

Bill C-55


If passed, this new law would authorize the government to put Canadian
citizens, who have no criminal record, and who have not even been charged
with a crime, under round-the-clock electronic surveillance for up to 12
months. 

For further analysis, links to a few related newspaper articles are given
at the bottom of this page. 


------------------------------------------------------------------------
Bill C-55 was introduced in Parliament and given first reading on September
17th. It was debated on October 3rd and 4th and passed second reading on
October 7th. It has now been referred to the Commons Justice Committee. 
------------------------------------------------------------------------


Bill C-55 would amend the Criminal Code by adding the following: 

Where fear of serious personal injury offence 

810.2 (1) Where the Attorney General believes that there are reasonable
grounds to fear that another person will commit a serious personal injury
offence, as that expression is defined in section 752, in respect of one or
more persons, the Attorney General may lay an information before a
provincial court judge, whether or not the person or persons in respect of
whom it is feared that the offence will be committed are named. 



Duty of provincial court judge 

(2) A provincial court judge who receives an information under subsection
(1) shall cause the parties to appear before the provincial court judge. 



Adjudication 

(3) The provincial court judge before whom the parties appear may, if
satisfied by the evidence adduced that the Attorney General has reasonable
grounds for the fear, order that the defendant enter into a recognizance to
keep the peace and be of good behaviour for any period that does not exceed
twelve months and to comply with any other reasonable conditions prescribed
in the recognizance, including conditions set out in subsections (4) and
(5), that the provincial court judge considers desirable for securing the
good conduct of the defendant. 



Conditions -- firearms 

(5) Before making an order under subsection (3), the provincial court judge
shall consider whether it is desirable, in the interests of the safety of
the defendant or of any other person, to include as a condition of the
recognizance that the defendant be prohibited from possessing any firearm
or any ammunition or explosive substance for any period of time specified
in the recognizance and that the defendant surrender any firearms
acquisition certificate that the defendant possesses, and where the
provincial court judge decides that it is not desirable, in the interests
of the safety of the defendant or any other person, for the defendant to
possess any of those things, the provincial court judge may add the
appropriate condition to the recognizance. 



Conditions -- reporting and monitoring 

(6) Before making an order under subsection (3), the provincial court judge
shall consider whether it is desirable to include as a condition of the
recognizance that the defendant report to the correctional authority of a
province or to an appropriate police authority or to comply with a program
of electronic monitoring, if such a program is available in the place in
which the defendant resides, and where the provincial court judge decides
that it is desirable for the defendant to so report or be monitored, the
provincial court judge may add the appropriate condition to the
recognizance. 



Variance of conditions 

(7) The provincial court judge may, on application of the Attorney General
or of the defendant, vary the conditions fixed in the recognizance. 



Other provisions to apply 

(8) Subsections 810(4) and (5) apply, with such modifications as the
circumstances require, to recognizances made under this section. 




------------------------------------------------------------------------
Related newspaper articles: 



ðMonitoring Justice
Globe & Mail, September 20, 1996, page A16 (Editorial) 

ðDeputy police chief likes tough-on-crime bill
Halifax Daily News, September 20, 1996, page 4 (Susanne Hiller) 

ðCriminal bill may clash with Charter
Halifax Daily News, September 20, 1996, page 4 (Editorial) 

ðAllan in Wonderland: Sentence first -- verdict afterwards
Halifax Daily News, September 23, 1996 (Parker Barss Donham) 

ðElectronic-monitoring law would curb freedom -- critics
Halifax Daily News, September 24, 1996 (Canadian Press) 

ðTough new bill needs careful look
Ottawa Sun, September 25, 1996 (Sean Durkan) 


------------------------------------------------------------------------






Copyright (c) 1996 by the Globe and Mail.  All Rights Reserved.
Reprinted with permission.

The Globe and Mail
September 20, 1996
Editorial, page A16


	Monitoring Justice

The Minister of Justice introduced several amendments to the
Criminal Code on Monday, and the broad reach of one of them
is particularly troubling.

Ottawa wants to add a new "Judicial Restraint" provision to the
Code, a mildly monickered amendment that packs quote a bite.
It would permit a provincial-court judge to force someone who
has not necessarily been convicted or even charged with anything
to be shackled with an electronic monitor, allowing police to
follow all of his movements for a period of up to one year.
A Crown attorney would have the power to go to court, seeking
such an order, any time he or she "believes that there are
reasonable grounds to believe that another person will commit
a serious personal injury offence".  In pursuit of a safer Canada,
not to mention an enhanced crime-fighting image for the government,
Allan's Rock's bill tramples ancient civil liberties.

The Justice Department defends the bill by pointing out its
similarity to an existing section of the code, Section 810.1,
directed against pedophiles.  If there are strong grounds to
believe that someone may commit a sexual offence against a
child, a judge can order that person to stay away from places
where he might encounter children, such as day-care centres
and playgrounds.

Section 810.1 was upheld by a lower court last January, when it was
used against a man who had been previously convicted of sexually
assaulting young boys.  But there is a world of difference between
that law and this new amendment.  The impairment of individual freedom
involved in ordering someone to stay away from playgrounds is limited,
as it must be, because under the Charter of Rights and Freedoms,
unwarranted interferences with individual liberty are rarely tolerated.
In fact, the court that upheld the pedophile law said that ordering
a suspected potential sex offender to stay away from "community centres",
as the law specifies, was too broad a restriction, violating the Charter.

Laid against the more limited measures of 810.1, we have the dreadful
zeal of the electronic monitoring amendment.  Electronic monitors
are highly invasive, being fixed to the person's body, and place him
under the eye of the police at all times.  It sounds a lot like a
prison.  Prison is a punishment we normally reserve for those who have
been found guilty of a crime, not people merely suspected of being
capable of perhaps committing one at some future date.

Electronic monitors are already in use in several provinces,
mostly to keep track of convicted criminals on parole.  Ottawa is
proposing to extend them to people who are guilty of no crime, using
staggeringly open-ended wording that would create a law tailor-made
for police abuse.  Innocent people could be dragged into court,
not to mention electronically collared.

The Justice Department should reread the Charter of Rights and
Freedoms, recall a bit of our democratic tradition and withdraw
these terrible amendments.

-30-

...


Copyright (c) 1996 by the Halifax Daily News.  All Rights Reserved.
Reprinted with permission.

The Halifax Daily News
Friday, September 20, 1996
page 4


  Deputy police chief likes tough-on-crime bill

by Susanne Hiller

A Halifax deputy police chief says Ottawa's new crime bill is
"gutsy" legislation that regional cops will sink their teeth into.

"It has been quoted as gutsy and longer overdue", Deputy Chief
Bill Malcolm said yesterday.  "And I agree.  I like what I see here."

Under the proposed law, a dangerous offender's parole review will
increase to seven years from three.  And a new long-term-offender
category calls for 10 years of supervision after a prison term.

"This is incredible", said Malcolm.  "Right now, we have people
continuously breaking their probation orders.  Or committing crimes
as soon as their probation is up."

Malcolm was concerned about the civil-rights implications of the
bill's provisions for electronic monitoring of potentially violent
people, even if they haven't been charged with a crime.

Police will have to convince a judge there is "reasonable and probable"
grounds someone might commit a crime.

"We just can't monitor a person without having just cause", he said.

"There's a misconception that we can just arrest whomever we want;
there are legal processes we have to follow."

Suspects would be tagged with an electronic device, so their
activities can be traced by police at all times.

The provision is geared towards potential sex offenders and stalkers,
Malcom said.

It will be difficult to secure monitoring of someone who has no
previous criminal record, he said.

"The police department will be challenged to the utmost, but I think
it gives us a lot to work with", he said.

"This will create more work, more files to prepare.  But ultimately,
it will be a deterrent to crime."

-30-

...


Copyright (c) 1996 by the Halifax Daily News.  All Rights Reserved.
Reprinted with permission.

The Halifax Daily News
Friday, September 20, 1996
page 24

(Editorial)


Criminal bill may clash with Charter

Criminal Code changes sought by the Chretien government to meet
public fears about high-risk offenders include powers to act
against people who might commit a serious and violent crime.
This could apply to those who not only have no criminal record
but are not facing criminal charges -- an aspect of law enforcement
practically begging for a challenge under the Charter of Rights.

For example, a provincial court judge could be asked by an
attorney-general's office or even a Crown attorney to impose
restrictions of movement on an individual or place them under
some unspecified surveillance.  There may be merit in the intention
of Justice Minister Allan Rock's amendment -- one being protection
of spouses who convince authorities someone intends to ham them
-- but it is alarmingly vague.

Mr. Rock's package also is aimed at keeping repeat violent offenders
in prison longer and supervising them on their release longer and
closer.  These provisions can only be welcomed, in light of some
of the laxness in watching parolees -- or letting them out in the
first place.  But it is a different issue with judicial restraint
on those who _may_ offend.

The minister, commenting on the constitutional aspect, said his
department bases the change on an existing section of the Criminal
Code that permits a court to order a person away from schoolyards
on the grounds he or she may offend against children.  And in any case,
Mr. Rock said, the law would most commonly be applied against
those serving time for violent and sexual offences.

Protection of the public is the top priority.  Yet it would be
reasonable to satisfy concerns about potential abuse of powers
against persons who may be undesirable but still can claim the
presumption of innocence.


-30-

...


Copyright (c) Parker Barss Donham.  All Rights Reserved.
Reprinted with permission.


Halifax Daily News
Monday, September 23, 1996


		Allan in Wonderland

   The notion of guilt before innocence didn't work for the
   Queen of Hearts and it shouldn't work for our attorney general either

by Parker Barss Donham, pdonham@fox.nstn.ca

	"No, no!" said the Queen of Hearts.
	"Sentence first -- verdict afterwards."

                              --Lewis Carroll


The desire to mete out punishment before establishing guilt is
older than Alice's Adventures in Wonderland, because establishing
guilt takes time, money, and wit.  Punishing, by comparison, is a
piece of cake. 

Still, it is the mark of a civilized society that proof of guilt
must come first.  We presume that an accused person is innocent until
the state proves her guilty beyond a reasonable doubt.  We insist on
this presumption even knowing that it will set guilty people free. 
That is how highly a civilized society prizes liberty, how deeply it
mistrusts unfettered state power.

Last week, Attorney General Allan Rock introduced amendments to
the Criminal Code of Canada that would topple this ancient pillar of
criminal justice.  Rock's bill would allow mandatory, round-the-clock
police surveillance, via electronic bracelets, of persons who had
never been convicted of, or even charged with, a crime.

A prosecutor could ask a judge to order that an electronic
bracelet be fixed to a citizen's body, allowing constant police
surveillance of his movements.  The prosecutor would only have to show
that there were "reasonable grounds to fear that an individual would
commit a serious personal injury offence."

The court could issue such an order in the absence of any conviction,
any charge, any record of criminal behavior, or indeed, of any crime
-- merely on the basis of an anticipated crime.  Sentence first --
crime, investigation, trial, and verdict afterwards.    

Although some members of the Liberal caucus believe the law
offends Canada's Charter of Rights and Freedoms, Rock voiced
confidence that it was constitutional.  Asserting its
constitutionality in a press release and persuading a court are
two different things, however.  

In court, Rock will face several hurdles:

Section 7 of the Charter guarantees every Canadian "the right to
life, liberty, and the security of the person and the right not to be
deprived thereof except in accordance with the principles of
fundamental justice."

Section 8 guarantees "the right to be secure against
unreasonable search and seizure."

Section 11 guarantees any person charged with an offense "the right
(a) to be informed without unreasonable delay of the specific
offense;  (b) to be tried within a reasonable time;  (c) not to be
compelled to be a witness in proceedings against that person in
respect of the offence;  (and) (d) to be presumed innocent until
proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal ..."

Rock said the law was needed "to enhance public safety."  He said it
could be used against stalkers where there isn't enough evidence
to lay a charge or secure a conviction, but where there are
grounds to fear for someone's safety.  

Stalking is against the law, as is uttering threats.  If there
are reasonable grounds, why not lay the charge and let the courts
weigh the evidence?

What's happening here is an effort, not to make Canada safer from
stalkers, murderer, and pedophiles, but to make Parliament safer from
the Reform Party.  Reform has seized upon public anxiety about violent
crime as a centrepiece in its election strategy.  Rock and the
Liberals are trying to outflank them.

But despite public fears, violent crime is not increasing. 
Statistics Canada reported in July that violent crime fell by four
percent in 1995, the third straight year it has done so.  The murder
rate has dropped for four straight years, and now stands at the lowest
level since 1969.  Sexual assault fell by 21 percent in the last two
years.

Youth crime remained stable in 1995, following three years of decline.
Although violent youth crime was up two percent, young people are
charged with proportionally fewer violent crimes than adults.

Crime fell in five provinces (including Nova Scotia), remained
steady in three, and rose only in Saskatchewan and PEI.  Six of
Canada's nine largest metropolitan areas experienced a drop in the
crime rate, three saw the crime rate remain stable, and only Quebec
City experienced a slight increase.

Crime is falling.  Only fear of crime is rising, fanned by the
political ambitions of the Reform Party.  Does the Attorney General of
Canada respond by educating the public on the facts about crime?  No. 
He attempts to outdo Reform, even at the cost of fundamental tenets of
fairness and justice.

Last word to Lewis Carroll:

	"Stuff and nonsense!" said Alice loudly.
	"The idea of having the sentence first!"

	"Hold your tongue!" said the Queen, turning purple.

	"I won't!" said Alice.

	"Off with her head!" the Queen shouted at the top of her voice.
	Nobody moved.

	"Who cares for you?" said Alice.
	"You're nothing but a pack of cards!" 

- - -

...


Copyright (c) 1996 by Canadian Press.  All Rights Reserved.
Reprinted with permission.

The Halifax Daily News
Tuesday, September 24, 1996


   Electronic-monitoring law would curb freedom -- critics

OTTAWA (CP) -- In a fit of rage, a person threatens someone -- spouse,
business associate, neighbor, family member perhaps.

Under a law proposed by Justice Minister Allan Rock that threat could
result in the person being forced to wear an electronic monitor for
up to a year even if he has never been charged or convicted of any
other crime.

Police and victims groups applaud the proposed legislation as a way to
prevent a violent crime.  Civil libertarians decry it as a violation of
freedom that won't withstand a Charter of Rights and Freedoms challenge.

Robert McNamara, vice-president of Victims of Violence, says the law
would help keep potentially violent offenders away from potential victims.

"It comes back down to the realistic fear of harm to a victim",
says McNamara.  "We have to start looking at the victims."

 * What they _might_ do *

Others argue you can't place restrictions on people because of what
they _might_ do.

"It is not acceptable to impose this level of intrusive restriction on
the freedoms of people who have not been convicted of anything",
says Alan Borovoy, director of the Canadian Civil Liberties Association.

A clause called judicial restraint was included in a package of laws
dealing with high-risk offenders that Rock introduced last week.

A provincial attorney general would have to seek the restraint.
The Crown would have to persuade a judge during a hearing that a person
presented a reasonable risk to harm someone even though the person was
not charged with a crime.

 * Bracelet *

The judge could order the person to report regularly to police or a
correctional authority.

The law would also allow a judge to order someone to wear an electronic
bracelet that could restrict their movements.

"I know of no free society that does this", says civil rights lawyer
Clayton Ruby.

"It's inconsistent with a free society because it's a huge intrusion of
personal freedoms and personal liberty."

Borovoy says current technology results in electronic monitoring becoming
"curfew compliance".

Offenders wear a transmitter.  If they stray too far from a receiver unit
attached to a telephone, when they are supposed to be home, an alarm sounds
at a monitoring centre.

Kim Pate of the Elizabeth Fry Society doubts the device would prevent
assaults.

"Someone might be abusing another person while they are wearing the
monitor", she said.

British Columbia, Saskatchewan, Newfoundland, and Ontario currently have
electronic monitoring systems for some convictions.  Yukon and Manitoba
are developing ones.

Justice Department spokesman Dave Whellams said safeguards are built into
the law to prevent abuses.

"You can expect that people who might be likely targets for these kinds
of restraint orders would be people with a track record of violence and
convictions", he says.

"The fact the Crown has to bring it should screen out some frivolous
complaints."

Whellams is also confident the law would pass constitutional muster.

Ruby says the law would be abused and doubts it would be effective.

"We might justify this if there are safeguards so the pool is a small
group of violent people.  Those safeguards are not there", he said.

"We might justify it if we knew it was going to work to protect Canadians,
but that's not there either."

-30-

...


Copyright (c) 1996 by the Ottawa Sun.  All Rights Reserved.
Reprinted with permission.

The Ottawa Sun
Wednesday, September 25, 1996

	Tough new bill needs careful look

by Sean Durkan
Ottawa Bureau

Justice Minister Allan Rock has a unique problem -- for him
-- with his new high-risk offenders legislation.

He may be getting too tough with crime.

No, this is not a joke, and your eyesight is fine.
Rock, too tough on crime.

The problem is with the "judicial restraint" clause of the
legislation, not its main thrusts.

Those main thrusts are (a) to make it markedly easier to
have violent offenders designated legally "dangerous" and
jailed indefinitely, and (b) to create a new class of
"long-term offender" which would allow authorities to keep
lesser, but never-the-less high-risk repeat sex offenders
under supervision for up to 10 years after their sentences
expire.

Fair enough.  Reform, naturally, insists the legislation
is a half-hearted gimmick aimed at kidding Canadians, but
Canada's police chiefs, and the 40,000-member Canadian Police
Association, and various victims' rights groups seem to think
Rock's bill will significantly improve public safety.

Where Rock begins to get into trouble is with his bill's
attempts to deal with inmates already in the system.

After a lot of prodding and coaching from the police,
Rock agreed to allow the courts to impose "judicial restraints"
at completion of a sentence if it can be demonstrated the
person remains a high risk to re-offend.

Now, this is a tricky area because one of the principles of
justice is that once a person serves the sentence imposed on
him for his crime, he has paid his debt to society and is a
free man with all the rights of a law-abiding citizen.

It is because of this principle that Rock did not go whole hog
and allow courts to impose a new jail sentence on an offender
who reaches the end of his original term.  Such a law would almost
certainly be shot down in a flash by Canada's Supreme Court.

The principle is still being tinkered with by allowing post-sentence
supervision to be imposed -- including residency and treatment
requirements, regular reporting to police and, where provincial
rules allow it, electronic bracelet monitoring.

There is a strong likelihood, however, that this will be
viewed by the courts as a justifiable infringement on balance,
given the clear need to protect society from high-risk offenders,
and that in fact the Crown would have to prove its case in court
to win such a restraint order.

So far, so good.  Most Canadians would see this as reasonable.

But having gone this far, Rock expanded the envelope --
and may have broken it.

- -

His judicial restraint clause could also be used against someone
who has never been charged with a crime, or who was charged and
acquitted.

The decision to ask a court to do this would have to be made by
a province's attorney general, and the police would need one heck
of a case to win an order.

The idea is it could be used in severe stalking cases, where the
victim is terrified and in real danger, but the tormentor is clever
enough to either avoid breaking the letter of the law or avoid
getting caught.

Rock was clearly persuaded by the police when he drafted this
clause.  They have long argued for tools to prevent crimes from
occurring in such cases.  They have a point. How many times have
we read of women murdered by former spouses or wacko admirers
after begging police for help?

But forcing citizens who have been convicted of no crime to
wear electronic bracelets?  What is the potential for abuse?
Even Reform worries Rock is getting too tough here.

Of course, Reform is in a Catch-22 position here.  It is the
first to demand new laws to protect citizens every time a stalker
strikes.  And any pre-emptive law is bound to tread on some rights.

Rock can, however, expect an unqualified attack from the Canadian
Civil Liberties Association, which argues the new bill would give
the state the right to impose a form of arrest on Canadians without
charge or trial.

A law this controversial must pass the test of thorough public
scrutiny before it is enacted, not after it is implemented.

-30-

...




