Evidence of meeting #46 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was treatment.
A recording is available from Parliament.
4:45 p.m.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Okay. I want to re-focus on two sections of the bill.
One question I want to direct to the lawyers from the Criminal Lawyers' Association. I've raised the idea before. Proposed section 172.2 creates this new offence of facilitating an arrangement. It's like an attempted offence. It's new, and it will probably work in some cases, but it's unclear how well it will work.
I'm concerned about the possibility for entrapment or for a setup of some person, for example Bob from Moose Jaw, who happens to be visiting Vancouver. The section creates this pseudo-attempt to make an arrangement with somebody. It removes the defence of mens rea in terms of the knowledge of the age of the person, and then it imposes a presumption that the person was under 18, if there was any representation that the person was under 18. It imposes a presumption. Then it removes another defence that says that even if the person about whom the arrangement was being made didn't exist, it doesn't matter and the person is still guilty.
That is the setup, entrapment of Bob from Moose Jaw problem. I don't like the look of that at all. I'm nervous about it, and yet I realize there are these people out there who do go around trying to make arrangements with kids for a criminal purpose. I would ask that.
Perhaps this could be directed to any of the other witnesses. Second is the new mandatory minimums imposed on the sexual offence of indecent acts; that is, section 173 as rewritten. This is not an Internet offence. It's subsection (2):
Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years....
That's an exposure. That's exposing the sexual organs by a male or a female.
If that happens in some little village in the Northwest Territories, even though it seems like a relatively minor offence, there is a mandatory minimum imposed. Whoever the person was, as misguided as they were, as difficult as the circumstances may be, inside or outside of a family, that person is going to be taken away. The person may have to be flown out 500 miles or put on a dogsled. I don't know what happens. I'm just trying to figure how that mandatory minimum helps or doesn't. I don't see it as a fit in the far north. In the city, there is a local jail. In the rural areas, there isn't. That's simply a difference.
I would ask the first question to the lawyers and the second question to the panel.
4:45 p.m.
Director, Criminal Lawyers' Association
With respect to section 172.2, it does require that reasonable steps be taken, which isn't much different from some of the provisions we have now with regard to the age of consent. The courts have outlined what those reasonable steps are. I do think that the reversal of onuses will attract constitutional litigation. I don't think it's the most problematic part of the legislation.
Your question about entrapment is very interesting, because of course the cases that deal with entrapment don't allow police or the authorities to randomly approach people for no reason and suggest things to them. If that's the road we're going down, there definitely will be challenges. Those challenges for entrapment arise after the trial process, so it's a very resource-intensive process.
We're getting close to the area where that seems to be a possible outcome for there to be random virtue testing on people to see if they'll engage in the conduct or not. The courts have found that's not acceptable, and that has yet to be legislated away by the government at this point.
4:50 p.m.
Conservative
4:50 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Thank you.
Several people have testified that according to the many surveys conducted, minimum penalties did not have a deterrent effect. Could you be more specific? Can you tell me about some of the surveys that were conducted on this subject?
4:50 p.m.
Director, Criminal Lawyers' Association
Yes. Our organization has prepared some material for you, which is being translated. We submitted it only earlier this week, so I don't think it has been translated yet.
It does make some references; study after study has indeed shown that mandatory minimums.... A great piece of literature is the November 2010 report authored by the Canadian Centre for Policy Alternatives. I can forward a copy of that report to you as well, if you like.
The Canada Safety Council, the National Criminal Justice section, University of Alberta law professors, directors from the John Howard Society, a 1990 University of New Brunswick paper--they've all found, in study after study, that there is no evidence that mandatory minimums deter conduct. It's the certainty or the likelihood of being apprehended, and the criminalization of the conduct itself, that results in deterrence, not mandatory minimums.
The objection we have is that when you're looking to change a fundamental underpinning of our criminal justice system, the person who's looking to change that should have the evidence that the changes will work. We're all interested in protecting children, and it would be tragic to see resources used in a manner that's not effective.
4:50 p.m.
Member, Criminal Lawyers' Association
Perhaps I could just add something about the American experience.
Different states in the United States, including Michigan, Connecticut, Indiana, Louisiana, and North Dakota, have all passed laws eliminating some of these mandatory minimum sentences. There's a trend in other common law jurisdictions moving away from these mandatory minimum sentences because they have actually now had years of experience with these not working.
That's another area that I would commend the honourable member to look at.
4:50 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
A study by Mr. Julian Roberts commissioned by the Department of Justice prior to the imposition of minimum penalties came to the same conclusions as you have. This study looked at all Commonwealth countries.
As you all know, in 2005, the legislation was amended to include several minimum penalties for sexual offences against children. The current legislation also provides for increases in the minimum penalties agreed to in 2005.
Are you aware of any studies that came to the conclusion that the minimum penalties imposed in 2005 have achieved the desired results?
4:50 p.m.
Andrew McWhinnie Consulting, As an Individual
If I may, Mr. Ménard, you'd have to wait a few more years to see what the results of those would be. Introducing a law in 2005, and then trying to see whether it worked five years later, is probably not going to produce that result. I think we have to therefore rely on other jurisdictions, as mentioned by our lawyers, and what their experience has been. To detect recidivism, you're going to need at least seven to ten years of something being in place before you can determine whether it's working or not.
4:55 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Some witnesses who testified before you talked about sex offenders who check out the laws in different countries to find out which ones pose the lowest risk for them. Many of these offenders determined that the risks were lower for them in Canada than in other foreign countries.
My question is directed to the representatives of Cyberaide.ca. Have you found that a large number of sexual offenders tend to shop around to see what kind of penalties are imposed in countries around the world?
4:55 p.m.
Executive Director, Canadian Centre for Child Protection
I don't think that we could respond to that question. We're not aware of whether offenders from other countries would look to Canada as an avenue because of more liberties here. We have presented previously only on some of the content issues surrounding child abuse material being hosted and located in Canada, and these practices affect Canada internationally.
4:55 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you, Mr. Chair.
Ladies and gentlemen, thank you for being here today and sharing your expertise with us.
One of the things I'd like to explore is public confidence in the criminal justice system. A number of the panellists have made comments on that today. As members of Parliament, we have to represent everyone. I understand there are people here today who represent victims of crime, and I'm grateful for what you do. There are people here from the Criminal Lawyers' Association who represent their clients, and I appreciate their perspective. And there are people here who represent those who treat child sex offenders, and I appreciate their perspective as well.
Ms. McDonald, you mentioned that most Canadians express outrage about these offences and the fact that little has been done to address them. Can you comment on the importance of the general public having confidence that child sexual predators serve an appropriate amount of time in jail for these offences?
4:55 p.m.
Executive Director, Canadian Centre for Child Protection
I can speak on a few points.
In advance of what is now Canada's luring legislation, our organization worked with various law enforcement and provincial governments. You had adults communicating via computers for the purposes of sexually exploiting children. We would get comments from Canadians, families coming in, moms calling in about this type of communication, and they were very upset that nobody could do anything.
My comments were in reference to the new offence, which captures grooming. We receive numerous complaints, whether they're through reports to the tip line or people coming to contact us. They would express strong concerns and outrage that an adult sent their ten-year-old daughter a video of himself masturbating without any action being taken.
In the court of public opinion, most parents would agree that when these sorts of incidents take place and there isn't a direct remedy, from a common-sense approach, it is upsetting. My comments were in reference to the complaints we received.
4:55 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Ms. Kennedy, do you have a comment on how the public's confidence in our justice system is affected when they see a child sex offender, or a person who sexually abused a child, get no jail time or a very light jail sentence? What does that do to their perspective on the fairness of our criminal justice system?
4:55 p.m.
Executive Director, BOOST Child Abuse Prevention and Intervention
We see about 500 children in the Toronto and central Ontario area go through the courts every year. I would even go further and say the likelihood of a conviction is not great. So we don't even get to the point of sentences in many cases.
The families that we work with express a lot of disappointment that the crime was not taken as seriously as they had hoped. There are provisions that help children testify, but they're not being used on an ongoing basis. There's no consistency on that in our courts. So I think there are a lot of other issues that need to be addressed in addition to the sentencing.
5 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Thank you.
Ms. Kennedy, you mentioned in your comments that many of the provisions in Bill C-54 will contribute significantly to the protection of children. Do you stand by that comment?
5 p.m.
Executive Director, BOOST Child Abuse Prevention and Intervention
I do. In particular, I welcome the new laws that will allow the police to intervene earlier when an offender is trying to contact a child—sending pictures, beginning the grooming process—and when adults contact other adults about children. We've seen cases where—and nobody would have believed this ten years ago—parents are trying to sell their children over the Internet for sexual purposes. These things are happening on an ongoing basis, probably far more frequently than we in the system recognize. So I think creating laws that will give the police tools to investigate and make arrests will make a big difference.
5 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Ms. McDonald, you mentioned that many of the provisions of Bill C-54 will prevent a child from being victimized. I assume you continue to agree with that statement. Do you think that increased penalties for some of these offences will also help to prevent children from being victimized?
5 p.m.
Executive Director, Canadian Centre for Child Protection
Right. Again echoing the comments just made, similar again to what we saw take place after the luring legislation came forward, we're really looking at new tools. These provisions will allow for action to be taken in advance of children being sexually harmed or victimized. So we know that's exactly what we're looking for.
