Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, was introduced and received first reading in the House of Commons on 18 October 2007. The bill – short title: Tackling Violent Crime Act – groups together five bills that had been dealt with separately in the first session of the 39th Parliament. The five broad categories of legislative measures will create two new firearm offences and provide escalating mandatory sentences of imprisonment for serious firearm offences, reverse the onus on those seeking bail when accused of serious offences involving firearms and other regulated weapons, make it easier to have someone declared a dangerous offender, introduce a new regime for the detection and investigation of drug-impaired driving and increase the penalties for impaired driving, and raise the age of consent for sexual activity from 14 to 16 years.(1)
The mandatory minimum sentences for serious firearms offences in Bill C-2 derive from Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act, which was introduced and received first reading in the House of Commons on 4 May 2006, followed by second reading and referral to the House of Commons Standing Committee on Justice and Human Rights on 13 June 2006. Its primary objectives were to increase mandatory minimum terms of imprisonment for individuals who commit serious or repeat firearm offences, and to create the new offences of breaking and entering to steal a firearm and robbery to steal a firearm.(3) Bill C-10 was introduced in the Senate on 30 May 2007.
There are about 40 offences under the Criminal Code, including murder, impaired driving and various sexual offences involving children, for which a mandatory minimum sentence of imprisonment must be imposed.(4) Minimum sentences were first enacted for firearm offences in Canada in 1977.(5) The legislation imposed a mandatory additional term of imprisonment of at least one year where a firearm is used in the commission of an indictable offence.(6) In 1995, further amendments to the Criminal Code attached four-year mandatory minimum sentences to certain serious offences committed with a firearm, such as attempted murder, sexual assault, kidnapping and robbery.(7) Where a person commits certain firearm offences, or an offence that involves a firearm, weapon or other item that the person was prohibited from possessing at the time, he or she also became subject to a mandatory prohibition order.(8)
Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender,(9) as they do not allow a judge to make any exception in an appropriate case. However, this does not necessarily mean that a minimum sentence is unconstitutional. A mandatory minimum sentence may constitute cruel and unusual punishment, in violation of the Canadian Charter of Rights and Freedoms,(10) if it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be “grossly disproportionate,” given the gravity of the offence or the personal circumstances of the offender.
By way of example, the Supreme Court of Canada concluded in 1987 that a mandatory minimum term of imprisonment of seven years for importing or exporting a narcotic constituted cruel and unusual punishment because it failed to take into account the nature and quantity of the substance, the reason for the offence, or the absence of any previous convictions.(11) The applicable provision was accordingly struck down. Conversely, the current mandatory minimum sentence of four years in prison for criminal negligence causing death, where a firearm is used, was upheld by the Supreme Court in 2000, on the basis that such an offence necessarily involves wanton and reckless disregard for life and safety.(12)
A study published in 2002 concluded that existing research generally does not support the use of mandatory minimum sentences for the purpose of deterrence, or for the purpose of reducing sentencing disparities.(13) That said, the evidence was somewhat inconsistent and unclear in the specific context of firearm offences. In contrast to mandatory minimum sentences for drug offences or impaired driving, for instance, the use of such punishment appears to have some impact in reducing gun crime.(14)
A study in 1983 found that robberies and homicides with firearms decreased after minimum sentences came into force in 1977, but there may have been a compensating increase in offences not involving firearms, and minimum sentences were only one aspect of the legislation.(15) The study concluded that a direct cause-and-effect relationship between the minimum penalties and declines in crime rates could not be drawn, as screening provisions to determine who may possess or acquire a firearm may have contributed.
In 1995, further amendments to the Criminal Code attached four-year mandatory minimum sentences to certain offences committed with a firearm. However, the number of cases was found by Statistics Canada in 1999 and 2000 to be too low to have a noticeable impact on overall sentencing patterns.(16) There does not yet appear to have been a comprehensive study of the effects of the 1995 amendments.
There has been some evidence that mandatory minimum sentences have been effective in the context of gun-related crime in the United States, although again, the results are mixed overall. An evaluation, published in 1992, of mandatory gun-use sentencing enhancements (mandatory additional imprisonment) in six large American cities (Detroit, Jacksonville, Tampa, Miami, Philadelphia and Pittsburgh) found that the laws deterred homicide, although not other violent crimes.(17) However, studies of similar laws in Michigan in 1983 and Florida in 1984 found no evidence that crimes committed with firearms had been prevented.(18)
A 1981 evaluation of a 1975 Massachusetts law that imposed mandatory jail terms for possession of an unlicensed handgun concluded that the law was an effective deterrent to gun crime in Boston, at least in the short term.(19) A 1984 study of a 1974 Arizona law, imposing additional minimum prison time where a firearm is used in the commission of an offence, found that offenders committed fewer robberies with a firearm as penalties for firearm use became more severe.(20) The law was followed by “highly significant reductions in gun robberies in two large counties, with no evidence of displacement to other robberies or property crimes.”(21)
More recently, in Richmond, Virginia, a 1997 initiative called “Project Exile” established, among other things, a five-year mandatory minimum sentence for certain gun crimes. During the first 10 months of 1998, compared with the same period of the previous year, the total number of homicides committed in the city was down 36% and the number of firearm homicides was down 41%.(22)
Mandatory minimum sentences are a subset of criminal penalties generally. Accordingly, studies on the overall effect of prison sentences on crime rates and recidivism may be useful. One Canadian meta-analysis found little difference in general recidivism rates, regardless of length of incarceration or whether the offender was given a prison or community sanction. In fact, prison produced slight increases in recidivism.(23) In a follow-up meta-analysis focussing on juvenile, female and minority offenders, it was tentatively concluded that “increasing lengths of incarceration were associated with slightly greater increases in recidivism.”(24)
A mandatory minimum sentence may not actually bring about severe and consistent sentencing as intended, or may have incidental implications. The possibility of mandatory punishment sometimes results in charges being stayed or withdrawn, or a plea negotiation for a different charge, because prosecutors consider the penalty to be too harsh. Decisions regarding appropriate punishment are therefore transferred from the judiciary to the prosecution.(25)
When a charge for an offence carrying a minimum sentence is maintained, the accused has no incentive to plead guilty, more likely leading to a costly trial. Trials may also result in “jury nullification,” which is a jury’s refusal to convict when the mandatory penalty is perceived to be too harsh.(26) Another possibility is that a case heard by a judge may lead to the imposition of a less severe sentence on the accused for accompanying charges to compensate for the minimum sentence for a particular charge.(27) A survey of Canadian judges found that slightly over half felt that mandatory sentencing laws impinged on their ability to impose a just sentence.(28)
Incarcerating offenders for longer periods results in increased prison costs, which are not necessarily offset by any reduction in crime rates and recidivism.(29) In addition to the direct costs of incarceration, there is also an opportunity cost to the extent that fewer public funds are available to be spent on law enforcement, community programs and crime prevention initiatives. Finally, mandatory minimum sentences may have an adverse effect on minority defendants, who may be more likely to be charged with offences carrying a minimum penalty.(30) Australian studies, for example, have shown that mandatory minimum sentences disproportionately affect Aboriginal offenders, which has resulted in the repeal of certain sentencing legislation.(31)
These clauses in Bill C-2 increase the minimum terms of imprisonment that must be imposed for certain firearm offences, particularly where the offence has been committed with a restricted or prohibited firearm, in connection with a criminal organization, or by an individual with a previous conviction for a firearm-related offence. Table 1 summarizes the amendments by comparing existing minimum sentences under the Criminal Code with those proposed under Bill C-2.
| Offence (with Criminal Code section reference) | Current Minimum Imprisonment | Minimum Imprisonment Under Bill C-2 |
|---|---|---|
| Use of a firearm or imitation firearm in the commission of an indictable offence,(32) in an attempt to commit an indictable offence, or during flight afterwards (s. 85): Sub-Clause 3(2) | 1 year (1st offence) 3 years (2nd or subsequent offence) |
No Change(33) |
| Unauthorized possession of a prohibited or restricted firearm that is loaded or near readily accessible ammunition (s. 95): Clause 8 | 1 year (but only if the Crown chooses to proceed by indictment)(34) | 3 years (1st offence) 5 years (2nd or subsequent offence) Crown still has the option to proceed summarily in all cases; if so, maximum is one year (no minimum) |
| Breaking and entering to steal a firearm (new s. 98): Clause 9 | Not applicable (new offence) |
No minimum (maximum life imprisonment) |
| Robbery to steal a firearm (new s. 98.1): Clause 9 | Not applicable (new offence) |
No minimum (maximum life imprisonment) |
| Trafficking in, or possession for the purpose of trafficking in, a firearm, prohibited weapon, restricted weapon, prohibited device, any ammunition or prohibited ammunition (ss. 99 and 100): Clauses 10 and 11 | 1 year | Where a firearm, prohibited device, any ammunition or prohibited ammunition: 3 years (1st offence) 5 years (2nd or subsequent offence) Where a prohibited or restricted weapon: 1 year |
| Importing or exporting a firearm, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or component or part for an automatic firearm knowing that it is unauthorized (s. 103): Clause 12 | 1 year | Where a firearm, prohibited device or prohibited ammunition: 3 years (1st offence) 5 years (2nd or subsequent offence) Where a prohibited or restricted weapon, component or part for an automatic firearm: 1 year |
| Use of a firearm in the commission of attempted murder (s. 239), discharging a firearm with intent (s. 244), sexual assault with a weapon (s. 272), aggravated sexual assault (s. 273), kidnapping (s. 279), hostage-taking (s. 279.1), robbery (s. 344) and extortion (s. 346): Clauses 16-17, 28-33 | 4 years (which minimum includes the punishment for the underlying offence) |
4 years (except in the cases below) Where a restricted or prohibited firearm is used, or any firearm is used in connection with a criminal organization: 5 years (1st offence) 7 years (2nd or subsequent offence) |
The higher mandatory minimum sentences for a second or subsequent offence apply not only if the person has previously committed that particular offence, but also if he or she has committed certain other offences. For the purpose of imposing the sentence for all of the offences in the above table except the eight set out in the last row (i.e., use of a firearm in the commission of attempted murder, etc.), an individual is considered to have committed a previous offence if he or she has committed any of the offences in the above table, a firearm offence under three additional sections of the Criminal Code (sections 96, 102, and 117.01(1)), criminal negligence causing death with a firearm under s. 220 of the Criminal Code, or manslaughter with a firearm under s. 236 (clause 2).
For the purpose of the eight more serious offences in the last row of Table 1, an individual is considered to have committed a previous offence if he or she has committed any of the eight more serious offences, criminal negligence causing death with a firearm, manslaughter with a firearm, or use of a firearm or imitation firearm in the commission of an indictable offence, or in an attempt to commit an indictable offence, or during flight afterwards under s. 85 of the Criminal Code (clauses 16-17, 28-33).
For all sentencing purposes under Bill C-2, a previous offence does not count if more than ten years have elapsed since the conviction, not counting time spent in custody. Further, it is the sequence of convictions that is to be considered, not the order in which the offences were committed (see the final subsections enacted by clauses 2, 16-17, and 28-33). This means, for example, that if an individual illegally imported a firearm and subsequently used a firearm in the commission of attempted murder, but was convicted on the charge of using a firearm first, the “second offence” would be importation. As a result, the individual would receive a minimum sentence of five years (second offence on a charge of importation) rather than seven years (second offence on a charge of use of a firearm in the commission of attempted murder).
Clause 9 of Bill C-2 adds two new firearm offences to the Criminal Code, one for breaking and entering to steal a firearm (new s. 98) and the other for robbery to steal a firearm (new s. 98.1). The first offence applies if an individual breaks and enters a place with intent to steal a firearm (even if he or she does not actually steal one), he or she steals a firearm after breaking and entering (even without initial intent to steal), or he or she breaks out of a place after stealing or intending to steal a firearm. “Break” means to break any internal or external part, or to open any thing that is used to close or cover an internal or external opening (Criminal Code, s. 321). “Place” means any building, structure, motor vehicle, vessel, aircraft, railway vehicle, container or trailer. It is further clarified that a person is considered to enter as soon as any part of his or her body or any instrument being used comes within the thing being entered, and that a person is considered to have broken and entered if he or she obtained entrance by threat, artifice or collusion with a person within, or entered without lawful justification or excuse by a permanent or temporary opening.
Robbery to steal a firearm applies to an individual who commits robbery with intent to steal a firearm, or in the course of which he or she steals a firearm (even without initial intent to steal the firearm). Robbery means stealing with the use or threat of violence to a person or property; stealing while at the same time wounding, beating or striking a person; assaulting someone with the intent to steal; or stealing while armed with an offensive weapon or imitation (Criminal Code, s. 343).
Both offences introduced by Bill C-2 are added to the list of offences in s. 183 of the Criminal Code, in respect of which the police may be authorized to intercept communications (clause 15). References to both break and enter and robbery to steal a firearm are added to a section of the Criminal Code under which an aggravating circumstance for the purpose of sentencing is the fact that the offender knew that a person was home, was reckless as to whether the house was occupied, or used or threatened violence against a person or property (clause 34). Finally, subsection 662(6) of the Criminal Code is amended to indicate that if a person is charged with stealing a firearm during a break and enter, but actual stealing cannot be proved, the person may still be convicted of break and enter with intent to steal, even if not charged with the latter (clause 38).
Section 98 of the Criminal Code was a transitional provision enacted with the 1995 firearm-related amendments. It is no longer necessary and has been replaced by new provisions in Bill C-2. References to the former s. 98 have been removed from ss. 91-95 of the Criminal Code (clauses 4-8).(35)
The offence under s. 244 of the Criminal Code has been reworded (clause 17). The nature of the offence is essentially the same, which is to discharge a firearm with intent to injure or endanger someone or to avoid arrest or detention, regardless of the person at whom the firearm is discharged. However, the offence is now referred to as “discharging firearm with intent” rather than “causing bodily harm with intent – firearm,” presumably because bodily harm is not necessary to commit the offence. The new reference is accordingly inserted in two places in the Criminal Code (sub-clause 3(1) and clause 35). The offence of hostage-taking is also reworded without any substantive effect or changes to references in other places (clause 31).
Because of changes to the minimum penalties for aggravated sexual assault based on the type of firearm used and involvement of a criminal organization (see clause 29), a distinction is made between the offences of “aggravated sexual assault – use of a firearm” and “aggravated sexual assault – use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization.” References are accordingly amended in another section of the Criminal Code (clause 36).
A consequential amendment is made to the Corrections and Conditional Release Act(36) to reflect the new reference for the offence of “discharging firearm with intent” (clause 57). A coordinating provision makes a similar change, depending on which of Bill C-2 and another Act(37) come into force first (clause 63).
The change to the age of consent in Bill C-2 derives from Bill C-22, An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act, which was introduced and received first reading in the House of Commons on 22 June 2006 and was passed by the House on 4 May 2007. The goal of Bill C-22, and of the corresponding clauses in Bill C-2, is to amend the Criminal Code(39) to raise the age, from 14 to 16 years, at which a person can consent to non exploitative sexual activity. The existing age of consent of 18 years for exploitative sexual activity will be maintained. This applies to sexual activity involving prostitution, pornography, or where there is a relationship of trust, authority, dependency or any other situation that is otherwise exploitative of a young person. Bill C-22 passed second reading in the Senate on 20 June 2007.
The age of consent refers to the age at which the criminal law recognizes the legal capacity of a young person to consent to sexual activity. Below this age, all sexual activity with a young person, ranging from sexual touching to sexual intercourse, is prohibited. Only girls under 12 were legally unable to consent to sexual intercourse until 1890, when the age limit was raised to 14, where it has remained ever since.(40) When the Criminal Code was consolidated in 1892, the strict prohibition against sexual intercourse was retained for girls under 14 who were not married to the accused. At that time, the law was also strengthened to make an accused’s belief about the young woman’s age irrelevant. The age limit of 14 remains in place today, with a narrow exception for consensual sexual activity between young persons who are less than two years apart in age.
Canadian criminal law has also provided qualified protection from sexual exploitation for females over the age of 14. Thus, seduction of a girl over 12 and under 16 who was of “previously chaste character” was made an offence in 1886. This offence was retained in the 1892 Criminal Code, in respect of girls between 14 and 16. It remained in force until 1920, when the offence was changed to prohibit “sexual intercourse.” After 1920, the issue became one of who was more to “blame” for sexual intercourse having occurred but the offence remained in force until 1988.
In addition to the offences outlined above, the “seduction” of a female under 18 “under promise of marriage” was made an offence in Canada in 1886 and amended in 1887 to apply to females under 21. In 1920, the offence of “seduction,” without reference to a promise of marriage, was made applicable to girls “of previously chaste character” between 16 and 18. This makes clear that a complete ban on sexual intercourse with females over the age of 14 never did apply.
The Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Report) was released in 1984. It contained many recommendations concerning the treatment of sexual offences against children and appears to have been the origin of many of the offences now found in Part V of the Criminal Code. For example, Recommendation 9 of the report suggested a definition of a person in a position of trust, which was later adopted in a number of offences, including that of sexual exploitation.
Following the release of the Badgley Report, Bill C-15 in 1988 amended the Criminal Code to repeal the unlawful intercourse and seduction offences. In their stead, new offences were created, which were called “sexual interference” and “invitation to sexual touching.” These offences prohibit adults from engaging in virtually any kind of sexual contact with either boys or girls under the age of 14, irrespective of consent. The offence of “sexual exploitation” was also introduced at this time. This makes it an offence for an adult to have any sexual contact with boys and girls over 14 but under 18, where a relationship of trust or authority exists between the adult and child.
A number of rationales have been offered for the 1988 amendments to the Criminal Code. One is that there was perceived unequal treatment of boys and girls, since the earlier offences related strictly to female victims. In addition, the offence of unlawful sexual intercourse did nothing to protect young women from other forms of sexual contact short of intercourse. Furthermore, the lack of protection for girls between 14 and 16 who were not of chaste character or who were found to blame for an offence was seen as a serious limitation on the law’s ability to protect young women from pregnancy. The kind of scrutiny that a complainant might face in testing the proof of her chaste character may also have contributed to the fact that few charges were being laid under that provision prior to its repeal.
Except for the offences of buggery and gross indecency, therefore, the age of consent for sexual activity in Canada has at no time been set higher than 14, although prior laws did allow for men to be prosecuted for sexual intercourse with a woman under the age of 21 in certain circumstances. The differing age of consent concerning homosexual sex may be found in today’s Criminal Code in section 159. This section makes 18 the age of consent to anal intercourse, unless it is an act engaged in, in private, between husband and wife.
Aside from the law on the issue, studies of Canadian youth have found that young persons do engage in sexual activity. The 2003 report of the Council of Ministers of Education, Canada, the Canadian Youth, Sexual Health and HIV/AIDS Study,(41) found that the average age of first sexual intercourse for its sample (students in Grades 7, 9, and 11) was 14.1 years among boys and 14.5 years among girls. Furthermore, the reasons cited by youth for not having sexual intercourse are most commonly that they are “not ready” or “have not had the opportunity.” Negative family and peer opinions do not play major roles in the decision not to have sex. It is open to question, therefore, what, if any, impact a change in the age of consent in the Criminal Code will have upon the sexual activity of Canadian youth.
The age of consent to sexual activity varies widely around the world. The age often varies within countries, as it does in Canada, depending upon the region or circumstances. At the lower end of the scale is Mexico with an age of consent of 12.(42) In Mexico, however, the federal law varies according to the age gap between partners and may be overruled by regional laws. The age of sexual consent in Japan is 13, although prefecture law can override the federal law to raise the age to 18. The age of consent is also 13 in Argentina, Nigeria, South Korea, Spain, and Syria. Fourteen is the age of consent in many countries, including Bulgaria, Chile, China, Colombia, Croatia, Germany, Hungary, Iceland, Italy, Peru, and Portugal.
Although the age of consent in the states of the United States ranges from 14 to 18, the most common age of consent seems to be either 16 or 18. In some states a lower age applies when the age gap between partners is small, or when the older partner is below a certain age (usually 18 or 21). The states in Australia mostly have 16 as their age of consent, as do Belgium, Hong Kong, Finland (although a “close in age” provision applies), the Netherlands, New Zealand, Norway, Russia, Singapore, Ukraine, and the United Kingdom. Countries having 18 as their age of consent include the Dominican Republic, Egypt, Haiti, Malta, and Vietnam. The ages given here may vary between the genders and may also depend upon whether the sexual partners are married. A lower age may also apply when partners are of a similar age. Finally, it should be kept in mind that all of the ages of consent listed above apply only to male-female sex. In many countries, homosexual sex is either illegal or subject to different (often higher) ages of consent.
The Criminal Code does not criminalize non-exploitative, consensual sexual activity with or between persons who are 14 years of age or older, unless it takes place in a relationship of trust or dependency, in which case sexual activity with persons over 14 but under 18 can constitute an offence, notwithstanding their consent. Even consensual activity with those under 14 but over 12 may not be an offence if the accused is under 16 and less than two years older than the complainant. The exception to this is anal intercourse, to which unmarried persons under the age of 18 cannot legally consent, although both the Ontario Court of Appeal(43) and the Quebec Court of Appeal(44) have struck down the relevant section of the Criminal Code.
Sections 151 and 152 of the Criminal Code prohibit virtually all kinds of sexual contact with children under 14, and the defence of consent is unavailable for those offences as well as for any sexual assault offences in respect of both male and female victims under 14. The maximum available penalty for “sexual interference” or “invitation to sexual touching” is ten years’ imprisonment for those prosecuted by way of indictment. Both offences are punishable by minimum terms of imprisonment, making a conditional sentence unavailable.
Section 153 of the Criminal Code prohibits the “sexual exploitation” of a “young person,” which is defined as a person between the ages of 14 and 18. Sexual exploitation takes place when the accused is in a relationship of trust or authority with the complainant, the complainant is in a relationship of dependency with the accused, or the relationship is exploitative of the young person. Guidance for the judiciary in determining whether a relationship is exploitative is provided by directing a judge to consider the age of the young person, the age difference between the accused and the young person, the evolution of the relationship, and the degree of control or influence by the accused over the young person. Consent is not relevant when this type of relationship exists. The maximum available penalty is ten years’ imprisonment for those prosecuted by way of indictment. Minimum terms of imprisonment apply to the offence of sexual exploitation and, therefore, a conditional sentence cannot be imposed.
The age of 14 is the relevant age for a number of other sexual offences in the Criminal Code, including bestiality (section 160(3)), parent or guardian procuring sexual activity (section 170(a)), householder permitting sexual activity (section 171(a)), luring a child (section 172.1(1)(c)), indecent act (section 173(2)), and removal of child from Canada (section 273.3(1)(a)). Fourteen is also the relevant age for obtaining an order of prohibition under section 161(1) and a recognizance under section 810.1(1) where there is a fear that a sexual offence will be committed against a person under the age of 14.
A separate category of sexual offences may be termed “exploitative,” and the relevant age for these is 18. The offence of “sexual exploitation” in section 153 of the Criminal Code is discussed above. The consent of a person under the age of 18 is no defence to a charge of sexual exploitation. Another form of exploitative sexual activity is that concerning child pornography. Section 163.1 of the Criminal Code defines child pornography, in part, as a visual representation that shows a person who is or is depicted as being under the age of 18 and is engaged in or is depicted as engaged in explicit sexual activity. Simple possession of child pornography is an offence, as is making, printing, publishing, or transmitting it. A third category of exploitative sexual activity is that related to prostitution. Specific offences are listed in section 212 of the Criminal Code concerning living off the avails of a prostitute under the age of 18 and forcing someone under that age to engage in prostitution.
Section 150.1 of the Criminal Code provides a series of rules which apply to enumerated sections of the Code to prevent an accused from relying on the consent of a complainant under a specified age. It also makes clear when a mistake by the accused may be a defence. It provides that the consent of a complainant who is less than 14 years old is no defence to the sexual assault offences (sections 271 to 273) and no defence at all, no matter what the age of the complainant, to the other enumerated offences, such as sexual exploitation (section 153). There is an exception to this general rule, however. The defence of consent is permitted to be raised to the offences of sexual interference (section 151), invitation to sexual touching (section 152), indecent exposure to a person under 14 (section 173(2)), or sexual assault (section 271) if the complainant is at least 12 but less than 14 years old and certain additional requirements are met. These requirements are that the accused be at least 12 but less than 16, the accused be less than two years older than the complainant, the accused not be in a position of trust nor the complainant in a relationship of dependency with the accused, and the accused not be in a relationship with the complainant that is exploitative of the complainant.
Section 150.1 also limits the circumstances under which a mistake of fact regarding the complainant’s age will be an excuse. There is a list of offences for which the excuse of mistake of fact will be permitted if the accused believed that the complainant was 14 years of age or older. Another list of offences is provided for which a mistake of fact will be permitted if the accused believed that the complainant was 18 years of age or older. To rely on any mistake of fact, however, the accused must have taken all reasonable steps to ascertain the age of the complainant. The accused must show what steps he or she took and that those steps were all that could be reasonably required of him or her in the circumstances.
Bill C-2 amends subsection 150.1(1) to provide that the consent of a complainant who is less than 16 years old (rather than 14 years old) is no defence to the sexual assault offences (sections 271 to 273). For certain offences where the complainant is 12 years of age or more but under the age of 14 years, the bill amends subsection 150.1(2) by removing the requirement that the accused be 12 years of age or more but under the age of 16 years. In its place, the bill simply states that the accused must be less than two years older than the complainant.
New subsection 150.1(2.1) sets out new rules for the offences of sexual interference (section 151), invitation to sexual touching (section 152), indecent exposure to a person under 14 (section 173(2)), and sexual assault (section 271), where the complainant is 14 years of age or more but under the age of 16 years. In these circumstances, it will be a defence that the complainant consented to the activity that forms the subject-matter of the charge, provided certain conditions are met; these conditions are that the accused must be less than five years older than the complainant (the so-called “close in age” exception) and must not be in a position of trust or authority towards the complainant, not be a person with whom the complainant is in a relationship of dependency, not be in a relationship with the complainant that is exploitative of the complainant, or be married to the complainant.
New subsection 150.1(2.2) makes transitional provisions for an accused referred to in subsection 150.1(2.1) who is five or more years older than the complainant. In such a circumstance, it will be a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day this provision comes into force, one of a number of conditions are satisfied. The defence of consent may be used successfully if the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and has had or is expecting to have a child as a result of the relationship. In addition, the accused must not be in a position of trust or authority towards the complainant, not be a person with whom the complainant is in a relationship of dependency, and not be in a relationship with the complainant that is exploitative of the complainant.
New subsection 150.1(6) makes it clear that an accused cannot raise a mistaken belief in the age of the complainant as a defence under the new and amended subsections unless the accused took all reasonable steps to ascertain the age of the complainant. Existing subsections 150.1(4) and 150.1(5) already use this language for existing offences where the relevant age is either 14 or 18.
Section 172.1 of the Criminal Code creates the offence of using a computer system to lure children for the purpose of committing certain sexual offences. The section lists various sexual offences, which depend upon the age of the child. The offence is committed if the child was under the particular age specified or if the accused believed the child to be under that age. Subsection (3) sets up a rebuttable presumption that the accused believed the child was under the relevant age if there is evidence that the child was represented to the accused as being under that age. It is no defence that the accused believed that the child was over the relevant age unless the accused took reasonable steps to ascertain the age of the child.
New subsection 172.1(1)(b) will make 16 the relevant age for the offence of facilitating the commission of an offence under section 151 (sexual interference), section 152 (invitation to sexual touching), subsection 160(3) (bestiality in presence of young person), or subsection 173(2) (exposure to young person). These offences are being added to a list that previously consisted only of section 280 (abduction of person under 16). The relevant age for all four of the added offences is raised from 14 to 16 (see below); thus, the use of a computer system to facilitate the commission of these offences when the complainant is less than 16 is being made an offence.
Since 16 will now be the relevant age, subsection 172.1(1)(c) is amended to remove reference to the age of 14 for offences under sections 151 and 152, and subsections 160(3) and 173(2). Henceforth, luring someone under the age of 14 by means of a computer system will be an offence only if it is done to facilitate the commission of an offence under section 281 (abduction of person under 14).
Clause 54 is the key provision of Bill C-2 on the issue of age of consent as it has the effect of raising the age of consent from 14 years of age to 16. It does so by replacing the words “fourteen years” with the words “sixteen years” wherever they occur in the following provisions:
Under the Criminal Records Act,(45) the effect of a pardon is that the judicial record of a person’s conviction is to be kept separate and apart from other criminal records. No such record shall be disclosed to any person, nor shall the existence of the record or the fact of the conviction be disclosed to any person, without the prior approval of the Minister of Public Safety and Emergency Preparedness. An exception to the non-disclosure of a criminal record for which a pardon has been granted is made if a person applies for a paid or volunteer position if the position is one of authority or trust relative to children or vulnerable persons. Should the applicant consent to the verification, the information that the applicant has been convicted of certain specified offences may be disclosed, so long as this information is used only in relation to the assessment of the application.
Clause 58 of Bill C-2 amends the schedule to the Criminal Records Act, which is the list of sexual offences, the conviction for which may be disclosed in the circumstances set out above. Thus, section 151 will now be the offence of sexual interference with a person under 16 (rather than under 14) years of age. Similarly, section 152 will now be the offence of invitation to a person under 16 to sexual touching, and section 153 will be the offence of sexual exploitation of a person between the ages of 16 and 18. Other changes to the schedule will raise the age from 14 to 16 for the offences in subsection 160(3) (bestiality), and the removal of a child under 16, or between 16 and 18 years of age, from Canada for the purpose of committing one of the listed offences. The effect of these amendments will be that anyone convicted of the newly defined offences may have the fact of their conviction disclosed to a potential employer or volunteer supervisor if they apply to work with children or other vulnerable persons.
The provisions relating to drug-impaired driving in Bill C-2 derive from Bill C-32 of the First Session of the 39th Parliament. Bill C-32 was introduced in the House of Commons on 21 November 2006 and reported with amendments by the Standing Committee on Justice and Human Rights on 20 June 2007.
Bill C-2 proposes amendments to the Criminal Code and other Acts intended to strengthen the enforcement of drug-impaired driving offences in Canada. Currently, section 253(a) of the Criminal Code makes it an offence to drive while one’s ability to operate a vehicle is impaired by alcohol or a drug, or a combination of alcohol and a drug. While section 253(b) contains a further offence for driving while one’s blood-alcohol level is over the legal alcohol limit, no similar drug limit offence exists. Thus, although drug-impaired driving is a criminal offence, police have few legally designated means of controlling that offence. Police currently rely on non-quantifiable symptoms of drug-impairment, such as erratic driving behaviour and witness testimony. Drug tests are admissible as evidence in court only if the driver participates voluntarily.
Bill C-2 expands drug enforcement capabilities by giving police the authority to demand physical sobriety tests and bodily fluid samples for section 253(a) investigations. Such tests will look for impairment by illegal, over-the-counter, and prescription drugs. As a first step, police officers will be authorized to administer Standardized Field Sobriety Tests (SFST) at the roadside if the officer has a reasonable suspicion that the driver has a drug in his or her body. SFST involves physical sobriety evaluations such as divided attention tests that evaluate the driver’s ability to multitask. If the driver fails, the officer will then have reasonable grounds to believe that a drug-impaired driving offence has been committed, and can escort the driver to a police station for administration of a Drug Recognition Expert (DRE) evaluation involving a combination of interviews and physical observations. Should the DRE officer identify that a specific family of drugs is causing impairment, Bill C-2 allows officers to take a saliva, urine, or blood sample. Charges will not be laid without confirmation of preliminary DRE results through a toxicology report, but the results of such tests can then be used as evidence in drug-impaired driving prosecutions. A driver’s refusal to comply with an officer’s request for a physical sobriety or bodily fluid sample test constitutes a criminal offence punishable under the same provisions that are currently applicable for refusing to perform an alcohol breath or blood test.
Bill C-2 also increases penalties with respect to both alcohol- and drug-impaired driving under section 255(1) of the Criminal Code, and creates new offences with respect to impaired driving causing death or bodily harm: driving with a blood-alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood and causing death (life imprisonment) or bodily harm (10 years’ imprisonment); and refusing to provide a breath, saliva, urine or blood sample while the accused knew or ought to have known that his or her operation of a vehicle had caused an accident resulting in death (life imprisonment) or bodily harm (10 years’ imprisonment).
Finally, specifically in terms of alcohol-impaired driving, Bill C-2 restricts challenges in court to the blood-alcohol concentration test result. While previously a defendant could call on witnesses to testify to the fact that he or she had drunk only small amounts of alcohol, or that he or she was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused’s body, Bill C-2 limits the use of “evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly, and that the concentration of alcohol in the accused’s blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed.
Parliament considered the issue of drug-impaired driving in May 1999, when the House of Commons Standing Committee on Justice and Human Rights released its report entitled Toward Eliminating Impaired Driving.(47) In this report, the Committee recognized that drugs play a contributory role in some fatal motor vehicle accidents, and that the extent of drug-impaired driving has been underestimated because police have no easy means to test for drugs under the current legislation. The Committee asserted a clear need to implement better measures for detecting drug-impaired driving and for obtaining the evidence necessary for successful prosecution.
However, the Committee pointed out several obstacles to achieving this goal. For example, the Criminal Code requires that police have “reasonable and probable grounds” to suspect impairment before they can administer testing; the Committee noted that Parliament would have to provide clear guidance on the scope of “reasonable and probable grounds” if refusal to comply with testing was to become a criminal offence. As well, there was an apparent lack of a single non-invasive test for detecting the presence of drugs that could impair a driver. Ultimately, a blood sample would probably be required. The Committee approved of DRE testing, but commented that the provinces have ultimate control of training in this area. As well, the Committee emphasized the need to consider the Charter implications of any drug testing, as the proposed tests might be more intrusive and time-consuming than those used to detect alcohol impairment.
The Committee made two recommendations on drug-impaired driving. The first was that section 256 of the Criminal Code be amended to allow a justice to authorize the taking of a blood sample to test for the presence of alcohol or drugs, based on reasonable and probable grounds that an impaired driving offence has been committed. As well, the Committee recommended that the Minister of Justice consult with the provinces and territories to develop legislative proposals for obtaining better evidence against suspected drug-impaired drivers.
In September 2002, the Senate Special Committee on Illegal Drugs issued a report entitled Cannabis: Our Position for a Canadian Public Policy.(48) This report found that between 5% and 12% of drivers may drive while under the influence of cannabis. Emphasizing the use of cannabis among young drivers, the report stated that this percentage increases to over 20% for men under 25. The Committee stated that cannabis alone, particularly in low doses, has little effect on the skills involved in driving and thus is not, in itself, a traffic risk. However, although cannabis use often leads to a more cautious style of driving, it still has a negative impact on decision time and trajectory, making it difficult for drivers to stay in their lanes. In addition, a significant percentage of impaired drivers test positive for both cannabis and alcohol together, and the effects of cannabis when combined with alcohol are more significant than for alcohol alone.
The Senate Committee also pointed out that there is no reliable, non-intrusive, rapid roadside testing method for drugs. Blood is the best medium for testing for cannabis; urine cannot screen for recent use; saliva could work, but no rapid commercial tests are reliable enough. However, the visual recognition method used by police had yielded satisfactory results in the past. The Committee emphasized that it was essential to conduct further studies in order to develop a rapid testing tool, and to learn more about the driving habits of cannabis users.
As a final recommendation with regard to the need to prohibit drug-impaired driving, the Committee suggested two amendments to the Criminal Code: lowering the permitted alcohol level to 40 milligrams of alcohol per 100 millilitres of blood when combined with drugs, especially cannabis; and admitting evidence from expert police officers trained in detecting persons operating vehicles under the influence of drugs.
Responding to the Standing Committee on Justice and Human Rights’ 1999 recommendations, the Department of Justice’s Working Group on Impaired Driving consulted extensively with provinces and territories on the issue, and published the Drug-Impaired Driving: Consultation Document(49) in October 2003. In reaction to apparent concerns that many drug-impaired drivers were not voluntarily participating in testing under the current regime, the Working Group emphasized the need for a legislated system that would allow police to demand that drivers suspected of being impaired submit to testing.
The Working Group outlined two main options. The first of these was to set a legal limit on drugs in the body. However, it recognized that a zero limit might not be appropriate, as it would catch drivers who had cannabis in their system from weeks earlier and who were not currently impaired.
The second option was to legislate in relation to the ability of police officers to demand drug tests. Essentially outlining the scheme established in Bill C-2, with some exceptions, the Working Group suggested that a certified SFST officer could demand a physical sobriety test, or take a saliva or sweat sample at the roadside, based on a reasonable suspicion of drug-impairment. Failure on these tests would constitute reasonable grounds to conduct a DRE evaluation at a police station. The police could then demand a confirmatory bodily fluid sample (blood, urine, saliva) based on a reasonable belief that the driver had committed a section 253(a) offence involving a drug or a combination of drugs and alcohol in the previous three hours. Both the DRE and sample test results would be admissible in evidence, and refusal to submit to such tests would constitute an offence under the Criminal Code.
However, the Working Group also emphasized that because of Charter rights sensitivities, legislators would have to give serious consideration to current Criminal Code provisions permitting demands for evidential breath or DNA samples that have already survived Charter challenges. Legislators would also have to consider the point in the process at which a suspect must be given information on his or her right to counsel.
The House of Commons Special Committee on the Non-medical Use of Drugs published the most recent parliamentary report involving drug-impaired driving in the fall of 2003.(50) It briefly called for Parliament to develop a strategy to address the issue of drug-impaired driving following a review of a bill proposing to decriminalize possession of small amounts of marijuana. On 26 April 2004, Bill C-32 was introduced in the House of Commons and would have amended the Criminal Code to deal with drug-impaired driving. This bill was later referred to committee for study before second reading, but died on the Order Paper in May 2004 when an election was called. The following government introduced the substantially similar Bill C-16 in the House of Commons on 1 November 2004. The Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness reported that amended bill back to the House of Commons before second reading on 14 November 2005, but the bill died on the Order Paper in late November 2005 when an election was called. Finally, on 21 November 2006, the current government introduced the substantially similar Bill C-32 in the House of Commons. Bill C-32 was reported with amendments by the Standing Committee on Justice and Human Rights on 20 June 2007 but died on the Order Paper when Parliament was prorogued in September 2007.
Although DRE testing has not yet been implemented through the Criminal Code, this form of testing is already widely used in most U.S. states, Australia, New Zealand, Germany, Norway and Sweden. Even in Canada, police forces are already using DRE testing in Quebec, British Columbia, Alberta, Ontario, Nova Scotia, and Manitoba, although only in cases where the driver participates voluntarily. The tests have survived court challenges up to the United States Supreme Court.(51) A National DRE Coordinator is currently working with law enforcement agencies across the country and developing an operational framework for DRE in Canada. As of November 2004, there were 1,794 police officers trained in standardized field sobriety tests and 106 certified DRE-trained officers in Canada.(52)
In terms of the primary, drug-impaired driving, scope of the proposed legislation, clauses 18 and 19 of Bill C-2 provide some preliminary clarification to support the new provisions in the Criminal Code. Clause 18 renumbers the primary impaired driving provision, section 253, as section 253(1), and adds a new subsection clarifying that the phrase “impairment by alcohol or a drug” includes impairment by a combination of alcohol and a drug.
Clauses 19(1) and (2) amend the definitions contained in section 254(1) by expanding the scope of their application to include new provisions laid out in Bill C-2, and to add a definition of “evaluating officer” as a peace officer who is qualified under the regulations to conduct DRE evaluations.
The basis of the new testing system for drug-impaired driving is laid out in clause 19(3), which clarifies and expands the language used in sections 254(2) to (6) of the Criminal Code.
Section 254(2) now contains the first phase of testing for drug-impaired driving (SFST), stating that where a roadside peace officer has a reasonable suspicion that a driver has alcohol or a drug in his or her body and has operated a motor vehicle in the preceding three hours, the officer may require the driver to, forthwith, a) perform an SFST physical coordination test as prescribed by the regulations to determine whether further tests for alcohol or drug use must be undertaken, and b) in the case of alcohol, provide a breath sample. The officer may make a video recording of the SFST for greater certainty.
The updated section 254(3) mirrors its predecessor by providing that a peace officer may demand a breath or blood sample where the officer has reasonable grounds to believe that a person has been driving while impaired by alcohol within the preceding three hours.
Sections 254(3.1) to (3.4) are entirely new. Section 254(3.1) contains the second phase of testing for drug-impaired driving (DRE), which will generally follow when a suspect fails the SFST. As soon as practicable, a peace officer who reasonably believes that a person has been driving while impaired by a drug, or a combination of alcohol and a drug, within the preceding three hours may demand that the driver submit to a DRE(53) conducted by a DRE officer at a police station. The officer may make a video of this evaluation.
Complementing these provisions, section 254(3.3) states that, as soon as practicable, a DRE officer may demand a breath sample where the officer has reasonable grounds to suspect that the driver has alcohol in his or her body and the roadside peace officer did not request a test under sections 254(2) or (3).
Section 254(3.4) contains the final phase of testing for drug-impaired driving – a bodily fluid sample. As soon as practicable upon completion of the DRE evaluation, if the DRE officer has reasonable grounds to believe that the driver’s ability to operate a vehicle is impaired by a drug or a combination of alcohol and a drug, the DRE officer may demand that the driver provide a saliva, urine, or blood sample.
Finally, sections 254(4) to (6) are simply reiterated or clarified to encompass the new provisions. Most notably, section 254(4) states that samples of blood may be taken only by a medical practitioner or technician who is satisfied that taking samples would not cause injury to the individual. Clause 23 of the bill updates the former section 257(2) to ensure that neither the physician nor the technician will be guilty of a criminal offence or liable at civil law for taking a blood sample under sections 254(3) or (3.4) when this is reasonably and necessarily done.
Because the precise specifications for the tests laid out in section 254 are not outlined in the Criminal Code, clause 20 of Bill C-2 adds section 254.1, allowing the Governor in Council to make regulations on the qualifications and training of DRE officers, prescribing SFST physical coordination tests, and prescribing DRE tests and procedures.
As in the earlier section 254(5) “refusal to comply” offence dealing solely with alcohol-related testing, refusal by a driver to comply with drug tests is now also a criminal offence. Section 255(4) holds that a person convicted under section 253 or 254(5) is deemed to be convicted for a subsequent offence if they have already been convicted under these provisions.
Clauses 21(1) and (2) of Bill C-2 increase the penalties for alcohol- and drug-impaired driving offences laid out in section 255(1). For a first offence, the minimum fine will increase from $600 to $1,000; for a second offence, the minimum term of imprisonment will increase from 14 days to 30 days; and for each subsequent offence, the minimum term of imprisonment will increase from 90 to 120 days. Where the offence is punishable on summary conviction, the maximum term of imprisonment will increase from 6 months to 18 months
Clause 21(3) clarifies language concerning the punishment laid out in section 255 in order to incorporate the new drug-impaired driving provisions. As before, sections 255(2) and (3) hold that an alcohol- or drug-impaired driving offence under section 253(1)(a) that causes bodily harm is punishable by up to 10 years’ imprisonment, and that such an offence that causes death is punishable by life imprisonment. Two new offences for impaired driving causing bodily harm or death are also added with the same penalties: driving with a blood-alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood under section 253(1)(b) and causing death (life imprisonment) or bodily harm (10 years’ imprisonment); and refusing to provide a breath, saliva, urine or blood sample while the accused knew or ought to have known that his or her operation of a vehicle had caused an accident resulting in death (life imprisonment) or bodily harm (10 years’ imprisonment).
Clauses 22 and 24 clarify the language in sections 256(5) and 258 so as to incorporate the new offences and drug-impaired driving provisions. Clause 22 updates section 256(5), which still holds that when a section 256(1) warrant to obtain a blood sample is executed, the peace officer shall give a copy to the person from whom the samples were taken.
Clauses 24 and 25 deal with the ability of prosecutors to use test results as evidence in court proceedings. Charges will not be laid unless a toxicology report confirms preliminary DRE evaluations. Clarifying the language on procedure and evidence, clauses 24(2) to (8) update section 258(1) to incorporate the new drug testing provisions and to ensure that the results of such tests can be used as evidence in drug-impaired driving prosecutions, as is currently the case with alcohol-impaired driving prosecutions. Essentially, the results of analyses of breath, blood, urine, or other bodily fluid samples may be admitted in evidence even if the accused was not warned prior to the taking of the sample that he or she need not consent to the procedure, nor that the result might be used in evidence.
Clauses 24(3) to (6) update section 258(1) to restrict challenges in court to the blood-alcohol concentration test result. While previously a defendant could call on witnesses to testify that he or she had drunk only small amounts of alcohol, or that he or she was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused’s body, Bill C-2 limits the use of “evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood, and that the concentration of alcohol in the accused’s blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed. Clause 24(6) ensures that the signature of the technician who certifies the breathalyzer printout is sufficient evidence of the facts alleged in that printout, without necessitating proof of the signature or official character of that technician. In essence, the Alcohol Test Record printed by the breathalyzer that confirms that it is in good working order, will be admitted as evidence.
Clarifying the language in sections 258(2) to (6) to incorporate the new provisions, clause 24(9) of the bill provides that unless a person is required to give a sample under sections 254(2)(b), (3), (3.3), or (3.4), evidence of failure to give a sample is not admissible at trial, nor may it be made the subject of comment at trial. Evidence of failure to comply with a demand to give a sample under section 254 is admissible as evidence at trial in respect of a section 253(1)(a) offence, and the court may draw an adverse inference from such failure to comply. If, at the time a sample is taken, an additional sample is taken and retained, a judge may release one sample for testing if so requested by the accused, subject to any necessary conditions to ensure that the sample is preserved for use in proceedings in respect of which the sample was taken. A sample of the accused’s blood taken to test alcohol concentration under section 254(3) or 256, or with the accused’s consent, may be tested to determine any concentration of drugs in the blood. Finally, an accused may require the attendance of the medical practitioner, analyst, or technician who signed a certificate described in section 258(1) for the purposes of cross-examination.
Clause 25 of the bill adds a new provision to the Criminal Code concerning the unauthorized use of samples. New section 258.1(1) states that samples taken under sections 254(2)(b), (3), (3.3) or (3.4), or 256, or with the consent of the accused from whom it was taken on the request of a peace officer, or medical samples that are provided by consent and subsequently seized under a warrant, may be used only for the analyses referred to in those provisions. Section 258.1(2) holds that the results of tests and sample analysis taken under sections 254(2) to (3.4), or 256, or with consent of the accused from whom it was taken on the request of a peace officer, or medical samples that are provided by consent and subsequently seized under a warrant, may be disclosed or used only in the course of a proceeding for or an investigation of an offence under sections 220, 221, 236, and 249 to 255, an offence under the Aeronautics Act, an offence concerning the use of drugs or alcohol under the Railway Safety Act, or in relation to a provincial offence. However, the results of physical coordination tests, DRE evaluations, or analyses referred to in subsection (2) may be disclosed to the individual to whom they relate, or to any other person if made anonymously and for statistical or other research purposes. Finally, the restrictions noted above do not apply to persons who are using samples for medical purposes that are subsequently seized under a warrant (new section 258.1(3)). The new section 258.1(4) creates a summary conviction offence for anyone who contravenes sections 258.1(1) or (2).
Clause 26 amends section 259 to include operation of a motor vehicle in Canada while disqualified from doing so under section 259 as an offence for which a sentencing judge is required to impose an order prohibiting an offender from operating a motor vehicle, vessel, aircraft or railway equipment. In addition to the period for which the offender may be incarcerated, for a first offence, this order shall be for 1 to 3 years; for a second offence, for 2 to 5 years; and for each subsequent offence, for a minimum of 3 years. The clause also ensures that the new impaired driving offences causing death or bodily harm (sections 255(2.1) to (3.2)) may also be subject to such an order.
Clause 27 adds a new section 261(1.1) to ensure that upon appeal to the Supreme Court of Canada, only a judge of the court being appealed from can stay an order made under sections 259(1) or (2).
The changes to the Criminal Code made by Bill C-2 also necessitate consequential amendments to other legislation to incorporate the new drug testing provisions.
Clause 55 amends the Aeronautics Act. Section 8.6 of that Act is amended to state that a sample relating to the presence of alcohol or a drug in the body obtained under the Criminal Code is admissible in Aeronautics Act proceedings. The provisions of section 258 of the Criminal Code, except section 258(1)(a), apply with any necessary modifications.
Clause 59 amends the Customs Act. Section 163.5(2) of that Act is amended to grant a customs officer the powers of a peace officer under sections 254 and 256 of the Criminal Code. If a blood or breath sample, or DRE testing, is required, a person may be required to accompany a peace officer for that purpose.
Clause 60 amends the Railway Safety Act. Section 41(7) of that Act is amended to state that a sample relating to the presence of alcohol or a drug in the body obtained under the Criminal Code is admissible in Railway Safety Act proceedings involving contraventions respecting the use of alcohol or a drug. The provisions of section 258 of the Criminal Code apply with any necessary modifications.
The provisions in Bill C-2 relating to bail for offences involving firearms derive from Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences), which was introduced in the House of Commons on 23 November 2006 and adopted by the House without amendment on 5 June 2007. The intent of the bill was to restrict the ability of persons charged with certain offences related to firearms to be released on bail. Before the prorogation of Parliament, Bill C-35 had received first reading in the Senate on 5 June 2007.
The purpose of the bill’s provisions is to restrict, during criminal proceedings, the judicial interim release(55) of a person charged with certain offences involving firearms or other regulated weapons. To this end, the bill makes two amendments to the Criminal Code:
The bill’s provisions apply only to an accused who has been taken into custody by peace officers following arrest. The Criminal Code rules permitting peace officers to release a person who has been arrested therefore remain unchanged.(56) The bill’s provisions concern solely the decision of the judge, at the bail hearing, to release the accused or to continue his or her provisional detention.
In 1869, the federal government enacted legislation making bail discretionary for all offences.(57) In deciding whether to release the accused, courts considered factors such as the need to ensure the accused’s attendance in court, the nature of the offence, the severity of the penalty, the evidence against the accused, and the character of the accused.(58)
In 1972, the Bail Reform Act(59) codified the reasons for keeping an accused in custody:
A few years later, the Criminal Law Amendment Act, 1975(61) reversed the onus in cases where the accused was charged with:
In these cases, the judge will order the detention of the accused, unless the accused demonstrates that he or she should remain at large pending the trial.
In the early 1990s, the Act to amend the Criminal Code and the Customs Tariff in consequence thereof(63) included a provision for the judge to consider including in the bail order a condition prohibiting the accused from possessing firearms, ammunition, or explosive substances.(64) This condition could be imposed if the accused was charged with an offence involving the use or threat of violence or a drug-related offence.
In 1992, the Supreme Court of Canada recognized the validity of the reverse onus provisions with relation to drugs(65) (R. v. Pearson)(66) and in the commission of another offence while on bail (R. v. Morales).(67) The Court had reviewed these provisions in light of the Canadian Charter of Rights and Freedoms (the Charter), in which section 11(e) provides that any person charged with an offence has the right “not to be denied reasonable bail without just cause.”
Legislation on organized crime(68) in 1997 and 2001, as well as the Anti-terrorism Act(69) in 2001, reversed the onus in cases where the accused was charged with criminal gang activity or terrorism.(70)
It should be noted at the outset that the peace officer may release a person who has been arrested with or without warrant,(71) except in the case of murder.(72) Release conditions, such as abstaining from possessing a firearm, may be imposed.(73) An accused who breaches the conditions may be imprisoned.(74)
In general, the peace officer can keep the person under arrest in custody until the bail hearing, if it is necessary:
If the accused was detained by peace officers following arrest, the judge must, in principle, release the accused at the bail hearing after he or she has signed an undertaking without conditions.(76)
In general, the prosecutor must provide justification for imposing release conditions or for keeping the accused in custody pending the trial, so the judge is able to make one of these decisions.
The judge may include conditions in the release order. The accused may, for example, be required to:
The judge may also impose any other reasonable condition that he or she deems appropriate, such as a curfew or to abstain from alcohol and non-prescription drugs.
In the case of an offence involving violence against a person or certain specified offences,(78) the judge must, in order to ensure the safety of the accused, the victim or another person, prohibit the accused from possessing firearms or other regulated weapons.(79)
In addition to the conditions mentioned above, a judge may take a recognizance, but without deposit of money or other valuable security.(80) Only in cases where the accused lives outside the province or more than 200 kilometres from the place of detention, or if the prosecutor agrees, may the judge impose a deposit of money or other valuable security.
Apart from the offences for which Parliament has provided for reverse onus, the prosecutor must establish certain grounds for the judge to order the detention of the accused pending the trial.
The grounds justifying the detention of an accused in custody are set out in subsection 515(10) of the Criminal Code. The detention of the accused must be necessary:
For certain specific offences, the Criminal Code provides in subsections 515(6) and 515(11) that the accused is to be detained during the proceedings. The accused may, however, be released if he or she proves that detention is not justified in the circumstances. The burden is shifted from the prosecutor to the accused, if the accused is charged with one of the following offences:
If the accused wants to be released, he or she must prove that detention is not justified under the three grounds set out in subsection 515(10) of the Code, as listed above.
It should be noted that the Supreme Court of Canada has stated that the presumption of innocence guaranteed by section 7 of the Charter applies at all stages of the criminal process, including the bail hearing.(84) Section 11(e) of the Charter protects the right of the accused “not to be denied reasonable bail without just cause.”(85)
As mentioned above, the Supreme Court has recognized the constitutional validity of the current provisions reversing the burden of proof in offences involving drugs(86) and offences committed during release on bail.(87)
In connection with drug-related offences, the Court considered that these were very specific offences that therefore required special rules. It expressed its views as follows:
Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour. … Another specific feature of the offences subject to s. 515(6)(d) is that there is a marked danger that an accused charged with these offences will abscond rather than appear for trial.(88)
Reverse onus is therefore permitted, but for very specific offences in which it has been shown that the normal system of release on bail is not adequate.(89)
In summary: reversing the burden of proof may be justified in specific offences where, generally speaking, the accused will flee, will represent a danger to public safety or will bring the administration of justice into disrepute. It should be noted that, in cases where the onus is reversed, the accused may still be released if he or she proves that detention is not justified in his or her particular case.
The accused and the prosecutor(90) may, at any time before the trial, apply to a Superior Court judge for a review of the order. For instance, the accused may apply to have the release conditions made more lenient or to have the detention order quashed. An accused who is charged with an offence listed in section 469 of the Code (one of which is murder) must apply for a review to the court of appeal on the direction of the chief justice.(91)
If new facts have been presented, the judge may, on cause being shown, quash any release or interim detention order at any time, for instance, during the trial or at the end of the preliminary hearing.(92)
If the accused does not comply with the bail conditions, he or she may be imprisoned following a hearing and an order from a judge.(93)
To the seven types of offences currently provided in the Code for which the accused has the burden of proving that his or her interim detention is not justified,(94) clause 37(2) adds certain offences involving firearms or other regulated weapons.(95) The 12 indictable offences are as follows:
If an accused is charged with one of these indictable offences, the judge will order his or her detention unless the accused proves, according to the criteria in subsection 515(10) of the Code, that he or she should be released pending the criminal proceedings.
It should also be noted that for eight of the indictable offences involving a firearm mentioned in the bill, the Code provides a minimum four-year term of imprisonment.(97)
Finally, the bill does not provide for reverse onus in the case of criminal negligence causing death or manslaughter involving firearms or other regulated weapons, unless the accused was under an order prohibiting him or her from possessing such weapons.
Clause 37(5) adds two factors that the judge must take into consideration in deciding whether an accused should be released or detained pending the criminal proceedings.
Currently, the grounds that the judge must consider in making his or her decision are set out in subsection 515(10) of the Criminal Code. In general, they involve the risk that the accused will not attend the court proceedings, the protection of the public, and the public’s confidence in the administration of justice.
The bill provides that the judge who is to decide whether the detention of the accused is necessary to maintain confidence in the administration of justice must consider, among other things, the fact that the accused:
Finally, clause 37(5) repeals the phrase in section 515(10)(c) of the Code permitting the detention of an accused for “any other just cause.” The Supreme Court ruled that this expression was unconstitutional in R. v. Hall.(98)
The changes to the provisions concerning dangerous offenders, long-term offenders and recognizances to keep the peace in Bill C-2 derive from Bill C-27, An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace), which was introduced and received first reading in the House of Commons on 17 October 2006 and was sent to a special legislative committee following second reading on 4 May 2007. The goal of Bill C-27, and of the corresponding clauses in Bill C-2, is to amend the Criminal Code to facilitate the declaration of certain convicted persons as dangerous offenders. One modification in Bill C-2 from Bill C-27 is the possibility for a sentence of detention for an indeterminate period in the case of an offender who has breached a long-term supervision order. It should be noted that Bill C-2 retains the dangerous offender presumption that was provided in Bill C-27 for three primary designated offences. Before the prorogation of Parliament, the legislative committee had held six meetings on the study of Bill C-27.
The bill’s provisions address, in two ways, the problem of offenders who have committed one or more violent or sexual offences. First, it tightens the rules that apply to dangerous offenders in the case of repeat offenders. Second, it extends the recognizance to keep the peace and clarifies the terms of recognizances in order to prevent repeat offences. More specifically, the bill makes the following amendments to the Criminal Code:
The provisions applicable to offenders presenting a high risk of recidivism are set out in Part XXIV of the Criminal Code. It is important to note that these rules apply at the sentencing stage.
The primary objective of this regime is to protect the public from offenders who have committed “serious personal injury offences”(101) (dangerous offenders(102) or long-term offenders(103)) or a sexual offence(104) (long-term offenders) and who continue to pose a threat to society.(105) A very high proportion of these criminals have committed sexual offences. Indeed, in roughly 82% and 76.5% of cases, respectively, the offence that gave rise to the dangerous offender or long-term offender designation (“the underlying offence”) was a sexual offence.(106)
Within this very limited group, dangerous offenders are, by definition, considered as being at higher risk to reoffend than long-term offenders and, unlike the situation for the latter,(107) there is no possible treatment that could control this risk in the community.(108) Thus, a long-term offender could, after being sentenced to a term of imprisonment of two years or more (other than life imprisonment),(109) be released under the conditions of a long-term supervision order;(110) by contrast, a dangerous offender will have to serve a prison sentence of indeterminate length.(111)
In response to the recommendations made in 1938 by the Archambault Commission,(112) the first habitual offenders act was adopted in Canada in 1947.(113) An “habitual offender” was a person who had been convicted of three criminal offences. An offender of this type, and, later on, an offender who was a “criminal sexual psychopath,”(114) could be imprisoned indefinitely. The rules were criticized, however, for applying to non-dangerous offenders as well(115) and for requiring recidivism as an eligibility condition.(116)
Feeling that the applicable regime did not adequately protect the public, the Criminal Law Amendment Act, 1977(117) started from scratch and enacted the current rules on dangerous offenders. In 1997, Bill C-55 introduced the long-term offender category in order to monitor these offenders in the community on a long-term basis because, even though they present a risk of recidivism, they cannot be characterized as dangerous offenders.(118)
Between 1978 and April 2006, a total of 403 criminals were designated dangerous offenders.(119) In July 2006, there were 333 in the prison population and 18 on supervised parole.(120) While, on average, 14 people a year are designated dangerous offenders, that number has generally increased in recent years, rising from 8 (1978 to 1987) to 22 offenders a year (1995 to 2004).(121) According to April 2006 data, there were no women in this group, while the Aboriginal population accounted for 21% of dangerous offenders.(122)
From 1 August 1997 to 9 April 2006, 384 criminals were designated long-term offenders, an average of some 43 a year.(123) As of the later date, there were four women in this group. It is worth noting that, according to 2001 data, the number of long-term offenders has increased continuously since the new provisions came into force in 1997.(124)
Ninety-three percent of dangerous offenders and 98% of long-term offenders had at least one previous conviction as adults.(125) Many dangerous offenders and long-term offenders are habitual criminals. At the time they were designated, 45% of dangerous offenders and 26% of long-term offenders had 15 or more previous convictions on their adult record.(126) This cycle of criminality often began at a young age. According to a 1996 study, 75% of dangerous offenders had a juvenile record and 96.6% showed evidence of forcible sexual activity before the age of 16.(127) With regard to the adults, the average age on first conviction was 22 (dangerous offenders) or 25 (long-term offenders).(128) However, the average age at the time of designation was around 40.(129)
When the underlying offence is not a sexual offence(130) – typically sexual assault or an act of paedophilia – it is still serious(131) and involves violence and coercion,(132) typically armed assault(133) or kidnapping or forcible confinement.
In cases where there have been previous offences, most dangerous offenders and long-term offenders have had three or more victims.(134) Female victims predominate.(135) Studies show that the majority of dangerous offenders (49%) and long-term offenders (61%) have victimized children.(136) As the factor most predictive of sex offence recidivism is a preference for children,(137) it is not surprising to learn that 98% of dangerous offenders and 90% of long-term offenders are classified as at high risk to re-offend. It should be noted that a majority of incarcerated dangerous offenders are placed in protective custody or administrative segregation.(138)
Before a Crown prosecutor submits a dangerous offender or long-term offender application, experts in corrections and mental health must assess the offender’s behaviour in order to establish a psychological diagnosis.(139) In the case of a sexual offender, the sexual preferences and deviances will also be assessed. The assessment, which lasts a maximum of 60 days, is based on reasonable criteria for dangerousness(140) and on the possibility of supervising the offender in the community. The assessment report will be entered into evidence and the experts will be able to testify in court.
The Crown attorney must obtain the consent of the province’s attorney general and give the offender seven clear days’ notice before the date of the application hearing.(141) The notice must contain the grounds for making the application.
Depending on whether it is a dangerous offender application or a long-term offender application, the prosecutor must prove, beyond a reasonable doubt, very specific elements.(142) The prosecutor must therefore convince a judge sitting without a jury(143) that the offender presents a high risk of recidivism.
In the case of a dangerous offender, the judge must first be convinced that the underlying offence constitutes a serious personal injury offence.(144) At present, there are two opposing lines of decision on the question of whether the underlying offence under paragraph 725(a) of the Code must involve a high degree of violence and dangerousness.(145) The first line holds that the underlying offence must involve an objectively serious degree of violence or dangerousness.(146) The second line – supported by the Supreme Court of Canada in Currie(147) – holds, rather, that emphasis must be placed on the offender’s previous conduct, and accordingly that it is not necessary that the underlying offence involve a high degree of violence. It is enough that the underlying offence correspond to the definition of serious personal injury in the Code.
Second, after proving that the underlying offence constitutes a serious personal injury offence, the prosecutor must show that the offender represents a risk to society.(148) To do that, the prosecutor must prove that the offender demonstrates a marked indifference to the consequences of his or her actions,(149) that his or her behaviour is so brutal that it cannot be controlled,(150) or that the offender is incapable of controlling his or her actions or sexual impulses and will in all probability(151) cause death or other serious injury if he or she is not put in preventive detention.(152)
In the case of a long-term offender, the underlying offence must, first of all, be a serious personal injury offence or a sexual offence covered by paragraph 753.1(2)(a) of the Code. The judge must then be convinced that there is reason to impose a prison sentence of two years or more (other than a life sentence),(153) that the offender presents a high risk of recidivism, and that there is a real possibility of managing that risk within the community.(154)
In both cases, evidence concerning the offender’s morality or reputation is admissible in court.(155) While prior convictions are not essential to decide that the dangerous offender or long-time offender designation is warranted,(156) most of these offenders have a criminal record. The prosecutor may also enter into evidence behaviour that did not result in a charge.(157) The judge will also examine the offender’s previous behaviour to help evaluate the potential dangerousness.(158) In order to determine whether the risk can be controlled within the community, the court will consider, among other things, the offender’s age, character, family or community support, and the circumstances of the offence.(159)
Since 1997, a dangerous offender designation has automatically resulted in an indeterminate prison sentence in a penitentiary.(160) This is the harshest sentence in Canada’s system of criminal law.(161)
While no statutory release date is provided,(162) a dangerous offender will be eligible for day parole after four years’ imprisonment(163) and for ordinary parole after seven years.(164) Dangerous offenders who are paroled are monitored for the rest of their lives.(165) If they continue to present an unacceptable risk to society, they will stay in prison for life.(166)
In the case of long-term offenders, a prison sentence of two years or more (other than a life sentence)(167) will be followed by a long-term supervision order (LTSO), of a maximum duration of 10 years, in order to ensure the offender is monitored in the community.(168) It is important to note that a long-term offender remains eligible for parole. The LTSO does not take effect until the expiration date of the warrant of committal.(169) When the LTSO expires, it is still possible to lay an information every year under section 810.2 of the Code to ensure that the offender remains subject to conditions.(170)
While the order is in effect, the long-term offender must respect the conditions imposed by the National Parole Board (NPB).(171) Failure to observe the conditions of an LTSO is punishable by a maximum of 10 years’ imprisonment.(172) As a preventive measure, the NPB may, in order to prevent a potential violation of the LTSO or to protect society, order the offender’s imprisonment for a maximum period of 90 days.(173)
The Code allows an appeal of the dangerous offender or long-term offender designation.(174) The length of the supervision period imposed on a long-term offender under an LTSO may also be appealed.
A recognizance to keep the peace is a preventive measure that has been part of the Canadian legal system since 1892.(175) Generally speaking, it allows someone – very often a peace officer – to lay an information before a judge if there are reasonable grounds to believe that a particular offence will be committed. While it is not necessary that the defendant have committed an offence, a reasonable fear of serious and imminent danger must be proved on a balance of probabilities.(176) In some cases, the consent of the attorney general must be obtained before the information may be laid.(177)
The Code provides for four types of recognizance to keep the peace, relating to different offences or designed to protect different people. Those recognizances relate to:
Bill C-2 deals with only the last two types of recognizances, relating to sexual offences in respect of a person under the age of 14 years (clause 52 of the bill) and serious personal injury offences (clause 53 of the bill).
A judge may order that a defendant enter into a recognizance to keep the peace and be of good behaviour. The judge may also impose other reasonable conditions on the defendant to prevent the commission of an offence. Those conditions may include:
At present, the maximum length of all types of recognizance is 12 months.
If the defendant refuses to enter into a recognizance to keep the peace, the judge may commit him or her to prison for a term not exceeding 12 months. A breach of any type of recognizance is a hybrid offence punishable by imprisonment for a term not exceeding two years (indictable offence) or a fine not exceeding $2,000 or imprisonment for a term not exceeding six months, or both (summary conviction offence).(178)
The Code gives two definitions for “serious personal injury offence”:
The bill retains this definition of “serious personal injury offence,” but clause 40 adds two other categories of offences: designated offences and primary designated offences. It should be noted that an offence can be included in more than one category. Examples are sexual assault, attempted murder and assault with a weapon or causing bodily harm, which are found in three offence categories.
Before the prosecutor may make an application to the court for a finding that an offender is a dangerous offender or long-term offender, the dangerousness of the offender must be assessed by criminal justice and mental health experts.(181)
At present, the application for assessment is made to the court by the prosecutor in cases where the prosecutor thinks it appropriate to do so.(182) A prosecutor has no obligation to inform the court of whether he or she intends to make an application.
Clause 41 of the bill imposes an obligation on the prosecutor to inform the court, as soon as is feasible before sentencing, whether he or she intends to make an application for assessment of the offender in certain specific cases. For example, in a case in which an offender who has been previously convicted of two designated offences (for each of which the offender was sentenced to at least two years of imprisonment) is convicted of an offence that is both a serious personal injury offence and a designated offence, the prosecutor has an obligation to inform the court as to whether he or she intends to make an application for assessment of the dangerousness of the offender (clause 41 of the bill, adding new s. 752.01 to the Code).
The definition of “designated offence” in clause 40 of the bill includes any “primary designated offence” and a list of 25 offences(183) such as certain offences in relation to explosives, firearms, prostitution, luring a child, assault, kidnapping a minor, robbery, and breaking and entering, along with some of those offences as they appeared in previous versions of the Code.
At present, the court has the discretion, on application by the prosecutor, to refer an offender for assessment if the following two conditions are met:
The bill provides that, in those circumstances, the court has an obligation to refer the offender to be assessed by experts (clause 41 of the bill, amending subsection 752.1(1) of the Code). Such an assessment is needed in order for an offender to be found by the court to be a dangerous offender or a long-term offender.
At present, the person to whom the offender is remanded must file an assessment report with the court not later than 15 days after the end of the assessment period.(185) The prosecutor and defence counsel will be given a copy of the report.
The bill extends the period within which the report may be filed to 30 days (clause 41, amending subsection 752.1(2) of the Code). As well, if there are reasonable grounds for filing the report after that period, the court may allow it to be filed not later than 60 days after the end of the assessment period (clause 41 of the bill, adding new subsection 752.1(3) to the Code).
After the assessment report for an offender is filed with the court, the prosecutor may apply for a dangerous offender finding. At present, in order for an offender to be found to be a dangerous offender, the prosecutor must essentially prove two very specific facts beyond a reasonable doubt:
The bill retains this “traditional” method for making a dangerous offender finding. Rather, subclause 42(2) of the bill adds another method of making that finding, by incorporating a presumption that certain repeat offenders are dangerous offenders.
Accordingly, anyone who is convicted a third time for a primary designated offence (the underlying offence and the prior offences, for each of which a term of imprisonment of at least two years was imposed) is presumed to be a dangerous offender (subclause 42(2) of the bill, adding new subsection 753(1.1) to the Code). It must be noted, however, that even in this case the court may find that the offender is a dangerous offender only where application is made by the prosecutor.(187)
It may be asked whether the three primary designated offences may have been committed in the course of a single event, or must have been committed at separate times. As the new subsection 753(1.1) of the Code is worded, it seems that the presumption applies where there are three successive convictions.
The definition of “primary designated offence” in clause 40 of the bill contains a list of 12 offences, such as certain sexual offences against minors,(188) sexual assault, attempted murder, assault with a weapon, causing bodily harm and kidnapping, with the addition of former sexual offences such as rape and indecent assault. These 12 primary designated offences are punishable by imprisonment for 10 years or more. Sexual assault is already defined as a “serious personal injury offence” under the definition in paragraph 752(b) of the Code. The other primary designated offences could be characterized as “serious personal injury offences” under paragraph 752(a) if the facts showed that they involved violence, conduct endangering another person or severe psychological damage.
Subclause 42(2) of the bill introduces a reversal of the onus of proof: after the prosecutor has proved that the offender has been convicted of a third primary designated offence (the underlying offence and the prior offences, for each of which a term of imprisonment of at least two years was imposed), the onus shifts to the offender, who must prove, on a balance of probabilities, that he or she does not present a threat to the life, safety or physical or mental well-being of other persons (see paragraph 753(1)(a) of the Code), or, if the third primary designated offence is a sexual assault, that the offender is able to control his or her sexual impulses and there is no likelihood of causing injury, pain or other evil to other persons (see paragraph 753(1)(b) of the Code).
With the reversed onus of proof in the bill, an offender could be found to be a dangerous offender notwithstanding any reasonable doubt as to his or her dangerousness or the risk of recidivism under the criteria set out in paragraph 753(1)(a) or 753(1)(b) of the Code.
On the other hand, it should be noted that in Mack,(189) the Supreme Court of Canada held that the standard of proof beyond a reasonable doubt applies only where the issue is the guilt or innocence of the accused. It should also be noted that where the accused has been convicted, he or she is no longer an “accused” within the meaning of section 11 of the Canadian Charter of Rights and Freedoms (the Charter), and so the presumption of innocence guaranteed by paragraph 11(d) does not apply.(190) In this case, the bill applies to people who have already been convicted. It therefore seems that the presumption of innocence could not be used to challenge the reverse onus that operates at the dangerous offender finding stage. In Lyons,(191) the majority of the Supreme Court of Canada was of the opinion that the right to be presumed innocent did not apply in the context of a dangerous offender application.
In its review of the various forms of reverse onus of proof in the Code before an accused is convicted, the Supreme Court took into account, having regard to the presumption of innocence and section 1 of the Charter, the importance of the objective, whether there are effective means available to Parliament to achieve that objective, and proportionality between the objective and the degree of impairment of constitutional rights.(192)
From another perspective, an offender who is presumed to be a dangerous offender under the bill could argue that he or she is being sentenced to imprisonment for an indeterminate period for offences for which he or she has already been punished. Paragraph 11(h) of the Charter might therefore come into play.
In section 12 scrutiny, the court must consider whether the sentence is grossly disproportionate for the offender or grossly disproportionate having regard to reasonable hypotheticals.(193) In Lyons,(194) the Supreme Court of Canada held that imprisonment for an indefinite period was not cruel and unusual treatment, contrary to section 12 of the Charter, because, inter alia, “… the group to whom the legislation applies has been functionally defined so as to ensure that persons within the group evince the characteristics that render such detention necessary.”(195) In the opinion of the Court, the availability of parole for dangerous offenders “can truly accommodate and tailor the sentence to fit each offender’s circumstances.”(196)
Section 9 of the Charter provides protection against arbitrary detention or imprisonment. In Lyons,(197) the Supreme Court of Canada held that the rules governing dangerous offenders did not violate section 9 of the Charter; the Court stated:
In this respect, I am in complete agreement with Crown counsel’s submission that “… it is the absence of discretion which would, in many cases, render arbitrary the law’s application.” As he notes, “the absence of any discretion with respect to Part XXI [now Part XXIV] would necessarily require the Crown to always proceed under Part XXI if there was the barest prima facie case and the Court, upon making a finding that the offender is a dangerous offender, would always be required to impose an indeterminate sentence.”(198)
In 2003, the Supreme Court of Canada held, in Johnson,(199) that before considering finding that an offender is a dangerous offender the judge must consider whether the risk presented by the offender can be adequately controlled in the community, and thus whether it would be appropriate to apply the long-term offender rules. The Court said: “the imposition of an indeterminate sentence is justifiable only insofar as it actually serves the objective of protecting society.”(200)
Subclause 42(1) of the bill provides that the court “shall” (replacing “may” in the current subsection 753(1) of the Code) make a dangerous offender finding if it is satisfied that the statutory conditions are met. However, the court has the discretion not to sentence a dangerous offender to detention for an indeterminate period in a case where another sentence would adequately protect the public against the commission by the offender of murder or a serious personal injury offence (subclause 42(4) of the bill, amending subsection 753(4) and (4.1) of the Code).
Accordingly, even if the court makes a dangerous offender finding, it may decide to impose a less severe sentence; that is, it may:
If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or a breach of a LTSO, he or she must be, on application by the prosecutor, assessed by experts in corrections and mental health (clause 43 of the bill, adding new subsection 753.01(1) to the Code).
After the assessment report is filed and on application by the prosecutor, the court must, if it is necessary to protect the public against the commission by the offender of murder or a serious personal injury offence:
Under section 810.1 of the Code, a judge may order that a defendant enter into a recognizance that includes conditions if there are reasonable grounds to believe that a person will commit one of the sexual offences listed in subsection 810.1(1) of the Code against a person under the age of 14 years:
At present, the maximum period of a recognizance is 12 months.(202) The bill extends the maximum period to two years in a case in which the defendant has a criminal record for a sexual offence in respect of a person under the age of 14 years (clause 52 of the bill, adding new subsection 810.1(3.01) to the Code). The bill does not specify the nature of the previous sexual offence, but it may be presumed that this includes at least the sexual offences listed in subsection 810.1(1) of the Code.
It must be noted that the two-year maximum period would not apply to a defendant who had entered into a recognizance to keep the peace in the past, because a recognizance of that nature does not amount to a criminal conviction. It seems that this would also be the case where a court had granted an absolute or conditional discharge for the previous offence.(203)
Under the existing rules, the judge who orders a defendant to enter into a recognizance in relation to a sexual offence in respect of a person under the age of 14 years may impose such conditions as the judge considers to be necessary to guarantee that the defendant will keep the peace and be of good behaviour.(204)
Form 32 of the Code, which may be used to prepare the recognizance,(205) provides examples of conditions that may be imposed:
The present subsection 810.1(3) of the Code provides two examples of conditions that may be imposed in the specific case of a recognizance in relation to a sexual offence in respect of a person under the age of 14 years:
Clause 52 of the bill provides that the judge may impose any “reasonable” condition(208) that the judge considers desirable (new subsection 810.1(3.02) of the Code), retains the two specific conditions set out above (except that the expression “community centre” is removed;(209) new paragraphs 810.1(3.02)(a) and (b) of the Code), and adds seven other examples of conditions that may be imposed:
Under section 810.2 of the Code, a judge may order that a defendant enter into a recognizance with conditions if there are reasonable grounds to believe that a person will commit a “serious personal injury offence.”(214) Unlike a recognizance in relation to a sexual offence in respect of a person under the age of 14 years, prior consent of the Attorney General is required.(215)
Under the existing rule, the maximum period of a recognizance of this nature is 12 months.(216) Subclause 53(1) of the bill extends the maximum period to two years in a case where the defendant was convicted previously of a serious personal injury offence (new subsection 810.2(3.1) of the Code).
It should be noted that the two-year maximum would not apply to a defendant who had entered into a recognizance to keep the peace for the previous serious personal injury offence or was discharged by the court.(217)
At present, a judge who orders a defendant to enter into a recognizance in relation to a serious personal injury offence may impose such reasonable conditions as the judge considers desirable for securing the good conduct of the defendant.(218)
As noted under the preceding heading, Form 32 of the Code, which may be used to prepare the recognizance,(219) provides examples of conditions that may be imposed:
The present subsections 810.2(5) and 810.2(6) of the Code provide two other examples of conditions that may be imposed in a recognizance in relation to a serious personal injury offence:
Clause 53(2) of the bill retains those two conditions and adds five other examples of conditions that may be imposed by the judge:
If a comparison is made with recognizances in relation to sexual offences in respect of persons under the age of 14 years, the examples of conditions that may be imposed are identical except for the fact that in the latter case the judge may also impose specific conditions prohibiting the defendant from being in contact with or in the presence of a person under the age of 14 years in certain public places.
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