Bill C-26 (Historical)

Tougher Penalties for Child Predators Act

An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts

This enactment amends the Criminal Code to
(a) increase mandatory minimum penalties and maximum penalties for certain sexual offences against children;
(b) increase maximum penalties for violations of prohibition orders, probation orders and peace bonds;
(c) clarify and codify the rules regarding the imposition of consecutive and concurrent sentences;
(d) require courts to impose, in certain cases, consecutive sentences on offenders who commit sexual offences against children; and
(e) ensure that a court that imposes a sentence must take into consideration evidence that the offence in question was committed while the offender was subject to a conditional sentence order or released on parole, statutory release or unescorted temporary absence.
It amends the Canada Evidence Act to ensure that spouses of the accused are competent and compellable witnesses for the prosecution in child pornography cases.
It also amends the Sex Offender Information Registration Act to increase the reporting obligations of sex offenders who travel outside Canada.
It enacts the High Risk Child Sex Offender Database Act to establish a publicly accessible database that contains information — that a police service or other public authority has previously made accessible to the public — with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature.
Finally, it makes consequential amendments to other Acts.

[The Chair, Conservative, Mike Wallace]

I call this meeting to order. We're at the Standing Committee on Justice and Human Rights. We are televised today. There was a request to televise this meeting, and of course we make that happen when we can.

This is meeting number 62. As per our orders of the day, our order of reference of Monday, November 24, 2014, is Bill C-26, an act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts.

Committee members, we are joined by a number of witnesses to do this clause-by-clause study. We have witnesses from the Department of Justice, the Department of Public Safety and Emergency Preparedness, the Department of Public Safety, the Canada Border Services Agency, and the Royal Canadian Mounted Police.

If you have questions on clauses or amendments, we'll call on these people to answer them.

Let's go right to the clause-by-clause study.

Pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

(Clauses 2 to 6 inclusive agreed to)

(On clause 7)

Committee members, just so you know, we have about five amendments here. They're all in order. You should have received them in advance. For clause 7, the first amendment is from the Liberal Party.

Mr. Casey, the floor is yours to discuss your amendment.

[Paul Calarco]

No, it's those proposed in Bill C-26—

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

That's not what's proposed in Bill C-26. It's just those who are high risk to reoffend.

[Françoise Boivin, NDP, Gatineau, QC]

But isn't it included in the charter of victims rights that they will automatically know that their sexual predator is getting released?

There is a rule of law which says that Parliament does not speak in vain. The Canadian Victims Bill of Rights already states that there will be more communication with victims and that they will be kept informed. This is not what is being discussed here. With all due respect to Mr. Fortier and Mr. Tremblay, we are not talking about their case here. We are talking about informing the public that a dangerous person presents a risk. This is what the part of the bill that deals with the new database is discussing.

In that context, my question is whether we are not deceiving ourselves into thinking that communities will become safer in that way, while we have no criteria. There has not been any national discussion with people who are used to dealing with this issue.

The debate has been at an intellectual level, among lawyers and people who have their own experience, but we are not necessarily discussing what Bill C-26 aims to accomplish.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

The discussion is very interesting.

What worries me is that bills are always presented as the panacea for all problems, but once passed, there is not much follow-up.

From the beginning, there is something that has been bothering me enormously. I remember the first interview I gave to a radio station in Quebec—which I am not going to name—after the Conservative government introduced Bill C-26. People felt that all sensitive-hearted people would oppose this bill, would play at being lawyers, and so on, although it had been introduced to protect our children.

I am worried that the bill that has been introduced aims to create a database to make information accessible to the public on persons who have been found guilty of sexual assaults against children and who are at high risk of committing sexual offences. My concern is not exactly the same as that of certain witnesses who are here. This has made me shudder from the beginning, because it means that someone will be back in society whereas we know, because it has just been determined, that he is at high risk of committing sexual offences. What is wrong with that picture? There is a problem somewhere.

The fact of knowing that offenders have been released and that they are at high risk of reoffending should help us all to sleep better, including previous and future victims. It seems to me that there is something wrong with that concept.

Is there someone among the witnesses who has thought about the criteria that will allow authorities to determine if a person is at high risk of committing a sexual offence? If there is a witness who is intelligent enough to help us provide guidelines to the government in that regard, we would appreciate it. According to Bill C-26, the governor in council will by regulation establish the criteria that will allow people to decide whether someone who was found guilty of a sexual offence against a child is at high risk of reoffending.

Ms. O'Sullivan, I would be tempted to throw that ball in your court, even though I am sure you do not want it. What should those criteria be? Should they not be established in advance, rather than leaving the whole topic open and saying that they will be established through regulations? Moreover, the context is such that there now seems to be a lot of overlapping legislation.

Not that long ago, we studied Bill S-2, which allows delegation through regulations. We may never see it again and we will suddenly realize that there is a regulation that establishes criteria and that we did not even know it.

Can someone suggest guidelines for these criteria? Is there someone among the witnesses who is concerned about the fact that a database will be created, while we know that an offender is being released who is at high risk of reoffending?

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

Thank you, Mr. Chair.

Thank you to each of our guests for joining us today.

I want to start with the question of sentencing, both the mandatory prison sentences and the consecutive sentencing provisions in the bill. Unfortunately Mr. Kennedy is no longer with us. I would have liked to have heard his comments on those sections, but I do see that we have Mr. Fortier and Mr. Tremblay with us.

Mr. Tremblay, I believe it was you who said that Bill C-26, in your opinion, would better protect children and recognize the harm done to victims. You may know that in our last session we heard from Mr. David Butt who was here on behalf of the Kids Internet Safety Alliance and is a former crown prosecutor, and currently I think is a defence counsel. I'll just go to the bottom of his remarks about mandatory minimums. He said the mandatory minimums as proposed don't go too far. They recognize an appropriate level of moral opprobrium for the offence and they preserve judicial discretion.

We heard from the Canadian Bar Association, the Criminal Lawyers' Association, and others that they don't think that the minimum sentences contribute to deterrence, but they didn't say anything about public denunciation, the abhorrence that society feels about a crime of this nature committed against a child.

You mentioned the harm done to victims, and Mr. Butt mentioned the moral opprobrium concept, as I said, and I think it's kind of strange that we don't hear anything about that from the Canadian Bar Association or the Criminal Lawyer's Association. What's your view of mandatory prison sentences for people who commit these kinds of heinous offences against children, who are proven to have done so? What is the impact on the victims when they see both a minimum sentence that's meaningful and consecutive sentencing in a situation where the accused has committed similar offences against several children or multiple times against the same child?

Mr. Tremblay, can I hear from you and then Mr. Fortier as well?

I'd also like to hear from Ms. O'Sullivan on those issues.

[Françoise Boivin, NDP, Gatineau, QC]

Now to all my friends, lawyers like me, who don't like

minimum sentences. When I read Bill C-26,

Most of the clauses are stating minimums that already exist, so they're not even in contention in C-26. There are a few, maybe two or three, that are just upgraded from maybe 90 days to six months, but nothing really.... I know we all share big doubts about the efficiency of it. We had Mr. Gilhooly, and he's been one of the big victims of such crimes, who came and said he doesn't think it will do anything because of all types of concepts.

You spend a lot of time on the minimums and the maximums, but the maximums are rarely where the tribunals go. There's not that much change to the minimums, so is that really the biggest problem you see with Bill C-26?

I'll start with Mr. Spratt.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you for taking part in today's meeting.

I will start with Dr. Hannem because I think you pinpointed something really important.

The database you are talking about worries me considerably. It may mean that the victim will be identified. I don't think that is the intended objective. There seem to be two problems with this database: this matter of identification, and the issue of determining who will identify the person who is at high risk of recidivism.

If I understand correctly, we should perhaps include in clause 5 of the part of Bill C-26 that deals with the database a sentence specifying that none of this public information should be used to identify or contribute to identify the victim.

Would that be an acceptable caveat?

As for determining what should be included in this new database, should this responsibility not be given to the court rather than the RCMP? The governor in council could intervene first, in accordance with what is specified in the bill, which reads as follows:

11. The governor in council may make regulations: (a) establishing the criteria for determining whether a person who is found guilty of a sexual offence against a child poses a high risk of committing a crime of a sexual nature;

Clauses 3 and 4 refer to “information with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature.”

Would this not be a better way of framing this database?

[Dr. Stacey Hannem, Chair, Policy Review Committee, Canadian Criminal Justice Association]

Thank you.

I'm Dr. Stacey Hannem. I'm the chair of the policy review committee for the Canadian Criminal Justice Association, and I'm also an associate professor of criminology from Wilfrid Laurier University. I do have some research background in released sex offenders and reintegration.

As criminal justice professionals, the members of the CCJA certainly are sympathetic to the public's desire to be protected from people who would commit acts of sexual aggression and exploitation. We've carefully read and considered the proposals within Bill C-26, and we want to highlight a few aspects of the bill that we have some concerns with.

The CCJA is on record many times as being opposed to the creation of mandatory minimum sentences. Of course there is a range of increases to the mandatory minimum sentences contained within this bill. I won't belabour the issue, I think my colleague Michael Spratt quite nicely covered the issues with mandatory minimum sentences.

However in particular in relation to this issue, we do want to highlight clause 7, which amends subsections 163.1(2) and (3) of the Criminal Code to remove the summary conviction option from the offences of creation of child pornography and the distribution of child pornography.

The issue that we see with this is that given the lack of clarity around our definitions of child pornography in a digital age, and given some of the cases coming out of the United States where children have indeed been charged with creating and distributing child pornography for taking photographs of themselves and sending these via text message or via other digital means to boyfriends, girlfriends, and peers, our concern with this clause is that any young person in that kind of grey scenario around child pornography would be subject to the mandatory minimum provisions of the indictable offence—the one-year mandatory minimum. Given the increasing prevalence of that kind of behaviour among young people and given the role of peer pressure, we would want to caution Parliament and the government against placing those kinds of restrictions on prosecutorial discretion by removing that summary conviction option.

The second issue I want to highlight concerns the increased maximum sentences. Across the board this bill raises the maximum sentences on summary convictions to two years less a day for a range of offences against children.

By setting that maximum at two years less a day, the offenders remain in provincial custody. The issue that we want to highlight around this is the fact that effective sex offender programming is not universally available in provincial systems across the country. Ontario has some quite good programs; Alberta has none. There is absolutely no treatment specifically for child sexual offending in the provincial system in Alberta, for example.

When you're considering these types of offences and you're thinking about this as an offence that is worth two years less a day, you might want to consider ensuring that the provinces have the capacity to effectively treat these kinds of offenders and to make those programs available across the country, both while in custody and also in our communities.

The third issue I want to talk about is around the issue of the publicly accessible high-risk child sex offender database. I'm going to preface these comments by telling you that the longitudinal research on sex offender registries coming out of the United States—we have no research on it in Canada—tells us that these registries are of limited use.

A study published in 2008 looked at the sexual offence rates during the 10 years prior to and the 11 years following the creation of the sex offender registry in New York state. It found that it had absolutely zero impact on arrest rates and charge rates for sexual offences. Of all people charged with sexual offences during that time period—10 years before, 11 years after—95.9% were first-time offenders. They would not have been on the registry anyway. Again, that suggests that this registry itself is of limited use.

When you make a registry like that public and you put that information into the public domain, it does have a range of unintended consequences. The first one I want to point to is lowered compliance. Ontario has a compliance rate with its sex offender registry between 95% and 97%. It's very effective in terms of compliance, whether or not you think it makes a difference in actual change.

The provinces that have public information available—Alberta and Manitoba—have considerably less effective compliance. They are at 84% and 88% respectively at the last available data. So assuming you think sex offender registries are a useful tool for police investigations, then you should be concerned with the implications of lowered compliance.

The second issue is the identification of victims. One of the things is that, if you take a look at the publicly available information from Manitoba in particular, you will see that in talking about the nature of the offence, it often identifies the child or the spouse of the offender as the victim, for example, which makes these people publicly identifiable. That is a problem.

The public nature also impedes reintegration. There's a range of issues we encounter around harassment of offenders and their inability to reintegrate effectively, and I would suggest to you that, if you actually care about reducing the risk to children, you would consider groups like Circles of Support and Accountability, which has a 70% effectiveness rate in reducing recidivism and is currently being defunded here in Ottawa. It's going to have to close while there are people coming out of prison wanting to have the support to reintegrate, wanting to be able to work with people to help create safer communities.

I would urge you to consider funding these kinds of programs with proven effectiveness, rather than funding longer sentences of incarceration.

Thank you.

[Frank Tremblay, Vice-President, Victimes d'agressions sexuelles au masculin]

Thank you.

Good afternoon everyone.

Our unqualified support for Bill C-26 is not only ideological, it is also based on a series of painful personal experiences. Our objective is not to punish the abusers more severely, but to offer better protection to the victims, to see appropriate sentences imposed on child sexual predators, and to see provisions that will mean that they will really serve their sentences. Children who have been assaulted have to be given greater consideration and respect. The protection of children is both the spirit and the letter of Bill C-26. It is not simply a matter of months or years.

I would like to give you a personal account. Twenty- three years ago, the person who assaulted my colleague Alain Fortier was given a 90-day prison sentence. The person who assaulted me, who had abused 13 victims, was given a 3-year prison sentence. The case was appealed by the Crown, and the Appeal Court reversed the judgment unanimously and imposed a 5-year prison sentence.

At first glance, one may believe that it is good to see some evolution. People have understood that the sentences should vary according to the cases. My aggressor had assaulted 13 victims and was give a 5-year prison sentence. As for Mr. Fortier's aggressor, he received a 90-day sentence.

Things are not quite what they seem, because in the past 20 years, there was no evolution whatsoever. The devil is in the details. Let's go for a brief visit to hell, so to speak. As I already said, my abuser was given a 5-year sentence after assaulting 13 victims. He was released in March 2014, after having served only 26 months of his prison sentence. If you divide 26 months by 13, that is equivalent to two months of prison time per victim.

I launched a class action suit against my abuser and his organization. During the civil trial, he mentioned that he had assaulted me at least 80 times. In Canada, that is not how the justice system works, I know. However, in my head and heart of abused child, Raymond-Marie Lavoie, my sexual abuser, was given 60 days of detention for having imposed 80 nights of love on me. That is the sentence Raymond-Marie Lavoie received.

How have sentences evolved in the past 20 or 30 years? To my way of thinking, my abuser was given 60 days of prison for having imposed 80 nights of love on a child of 13. Do we want to keep things the way they are? Is that what Canadians want?

Bill C-26 would allow for a recognition of wrongs, in order to protect children. Our support for Bill C-26 and its reforms goes beyond the simple mathematical proportion between the sentences and the harm inflicted. It is based on the recognition of a disaster experienced by the victims during their childhood and the immense efforts these people have to make to free themselves.

Bill C-26 finally recognizes the harm inflicted on abused children by showing greater consideration when the motion is dealt with, when their abuser is being sentenced, and by ensuring better protection through the creation of a public database on child sex offenders.

I will conclude by saying that all of us still have an inner child. That is the case for all of us. However, when that child was violated when young, this makes the victim, male or female, a broken person.

VASAM was created to come to the assistance of these people who were destroyed when they were children. By passing Bill C-26, you will be telling society that you want to protect the children that are still within us, even if we have grown up.

Vote in favour of Bill C-26.

Thank you.

[Alain Fortier, President, Victimes d'agressions sexuelles au masculin]

Good afternoon.

Thank you for allowing us to testify before you today. My name is Alain Fortier. I am the president of VASAM and I am accompanied by Mr. Frank Tremblay, the vice-president. So as to respect the time I have been given, I will begin my presentation. Afterwards, Mr. Tremblay will continue.

VASAM is the only organization in Quebec that offers support to men who have been sexually assaulted. After less than a year of existence, we have already accomplished a great deal for male victims. We already have several hundred individual and corporate members.

It should be noted that even though we only work with male victims of sexual assault, we also cooperate with organizations that help female sexual assault victims.

The mission of the organization is to raise the awareness of the population and of political bodies regarding the sexual assaults that are committed against men during their childhood, and to encourage men of all ages to break out of their isolation and to regain control of their lives.

Regarding the rights of victims, our association reacts to any legislative change by working tirelessly to demand a reaffirmation and strengthening of the rights of victims.

We are very happy to have the opportunity today to share with you the reasons behind our unqualified support for Bill C-26. Among the provisions in the bill and the measures proposed, two of them were of particular interest to us.

The first are the longer minimum and maximum prison sentences for certain sexual offences committed against children.

The second is the obligation imposed on the convicted child sex offender who has been found guilty of offences against several children, and has received separate sentences, to serve them consecutively, that is to say one after the other.

Mr. Tremblay, I now yield the floor to you.

[Sue O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime]

Thank you very much. I think out of deference to everyone else, I'll skip some of the intro. You've heard from our office about what we do. I'll go right into the comments on the bill.

Bill C-26 seeks to make a number of changes to the Criminal Code and other legislation to address some issues related to sexual offences against children. We know that these changes include an increase from minimum to maximum, making it mandatory to impose consecutive sentences, increasing the reporting obligations, and creating a new national public database.

Over the years, we have had several victims contact our office expressing frustration and concern with issues regarding offenders who have committed sexual offences against children. As with all victims of crime, they have a need to be informed, considered, protected, and supported. We have heard from victims who are frustrated by the lack of meaningful information they are able to access about offenders being released into the community. We have also heard from victims who did not feel considered and protected at different stages of the criminal justice system, including at sentencing and in setting release conditions. As well, we have heard from victims about the need for supports throughout the entire criminal justice process, starting at the time of the crime, through the courts, and through to post-conviction and conditional release; and as you have heard from other witnesses before the committee, these needs can also be lifelong.

Bill C-26 seeks to make information available to victims through a publicly available database of information on high-risk child sex offenders. Our office has found that most communities across the country have processes in place related to public interest notifications for high-risk offenders. In some provinces, these notifications are posted on public websites. The proposed public database should provide victims and communities with more consistent access to information about high-risk child sex offenders.

Legislative changes to sentencing and to the sharing of information should also be supported by resources to assist victims in reporting and recovering from the crimes committed against them. As for sharing information between law enforcement officials, I support changes to the sex offender registry act that would allow police and the Canada Border Services Agency to share more information in combatting child victimization abroad.

Under Bill C-26, the minimum and maximum sentences for sexual offences against children would increase, and the sentences for multiple victims would need to be served consecutively. We have heard from victims who support consecutive sentencing because it acknowledges and recognizes the harm done to each victim. Although sentencing may be an important issue for some victims, alone that would not address the concerns and needs of victims. When having conversations about such sensitive issues, it is important to keep in mind that every victim's experience and needs are unique. Cases of child sexual assault are complex and often involve someone known to the victim.

I would like to emphasize the importance of having community resources and supports in place, not only for when a victim comes forward about abuse but also to deal with the lifelong and sometimes intergenerational trauma that can come from this type of victimization.

In closing, I would like to thank the committee for its consideration of this bill and the work in examining this important issue. I believe that Bill C-26 would provide a measure to better inform and consider the needs of victims of crime.

I thank you for your time and look forward to any questions you may have.

[The Chair, Conservative, Mike Wallace]

I'm going to call this meeting back to order. We are dealing with Bill C-26 here at the Standing Committee on Justice and Human Rights. I want to thank those who hung around for 45 minutes or so for the voting, and we are off to our second panel.

I want to thank Ms. O'Sullivan for her kindness. She's the federal ombudsman for victims of crime and she offered to step down her time to start off this panel. So we'll do the panel—five minutes each for those who haven't spoken yet—and then we are going to a question and answer period. There has been an agreement amongst our colleagues here that if you're willing to stay till six o'clock, they're willing to stay till six o'clock to ask questions. We completely understand if you have flights or other things to go to, but if you're here, you may get asked the questions.

With that, we'll call on Ms. O'Sullivan from the Office of the Federal Ombudsman for Victims of Crime to start us off.

[Gaylene Schellenberg, Staff Lawyer, Law Reform, Canadian Bar Association]

Hi. I'm Gaylene Schellenberg, a lawyer with the law reform directorate of the Canadian Bar Association. The CBA is a national association of over 36,000 members with the mandate of seeking improvement in the law and the administration of justice.

Our submission on Bill C-26 was prepared by our national criminal justice section, which represents a balance of crown and defence lawyers from across the country.

With me today is Mr. Paul Calarco, a member of the section, and a defence lawyer from Toronto.

[The Chair, Conservative, Mike Wallace]

This will be out of the ordinary, ladies and gentlemen. Because we have a vote and the bells will ring at a quarter to four, I thought we'd start a few minutes early, since we have enough people here for that.

This is the Standing Committee on Justice and Human Rights. It is meeting number 61. We are dealing with the order of reference of Monday, November 24, on Bill C-26.

We have a number of witnesses with us. You've all been given a five-minute heads-up. That's what you're going to get. We're going to try to hear all of you, and then, unfortunately, the bells will ring and we'll have to go and vote, and that'll it be it for you for today. But committee members will be coming back here for about 4:30 to get started with the second panel, and we'll have a full round with the second panel.

Yes?