Bill C-34 (Historical)

Protecting Victims From Sex Offenders Act

An Act to amend the Criminal Code and other Acts

This enactment amends the Criminal Code, the Sex Offender Information Registration Act and the National Defence Act to enhance police investigation of crimes of a sexual nature and allow police services to use the national database proactively to prevent crimes of a sexual nature.
It also amends the Criminal Code and the International Transfer of Offenders Act to require sex offenders arriving in Canada to comply with the Sex Offender Information Registration Act.
It also amends the Criminal Code to provide that sex offenders who are subject to a mandatory requirement to comply with the Sex Offender Information Registration Act are also subject to a mandatory requirement to provide a sample for forensic DNA analysis.
It also amends the National Defence Act to reflect the amendments to the Criminal Code relating to the registration of sex offenders.

Protecting Victims From Sex Offenders Act

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I already answered that question. We would agree in principle, because we would like the minister to accept the changes we are going to suggest, even though he has not taken into account the suggestions we have made to him so far. I am certain that my colleague will find some of these measures quite good. For example, there is the suggestion that the registry include the registration number of the offender's vehicle. There are some good measures.

The member obviously has a good sense of humour. The Conservatives are always saying that people did not read the budget before taking a stand on it. I do not know whether the hon. member read it, but can he tell us how many hours it takes to read a budget? When a budget is tabled, certain people in a party are given the job of reading it. Then, we meet and talk about it and form an opinion together on various issues. I do not see what we could do differently. All the parties did the same thing, likely including the Conservatives. They had someone explain the budget to them.

I have sat in this House for two parliaments—I do not know what things are like in Ontario—and I can say that there is a huge difference between the budget of Quebec and the federal budget. The budget of Quebec is presented logically, and it is easy to understand. The federal budget is extremely confusing, and only experts can understand it.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Mr. Speaker, the member's excellent comments were very well made, and I look forward to working with him to fix a lot of deficiencies in this bill that was so hastily tossed together.

The member rightfully talked about the problem of funding. One of the things I am concerned about, and I wonder if the member has the same concern, is that even if we address those problems within the specific legislation and the things they missed because of not waiting for committee's input, I am concerned that people will get a false sense of security. As the member rightfully pointed out, if there is no funding for the crown prosecutors, the DNA data bank, no money behind this legislation to give the resources to law enforcement officials and those dealing with the DNA data bank to do their work, then it really is not going to have the impact it needs. We are not going to be making our streets as safe as they need to be and passing this law will give people a false sense of security. I wonder if the member shares that concern.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I could not agree more with the hon. member for Ajax—Pickering. It seems to me that the Conservatives are constantly bringing forward measures that look good in order to gain votes, but do not go on to actually finish the job, and do not provide the funds needed to implement those measures. In the case of certain topics that require some serious reflection, like the use of minimum sentences, for example, no one stopped to ask whether they work, or if they have worked in other countries, before imposing them here. We have before us some new bills that are meant to look tough on crime, but the Conservatives are not investing the money needed to enforce them.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I enjoyed the member's presentation. I know he has a long history in the justice system and he understands the system very well. Once again, it was one of many well-presented speeches that I have heard him make.

In terms of the bill, we talk about the ability to access the registry for crime prevention purposes. That is an area that probably needs a lot of thought and development. It was mentioned that suspicion may perhaps be part of the grounds we would use there. I wonder if the member has any thoughts on how expanding the ability of the police to access the registry for crime prevention purposes would in fact play out over time.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, in terms of prevention, I think it can play out in two ways. There is the first way, for instance, when a child is kidnapped. If there are dangerous sex offenders registered in the area, the police must be able to get there quickly before the child is abused or, even worse, killed. That is often the case, sadly.

I think the second way is important. I do not think that offenders should be publicly stigmatized. I definitely believe that reporting regularly to the police—who, I hope, will have a professional attitude, that is, they will do their job, taking the necessary information and so on, without expressing the understandable horror they feel at the thought of sex crimes—can help offenders restrain themselves more often. It does work. Many people in society have controlled their sexual urges for years, and this can include people in religious orders and so on. Thus, it is possible to control one's sexual urges. People are more likely to control them when they think they are being monitored. However, I would not want those people to be stigmatized, since the outcome of that could be even worse.

[The Acting Speaker, Conservative, Barry Devolin]

The hon. member for Yorkton—Melville. A short question, please.

[Garry Breitkreuz, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I suspect there are a lot of people watching the debate on television. This is a topic of great interest to many of them. The member made mention of funding being an issue and he tied in the funding of crown attorneys.

Would he please clarify whose responsibility it is to fund crown attorneys? Who is paying for them at this point?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I would like to thank my colleague for his question. As I have said before, crown prosecutors fall under provincial jurisdiction. It is relatively easy to make laws. Enforcing them and administering justice is very costly.

Over the past few years, federal lawmakers have given the provinces a lot of very expensive responsibilities. That is just one of the many things that produced the fiscal imbalance. The Government of Canada was collecting too much money for its responsibilities while the provinces were not collecting enough.

That applies to crown prosecutors as well as to health and education matters.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, it is my pleasure to speak on behalf of the New Democratic Party on the merits, and not, of Bill C-34, An Act to amend the Criminal Code and other Acts.

As has been previously mentioned by other speakers, this bill amends a number of pieces of legislation, most notably the Sex Offender Information Registration Act, as well as the DNA data bank. I will touch on those two important pieces of legislation and speak a bit about how this bill both improves those pieces of legislation and where we believe there are some deficiencies that can be cured by all-party co-operation at the committee level.

I am going to start first with the Sex Offender Information Registration Act, which came into force on December 15, 2004. It established a national sex offender database, which contains information on convicted sex offenders. SOIRA, as it is known, works in combination with sections 490.011 to 490.032 of the Criminal Code of Canada.

The purpose and principle of this act, as stated in subsection 2(1), “is to help police services investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders”. Information, such as addresses and telephone numbers, offences, the aliases they may have used, identifying marks, places of employment, tattoos and when they leave their place of residence, is included in the national database. The registry works to enhance public protection by helping police identify possible suspects known to be near the offence site.

The above-noted purpose of SOIRA is to be achieved in accordance with the following principles. First, in the interest of protecting society through the effective investigation of crimes of a sexual nature, police services must have rapid access to certain information relating to sex offenders. Second, the collection and registration of accurate information on an ongoing basis is the most effective way of ensuring that such information is current and reliable. Third, the privacy interests of sex offenders and the public interest in their rehabilitation and reintegration into the community as law-abiding citizens requires that this information be collected only to investigate crimes that there are reasonable grounds to suspect are of a sexual nature and where access to the information and use and disclosure of the information is restricted.

I was struck during our study of this bill, and I will speak about that in a few minutes, by the following statistics. Police officers appearing before the committee during this review explained that time is of the essence when investigating crimes of all types, but no more so than in crimes of a sexual nature, particularly in the case where a child has been kidnapped.

During her appearance, Chief Superintendent Lines presented statistics that illustrate this importance. She pointed out that in cases where children are kidnapped and murdered, 44% were dead within an hour of the kidnapping, 74% were dead within 3 hours, and 91% were dead within 24 hours.

We can see that the need to have an extremely quick ability for our police forces to access a databank of known sexual offenders is critical, particularly in the cases, as I said, where children are involved.

The national sex offender registry, which I will call “the registry”, is administered and maintained by the RCMP on a national basis. Upon conviction of a designated sexual offence that is enumerated by the act, which is a long list of offences of a sexual nature in one category, the Crown may make an application for an order. There is another category of offences under the Criminal Code that are not sexual in nature per se but that may have a sexual component, for example, break and enter. Break and enter is normally not a crime of a sexual nature, but if a person is breaking and entering for the purpose of committing a sexual assault then that second group provides a type of offence for which registration may be applied for.

Currently, the Crown may make an application upon conviction for an order requiring the sexual offender to register within the database. Such an order is to be made as soon as possible after sentence is imposed for a designated offence, or after the court renders a verdict of not criminally responsible for such an offence on account of a mental disorder. For certain designated offences, the court shall make the order when the Crown has proved beyond a reasonable doubt that the act was committed with the intent to commit one of the designated sexual offences.

That said, there is an exception. When the court is presented with such an application, it is not required to make an order under this section if it is satisfied that the offender has established that if the order were made, the impact on him or her, including on his or her privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature. This section of the Criminal Code also requires the court to give reasons for making or refusing an order to register.

I am going to pause there to point out a couple of important principles of the current legislation that this bill before the House would seek to change.

Currently, there is no automatic registration of offenders upon conviction. Rather, it is left to the discretion of the prosecution and the court to grant such an order.

Second, there is a reverse onus on the accused, so lest anyone think that such an order is hotly contested or difficult to achieve, when the prosecutor makes such an application, it will be automatically granted unless the accused satisfies the court, the burden of which is upon him or her, that the granting of the order would create what is called a grossly disproportionate effect on that person.

In law, and we know that we have a fair number of lawyers in this chamber, it is an unusual thing where a burden is on an accused, and it is also a very hard test to meet when the test is one of gross disproportionality.

To summarize, the way that the act works now, a prosecutor has the discretion to make an application. If such an application is made, it is routinely granted unless an accused meets a very high test of showing why that order ought not to be granted.

In terms of the duration of the orders, we will see why this is such an onerous obligation upon anybody convicted of such. The duration of a registration order is set out in section 490 of the Criminal Code. Depending on the offence for which an offender is convicted, he or she must remain registered for one of the following three periods: a minimum of 10 years for summary conviction offences; 20 years for offences where the maximum term is 10 to 14 years; and life, for offences for which the maximum term is life itself.

In terms of the reporting obligations, if sexual offenders are in fact the subject of an order, they have to register with the police, within 15 days after such an order, a wide variety of information, such as, their address, place of work, if they are leaving their domicile for more than 15 days, identifying marks and tattoos, or aliases, and if any of those factors are changed, those must be indicated to the local police force very quickly. These orders, quite properly, are very serious. They impose serious incursions on a person's liberty for a long period of time, as they properly should.

Currently as well, it is important to note that the preamble and the purpose of the statute, as it is presently written, make it abundantly clear that the purpose of this act is to help police investigate crimes of a sexual nature. That means that prior to searching the database, police must have reasonable grounds to believe that a crime has been committed and that it is of a sexual nature.

We heard testimony at the committee before police officers who said that this is too rigid of a test. Particularly in the case of an abducted child, where a child has been reported missing, they may have reasonable grounds to believe a crime has been committed, but they may not have the basis to suspect that it is of a sexual nature.

From the New Democratic point of view, we think it is reasonable to expand that purpose, so that police can have quicker access, so that they do not have to satisfy these rigid tests and get access to the registry quickly.

In addition, the police officers said they required information on a subject's vehicle information, which is another current deficiency in the act. Presently, an offender under such an order does not have to indicate vehicle registration. We think that is an important amendment to make to the act as well because very often a sex offender in a car is spotted near a school or other areas where there might be vulnerable citizens and it is important that police know who that vehicle is registered to in order to have rapid response.

I am going to pause to talk a bit about principles. New Democrats understand and support the rights of all Canadians to be safe and secure in every aspect of Canadian society, in their homes, workplaces and communities. In particular, we want women to be free from all forms of violence and harassment. We want seniors to be free to walk our streets in safety and respect, and for our children to be safe and sound wherever they are.

We have heard Canadians speak. They want to feel and be safe, and they are absolutely right to feel this way. New Democrats have long championed the right of all to live in security. In fact, my party has always stood strongest on this issue because it has always championed the right of every citizen to be secure in every respect, not only physically but economically, socially and culturally.

We have also heard Canadians speak out on their expectation of crime policy. They want a criminal justice system that is effective, efficient and fair because our criminal justice system is an important component in the overall security package. We need laws that are well thought out and clearly drafted. We need a properly resourced police force, a judicial system that can process breaches against those laws effectively and in a timely fashion. We need policies that are based on sound principles of justice that provide justice for victims of crime and effective punishment and protection of society.

Also, and this is what sets my party apart, I would say, from every other party in the chamber, we in the NDP believe in prevention strategies. We believe in the rehabilitation of individuals to become law abiding and productive contributors to society. We believe in fairness, compassion and a belief that almost every individual who commits a breach of social rules is worthy of an attempt at redemption and the opportunity to get assistance with the issues that so often are the underlying reason for the deviant behaviour.

More importantly, we believe that all of society has a stake in these principles unless we are going to lock people up for the rest of their natural life in every case because 99.9% of convicted offenders return to society. We all have an interest in making sure that we do everything possible to keep criminals from committing more offences.

The issues before us in this bill engage these principles. In some cases, the bill satisfies them. In other ways, the bill before us diminishes these principles. That is why New Democrats are offering cautious and critical support for this bill at second reading. We will agree that there is merit in some of the goals and methods of this legislation, but we will also be looking very carefully at the details and seeking some important clarifications and possible amendments to ensure this legislation meets the principles outlined above.

I sit on the public safety and national security committee, which had been studying this bill for the previous two months. Witnesses came before the committee and testified, including police officers, the Office of the Privacy Commissioner, victims groups, and criminal defence lawyers. They took their time and testified before the committee as we reviewed this bill.

I am not yet cynical enough to think that the work that a committee does in Parliament, and the respect for committee members including members opposite, is not valuable and that the testimony of the witnesses who appeared is not valuable.

While we were putting the final touches on our draft report, yet to be issued to the minister, the minister came down with this piece of legislation that amends the very legislation that we were studying. The minister did not wait or have the courtesy or respect for the work of our committee to wait for us to issue our report and give him the benefit of our recommendations. I find that disrespectful and appalling. It is disrespectful to the skilled analysts who helped us. It is disrespectful to the witnesses who appeared before our committee. It is disrespectful to every member of that committee. I have to point that out.

There was no urgency to this legislation. There was no issue of national import that required the government to act immediately on this. The review that the committee was conducting was a statutory one. The bill itself required a committee to review the statute within two years to see how the registry was working. The minister did not wait for that.

I do think there is a reason for it. The Conservatives routinely put politics before good policy making. They have a huge deficit. Over the last six months they went from saying there is no recession to saying there was a technical recession to a big recession. Six months ago there was a surplus. Then there was a $34 billion deficit. Now there is a $50 billion deficit. We have Chalk River mismanagement. Obviously, when the government gets in trouble on the national stage, it goes back to its crime agenda and introduces some hastily put together legislation to get people off the real issues facing it.

This legislation with respect to the sex offender registry does do some good things. It loosens the definition of when it could be accessed. It widens some of the information, like the vehicle registration I mentioned. It also allows police officers to notify authorities in other jurisdictions, foreign or Canadian, when an offender travels to their area, and those are laudable goals that the New Democrats will support.

However, there are issues with this legislation. First, this legislation proposes automatic registration of every offender who commits one of the enumerated offences. That takes away prosecutorial and judicial discretion because the list of offences under the Criminal Code of Canada that are captured by this legislation, most of which would have no difficulty with automatic registration, but there are a couple of offences, for instance sexual assault, that are hybrid offences. They can be proceeded with summarily or by indictment. There may be an occasion where it is not appropriate to make an order against someone convicted of that offence, and it should be up to a prosecutor and a judge to determine when that exception may apply.

This legislation makes registration automatic for all these offences. This is part of the side opposite's approach to crime, which is to remove any kind of discretion from the judicial system, not to trust prosecutors and not to trust judges to actually hear the case before them.

This legislation also introduces the concept of allowing police access to this registry for prevention purposes. I sat on the committee and heard from all the witness, and we never heard any real testimony or details about what that would look like. Currently, the legislation has an avowed purpose of helping police solve crimes. That is the purpose of it. It is not to have police prevent crimes. What does that mean? Does that mean police can search the database and go out into the community and just talk to people? There are serious privacy interests at stake, as well as the need to protect the public.

There are concerns about the bill's provisions that allow police to automatically register people convicted in foreign jurisdictions who come to Canada. The gay and lesbian and transgender community is concerned about that because there are crimes in foreign jurisdictions that are not recognized by us concerning homosexual acts that may be caught by this legislation, so we have to be careful.

I will conclude my remarks by talking quickly about the DNA registry, which is an excellent registry to which the bill also seeks to make amendments. The New Democrats support an expansion of the good work that this registry does, which works to not only help secure convictions but secure exonerations.

[Colin Carrie, Conservative, Parliamentary Secretary to the Minister of Health]

Mr. Speaker, I listened intently to the member's speech. I noticed that he talked about disrespect. He said that there was no urgency for this law. Well, he needs to talk to some of the victims' families because the crimes we are talking about are some of the most heinous crimes we could imagine.

He expressed concerns that the Crown and the judges had discretion as to whether a convicted sex offender not be registered in the registry. I remind the member opposite that the victim is never given any discretion at the hands of the perpetrator.

I want to know if the member opposite supports the automatic inclusion in the registry of those convicted of sex offences, and if not, could he then answer why the NDP wants to give criminals, convicted sex offenders, more rights than the victims of the crime, people whose lives are often destroyed at the hands of these heinous criminals?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, once again, the New Democrats support, and have always supported, this legislation. This legislation would give important tools to police to help protect the public in cases of, as my friend properly said, the heinous crimes of a sexual nature committed against people.

However, my friend misses the point on the disrespect argument. The statute, as I will repeat again for him, has a statutory review built into it. That means when Parliament passed this legislation in 2004 it put in a provision that said this House should review this legislation two years later. Because of the minority government situation, that got delayed somewhat, I am told, but in February our committee started reviewing this legislation. The reason we reviewed it is Parliament said we should review it. While we were doing this important work and hearing from witnesses, the government jumped the gun and did not wait until the valuable testimony of this committee was completed so that we could give the minister the benefit of what we heard, and that is disrespectful.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I just want to follow up on that same topic. I think it is, unfortunately, the Conservative member who just spoke and the Conservative Party that are denying the victims good treatment and better treatment and a better registry.

As the member said, it is absolutely absurd that, when a committee is in the middle of a study with the experts and members of Parliament to come up with the best solutions to help the victims, it is short-circuited with this hastily drafted legislation. I want to assure the member that he did not have to go outside the justice department like he did to see bad policy. This has been the history of this whole Parliament, bill after bill, poorly drafted justice bills that had to be amended or turned down. The reason the legislation has been so bad is that the Conservatives did not listen to the experts. They did not even listen to the justice department.

Hopefully the committee is continuing with the report. I am not on that committee, so I want to ask the member, did he get any assurances from the minister that he would take the wisdom of the committee and be open to amendments to the bill so that we could help victims even more? Are there suggestions in the committee deliberations that were not included in the bill and would help victims, as everyone in this House wants to do?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I would like to thank the hon. member for his astute comments and good questions.

The New Democrats, and in fact, all the members of the committee, I would hope, were working to make this registry even better.

As an example, some of the police testified that if we were to have automatic registration of every person convicted of an offence, that could decrease the efficacy of the registry because they would be registering people who are not appropriately the subject of an order. Let us say an offence is committed and we have only 12 hours. We do not want to waste police time tracking down and talking to people who are actually not proper subjects of such orders. That was not the New Democrats saying that, that was police officers saying it.

A member of the party opposite agreed with me in committee, when we talked about the sexual assault charge, that perhaps we should look at not having registration automatic for summary conviction offences but making it automatic for the more important indictable offences.

These are the kinds of things that all committee members were working on in a co-operative, all-party fashion as we wrestled to make the database better, when the minister came forward again with this legislation that did not wait for any of this well thought-out commentary.

To answer my hon. colleague's last question, no, the minister has given no indication to the committee that he will listen to anything. However, judging by the way he dropped this legislation on us, I would not hold my breath.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, the member for Yukon and our member are absolutely correct. When they tried to even suggest that we would study the bill and make improvements, we had members of the Conservative Party chirping from their seats, saying that we were soft on crime. That just points to the political nature of the whole process, where the Conservatives short-circuit the process in committee and bring out the bill. The Conservatives are just dying to get this stuff out in the public so they can run around saying, “We're strong on crime and you are not”. We know that is a bunch of nonsense, and we are going to get our points out there as well.

I want to ask the member a question regarding the DNA database. There must be, at this point, volumes of statistics that relate to how efficient this database is. I would like to ask the member whether he is aware of what types of studies are available and how one goes about gaining access to these studies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, this highlights another problem with the approach of the minister, because one of the issues that the committee was working on was the fact that there are no statistics relating to the efficacy of the DNA data bank.

We asked questions such as how often the data bank has been used to exonerate someone and prove someone's innocence. They do not know. We asked how often the data bank was used to secure a conviction. They do not know. We asked how often the data bank may have been accessed and used to secure a confession by presenting DNA data, thereby saving our judicial system resources and time. They do not know.

One thing that we were looking to do, at least on the New Democrats' side, was to see if we could build in some mechanism of gathering statistical data so that we could show Canadians how this data bank actually works in practice, how it saves them time and money and how it helps make our judicial system more streamlined and fair. However, this legislation was brought forward in quick fashion and Canadians are deprived of that information because of it.