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.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, witnesses.

Things are a bit jumbled, but your participation is most appreciated.

One aspect of Bill C-26 is the creation of a high-risk sex offender database, but I didn't hear you talk about it. Under clause 11, the Governor-in-Council may make regulations 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.

How would you define this exactly? Does this database reassure you? Does knowing that it will be created and will be different from the existing National Sex Offender Registry make you feel safer?

I suggest we go by order of your presentations. We can start with you, Mr. Gilhooly.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, we're going to call the meeting back to order.

I want to thank our guests for their patience.

This is the second panel for our orders of the day, pursuant to order of reference of Monday, November 24, 2014, 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.

We have, appearing as individuals, Mr. Gilhooly, who has been here before, and Mr. Steve Sullivan, who is a former federal ombudsman for victims of crime. From Circles of Support and Accountability, we have Susan Love and James Foord.

Thank you for joining us.

You each have five minutes to do a presentation. We'll go in the order on the agenda.

Mr. Gilhooly, the floor is yours.

[Monique St. Germain]

Mr. Chairperson and distinguished members of this committee, thank you very much for giving our agency the opportunity to provide a presentation on Bill C-26.

My name is Monique St. Germain, and I am representing the Canadian Centre for Child Protection, a registered charity providing national programs and services related to the personal safety of all children.

I am here today to provide support for Bill C-26. My testimony today is based on our role in operating our many programs and services aimed at reducing the sexual exploitation of children.

Our agency was founded in 1985 as Child Find Manitoba, and for the last 30 years we have been actively engaged in efforts to protect children from sexual exploitation and abuse. We operate MissingKids.ca, a national missing children's program. We also have two important prevention programs: Kids in the Know, which is an interactive safety education program delivered in schools, and Commit to Kids, a program to help organizations prevent sexual abuse before it occurs.

We also operate Cybertip.ca, Canada's tip line for reporting online sexual exploitation of children. Since launching nationally in 2004, we have received over 125,000 reports from the public, the majority of which pertain to online images that depict children being sexually abused. In the 2013-14 fiscal year alone our child protection analysts assessed and categorized over 6,000 images of child pornography. Of the images so categorized, 69% depicted children under the age of 12.

Through the operation of our programs and services, we have daily interactions with child welfare workers, educators, and child-serving organizations. We also regularly consult with experts on child development and offender behaviour and we pay very close attention to media reports related to court cases involving the sexual abuse of children. As well, over the last few years we have been monitoring reported case law involving child pornography offences.

We do all of this to help ensure that our public education, awareness, and prevention materials reflect current risks and trends, and also help us to better understand the criminal justice system as it relates to the protection of children.

Through our operations we have a unique lens into understanding the distinctiveness of child sexual abuse. We are acutely aware that the vast majority of victims do not disclose abuse and that abuse can go on for years without being detected. It is well established that children are most often sexually abused by those closest to them and that abuse occurs in secrecy.

Even if the abuse is disclosed by a child or uncovered by an adult, it may not be reported to police. We know that not all abuse that is reported results in charges, and that not all charges lead to prosecution, and a prosecution may not result in conviction.

For these reasons, we support Bill C-26. I would like to highlight and speak to some key components of the bill.

First, we believe that sentences need to reflect the seriousness of the offence and the severity of the conduct. They must be meaningful, not only to prevent the person from committing additional offences but also to address the risk that an offender poses to children, and to deter others from offending. We support sentences that more accurately reflect the trauma that is experienced by each individual child victim and that properly account for the culpability of the offender for each offence that has been committed.

A concurrent sentence tends to diminish the overall effect of the sentence, making it seem as though the experience of each victim is not relevant. Individualizing the sentencing analysis by victim and by offence will greatly increase the precedential value of individual cases since subsequent courts will more readily know what portion of the sentence applies to what offence.

Second, changes to the reporting requirements for sex offenders are targeted toward better protecting children in other countries from being exploited and abused by Canadians, an objective we support. We also believe that these provisions will strengthen the protection of Canadian children as they will assist in enabling authorities to more readily identify problematic travel and investigate breaches under the act.

Third, the creation of a publicly available high-risk sex offender database is an initiative that we support. The provinces of Alberta, Manitoba, Ontario, and Nova Scotia already perform public notifications in high-risk cases. It is our view that providing such information to the public can be of great assistance to families and communities that wish to better protect children.

In conclusion, our agency supports the changes being brought forward through Bill C-26. The crimes addressed by this bill are extremely serious and are perpetrated against society's most vulnerable people, our children.

It is our view that this bill helps to rebalance the scorecard and sends a clear message about the seriousness of sexual offences against children.

Thank you.

[The Chair, Conservative, Mike Wallace]

We have quorum so I'm going to call this meeting to order. This is meeting number 60 of the Standing Committee on Justice and and Human Rights.

Today, pursuant to the order of reference of Monday, November 24, 2014, we are dealing with 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.

Just so my colleagues and our guests know, there is a half-hour discussion and there will be a bell at 3:55. When that bell starts ringing, we will adjourn this first meeting. We have time to hear our witnesses and have maybe a really quick round of questions of a couple of minutes each from the three parties. The vote will take place at 4:25. We have another panel coming, so here's my recommendation. The vote should take about eight minutes, so we should be back here in our seats at about a quarter to five. Then we'll have their five-minute presentations and another quick round of discussions with the second panel.

With that, for our first panel, we have with us, from the Kids' Internet Safety Alliance, Mr. Butt, their legal counsel. Mr. Gillespie has phoned in to say he cannot make it.

By video conference from Winnipeg, Manitoba, we have Monique St. Germain from the Canadian Centre for Child Protection.

Can you hear me okay?

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

Thank you very much, Mr. Calkins.

I'd like to follow up on the question that Madam Boivin put to Ms. Morency, who mentioned that Ms. Levman might be able to tell us a little bit more about some case law.

My question has to do with the totality principle and how in your opinion it has been applied by the courts to the types of offences we see in Bill C-26. My understanding is that some of the cases we're talking about are just very recent cases. I notice that some of them are 2014 decisions, for example. I believe some of them might actually touch on legislation that was previously passed in Bill C-10 or perhaps other legislation.

I'd first like you to comment, Ms. Morency, and then perhaps Ms. Levman might want to take us through some of the cases.

Can you tell us whether or not the courts have been consistently applying penalties in all of these cases, or is Bill C-26 actually addressing some of those issues?

[Françoise Boivin, NDP, Gatineau, QC]

I want to move to the RCMP, but I take note that there are some good cases that are showing, before Bill C-26 even came into effect, that the courts are taking the cases more seriously.

RCMP—

[Françoise Boivin, NDP, Gatineau, QC]

Why is this in Bill C-26, but it was not thought of in Bill C-10?

[Carole Morency]

I'll just add on that point another important thing that Bill C-26 is proposing to say. If you look at the case law and how courts are dealing with sentencing now in cases where you have child pornography, as well as contact sexual offence, Bill C-26 is ensuring that those are imposed consecutively. We're seeing that happen in some cases now. It's a matter of codification in many respects, but it's saying to do that in all cases. That's an important change that we don't have at this point.

Similarly, there is another reform that Bill C-26 is proposing. If you have one offender before the court at the same time with multiple victims, again it gives very clear direction to the courts on how to deal with sentences between those multiple victims so that, as the minister said, each victim feels that their victimization is reflected in the sentence that is imposed on that offender.

[Carole Morency]

Again, I can just point to the commitments that the government has made. The minister has clearly stated that the overarching concern and intention is to ensure that in all cases, all forms of child sexual abuse are treated more seriously. Some reforms were enacted through the Safe Streets and Communities Act. Bill C-26 takes that and goes further to achieve that objective. One thing I'll note in particular is that Bill C-26 increases the maximum penalties for quite a number of offences. You have a bigger range for courts to look at, which is different from what you saw in Bill C-10.

[Françoise Boivin, NDP, Gatineau, QC]

I understand all that. My question is more about what types of studies or constats we have seen that have led to the need for the creation of Bill C-26. If we're not yet even able to see the effects, good or bad, of Bill C-10, how can we need Bill C-26? For example, I'm hearing from the legal community that last weekend in my region in Gatineau, 50 cases of drunk driving were thrown out of court. Why? They were thrown out because of time, because according to certain people the crown didn't understand the case, because of the shift that happened with the new infraction, because of the new burden, and so on and so forth.

Do we take the time to inform all the courts of all the changes so that they apply them before we come up with some new section or new clauses? I'm just not seeing the logic behind it all, because you're not giving me the meat. From your answer, I don't see exactly what was used to create Bill C-26.

[Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

Thank you for the question.

As the minister just mentioned, the idea was to increase penalties, both minimum and maximum penalties.

The package, in terms of Bill C-26, also proposes some other related reforms looking at the implications of consecutive or concurrent sentences in these cases as well. As you've noted, with Bill C-10, the Safe Streets and Communities Act, those reforms came into force August 9, 2011, and yes it is a bit early to see the progress of some of those cases as they start to work through the criminal courts. We were seeing courts beginning to note, for example, even before Bill C-10 came into force, that Parliament was considering the importance of ensuring that the penalties in these cases, not just minimums but maximums, adequately reflect the serious nature of these cases, and that courts should be treating these more seriously.

So it is a bit of a combination of things. First, it's looking at how the courts are dealing with this. We're starting to see some of that, but it's certainly in its early days. Second, if you look at Bill C-26, there's a combined approach of trying to increase penalties overall; it's not just minimum penalties and the approach that Bill C-10 had.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

Since we have some time, this is directed to the officials from both departments and the RCMP representative.

We've talked a lot with the ministers about the harsher penalties, among other things.

Ms. Morency, prior to drafting Bill C-26, did the Department of Justice conduct a jurisprudential review of cases going back a certain number of years?

In their comments promoting Bill C-26, both ministers often pointed to the fact that offences against children had gone up by 6% in the past 2 years. The media has often cited that statistic, as have both ministers.

Was any research done? And if so, what did it entail? What findings did department officials come to, and how? Was there a trend among courts indicating that the sentences being imposed were not harsh enough?

I'm trying to understand what motivated the decision to create Bill C-26. What kind of analysis and research was done to warrant the measures in the bill?

[David Wilks, Conservative, Kootenay—Columbia, BC]

Further to that, Bill C-26 would heighten accountability by changing procedures related to the method of notification of absences abroad by registered sex offenders. Can you please elaborate on this portion of the bill? How does this reporting system work now? How would Bill C-26 change the status quo? Would this amendment have implications with regard to our responsibilities to cooperate in international investigations?

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thanks for that.

Carrying on with the same theme, Bill C-26 authorizes disclosure to the CBSA of information from the sex offender database. Among other things, the CBSA will be authorized to provide to the database the following information regarding the sex offender who is the subject of disclosure: the date of their departure from Canada, the date they returned to Canada, and every address or location at which they stayed outside of Canada. This provision will enable the CBSA to flag high-risk offenders in its surveillance system and to help police ensure respect for traveller identification requirements.

Can you please describe how the system currently works as it pertains to sharing of information between the national sex offender registry and the CBSA? Can you use an example of how changes in this bill will help keep Canadians safe?

[David Wilks, Conservative, Kootenay—Columbia, BC]

I thank the ministers for being here today. My questions are for Minister Blaney.

In order for law enforcement to track child sexual predators, there has to be a certain level of coordination between CBSA and the national sex offender registry. Bill C-26 would heighten accountability by changing procedures related to the method of notification of absences abroad by registered sex offenders.

Could you please elaborate on this portion of the bill? What information will be shared between the national sex offender registry and CBSA officials as a result of the amendments to this bill?