or ``I was struck on the head and that is why I was acting strangely.'' There are a myriad of ways to raise a reasonable doubt in regard to eyewitness testimony pertaining to this particular matter.
I think that is why the courts, pre-Shoker, have resorted to mechanisms to try to enforce abstention provisions via the obtaining or compelling of bodily samples. However, in Shoker, the Supreme Court resoundingly indicates that there is no statutory jurisdiction under the residual clause of probation to order the compelling of bodily samples as a way of enforcing abstention provisions.
Bill C-30 is effective in the sense that it provides clear statutory jurisdiction and specific statutory jurisdiction of compelling the production of bodily samples as a way of enforcing abstention provisions. The real question before this body is, is the bill Charter compliant?
My view is that it is Charter compliant. The article you have that I wrote a number of years ago dealing with the compelling of bodily samples under the auspices of community-based sentences suggests that, by and large, it is possible to construct a mechanism by which the compelling of bodily samples can be ordered as part of a community- based sentence, but certain safeguards must be in place. I suggested in the article that the standard of reasonable and probable grounds would be the safest possible way of obtaining a sample; and that there have to be certain safeguards that are solicitous of an individual's privacy — in particular, regarding the use and storage of the bodily samples once they are obtained.
Hunter v. Southam is probably the key case when dealing with section 8. The case establishes that legislative provisions authorizing search and seizure generally require prior judicial authorization for the search, based on reasonable and probable grounds. However, it is important to remember the context in which the Supreme Court uttered these words.
The context was the authorization of a search of an individual whose liberty is not already curtailed in any way by the state. This individual is an ordinary citizen, not a convicted individual, not someone serving a sentence — someone who is out there in the community under no constraints to his liberty.
The lower the reasonable expectation of privacy is, the lower the standard for authorizing search and seizure. If we have a robust reasonable expectation of privacy, which every ordinary citizen in Canada enjoys, the Hunter v. Southam requirement of prior judicial authorization based on reasonable and probable grounds probably will be the requirement the court will impose.
If we are no longer dealing with only an ordinary citizen, but perhaps someone who is subject to a peace bond provision whose liberty is curtailed by the state already, or someone whose reasonable expectation of privacy is further curtailed, such as a convicted individual who is serving a community-based sentence, the reasonable expectation of privacy for this individual will be even lower.
Finally, we have the situation of a serving prisoner, whose reasonable expectation of privacy is not extinguished, but is at a low threshold. The requirements for a reasonable search, to be Charter compliant, are lowered the lower the reasonable expectation of privacy goes. It is with that background in mind that we must look at these legislative provisions.
I do have Charter concerns. However, I agree with counsel for the Department of Justice that although we can never, in this day and age, make anything Charter proof, we cannot guarantee that something absolutely never will be found by any court in the land to breach the Charter or we will not have any Charter challenges raised to legislation, I think the department has done a laudable job in making this legislation as Charter proof as possible. At least, the department has curtailed the chances of success of any challenges.
I still have concerns, areas where I think defence counsel may raise the Charter; but I am also reasonably confident that courts, particularly appellate courts, will uphold the legislation as constitutionally valid.
One concern I have is with the provision of samples at regular intervals. We have a situation under this legislation where if someone is given probation, given an abstention condition, one way of enforcing that condition is for a court to order — and they can under this legislation — that if a probation officer has reasonable grounds to believe that the abstention provision has been breached, the probation officer can request a sample.
However, that is not the only way of enforcing the condition. Under Bill C-30, a probation officer also can fill out one of the forms and say that at regular intervals — I believe it is not less than a seven-day interval — this individual will provide samples.
The problem with that method is that they are not using any kind of standard. They have no basis for the search; they do not have reasonable suspicion or reasonable grounds. They are essentially randomly testing the individual at seven-day intervals. The question is, is that testing constitutionally valid?
In the penitentiary context, under the Corrections and Conditional Release Act, federal inmates are subject to providing random urinalysis samples. By random, I mean the list is generated by a computer; it truly is random. The B.C. Court of Appeal has upheld this legislation as constitutionally valid.
Of course, there is a big difference between an individual who is a federal inmate and someone who is serving a community-based sentence. That is the reason I think there may be an issue as to the constitutionality for the provision of samples at regular intervals for someone on probation.
The person on probation has a greater reasonable expectation of privacy. The argument is that if we can analogize the provision of samples at regular intervals to the random urinalysis that federal inmates are subjected to, the difficulty is federal inmates have a lower reasonable expectation of privacy than individuals serving a community- based sentence. That difference makes providing samples at regular intervals subject to constitutional challenge.
There is no prior judicial authorization in the context of the federal inmate. Corrections Canada does not need a court order to obtain that urinalysis sample; whereas under Bill C-30, a judge not only has to impose an abstention condition, but also has to indicate that he or she thinks it makes sense to have another optional provision, which is the provision of samples at regular intervals.
There is, in a sense, prior judicial authorization. That safeguard is commensurate, I would argue, with a higher expectation of privacy enjoyed by someone who is serving a community-based sentence.
That is why I think the bill is Charter compliant. It is subject to a Charter challenge undoubtedly, but I think the department has done a good job ensuring the bill is Charter compliant. Certainly, they have the arguments at hand.
The bigger problem, in my view, is the peace bond provisions. The peace bond provisions, allowing sampling at regular intervals, are particularly problematic. Why: because individuals subject to a peace bond are not convicted individuals at all; I believe that point has been brought up already. As a result, these individuals have a higher expectation of privacy than any serving prisoner would have, or anyone serving a community-based sentence; yet they, too, are subject to allowing sampling at regular intervals if a court decides that is the way to go.
I think the provision relating to peace bonds is probably the single biggest problematic provision. I think that provision is the one that is most susceptible to a successful constitutional attack.
However, even these individuals are not like the ordinary citizen in Hunter v. Southam. They have already had their liberty curtailed by virtue of the peace bond; therefore, they have a reduced reasonable expectation of privacy vis-à-vis the ordinary citizen. For that reason, the Hunter v. Southam requirement of prior judicial authorization based on reasonable and probable grounds probably would not apply.
As with all these provisions, a form of prior judicial authorization seems to be required by the legislation. There is that safeguard as well.
Another concern I have is with the reasonable suspicion standard regarding conditional sentences. This reasonable suspicion standard is less solicitous of section 8 Charter rights than the reasonable and probable grounds standard.
The minister made the argument — I think it is a strong one — that an individual serving a conditional sentence of imprisonment has a lesser expectation of privacy than an individual serving probation, or subject to a peace bond. I think that point is correct. A conditional sentence of imprisonment is meant to be more punitive and curtailing of one's liberty. It is easier to revert back to a sentence of imprisonment for the individual. One does not need to establish a breach beyond a reasonable doubt, but simply on a balance of probabilities.
There is some basis for using the reasonable suspicion standard. For parolees under the Corrections and Conditional Release Act, the reasonable suspicion standard is the articulated, legislative standard for requesting bodily samples. I caution this body that this legislative provision has never been challenged in the courts, therefore, we do not know if it is constitutionally valid or not.
The provision of these bodily samples reveals intimate details of an individual's life. In R. v. Wise the Supreme Court of Canada suggested that the reasonable suspicion standard might be acceptable for things such as tracking devices, which tell us the location of an individual. However, the court said that the more intimate the details of a person's life that were revealed by the actions, the higher the standard that must be met before authorizing those kinds of actions. Here, there is a situation where one is potentially, for example, taking DNA samples and will require that higher standard. The legislation makes it clear that the only legitimate use that can be made of the samples is for criminal justice purposes and, particularly, for determining whether the abstention provision has been infringed upon.
While I have concerns, I do not have huge concerns. Many of the concerns articulated in my paper have been addressed in one form or the other, in some cases, ingeniously, by the Department of Justice.
I will speak about the use of a flexible standard for the collection and storage of samples. Questions were raised to the minister as to whether that standard opens the door to constitutional challenges, depending upon the types of standards that are adopted by the provinces and territories. That standard is a concern to the extent that if the provinces or the territories adopt standards that are not solicitous enough of the privacy rights in terms of collection and destruction of samples, the legislation can be challenged in the form that it is implemented.
There are legitimate reasons why the government chose this route. The administration of justice is largely a provincial matter. This responsibility means that provinces have to pay for it. The provinces know better than the federal government what conditions are on the ground locally. This bill is an example of cooperative federalism. To the extent that the government sees there is a problem, they can talk to the provinces. They can also override the legislation by enacting regulations that set a minimum standard. There is not a huge concern in terms of the constitutionality of these provisions.
I am happy to address your concerns.
The Chair: Early in your remarks, you may have misspoken. I heard you say that the provisions for interval testing of regular sampling would occur not more than every seven days. Should it not be ``not less than seven days?''
Mr. Anand: You are right; my apologies.
Senator Angus: Good evening, Professor Anand; thank you for coming. What are your preliminary qualifications and background?
Mr. Anand: As of July 1, 2011, I will be the new dean of the College of Law at the University of Saskatchewan. For the past 10 years, I have been a professor in the Faculty of Law at the University of Alberta. I believe my bio has been submitted.
The Chair: We have it. We will circulate it.
Mr. Anand: As a practising lawyer, I was appellate counsel for the Alberta Department of Justice, and argued matters before the Supreme Court of Canada and the Alberta Court of Appeal. In addition, I was trial prosecutor in Edmonton, Alberta, as a Crown prosecutor. However, I began my legal career as a defence lawyer with the Legal Aid Society of Alberta. My practice dealt primarily with the defence of young offenders. In terms of my academic qualifications, I hold a Juris Doctor degree from Osgoode Hall Law School, a Master of Laws from the University of Alberta, and a PhD in law from Osgoode Hall Law School.
Senator Angus: Thank you, sir. It is nice for us to have access to your vast knowledge.
Has your specialty been in criminal law, as opposed to civil law?
Mr. Anand: That is correct. You would not want me to testify as to the civil law.
Senator Angus: Since you wrote this article, have you been in consultation with the federal justice department?
Mr. Anand: No, I have not.
Senator Angus: Have you been involved with them in terms of addressing the R. v. Shoker decision?
Mr. Anand: I have not. I do regularly consult with the Federal Department of Justice on a number of matters. The last time I addressed the criminal law policy section was concerning common law police powers. That consultation was earlier this year.
Senator Angus: Have you been a consultant to them on this bill?
Mr. Anand: No, I have not.
Senator Angus: Yet, you are able to come before us and say that, in your view, they have done a good job in addressing the gap pointed out by the Supreme Court in R. v. Shoker and in trying to close that gap?
Mr. Anand: Exactly.
Senator Angus: Were you here when Minister Nicholson testified?
Mr. Anand: Yes, I was.
Senator Angus: Is there anything that he told us that you do not agree with?
Mr. Anand: No, there is nothing that I explicitly disagree with. The difficulty with this particular area is that we do not have strong statistics, either pre-Shoker or post-Shoker, as to how often these provisions were used. Speaking as a Crown prosecutor, it was relatively rare when I was practicing to have crowns ask for provisions dealing with compelling bodily samples. Even when I was practicing, there was a concern as to the constitutional validity of such orders.
I think this legislation will involve many more orders. I do not think it simply puts us back to the pre-Shoker period, when there was a real concern as to the validity of orders enforcing abstention provisions. That concern was alive and well. As a result, the orders were not issued that often. As a result of R. v. Shoker, the door was completely shut, except in Nova Scotia where there was an odd decision to which my article refers. In Nova Scotia, they engaged in creative traditional interpretations of R. v. Shoker to avoid the result of Shoker. Post-Shoker, we have seen the absolute elimination of these types of provisions.
With this new legislation, these provisions will be used more. There will be a sense among Crown counsel that the constitutional concerns have been addressed. There will be education; Crowns will know that they can ask for these provisions. They were not necessarily aware of those provisions before.
Senator Angus: The minister and officials pointed out that the bill is designed to have a deterrent effect. Do you agree? If one is subject to one of these orders, knowing at any time they can be asked for a sample, this tends to —
Mr. Anand: I do not think there will be any significant deterrent effect from this or any piece of criminal legislation.
Senator Angus: What do you base that view on?
Mr. Anand: To have a deterrent effect, the prospective offender has to engage in a particular type of calculus. It is not only the cost and benefit of engaging the action, but also the chance of being caught. The reality is, there is such a low clearance rate for criminal offenses generally — it is less than 15 per cent — if any individual engages in a true cost analysis, they would commit the crime. That is the reality.
The Chair: I hope no potential criminals are watching this on television.
Mr. Anand: The reality is that we give assistance to law enforcement to enforce these provisions better. I do not think it a reality to believe we will deter an individual from engaging in an offence simply because we have periodic testing or something like that.
Individuals who are under a court order to abstain from alcohol know full well that someone could turn them in for taking a drink without these provisions, but they engage in the activity anyway. Why: They likely have a substance abuse issue and if they do, they will not be concerned with the ease of enforcement in these provisions, or the penalty they will incur. I realize deterrence is used as a catchphrase a lot, but with all due respect, the social science evidence is clear: Deterrence cannot be achieved by punitive actions or even with ease of enforcement when we have a clearance rate as low as the one we have for criminal offences.
Having said that, there are other reasons that Bill C-30 is a good piece of legislation. We need to give mechanisms to police officers to try to enforce these provisions as best they can, and I think that is why this piece of legislation is a good one.
Senator Angus: I want to offer this point, chair. Since we digressed into the realm of sociology and criminology in the broader sense, if we could only read the minds of these people and know why they do these things, it would be a simpler world.
Mr. Anand: Oftentimes when I teach sentencing to my second- and third-year law students, I talk about mandatory minimum sentences and starting-point sentences. I ask my students, ``What do you think the chances are for someone who will commit a convenience-store robbery that they will pop into the local law library, find out what the going rate is in the court of appeal for a convenience store robbery and say to themselves, ``Five years is too much time; I will not do it, or three years is alright; I will do it.''? It does not happen.
Senator Boisvenu: I understand you are comfortable with the bill.
Mr. Anand: I am comfortable with the bill, yes.
[Translation]
This legislation does not merely deter individuals from committing crimes. It also aims to protect the public, does it not?
[English]
Mr. Anand: It might have the objective of deterring crime but I think the realistic objective of this bill is the apprehension of individuals who breach probation orders.
Senator Boisvenu: It is to give to law enforcement the right tools to be effective on the ground.
Mr. Anand: Exactly: Deterrence suggests that simply having the provision will prevent people from engaging in the activity. I do not think that deterrence will happen. I think people inclined to breach it anyway will go ahead and breach it, but they will then suffer the consequences.
[Translation]
Senator Boisvenu: You told us that you were at the Office of the Attorney General. Is that correct?
[English]
Mr. Anand: Yes, I was.
[Translation]
Senator Boisvenu: In your opinion, will this bill equip police officers well to do their job in dealing with a criminal subject to an order, where there is a reasonable doubt?
One of our concerns is to ensure that police officers have effective tools to do their job and that they are able to intercept individuals who might commit a crime.
[English]
Mr. Anand: I think this piece of legislation provides important tools for law enforcement, both for preventing prospective breaches of the peace but also for ensuring that individuals who have breached court orders can be prosecuted successfully.
Senator Joyal: Let us come back to the definitions of the two standards. The reasonable suspicion standard was never tested in court, according to your comments, versus the reasonable standard to believe. To which degree does each one define itself in relation to these two clauses of the bill where they are used?
Mr. Anand: You are asking a difficult question.
Senator Joyal: You are a professor, though; I trust your abilities.
Mr. Anand: I can tell you how I explain it to my students. ``Reasonable and probably grounds'' is a higher standard. ``Reasonable suspicion'' is a lower standard and, to use the words of Justice Doherty with the Ontario Court of Appeal, it requires a constellation of objectively verifiable facts. Reasonable suspicion cannot be only a hunch based on someone's gut; there must be a group of factors to suggest there might be grounds for the search or grounds to believe that someone has breached an abstention provision. However, reasonable suspicion does not require a preponderance of evidence, which is what ``reasonable and probable grounds'' requires.
Senator Joyal: Where about the ``reasonable grounds to believe'' test?
Mr. Anand: Yes.
Senator Joyal: As pointed out by the department, the bill uses different tests. You can see that on page 2.
Mr. Anand: For conditional sentences orders, the compelling of bodily samples requires only a ``reasonable suspicion,'' whereas probation and peace bonds require ``reasonable grounds to believe'' — a higher standard.
I do not want to put words in the minister's mouth but he essentially indicated that with the conditional sentence order, the individual is convicted. However, the one thing omitted in the minister's comment was that, not only is the individual convicted, the individual is subject to a more stringent sentence.
The conditional sentence order potentially extinguishes more privacy rights than any of the other orders. As a result, the individual is subject to a lower expectation of privacy and that is why the standard to compel the bodily sample is lower when an individual is subject to that type of sentence.
Senator Joyal: I agree with you. However, in relation to a peace bond versus probation, there is not even a charge in the case of peace bond.
Mr. Anand: There is no charge. However, and I have to stress this point, an individual under a peace bond has a lower expectation of privacy than you or I. Presumably, we do not have peace bonds against us. I think that is the reason the Department of Justice Canada probably feels the standard used here is justifiable. Again, I do not want to put words in anyone's mouth.
What other standard would one use? We have only three standards: We have ``reasonable suspicion,'' ``reasonable and probably grounds'' and we have ``beyond a reasonable doubt.'' ``Beyond a reasonable doubt'' is far too high a standard for compelling the production of bodily samples; we do not use that standard in the criminal justice system at all to compel bodily samples.
Senator Joyal: The relationship I am trying to show is that our law does not provide for someone under arrest to provide a bodily sample. They are compelled to give their fingerprints but they are not required to give a bodily sample like they are Britain. There is a distinction between the two countries on that point. In the case of a peace bond, the person is not even under arrest.
Mr. Anand: No.
Senator Joyal: You see?
Mr. Anand: But they have restrictions on their liberty.
Senator Joyal: There are restrictions, but limited restrictions because they are not even charged and they have not been found guilty, obviously.
That is why I think there are different levels of limitations to the freedom of someone essentially under a peace bond. We have not imposed on someone under arrest to provide bodily samples.
Mr. Anand: I would argue that we have established a higher threshold to impose conditions on individuals subject to peace bond provisions than someone under arrest. When police officers arrest, they do not have to establish any kind of independent judicial authority that they have ``reasonable and probably grounds.'' They have to come up with said reasonable and probable grounds themselves and that is their basis for arresting the individual.
To impose a peace bond, if it is contested, an impartial arbiter — usually a provincial court judge — has to make a determination on a balance of probabilities that the individual constitutes a reasonable danger to another individual.
In my view, that standard is higher than reasonable and probable grounds that a police officer might have. Here one is establishing in a hearing that the individual, to an impartial arbiter, constitutes a reasonable danger. I think that standard probably justifies an easier compelling of bodily samples than one would have for someone who is simply under arrest.
Senator Joyal: Yes, but the level of invasion of privacy at that stage of a peace bond cannot be as stringent on the person as the one they would impose if the person was under probation or under conditional arrest.
Mr. Anand: I am not sure that is true, because we are talking about constitutional imperatives. I think we have to separate two things. The Constitution provides a minimum degree. It may well be that for someone who is under probation, the Constitution would not require reasonable and probable grounds to obtain a bodily sample. Maybe a reasonable suspicion will do; maybe that is all the Charter requires. However, Parliament, in its wisdom, through Bill C-30, has required a more stringent standard.
It is always open to Parliament to impose more stringent standards than the Charter requires. The Charter provides a base minimum, and the only way we will know whether the Charter is complied with is if we have a court decision directly on point. We do not have that decision here.
Senator Joyal: I agree, but even in the Shoker case, the justices noted that Parliament's ``solution would then be open to review'' to ensure compliance with the Charter.
It is not only because we have legislated that —
Mr. Anand: However, Justice LeBel's comments in Shoker were restricted, if you read the rest of that quote, to the provision of blood samples. He was particularly concerned with the provision of blood samples.
Senator Joyal: I agree, but a blood sample is a bodily sample.
Mr. Anand: However, it is not the only type.
Senator Joyal: I know, and the regulation will determine, as you know. If I go back to page 7 regarding the regulation:
(10) The Governor-in-Council may make regulations
(a) prescribing bodily substances for the purposes of paragraphs 2(a.1) and(a.2).
Mr. Anand: The principle animating concern of Justice LeBel in Shoker is the lack of a statutory framework for the collection and use of the samples, more than anything else. That is what is animating his concern.
Remember that Justice LeBel said the residual clause for probation, in his view, provided statutory jurisdiction to compel the sample; but he found that would be unconstitutional in the absence of a statutory framework that was solicitous of the individual probationer's rights vis-à-vis the use and storage of the sample. I think that context will be vitally important in any subsequent litigation on this matter.
Senator Joyal: In your opinion, why has the test of the reasonable suspicion standard never been brought to court?
Mr. Anand: I should not say it has never been brought to court; it has never been brought to court in the context of a sentenced individual. The reasonable grounds to suspect standard received judicial endorsement in the context of the Supreme Court of Canada decision in R. v. Mann, which dealt with investigative detentions, but that matter is different than a sentenced individual.
For example, the police can detain someone and engage in a cursory search of them as well, if police have certain grounds. Even if police do not have reasonable and probable grounds, they need only a reasonable suspicion. The Supreme Court of Canada, in Mann, gave that common law power to the police.
It is not that the reasonable suspicion standard is unheard of or has never been countenanced by the Supreme Court. However, in the context of a sentenced individual, it has never arisen in litigation.
Senator Wallace: You stated, and I understand the rationale you gave, that those subject to a peace bond would have a higher expectation of privacy than those subject to a probationary order — and in particular, those subject to a peace bond and subject to testing under this bill at regular intervals. You said that provision is, in your view, the biggest single problematic provision. Overall, I think you are satisfied, from a constitutional perspective, with the bill; but you raised that point — that arguments can be made.
Mr. Anand: If I was a defence lawyer, that provision would be my primary point of attack.
Senator Wallace: Right: The issue then becomes one of protecting the privacy rights of the person subject to the peace bond; whether the testing would violate the Canadian Charter of Rights and Freedoms, in particular section 8, which relates to the right to be secure against unreasonable search and seizure.
When the courts consider whether a search or seizure is unreasonable, do they consider the balancing of interests of the individual against the public good that is to be served by this testing — in this case, this requirement to provide the sample? Is that balancing relevant? What is reasonable?
On one hand, we have the objective of this bill — someone who would be subject to a peace bond presumably to provide further protection to the public that there would not be a re-offending circumstance — versus the privacy interest of the individual. Is that balancing relevant; do the courts look at it? Does it have relevance in determining the reasonableness, from a Charter perspective?
Mr. Anand: The courts definitely take that balancing into account, but maybe I can break down your question into two questions. Even if the court finds there is a breach of section 8 of the Charter, it is still open to the government to argue that the limit is a reasonable and demonstrably justified limit in a free and democratic society, pursuant to section 1.
The way I would argue it is that there is some internal balancing of outside interests under section 8 of the Charter, and we see this particularly in terms of what I call regulatory searches. For searches of, let us say, transport industries, things that are regulated quite a bit by government, you do not have the Hunter v. Southam standard for searches. Because it is a heavily regulated environment, there is a lower expectation of privacy; and one can argue there is some sort of internal balancing. The courts recognize we need to regulate these industries, and regulation is too important for us to have this difficult-to-meet threshold to conduct searches. I would argue that is an example of internal balancing under section 8.
However, most of the concerns that one would raise in terms of law enforcement efficiency in the criminal justice context, I think would occur in section 1. Even if the courts found that this legislation breaches section 8, there is always the issue of section 1 justification.
Given a number of recent decisions of the Supreme Court of Canada, where they have articulated a fair level of deference to parliamentary action — particularly when Parliament has considered, as this body is doing, the different possibilities — the court seems to be more likely to defer to Parliament's choice when they are choosing between reasonable options. In this case, I think there is a compelling case that even if the legislation is not the least intrusive mechanism possible, a reasonable choice is being made by Parliament. For that reason, the courts may well defer to parliamentary action.
Senator Wallace: Your review and its thoughtfulness of this bill is impressive, and we thank you for the depth of your responses.
Mr. Anand: It is nice to know that someone read the article. As an academic, we are often told that only six people read the articles we write.
The Chair: It is this six.
Senator Wallace: It may be an academic consideration, but you give it practical implications; and that is what we are trying to deal with here — to apply what we believe to be the real world circumstance, to these laws. It was helpful.
The bill obviously involves individuals subject to probation orders, conditional sentences and peace bonds, and it requires individuals to provide samples, either on demand or at regular intervals. It also deals with the use, storage of and destruction of samples. All those elements are present.
In your consideration of the bill, and what seems to be your support of the bill, have you considered each of those elements?
Mr. Anand: I have. As I said, I have some concerns with what you would call the delegation of some of the storage and use issues to the provinces. However, I understand the fiscal and political reasons for doing that. Parliament needs to keep a close eye on the standard. I think the minister was correct when he said the only use that can be made of these samples is the enforcement of these abstention provisions, other than statistical purposes and some studies. That use is clear from the legislation. That enforcement is an important lynchpin.
In the context of the peace bond provisions, if I were drafting the legislation, would I have allowed for sampling at regular intervals? I probably would not have because probably I am a little more risk-averse than others. I think that point is probably the single weakest point in the legislation and the one that is most susceptible to attack. However, I understand why the government did it; I understand they had reasonable grounds for wanting to provide for that particular provision.
In terms of the conditional sentence provision and the lower test of reasonable suspicion, I think the government is on much firmer ground. I think an individual subject to a conditional sentence has a lower expectation of privacy than someone on probation, therefore, law enforcement should have a much less robust threshold to meet to compel the provision of those bodily samples.
The Chair: Thank you very much indeed, Professor Anand. I do not know if you can appreciate how useful it is to us to have genuinely expert testimony. We appreciate it very much. We apologize for the short notice you were given.
Mr. Anand: I apologize for my jet lag. I hope I was able to make some coherent statements.
The Chair: There are no concerns on that account. We are grateful to you.
We continue our study of Bill C-30, An Act to amend the Criminal Code, or response to the Supreme Court of Canada decision in R. v. Shoker act. Vincenzo Rondinelli is from the Criminal Lawyers' Association. We are always grateful to you for being here and doubly so today, as your air trip was more arduous than it normally is.
Welcome, Mr. Rondinelli. You have a few remarks before we put questions to you.
Vincenzo Rondinelli, Lawyer, Criminal Lawyers' Association: Thank you. I have travelled to Europe more quickly than I went from Toronto to Ottawa today.
I am here on behalf of the Criminal Lawyers' Association. We are an organization of defence lawyers that span the country. We are about 1,200 members. One of our mandates is to give submissions to committees such as this one. We also sit on advisory committees with the judiciary and the Crown attorneys. Like the Crown attorneys across the country, our members are on the front line of the criminal justice system. When there is a bill such as Bill C-30, it has a great impact on our members. Therefore, we welcome the invitation; hence the efforts to arrive here to provide comments which, hopefully, will be of some help to the members with questions.
We are happy with the R. v. Shoker decision. Our organization advocated the position that was accepted ultimately by the majority of the court: The Criminal Code does not give the sentencing judge the power to add a condition to a probation order mandating compulsory samples be given to check up on abstaining from alcohol or drugs. In addition, if there is a gap in the Criminal Code, which there seems to have been, it is Parliament's job to fix it and not that of the court.
With this bill, Parliament is taking the legislative step to fill that gap.
We are fortunate in the criminal justice system today. We have had experience in dealing with bodily samples in other areas such as the impaired driving context or the recent DNA legislation. I have appeared before this committee to speak in that regard.
We have that experience in dealing with bodily samples and ensuring strict guidelines. The legislation, as it stands, seems to reflect that experience. I have not seen the regulations; I am not sure if there are any. However, the legislation will build on what is being done on the DNA side of things and likely mirror it in terms of who takes the samples, how the samples are dealt with afterwards, the retention periods, and destruction.
I do not come here stomping my feet and worrying about what Parliament is doing. Bill C-30 seems to be technical in nature. What was included in the bill was not surprising, with the exception of one area. The R. v. Shoker decision dealt with the probation area. The bill itself expands that decision not only to the probation area but also the conditional sentences and peace bonds area. We are not concerned with the probation regime, obviously, or the conditional sentence regime. They mirror each other; they have the same type of conditions that usually go along with a probation order or an order under a conditional sentence. The part of the bill that raised our eyebrows was with regards to peace bonds.
In examining earlier debates about this bill including its first reading, I cannot see how it came about that peace bonds were thought to be a good addition.
On a principle basis, peace bonds are used every day as a resolution mechanism that resolves a lot of cases. However, one selling feature that helps in the resolution is that there is no finding of guilt or any sort of criminal liability attached to a peace bond. That aspect is different than the probation aspect and the conditional sentence because they are part of a sentence.
When peace bonds first came into play in the 1800s, they dealt with protection of property and keeping the peace. They traveled through the system and the years. They have been good in terms of helping as a preventive mechanism for apprehensions of future risk or of violence. Usually, a specific person is attached to a peace bond. Peace bonds have evolved to that point. In that regard, I still do not see the correlation in terms of the mandatory bodily sample provisions and what the peace bond is meant to be.
On the practical level, in a number of instances, a peace bond is a quick resolution. On the day of trial, a number of things happen. Witnesses do not show up or a case is not as great as the Crown once thought because the Crown has looked at it under a more scrutinizing lens closer to the trial date. That is when the discussion heats up. At the eleventh hour, as judges have called it, they enter into a peace bond. There is not much time to reflect on what goes into a peace bond. However, adding important conditions, such as what are planned here, may throw a wrench into the quick and dirty peace bond of the day.
Clients are happy to take them because, on the flip-side, there is a chance of a finding of guilt and potentially even jail. However, they have to remember there is still some restriction on them, even as it stands now, let alone with these new provisions. If there is a breach, it becomes serious because they are breaching a court order. As it stands, a breach is punishable both under summary conviction and under indictment. If that provision comes into play and they are told they might have to subject themselves to interval type of drug or alcohol testing, they may not be so keen on jumping into that situation for whatever reason.
That provision also adds the next layer: how to dealing with the condition in terms of showing the court that such a particular condition is necessary in this particular circumstance? Is there an expert or a psychologist who can provide an assessment? In Mr. Shoker's case, there was medical evidence. It was a psychiatrist or psychologist who said that Mr. Shoker was a risk in the future and they might want to think about testing him for drugs or alcohol.
Adding that condition on a practical level raises problems. Otherwise, in terms of the bill as a whole, we are happy to see that Parliament has taken this step. It will be beneficial not only to judges but to clients, as well, because they will have a clearer understanding of the probation orders and the conditional sentences. I have mentioned the problems regarding the peace bonds.
Those are my initial comments in a nutshell.
Senator Wallace: As mentioned before you sat in that chair, we thank you for appearing here. You moved heaven and earth to appear here and we appreciate it very much.
Mr. Rondinelli, you focused your comments on the peace bond provisions and the fact that these provisions are an additional factor that was not part of Shoker. I was not sure where you ended up on that point. Were you raising peace bonds as being different from the probation order situation, the conditional sentences, or did you have an actual concern with the bill in relation to the peace bonds? I am interested to hear you clarify that point.
I understand the standard to require a sample under a peace bond situation would be reasonable belief, as opposed to the reasonable suspicion standard of a conditional sentence. Taking the standard that much higher with peace bonds would seem to add further protection and would seem to be appropriate.
I am not sure if you want to comment on the constitutionality or any other context. What is your final conclusion regarding peace bonds?
Mr. Rondinelli: The conclusion is that it is an exercise of over-breadth, both on principled and practical areas. In terms of constitutional challenges, if any of the three have potential constitutional challenges written on them, it may be that one. I appreciate the difference of standards, one being ``reasonable grounds to suspect'' and the other, ``reasonable grounds to believe.'' That difference may go a long way in terms of its constitutionality but it may not stop an attack. There is no finding of guilt, and no criminal liability is said to attach to that peace bond.
Having said that, without looking at it further to see exactly how strong an argument one would have, I am not in a position to comment. The context that has come up before is DNA on arrest. One of the main issues there is at the presumption of innocence stage. It does not necessarily mean that the DNA on arrest would not be upheld as constitutional. They are taking DNA on arrest in many states in the U.S., as we know.
In terms of being open or susceptible to attack, the peace bonds may have an issue there. On the practical level, even if there are ``reasonable grounds to suspect,'' what kind of evidence is necessary for that test, especially at a peace bond hearing? We do not see many appeals of peace bonds. There are some. It would be, at least, a ripe area to look at.
All that is to say the concern is that this bill goes a little further than what is potentially necessary. Again, the probation and conditional sentence we see comes after the fact.
Senator Wallace: You are well aware that the bill deals with provisions that require the sample be provided. We have talked about those provisions. However, the bill also concerns the use to which the sample can be put, the storage of the sample and its destruction. Do you have any comments to make regarding the use, storage or destruction provisions?
Mr. Rondinelli: I think we have learned a lesson from the DNA side of things and a lot of that bill is built from those lessons. It seems that whatever tweaking was done on the DNA legislation we have been able at least to carry over into this area. All those areas you mentioned are important aspects of this bill and are built into it.
Usually the knee-jerk reaction is that they will take a sample: What will they use it for outside the probation area? I do not want to see them use it for another investigation. The legislation does not allow for that use. It specifically says they cannot do that, and adds criminal liability. That provision carries forward from the DNA legislation.
In that respect, again, the bill is fine. Those factors may well play to upholding the peace bond part of things. However, the main concern is on the over-breadth for the peace bonds.
Senator Wallace: When Minister Nicholson appeared before us, he spoke of the consultation that took place between his department and the various provinces and territories, and indicated the provinces and territories were completely supportive of the bill. As I am sure you are aware, federally the bill establishes minimum standards applicable across the country but leaves flexibility for the provinces to determine procedural matters that relate to the implementation of the bill. That relationship between roles and responsibilities, federally and provincially, are ingrained in the bill, as you know.
Do you have any comments to make on that aspect? Are you satisfied with the way that relationship is structured, and with the responsibility that each jurisdiction will have?
Mr. Rondinelli: The structure has been in place longer than — I do not know the exact time and place, but it has been there and it works in different contexts.
The interesting thing here, though, is that we are talking about large numbers. I tried to find statistics on peace bonds and did not have much luck. Regarding probation, I did find that, in the last study of 2008, there was over 110,000 people on probation across Canada. The interesting aspect is that Ontario seems to have about 50,000 of those people. Conversely, Quebec apparently has the lowest number, or at least, it is low compared to Ontario. Quebec has under 10,000.
How then are the provinces able to deal with probation because obviously Ontario has the great bulk of probationers? I cannot even imagine how the provinces would deal with peace bonds. As I said, peace bonds are a huge resolution mechanism in our provincial courts, at least in Toronto. I can imagine the numbers.
Having said that, the numbers on probation, even though they are 110,000, do not mean that all of those people have the condition of abstaining from alcohol or drugs; but I am sure a number of them do. The mechanism in terms of leaving it to the province, as I recall, was one of the issues with Mr. Shoker as well, because the province had problems of just running the program because of money. Even though Mr. Shoker's appeal, for him, was moot, they dealt with the appeal still because it obviously had a broader application.
The provinces will have to deal with the condition. In Ontario now, even with our interlock program, we found there was delay after delay in putting that program into place. There were growing pains and I assume there likely will be with this program — probably not as bad as that area, because the probationers or the numbers that have this condition will be nowhere near the numbers of the interlock program, I assume. That was a long answer to say I do not have a problem with the provinces dealing with the legislation.
Senator Chaput: You talked about peace bonds. I think you asked the question if it was a good idea to add peace bonds to this bill.
My understanding is that Bill C-30 states that a sample may be demanded when there are reasonable grounds to believe that the individual has breached, and reasonable grounds to suspect. I want to know what difference you see between reasonable grounds to believe and reasonable grounds to suspect. Can you explain the difference?
Also, according to your view, what is the rationale behind using two different thresholds in Bill C-30? What do you think of that rationale?
Mr. Rondinelli: I will start with the last question first. It comes down to recognition and acknowledgement that in a peace bond, there is no finding of guilt and there is no criminal liability. In terms of whoever crafted the bill, they recognized that situation in that respect. In terms of keeping within constitutional values, if a peace bond comes before a person is convicted, then they a need a lower standard.
On the difference between ``suspect'' and ``believe,'' I will give you the driving context as an analogy. For a police officer who pulls over a motorist, there are two types of Breathalyzers; one can be administered at the roadside, which is a warning mechanism to see what step they will take afterwards. The other one is used once there is an arrest for impaired driving, and a demand is made for the Breathalyzer. That test is taken back at the station, and a technician conducts that test.
At the roadside, the officer only has to ``suspect'' that the person has alcohol in their system. The standard is easy to meet because ``suspect'' is as easy as saying, did you drink tonight? The person may not be impaired, so the officer may not have reasonable and probable grounds to believe the person is impaired because he or she drank. However, in terms of administering that first step, that roadside test, all they need is a suspicion that there is alcohol in the system.
Once the person says yes, they have had a drink, if the officer suspects that the person has alcohol in their body, the officer makes them blow. If the person fails on the blow, that gives the officer added grounds to see if they note any other things — glassy eyes, slurred speech and so forth. All that information goes into the package to find reasonable and probable grounds to make the actual demand for the Breathalyzer. The standards are definitely different and ``suspect'' is at a low threshold.
In this case, if a probation officer, a peace officer, in terms of a peace bond, or whoever has a reason to believe or suspect — depending on what level is needed — again, if the person says yes, I had a drink tonight, that is cause to have them tested.
Senator Chaput: At the beginning of your presentation, I believe you talked about regulations. We know and you know that they will be drafted once the bill is passed; they have not been developed yet.
What would you like to see in those regulations? What issues are important to address in the regulations in regard to this bill?
Mr. Rondinelli: I think the DNA legislation is a model to be followed. We have to remember that the legislation has gone to the Supreme Court of Canada and has met with glowing remarks in terms of its constitutionality. We are talking about large numbers — maybe not so many as all of these combined at some point, but we are talking about large numbers that have to be sampled.
There were growing pains, as this committee knows. After the five-year review last year, there were things to work on and those things have been tweaked. The efficiency went from something as simple as where they take the sample. A lot of times, depending on the jurisdiction, they take the sample at the courthouse because they will have a qualified person there, and they take it before the person leaves the courthouse. Other times, they have to go to a designated place for the sample. Whatever the way it is taken, the regulations seem to be working.
Nothing specific comes to mind that I have a wish list for. In general terms, I think the legislation should be built on the model of the DNA legislation.
The Chair: Before I go back to Senator Wallace, you are not the only person to have lit upon the peace bond as an area worthy of serious discussion. It has come up in proceedings with witnesses before you.
The witness immediately preceding you was Professor Anand; you know who I mean.
Mr. Rondinelli: Yes.
The Chair: I do not want to put words into his mouth, but I think this will be a reasonable summary of one of the points he made. If not, I will trust my colleagues to correct me.
He liked the bill; he said he thought it was a well-drafted bill but if there were areas where we might expect Charter challenges to occur, the peace bond area was one. In particular, he drew our attention to the provision allowing for a peace officer to require regular sampling, as often as once a week.
That is no longer a case of having reasonable grounds to believe or suspect that if this person was tested today, the results would demonstrate that the person had been in breach of the order. This sampling is a regular requirement. Does that concern you at all?
Mr. Rondinelli: I agree with that view as well. That is one of the factors that would come into play in terms of checking it against constitutional values — because it is broken up into two issues, as you alluded to. One is if there seems to be reason to believe or suspect a breach is happening; that is when they can ask someone for a sample. The second is that it can be a condition that their probation officer or whoever the officer is will decide how often they have to provide a sample. The bill does say it has to be at least seven days, so sampling potentially can be required weekly.
That provision will come into play in seeing if the legislation has gone too far or become too stringent in terms of what is meant to be achieved. It may be that they have to move the marker for testing; perhaps not weekly but monthly. In terms of substance abuse, on a medical basis I do not know whether testing weekly or monthly will make a big difference, or whether testing weekly has value or not with an addict. I cannot speak to that issue.
The U.S. has had a lot of experience in this particular area since the Ronald Reagan years of the 1980s when drug testing became the flavour of the decade. I have not had the chance to look at the American cases. Americans like to litigate civil liberties. I assume that there have been challenges.
I agree with the professor in terms of bill itself. That is why I raised the issue with peace bonds. If anything is open for attack, it is that area and, in particular, the intervals or the ongoing restrictions on someone.
The Chair: Would the people subject to the requirement for regular testing be those who have an addiction?
Mr. Rondinelli: On a practical level, that is why I alluded to the evidence needed at these hearings. Usually, when they enter into a peace bond they can contest any conditions. There is usually not much to contest these days because the conditions are usually keep the peace and stay away from this particular person. However, when they add something like sampling, that is something that will have to be fleshed out somehow in court. I am not a medical practitioner so I do not know if there is any use of a peace bond for an addict. Is that use opening up the peace bond for a breach? The courts, in these and other situations, are reticent to put conditions on a probation that clearly will lead only to a breach by the individual.
One of the main purposes and objectives of a probation order is rehabilitation; not to punish but to rehabilitate and potentially prevent some sort of conduct. Even at the court of appeal, I have had many cases where I argued on a probation order and judges were worried. They say, we will put in this condition; however, it is clear from this person's past there will be a breach; why do it when it will cause more problems for the person?
That problem is a broader one but we will have to see how it plays out in court. Is it only from a criminal record that one can guess? Is it from a Crown's submissions saying that a person has been before him or her three times and all three times involved fights at a bar where alcohol was clearly an issue? Is it simply because the person was at a bar and there was alcohol that the condition is required of testing and also regular-interval testing? These areas likely will be challenged. The challenge may not be necessarily on a constitutional basis. It may be on the condition itself and whether it was reasonable. This type of condition has been placed in many orders in the past. It just so happens that counsel for Mr. Shoker decided to take it up.
Judges will add things in probation orders that at the end of the day may be illegal, in the interest of trying to help. One of the areas that comes to mind because I see it a lot of them when I am involved in appeals and where a probation order is involved are banishment conditions. Judges will say, this happened here; therefore, stay out of Durham region.
It may not be so easy for a person to stay out of Durham region if they have family around. What is the principle? Because the person has a problem with one individual in Durham does not necessarily mean the person needs to be to banished from Durham. That is usually argued on a reasonable basis and one is able to strike it. In the same vein, there probably can be challenges to the reasonableness of the condition without touching on the constitutional aspect of it.
There is no easy answer of who receives what and when.
The Chair: I think I hear you saying that this bill, like many others involving the Criminal Code, may well face Charter challenges in the courts. However, as you look at it, there are no red flags. You think the bill is reasonable piece of work. Am I putting words in your mouth?
Mr. Rondinelli: It is reasonable. I will try to articulate my position better. The peace bond in this bill still concerns us. I do not see a correlation in terms of what a peace bond is meant to achieve and these conditions being added to it.
We would prefer for it not to be part of the bill because that area is the main area that is open to Charter challenge. Again, I am not here to say how strong the argument would be in terms of having the provision struck, but on a strictly principled and practical basis, we do not see how peace bonds fit.
The professor mentioned in his paper that was alluded to in the legislative summary, in the bail context, that if a condition were put in the bail, that condition probably would open it up for constitutional challenge.
The context is not that different from that of bail or peace bond. There is no finding of guilt. We are still on the level of presumption of innocence. Whatever concerns the professor had with the bail area would follow with the peace bonds.
Senator Wallace: Mr. Rondinelli, Minister Nicholson and other witnesses have told us that many of the crimes committed today arise because of substance abuse, whether alcohol or drugs. One of major premises of this bill is to have some control over this repeat criminal behaviour, or attempt to, and to deter drug and alcohol abuse in the future.
Senator Angus is a sponsor of the bill in the Senate. In his speech to the Senate on February 15, he said that ``about 80 per cent of offenders sentenced to a term of two years or more cite drugs or alcohol as a cause of their having offended.'' Later, he said, ``38 per cent of offenders with substance abuse problems sentenced to a federal penitentiary committed their current offences to support such additions.''
As someone who has been an effective defence counsel and has dealt with offenders under many circumstances, how do those comments strike you from your own personal experience? The comment goes beyond this bill. It covers what is of interest to all of us, the strengthening of other criminal code provisions to deal with the root cause.
Mr. Rondinelli: Speaking on an anecdotal level, people do not have the best judgment when they drink alcohol or consume drugs. I will leave those with substance abuse addictions aside. With those people, it is difficult to see how this bill can help. If the problem is an addiction, the root cause is deeper than the issue that happened on that particular night.
For example, they can take away the driver's licence of an alcoholic, and I have had cases where an alcoholic is charged with a blood level alcohol over 0.8 but not impaired driving because that person has learned to function and drive a vehicle a lot better than people who are sober, even though that person will blow at high numbers.
One wonders how that person can drive but the addiction does not impact their driving as much. They have taken away their licence, but it is not difficult to drive again. They gain access to vehicles in a number of ways.
Clearly, the bills and laws try to mitigate and manage risk, but legislation will not be the answer to root causes, unless we are talking about prohibition of alcohol. That prohibition obviously would alleviate everything. However, we have gone down that route long ago, and prohibition will not be the answer.
Yes, I can say that alcohol and drugs play a role in crimes, but we look at the growing area of fraud, and there is no alcohol or drugs. There might be gambling, for example. Gambling seems to be creeping in a lot more these days with my clients. If we want to look at a correlation, once casinos came to the province, we have seen more clients on that end of the spectrum.
Again, not being a professional in terms of a psychiatrist or psychologist, one can sometimes tell from a client's criminal record what the root is. If we see a number of break and enters, there are usually substance abuse issues because they go in for the quick money to help fuel something else. They are committing these crimes for other reasons, but that socio-economic issue is too big for this bill to answer.
The idea behind this bill is that if a judge thinks in the circumstances of this case, the person before the court will somehow benefit from having this condition as part of a probation order and it will not lead to a breach. To help enforce the condition, they will add that the peace officer can ask for a sample, if necessary.
Senator Wallace: I hear your answer, and perhaps my question was not as clear as it could have been. It was not so much to apply the bill to the drug and alcohol abuse problem, but about your experience in dealing with offenders and the frequency of drug and alcohol problems. You are not here with the studies, but drug and alcohol abuse seems to be at the root of so much criminal behaviour.
Mr. Rondinelli: My office is in the entertainment district in Toronto, and every weekend they say that 30,000 partygoers emerge in the Richmond-Adelaide-Queen area in downtown Toronto. Many things happen on those weekends. The next week we receive calls from clients. A lot of the times the calls are because of alcohol getting out of control, but the incidents are one-offs; they are not something that is a systemic problem with college kids, or what have you. The peace bond and diversion issues, for example, are where the Crown does a good job in screening to see if the problem is deeper than a stag that went out of control one weekend and that this person is not someone who would normally come into the system.
There are many checks and balances and many great things in the Criminal Code. Diversion and peace bonds have had a big part as well.
Even at Old City Hall with the Mental Health Court that is there, it seems they have had success over the years trying to be more holistic in their approach and not only looking at the crime and giving the punishment.
We are still developing as a country in terms of our sentencing. The Parliament has done a good job in terms of codifying sentencing. When we look at the Criminal Code today compared to when I was in law school, then, judges did whatever they wanted without guidance. Now, there is a code within a code when we look at sentencing. This bill is another part of legislation that will help judges. Judges like help.
Senator Wallace: Mental health courts are a topic for another day. The expanded use of those courts may be something that should be looked at.
Mr. Rondinelli: I am adjunct professor at Osgoode Hall with the Criminal Intensive Program. Students in the program are placed throughout the city. After they have seen how regular courts run, we take them to the Mental Health Court at Old City Hall.
Students are astonished by what is happening. There is no adversarial position. The judge speaks to the person, you were here last week; how are you today? Everyone is happy — I should not say happy; there are a lot of problems in the court, unfortunately, but the manner in which they are dealt with is much better than in the past. With more tweaking, it can only become better.
Being a judge in Mental Health Court is not easy. It is a tough job. I do not do much mental health work, but I always commend my colleagues who do it because it is difficult to deal with clients who are battling addictions and so forth.
Will this legislation lead to helping that individual; probably not. In that case, maybe the judge does not give that condition.
The Chair: Thank you so much, Mr. Rondinelli. As I said at the outset, it was important for us to hear from you on this bill.
Honourable senators, we continue our study of Bill C-30, An Act to amend the Criminal Code.
We are fortunate to have with us, from the Canadian Association of Chiefs of Police, Vincent Westwick, Chair of the Law Reform Committee, and who, like all of our witnesses today, has made himself available to us on short notice. He therefore gets even more than the usual ration of gratitude for appearing.
I know you have, in spite of the short notice, a prepared statement for us.
Vincent Westwick, Chair, Law Reform Committee, Canadian Association of Chiefs of Police: Madam Chair and honourable senators, the challenges related to public confidence in the criminal justice system come in different sizes. Bill C-30 addresses one of the modest-sized issues, but one that is important to the police and to victims.
In passing, I note that Bill C-59, which was on your schedule for review this week, addresses a big and important issue. We look forward to an opportunity to speak to that bill at the appropriate time.
Bill C-30 addresses one of those issues that most members of the public would expect is already part of the criminal law, but, as the Supreme Court has said in R. v. Shoker, it is not so. This bill responds to the concerns of the high court, and is a needed part of the fabric of criminal law.
Consider this situation: Probation, peace bonds and, to a lesser extent, conditional sentences are used every day by the trial courts across Canada. If you walk into the all-day trial courts in the Ottawa courthouse on Elgin Street, you would not have to wait long to hear a probation order that includes a prohibition against drugs or alcohol consumption. These dispositions and solutions are put into place by trial judges for those cases that rarely make it into the headlines. Even though these cases are not the high-profile cases, the crimes that lead to these sentences make up a significant part of the day-to-day front-line police work, and generate a number of frustrated victims.
While it is important that the substantive law is correct and corrected, it is, in my submission to you, just as important that the confidence in the criminal justice system is shored up in this regard. Bill C-30 does that, and that is why we are here tonight to support it.
Let me give you an example. If a judge puts into place an alcohol prohibition, which they put into place in Canadian courts thousands of times a year, and that prohibition is flaunted because it is not enforceable, it undermines the confidence of the officers who work so hard to bring the case to court, it causes the victim to wonder if their loss is being respected, and it whittles away at the community's confidence in the criminal law to protect the community.
As a typical example, a police officer comes into contact with someone on probation with a prohibition against the consumption of drugs or alcohol. It appears to the officer that the individual is under the influence, but the officer has no way of confirming the breach, no way of collecting the necessary evidence to prosecute the breach, and it is at this point that respect for the system — and I would say respect for the police — begins to slide. It is at this point as well that the frustration level of victims begins to rise.
It is trite to say — and I heard you ask questions of the last witness about this subject — that alcohol and drugs so often play a role in the offender's criminal activity. It is for that reason that judges so often include these prohibitions. It is therefore critical that the provision have a solid legal foundation and a lawful process for enforcement.
We ask you to pass this legislation, restore the necessary process and take a step toward buttressing community confidence in the criminal justice system.
I thank you for the important opportunity to speak to this bill. It is always a pleasure to come to the Senate, and it is fun to be out on a snowy night.
Senator Wallace: Thank you again, Mr. Westwick. It is always good to see you here.
The first question or comment I will make to you, and it is a fairly obvious one, is that the overall intention of this bill is obviously to shore up what was considered to be a shortcoming in the code, as identified in the Shoker decision. Over and above that shortcoming there obviously is desire on the part of the minister and the government to provide better protection to the public. This bill is seen as a tool to provide that protection; to lessen the chance that repeat offenders will cause further difficulties for the public.
Can you comment? How significantly valuable as a tool do you see this bill to be to that end?
Mr. Westwick: I see it as very valuable. I tried to get across in my remarks that, to me, the bill has two values. The first value, from a substantive standpoint, or substantive criminal law, is that it fills a gap that was identified by the Supreme Court, and one that most people did not realize existed. You could say the bill restores the law to what most people thought the law was, and certainly what most judges thought the law was.
It also introduces provisions that make clear, statutorily, how police can determine whether there is, in fact, a breach in play, and provides a process for evidence gathering. I think that legislation is wise on the part of Parliament.
The second point — and, to me, the longer I am in this business, the more the value of this point increases — is it takes a step toward restoring the community's confidence, police confidence and victim confidence in the criminal justice system. I do not want to be dramatic and say there is a crisis of confidence in the system, but there certainly has been a weakening. There are parts of this country where the criminal justice system is viewed as not delivering for the community. Whether that is true I leave to social scientists to make the argument, but the perception is truly there. To the extent that this bill addresses that perception and counteracts it, this bill is a valuable step forward, in a small way.
Speaking from my community — for police — it is extraordinarily frustrating to arrest a person, have them go through the process, have that person placed on probation, and then have that probation order flaunted. The police officers feel handcuffed, ironically, in trying to enforce, respond and bring the matter back before the judge. Courts treat breaches of court order and those kinds of offences seriously. They see it as an affront to the importance of the court system.
I do not want to overstate the issue. However, it speaks to public confidence, and public confidence speaks to how safe people feel in their homes, at work and so on.
Senator Wallace: Some of the witnesses have pointed out the fact that the bill goes somewhat beyond the Shoker decision, in particular in relation to peace bonds and requiring individuals to provide samples that would be subject to those bonds. We have not heard anyone say it is an inappropriate thing to do. Some constitutional questions were raised around that issue.
As a practical or legal matter, do you see any real distinction among individuals who are subject to probation orders, conditional sentences or peace bonds as they relate to the need to have this ability to have these samples provided?
Mr. Westwick: No: To be clear, peace bonds are a marvellous tool in the Criminal Code. I do not mean to speak for judges, but I think they would say they use peace bonds regularly and in an important way.
Years ago, peace bonds were a sort of afterthought, and used sometimes as an alternative. Their prominence in the Criminal Code has increased significantly and they are used in all sorts of situations. That prominence, in part, has been enhanced as a result of sections 810.2 and 810.3, associated with terrorism, sexual offenders et cetera. Suddenly, this quiet historical anachronism in the code has had a new light shone on it and peace bonds have become valuable.
Peace bonds are often used as an alternative. The previous witness spoke about diversion and alternatives to the criminal process. Peace bonds are often used in that way. The traditional sense is to use them when someone feels a threat and so on, but they are often used as an alternative to more serious criminal offences as part of a plea bargain.
Judges do not make prohibition orders willy-nilly. If there is evidence, and a judge is persuaded, that the prohibition is appropriate, then there should be a lawful mechanism to have it placed in the peace bond and a lawful mechanism to enforce it.
I take a strong position on it. I think it is a valuable tool that allows some of the criminal remedies to be used without visiting a criminal record and all such that a record carries with it on the person before the courts.
I think it would be a great shame if it were challenged. As a lawyer, I do not think there is a basis for a constitutional challenge, but I have been wrong before. I think it would be a great shame if it was challenged and that challenge was upheld. I hope that a court assessing that kind of challenge looks at the social policy and public policy importance, and balances that importance in making a decision. Certainly, the Supreme Court of Canada has demonstrated such a tendency in the past.
I do not back off on the peace bonds. Peace bonds are an important aspect of day-to-day criminal law and are used a great deal in down-in-the-trenches courtrooms. Peace bonds are an important tool.
Senator Wallace: Finally, as I am sure you know, the bill deals with the establishment of minimum federal standards that will be applicable throughout the country in respect of this requirement to provide samples. However, the bill also envisages working closely with the provinces in the actual procedural administration, handling of the samples and the detailed portion of it.
Do you have any comment as to how you see that relationship and the effectiveness with which the bill addresses that relationship between the federal and provincial responsibilities in this regard?
Mr. Westwick: I believe the federal power is used to set standards, and the provincial authority is used to detail them. If my understanding is correct, then I applaud Parliament for their wisdom, because it is important that there are standards. At the same time, Parliament also wants to ensure that regional differences or practices can be incorporated into the procedure or process.
That is my read of the bill. I think Parliament is to be complimented for striking that balance between national standards, which will apply across the country, and allowing for regional and provincial processes. I think that balance is wise.
Senator Wallace: That was helpful.
The Chair: I stand to be corrected on this — and I see that Mr. Hoover is still here — but I thought I heard the minister say that it would not be quite the process that you have outlined in at least a number of cases. It would be more like the federal government holding a reserve power to step in if the provincial regulations either did not exist or were egregiously inappropriate. In such an instance, the government would then have the right to step in with its own regulations.
There are some things that only the federal government can do anyway, but if Mr. Hoover wants to come forward and correct me, he can do that. If his silence lends consent —
Mr. Hoover: That is close enough.
The Chair: I wanted to say that so you know what was said before you were able to get here, while you were in other meetings.
Mr. Westwick: I am still comfortable with that approach. I think it still allows for the objective of balancing national standards and regional practice. It allows the federal government to step in if they are not satisfied that those standards are being applied. I think that approach is good and wise.
Senator Chaput: I am happy to hear that you find this bill a valuable, needed tool that will help you in your work, and that it is filling a gap.
Nothing is perfect and I want to know your advice. If the bill were to be strengthened, what would you add?
Mr. Westwick: No one has ever accused me of being shy to make suggestions to Parliament in that regard, but today I come before you without a great number of recommendations.
As part of my preparation, I emailed our committee members. The committee represents police at all levels — municipal, provincial and federal — across Canada. The committee represents about 20 different police services. They all came back quickly and said they agree that this bill is good and the right move. I said to my colleagues that I think this is the first time we have not had someone say, ``yes, but. . . .'' There was none of that.
A small concern was raised about the inability of police to disclose the results of an analysis, except in an investigative or prosecutorial way. It was felt that it might be advantageous to be able to give the results to the probation officer so that perhaps the probation supervisor could use administrative levers to respond to the fact that there was a breach.
Those things go on in the system from time to time. The police or someone may feel the breach does not justify a prosecution and perhaps could be responded to in another way. That disclosure appears not to be permitted under the act.
I do not want to say I do not have anything, because that was one point that was raised. However, I do not want to say that it was seen as a major concern by any of our members.
Senator Chaput: Some people think that Bill C-30 risks having a disproportionate impact on people struggling with addictions; for example, on Aboriginals. Do you think that could be the case?
Mr. Westwick: I will put forward a slightly different view than the previous witness in terms of the role that alcohol and drugs play in criminal conduct. He pointed to fraud as an example where alcohol and drugs may not be a factor. However, when we are dealing with street-level crime, which is the crime that affects so many people — the break and enters, the car thefts, the minor assaults and the kinds of situations where probation is often turned to in the courts and where these kinds of prohibitions are put in — alcohol and drugs, in my submission, play a huge part in the commission of the crime. Therefore, it makes complete sense that there should be a link in the probation to what was the root of the crime. The link makes complete sense.
However, to address your question more directly, with the success we see with drug treatment courts, albeit of a modest nature, and the experience that regular practitioners in the criminal justice see with substance abuse, I suggest there is a need to address substance abuse in a broader public policy way.
Having said that, this bill is a meaningful step forward and there needs to be realistic provisions, and realistic accountability and enforceability. However, that does not mean that we should be content and not move forward with direct public policy approaches to substance abuse.
Senator Chaput: Do you think we need additional resources? I suppose there is never enough.
Mr. Westwick: I will give you an example. For years, I was a member of the board of directors of the Dave Smith Youth Treatment Centre here in Ottawa, which is a drug and alcohol treatment centre. One of their challenges has been, along with many of their fellow practitioners, to have a residential treatment centre. We are in the nation's capital and we do not have a residential treatment centre.
When Chief White came to Ottawa, he made it a personal challenge to move forward with the fundraising for that centre, and we are well on the way to having a residential treatment centre where meaningful steps can be taken towards addressing this issue. I take my hat off to Justice Peter Wright here in Ottawa, because it is not often that an initiative is taken by the judiciary. Justice Wright and Justice Beaman led the initiative for the Ottawa Drug Treatment Court, and it is a success.
The difficulty is that these things are resource-intensive, so the numbers are not overwhelming when measured against the list of offences, trials and so on. However, it is movement.
I would not want my own earnest views — and I think what I sense in your question, senator — to take away from the importance of this bill. At the same time, I would quickly agree with you that more needs to be done, but this bill needs to be done too.
The Chair: Mr. Westwick, I will ask you something I asked the minister. We know there are no hard statistics. Statistics Canada does not have numbers on these things, nor, apparently, does anyone else. Nonetheless, you are in a bit of a privileged position.
The question is the following: It is now four and half years since the Shoker decision took away what, as you point out, everybody thought was an available tool. Are you aware of the practical impact that removing that tool has had on actual cases?
You spoke eloquently about, if you will, the cumulative impact of things like this bill on confidence in the justice system, police confidence indeed in the system, as well as confidence for the communities. However, in terms of impact on real cases, can you give us any indication at all of what we know, or do not know, about the real impact that has been felt so far in cases, as distinct from that broader communitarian, if you will, sense?
Mr. Westwick: I am glad you asked the question. I do not have any empirical data for you. I can give you anecdotal observations.
The Chair: Anecdotal is a lot better than nothing.
Mr. Westwick: I took advantage of an opportunity following a meeting today at the Ottawa Police Service to ask that very question: What sort of effect has this had? The first answer I received is that police officers were frustrated because they felt they were not able to do their job or respond to the courts. I go back to a point I made earlier. Courts see this situation as an affront; that people are breaching orders that they put in place to help them move forward.
To be more specific, as I understand it, this situation means that unless the breach or the degree of impairment that exists is significant, in other words, unless the person is really drunk, chances are officers simply will not enforce, because what is left to them is to give eyewitness evidence. The courts and defence counsel and the system are attuned to dealing with that kind of evidence, because the most common cases they deal with are impaired driving; that is where most of the criminal litigation comes. They are attuned to cross-examining police officers on the signs of impairment, and the signs of drug consumption are much harder to detect, to describe and to present from an evidentiary standpoint before the courts.
The problem is that when a police officer comes into contact with a person, which is how the situations occur — officers stop the car and they engage with the person for some other reason — they discover that there is a probation order with a prohibition provision, and they get a whiff of alcohol or whatever. Unless the evidence of impairment is solid, strong and overwhelming, such as staggering and dramatically slurred speech, they are not dealing with it.
That situation is not good for a whole lot of reasons, not the least of which is that it does not take long for the person who is subject to this provision to understand that it is not enforceable. That lack of enforcement, therefore, creates an unhealthy situation. I would rather the provision not be there if there is not an enforceability, not because I want to see people being brought to jail but because, human nature being what it is, there needs to be an enforceability provision.
The Chair: On a different question, arising out of a letter we have received from the Privacy Commissioner — the first words here are my addition to the concept — particularly in the case of a peace bond, where, as has been discussed at some length today, the person has not been found guilty of anything, or indeed charged.
From the point of view of police officers, would it be an insuperable burden for a peace officer, a probation officer or whoever is demanding a sample that is not regularly scheduled, because there are reasonable grounds to believe or suspect, to have to state in writing the reasons for making the demand?
Mr. Westwick: The reasonableness of your question is self-evident. Certainly, it is a good idea. The difficulty, and why I do not endorse that suggestion, is that policing and enforcement, for many good reasons, has become hugely complicated, and each process that is added to provide an additional safeguard, all of which I accept and support, has a huge consequence to the large process of policing. Forms will have to be created; training will have to be undertaken; and it will take longer.
The Plecas study in British Columbia tracked the increase in process steps over the years in a number of common criminal offences, and the increased amounts of time and cost are staggering. I accept that those costs contribute to the kind of society we want to have, and that the police want to have too. These additions are always appealing. It is hard to disagree that one extra little safeguard might be a good idea. However, I invite you to consider the costs of those safeguards.
The Ottawa police budget of $200-odd million was recently passed. That figure is staggering for the nation's capital. So much of the expense is a result of legislative changes and the processes that arise from them. It is not as simple as having police officers jot something down. There will need to be a process.
The Chair: A form filled out in triplicate and all of that: That is why I mentioned the peace bond. I think there has been some agreement that the peace bond category is a bit different from all the others addressed in this bill.
Mr. Westwick: I accept that, but I want to push back a little, if I may. It is correct to say that a person on a peace bond has not been convicted. The presumption of innocence continues, as it should. However, it is not as though there has not been a process in a courtroom, before a judge, with counsel and with all the mechanisms of our system, including representation by counsel and the right of counsel to make submissions, and so on. This is not something that is done willy-nilly in the garage; it is something done for good reason by a judge on submissions to a person represented by counsel.
It is true that the individual is not a convicted person, and that is a good thing. This peace bond is an alternative to conviction, and for that alternative to conviction to be meaningful, it must have a little rigour surrounding it. If that rigour is stripped away, or more process is layered on, I fear that it will become lost. I repeat that the peace bond is a valuable tool to the courts to deal with many situations that might otherwise not be dealt with where, for any number of reasons, a charge is not being proceeded with. I caution.
The Chair: Thank you very much, Mr. Westwick. We know you had to make a particular effort to get here. As I said at the outset, we are grateful to you for coming, and on short notice. Your contribution has been valuable.
Mr. Westwick: I wish to thank your staff for helping me to get this done.
(The committee adjourned.)