Justice Committee on Feb. 2nd, 2015

[Nathalie Levman, Counsel, Criminal Law Policy Section, Department of Justice]

As Ms. Morency said earlier, we are seeing cases involving child pornography charges as well as contact child sexual offence charges. We are seeing that courts are more or less fairly consistently imposing consecutive sentences—not in all cases, but it seems to be a trend.

Where we're seeing a little bit less consistency is in the multiple victim cases. Courts take different approaches. Sometimes they do a victim-by-victim approach; the offences that are against one victim will be imposed concurrently but the sentences for each victim consecutively. In other cases we are seeing that victims are being grouped by offence; the sentences are being imposed consecutively by type of child sex offence but concurrently as per victim.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Is it true to say that there is some inconsistency in the way these sentences are applied in different courts?

[Nathalie Levman]

Yes.

You also asked a question about the totality principle.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

That's correct.

[Nathalie Levman]

We are seeing that courts are taking note when there are multiple convictions for different offences that they would have imposed a lengthier sentence for one particular offence, but they're reducing it by a year or two in light of the totality principle.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner is Mr. Easter from the Liberal Party.

[Wayne Easter, Liberal, Malpeque, PE]

On this last question, either Ms. Morency or Ms. Levman, are these increased penalties that are being seen out there having any impact as a deterrent to these types of crimes, other than just keeping people off the street longer, or is there nothing you can tell yet?

I'm one who believes in the rehabilitation side. If the objective is to keep people off the street longer, well, that's one objective. But keeping people off the street longer, not providing the program, and letting them get out at warrant expiry is just a huge problem waiting to happen, so I'm wondering if there is a deterrent impact. If there is an intended deterrent impact of these longer penalties and consecutive sentences other than keeping them off the street, is there any evidence to show that?

[Carole Morency]

I think it's well established in terms of the Criminal Code's approach to sentencing that the fundamental principles require courts to consider denunciation, deterrence, rehabilitation, etc., pretty clearly. There is much research out there from over the years that talks about the different impacts that penalties may have, including whether mandatory minimum penalties have a particular deterrent effect versus incapacitation and all of that. I guess it would be difficult to say that in the short term, based on, for example, reforms enacted since Bill C-10 in the last three years, and to point and say, “Here's a direct causal relationship between this and that.”

It's not to say, though, that there hasn't been a noticeable impact by even the sentencing reforms from Bill C-10. For example, if we look at some of the cases, I have remarked upon the fact that Parliament was in the course of reviewing proposed amendments to treat these cases more seriously and noting very clearly the courts saying that Parliament has said that we should treat these offences much more seriously and more seriously denounce and deter these offences. To the extent that we can point to this in the short term, I think there is some evidence of that in some of the case law.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you.

Coming to the RCMP and the different databases, the high-risk child sex offender database will be public. How will that be accomplished? How does the information flow? If Mr. Jones is released and is arriving in Delisle, Saskatchewan, what's the operation for how this information will get out there?

[D/Commr Peter Henschel]

Are you asking specifically about the public database?

[Wayne Easter, Liberal, Malpeque, PE]

Yes.

[D/Commr Peter Henschel]

It's not an issue of the release. That's important there. The first step for the public database is that the local or provincial and territorial authorities will have to have made a decision to do a public interest disclosure about that individual. When that happens, that's the first step.

In cases where the local authorities have come to a decision to do a public interest disclosure, then the second test will be whether this person meets the criteria for a high-risk child sex offender. As I mentioned earlier, those criteria are still being developed in consultations between Public Safety and the provinces and territories, because right now the provinces and territories all have their own approach on how they determine whether or not to proceed with the public interest disclosure.

That development is ongoing as to what that criteria will be, but if the person meets the criteria for being a high-risk child sex offender, then the person will be added to the public database.

[Wayne Easter, Liberal, Malpeque, PE]

Okay.

In terms of this piece of legislation, beyond expanding our own sex offender registry, it is a different database. Are this kind of registry and public disclosure happening in any other country in the world? I think it does happen in some areas in the United States. What has their experience been? Do you know? Can you give us an example? If my colleague wants to look into where this system is in place, where would we look?

Go ahead, Kathy.

[Kathy Thompson, Assistant Deputy Minister, Community Safety and Countering Crime Branch, Department of Public Safety and Emergency Preparedness]

Thank you, Mr. Chairman.

Certainly this type of poly database is available in the U.S. It's been in place for a number of years. I don't know how many states participate.

Do you have more information?

[Angela Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness]

We don't know how many states participate, but the evidence has shown that there's a lot of public support for having a similar database. There are some concerns about making sure that it's updated, that things like addresses are correct, so that you avoid the wrong person being identified as a child sex offender.

[Wayne Easter, Liberal, Malpeque, PE]

Okay.

I don't want to create work here, but is it possible to give us three examples of states that have this in place? Would you know three states off the top of your head?

[Kathy Thompson]

I don't, but we could certainly provide that to the committee, if you would like.

[Wayne Easter, Liberal, Malpeque, PE]

If you could provide that to the committee, that would be good, so that in terms of our own research we can get information from that area.

[Kathy Thompson]

Certainly.

[Wayne Easter, Liberal, Malpeque, PE]

One of the big areas of concern I have with these individuals is that some of them don't take programs when they're within the correctional service system.

What happens when they don't take programming now? Do they just get to warrant expiry and leave?

[Kathy Thompson]

Offenders who are admitted to a Correctional Service of Canada institution are assessed as soon as they arrive. If they're a sexual offender, they are recommended for either a low-risk, moderate-risk, or a high-risk program. That becomes part of their correctional plan, which is now mandatory. That factors into the consideration, of course, when they are considered for parole or for day parole.

Also, some offenders will have a long-term supervision order at the time of sentencing, if the view of the judge is that this particular individual may pose a risk or may not be as open to some treatment options and programs as other offenders might be.

As well, if they still pose a risk upon release, they can also have a section 810 peace bond imposed on them, as any individual can. It doesn't have to be an offender necessarily.

[The Chair, Conservative, Mike Wallace]

If there are no further questions or answers, thank you very much, Mr. Easter.

I think our final questioner is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

I want to talk about the interaction of consecutive sentences and the totality principle. I don't know who should answer the question.

When you look at the totality principle with some increased mandatory minimum penalties, and also the consecutive nature of sentencing, how do you see those things interacting with each other with some of the jurisprudence you've looked at? If there are three victims and, I don't know, four years would be the sentence for one, and now you have three that are going to be served consecutively, would that turn that into 12? Is that going to run up against the totality principle, or will judges be looking at making three that are each worth one and a half, and therefore end up right where you were before anyway?

How do you see that based on the cases and other things?

[Matthias Villetorte, Counsel, Criminal Law Policy Section, Department of Justice]

It's hard to say definitively what would happen. I mean, it's left to the discretion of the court at that point regarding how they're going to deal with the totality principle, once they determine that given the totality principle the combination or the whole sentence would be unduly long or harsh. But as my colleague Nathalie Levman has said, there are cases we have seen where the sentence on the individual offence is reduced in order to meet the totality of the sentence, as well as justifying it with the proportionality of the sentence itself.

[Kyle Seeback, Conservative, Brampton West, ON]

If you're increasing the maximum penalty, do you see that potentially moving the envelope with the totality principle? If the old maximum sentence was, for example, 10 years, and now it's 14 years, is that, in your mind, removing the goal posts around the whole circumstance?

I know you don't know for sure, but what would be your opinion of that?