Justice Committee on Feb. 14th, 2011

[The Vice-Chair, Liberal, Brian Murphy]

Good afternoon everyone. This is the 48th meeting of the Standing Committee on Justice and Human Rights. Today we have witnesses on Bill C-54, An Act to amend the Criminal Code (sexual offences against children).

We're very pleased this afternoon to have in our first hour two witnesses as individuals. The first is Vernon Quinsey, professor emeritus of psychology from Queen's University; and the second is Hubert Van Gijseghem, who is a psychologist and a retired professor, formerly of the University of Montreal.

Gentlemen, professors, we generally allow an opening statement of about ten minutes, followed by a round of questions from all of the parties represented here.

We'd like to start with you, Professor Quinsey, for ten minutes.

[Dr. Vernon Quinsey, Professor Emeritus of Psychology, Queen's University, As an Individual]

Thank you very much. It's a pleasure to be here.

I have a few remarks to make. I tried to think of things that would serve as an appropriate background for consideration of sex offender sentencing and sexual crimes against children.

The first point I want to make, and the one that's most important in this area and in dealing with sex offenders, is that sex offenders vary enormously in their likelihood of reoffending. This is the central datum that has to be dealt with in any kind of sentencing policy. That being said, there are certain categories of sex offenders who are relatively unlikely to commit subsequent “hands-on” or contact sex offences. Among these are incest offenders and Internet offenders without a history of contact offences.

At the individual level, a sex offender's risk of reoffending can be estimated with a fair degree of accuracy using actuarial methods. Our predictive abilities are good, but they're not perfect.

Sexual predators are those who are very likely to commit new “hands-on” sexual offences, especially violent sex offences. It is critically important to identify and to incapacitate these individuals. Given this, I think that criminal justice policies should seek to balance offenders' civil liberties and community protection by maximizing the incarceration of sexual predators and minimizing the incarceration of low-risk offenders. In this view, sentences should reflect both the gravity of the instant offence and the risk the individual presents to the community. We have to realize in this area that no sentencing policy can lead to the incapacitation of all sex offenders who are sexual predators without the lifetime incarceration of virtually all sex offenders. There will always be some missed. The issue is one of striking a proper balance.

The solution to this policy conundrum involves carefully appraising the risk of identified sex offenders and adjusting the amount and intensity of supervision and the duration of incarceration on the basis of risk.

I want to switch gears a little bit now and talk about the historical context within which we find ourselves contemplating changes in sentencing policy.

Throughout North America, the rates of homicide, rape, and a variety of other crimes have declined over recent years, sometimes substantially. These changes, reflected in both survey and official records, parallel drops in a variety of other risk-related behaviours and outcomes, including industrial accidents, driving without a seat belt, having sex before age 13, smoking, dropping out of school, and so forth. So there's a wide variety of indicators that are related to risky behaviours, some of them criminal, some of them not. They're all showing the same welcome trends.

We are doubly fortunate, I believe, that the rate of sexual offending against children has also markedly decreased in recent years. This is a North-America-wide phenomenon. We're doubly fortunate, because sexual offenders against children are more likely to have been sexually victimized themselves as children. It is likely, therefore, that the drop in sexual offences against children will lead to a further drop in the number of sexual offences against children.

That concludes my opening remarks.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Van Gijseghem.

[Dr. Hubert Van Gijseghem, Psychologist and Professor (retired), University of Montreal, As an Individual]

I will briefly start by introducing myself for credibility purposes. My name is Hubert Van Gijseghem. I have been a psychologist since 1963. I got my PHD in psychology in 1970. I have had two parallel careers: one as an academic at the University of Montreal and one as a practitioner.

As a university professor, I obviously have the opportunity to teach and do research. Most of my research has been on sexual abuse, on victims and the consequences for victims, as well as on offenders. As a practitioner, my entire life, I have mainly been a clinician. As a clinician, I have had the opportunity to provide treatment, once again to victims as well as to sex offenders.

However, over the last 15 or 20 years of my career as a practitioner, I have focused solely on forensic examinations, in other words expertise for a number of courts in various jurisdictions. Like my colleagues who are here today, I have published some papers and books on the subject of sexual abuse.

I have been asked to say something intelligent on Bill C-54 regarding the protection of children against sexual predators and also to address whether or not mandatory minimum sentences are necessary or useful.

I read the legislative summary and was somewhat shocked by some passages. When I read arguments in favour of these types of prison sentences and read the arguments against them, I found myself in favour of almost all arguments. That is probably compatible with the type of doubt inherent in the scientific mind.

I am not a lawyer. I have little or no understanding of legislation, even existing legislation. Furthermore, I have little knowledge of case law on sexual abuse. So I do have some difficulty providing an opinion on the need for or use usefulness of mandatory minimum sentences.

However, I am a psychologist and I do believe that I have some knowledge, to a certain extent, of the sex offender population. I also know certain things about their dangerousness, the risk of recidivism, and the actuarial and other tools my colleague just referred to. That is within my area of expertise.

The first thing I would like to point out, from the outset, is that the sex offender population is not homogeneous. There are different types of offenders. All those who have tried to come up with a typology of abusers realized that there are in fact a number of sub-categories that are not necessarily comparable.

Given the heterogeneous nature of this group it is difficult to devise automatic or standardized measures. If we look at evaluative research, because at the end of the day that is what brings clarity to the issue of dangerousness or risk of recidivism, there are two types of evaluative research. One is the type carried out by those who promote therapy. Quite often, their results indicate that therapy works and has a certain rate of success. However, when you look at evaluative research conducted by independent researchers, results are far less optimistic.

As Dr. Quinsey mentioned, specifically for extra-familial abusers, not much rehabilitation is possible before a given age, in order words before aging itself has had an effect.

This evaluative research, and I am thinking of some research conducted by my colleague Dr. Quinsey and his team or other research done by my colleague Dr. Hanson, who is also here with his team, has effectively shown that, especially in the case of extra-familial abusers, there is no great improvement in the area of risk of recidivism or dangerousness, regardless of whether or not the individual has had psychotherapy. If there was psychotherapy, the type of therapy matters little.

This leads us to believe that therapy or an order given by a judge for a course of therapy, even though it may be seen as good news by all, cannot be perceived as an alternative to incarceration nor a substitute for punishment.

When we speak of therapy or when individuals get therapy and we feel as though everyone is pacified, the good news is often illusory. For instance, it is a fact that real pedophiles account for only 20% of sexual abusers. If we know that pedophiles are not simply people who commit a small offence from time to time but rather are grappling with what is equivalent to a sexual orientation just like another individual may be grappling with heterosexuality or even homosexuality, and if we agree on the fact that true pedophiles have an exclusive preference for children, which is the same as having a sexual orientation, everyone knows that there is no such thing as real therapy. You cannot change this person's sexual orientation. He may however remain abstinent.

Now, if we think of psychopaths, who, according to my own samples account for 15% of the sexual offender population, it might be worthwhile to point out that we have been trying for hundreds if not thousands of years to rehabilitate them, all for naught, at least for the time being.

Of course, everything I have just said also points to the fact that there probably are sexual offenders or types of sexual offenders who can be rehabilitated. Which ones? Is it the majority? I am not sure it will be the majority, but because some abusers can certainly not be rehabilitated and others can, it means that sooner or later we will have to come up with a careful differential diagnosis to determine which ones can be rehabilitated.

Is this feasible? Is it too expensive in terms of time, effort, or money? I do not know. There might be something to be done in the area of the presentence report. I have seen many presentence reports and I personally have often remained dissatisfied. Can a country afford far more in-depth and elaborate presentence assessments? That is probably up to you to decide.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We're going to go to questions from our members. We'll start off with Mr. Murphy, for seven minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I thank both witnesses for your testimony today.

Bill C-54 imposes a number of mandatory minimums, or actually expands a number of mandatory minimums. I couldn't be more empathetic, Professor Van Gijseghem, because it's very clear that the mandatory minimums are in the code already, have been for a long time, and there have been a number of them introduced, but it's very much a matter of calibration as to whether people think they go overboard, go too far, or don't.

If you look at the Library of Parliament's documents, you will read that those who like mandatory minimums say they act as deterrents and they perform an educational purpose by clearly communicating society's disapproval, and those who don't like them say that there's no deterrent effect and it's an inflexible penalty structure.

I'm going to ask you both your opinion on where your matrix is in this case. Do you think they're educational in purpose? Would they reduce sentence disparity across Canada? For instance, you might have some people getting lighter sentences in parts of the country for the same offence. But I want to ask you about the context here. When I look at this Criminal Code, it's like a textbook, and we try to order the offences by the degree of severity. Part 5 of our code is truly outdated, because it talks about very serious offences—sexual touching, invitation to sexual touching, sexual assaults, and so on, very serious—and we go down to around section 170, public nudity, which I'm not suggesting is good or permitted or whatever, but clearly is not as egregious as sexual touching. But there's an interim part under “Corrupting morals” that now contains our child pornography offences. And this is really the battle here: we realize in this day and age that there's a proliferation of child pornography. And child pornography is even a title that's out of date. It's the capturing on film or in media of an abusive act towards a child who is defenceless and cannot consent to that act. That's a crime of the highest order in this whole section, I would say, this part.

If you take it that we feel the child pornography aspects, the child abuse images, are the worst parts of the crimes in this section, do you not think it might be appropriate under these aims for mandatory minimums to torque them up a bit? That is what this bill does in large regard. It moves things from 14 days, minimum, to 90 days in some of these very serious offences. It creates new offences about the reality of people procuring meetings with minors and so on. As academics, do you see a balance there? That's the first question.

Secondly, you talk about a pedophile as having a preference. I'm not sure if I understood that; perhaps you want to expand. Is it a condition that can be treated, can be cured, or is it as varied as any answer might be in that regard: it depends on the patient and it depends on the client?

Those are the two questions for each of you. I think you'd each have about a minute and a half or so.

[The Chair, Conservative, Ed Fast]

Yes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

A minute and a half each.

[Dr. Vernon Quinsey]

You ask a number of questions within your question. I'll try to address them all as best as my memory will allow me to.

The first issue you raised was one of proportionate sentencing--how serious are these crimes, and are these mandatory minimums an appropriate response to such a crime? I don't know if I'm the right person to answer that question, but I'll give you my views anyway.

What I worry about, with respect to mandatory minimum sentencing, is the potential of having a whole bunch of new offenders in the system. That's a potential, a very negative outcome, I think, of increasing the penalties for say possession of Internet child pornography. I'm not so sure that we want to go that way.

The reason I say that is because in the United States this is the fastest-growing category of offenders in their system. When you think about how available this material is.... I mean, after all, child pornography is defined as images of anybody up to the age of 18. It's unfortunate that it's called child pornography, because these people are minors; they're young, the majority of them, but they're not what, in my language, I would call a child. Certainly they're not prepubertal.

On the other hand, I think you raise a very serious and important issue. What we seek to address is the exploitation of children. You can imagine all kinds of unhappy scenarios where someone is coerced or tricked into doing stuff that's filmed. Certainly I think those offences should be penalized quite heavily. At the level of possession, I'm not so sure. I fear that it's so common that it will lead to problems in administering justice.

You raise the issue of pedophilia. Let me just make some distinctions for you.

First of all, pedophiles are people who prefer prepubescent children. They're not interested in 15-year-olds who have an adult body shape or anything like that. They're not interested in those kinds of people. They have quite a restricted area of sexual interests in terms of the kinds of body types that their victims have. There is no evidence that this sort of preference can be changed through treatment or through anything else.

Treatment for those offenders shades into management, where you essentially have to teach someone to live within their sexual preference structure. They have to find other kinds of outlets. They have to avoid high-risk situations. They have to do all those sorts of things. But I think that most people would agree that this kind of sexual preference pattern—an actual preference for prepubertal children—is not alterable by any kinds of current treatments.

[The Chair, Conservative, Ed Fast]

I'm going to have to cut you off there.

Monsieur Ménard, for seven minutes.

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

Mr. Gijseghem, I think the questions that have been asked are for you. Can you respond?

[Dr. Hubert Van Gijseghem]

My response will not be vastly different from that of my colleague Vernon Quinsey. Indeed, I am equally uncomfortable with the idea of having the possession of pornographic material included as a sexual offence. In that regard, it seems to me that there is a big difference between possession and creation of this material. Obviously, the argument is always that individuals interested in this type of material, who own some and download it, are encouraging producers and in so doing are essentially part of a production line of child pornography. At the very least it is said they are accomplices in the exploitation of children for sexual purposes. I know this argument, and it is true. However, there is such a high prevalence of possession of child pornography that I wonder, honestly, whether it is realistic to include that among the offences.

Further, research has shown that only a small proportion of individuals possessing pornographic materials act out. That is another point I wanted to raise. With respect to pedophilia, as I believe Dr. Quinsey just explained, in other words and perhaps better than I, as I have already said, it is a sexual orientation. Of course, even an individual whose sexual orientation involves a quasi-exclusive preference for prepuberscent children can remain chaste or abstinent. In fact, this has been seen among some members of the Catholic clergy. Chastity exists, but for the vast majority of pedophiles, the risk of acting out is far higher than for other sexual offenders. And in this case I would refer to intrafamilial abusers as an example, as my colleague has done.

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

Generally speaking, among criminal lawyers there is the view that child abusers are very poorly received when they get to jail. Other offenders assault them and most often, they must be isolated. One might think therefore that sexual offenders are quite fearful of jail. Would the fear of an automatic sentence, perhaps even a long one, put a stop to their sexual conduct?

[Dr. Hubert Van Gijseghem]

Yes, obviously, sexual offenders are very poorly received. It is a fact. It is a bit of a national sport, maybe an international one. When sexual offenders get to jail, they get beaten. Sometimes, guards turn a blind eye. It is well known. Would the fear of such a thing occurring inhibit sexual offenders? I am not sure. At first glance, I am not in favour of mandatory minimum sentences, but I do not think the “bashing” sex offenders get in jail can serve as an argument not to impose minimum sentences. I do not see it as an argument.

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

If I understand correctly, over the course of your career you have often testified. Canada-wide, you are among those who have testified the most, with the most professionalism.

Could you give us an idea of the time required to do a reliable assessment of the dangerousness of a sex offender, compared to that of another offender, and tell us approximately how much this assessment will cost?

[Dr. Hubert Van Gijseghem]

Obviously, opinions vary among experts. I personally am regularly asked to give an opinion on an offender, determine who he is and assess his degree of dangerousness and risk of recidivism. I believe an in-depth interview with the individual is necessary. One or two objective personality tests must be administered to know how this person reacts, with respect to personality structure or, in some cases, pathology. We also need actuarial tools, and possibly qualitative tools like those Dr. Quinsey was referring to earlier. I am thinking here of a tool, quite advanced, which was developed by Dr. Quinsey himself as well as by others, including Dr. Hanson, who is also here. We have actuarial tools, the predictive success of which is eminently higher than that of clinical intuition. All of these tools must be used.

I do not believe such an assessment would cost $1,000 or $2,000. The cost would certainly be around $3,000 to $3,500. I am talking here about an in-depth assessment along with a report that is sufficiently reliable, so decision-makers can rely upon it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Comartin for seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

First I want to apologize to both of you. Je m'excuse d'être en retard. I was caught in the House.

Professor Quinsey, would you also answer that last question? Because I would like to know the same answer as we got from....

[Dr. Vernon Quinsey]

Yes. I think the cost of an assessment depends upon the infrastructure that exists. If you look at an organization like the Correctional Services of Canada, you see that they have a structured system of assessing risk and also of gathering information that other assessments of risk are based on.

If that kind of system is in place.... It involves probation and parole officers and getting court records and social work input, those sorts of things where you have a very good history of the person, both a behavioural history and a criminal history. If that stuff is all documented and easily accessible, it markedly speeds up assessments and makes them more reliable.

An assessment can only be as good as the quality of the data that it's based upon. If you have an organization that's dealing with offenders, it's critically important that they have a kind of a standardized method of gathering and recording information that professionals can then use in making risk assessments.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I want to take you back to an issue that was raised by Professor William Marshall when he was here last week. He was focusing in on the charge for incest, where we're now going to be imposing a mandatory minimum of five years.

He raised the issue that you have the situation where you have incest between siblings that may very well be consensual in the sense of them being adult--old enough to do it--or between adult parent and child, which may not have started until the adult...and then the more traditional stereotype of adult parent and a very young child.

Have you seen any statistics as to what the proportion would be? In effect, I'm asking how many adults we are exposing to a mandatory minimum of five years.

[Dr. Vernon Quinsey]

I haven't seen any statistics. I've never seen one in my practice--a case of that nature. First of all, I don't know how often it occurs and, if it occurs, how likely somebody might be to be apprehended. I don't think it would be a common occurrence.

Now, just to continue that line of thinking, five years, to my way of thinking, is a long minimum, because you wonder about even these other cases, where it's a biological father-daughter kind of incest, what sorts of extenuating circumstances there might exist. How extensive was the pattern of abuse? All those sorts of things.... It seems to me that if I were a trial judge, I'd want to make allowances for those sorts of things, but that's my view.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

They're not allowed to in these circumstances.

Have you done any extensive work on treating children who are victims of sexual abuse?

[Dr. Vernon Quinsey]

I've never treated victims.

[Dr. Hubert Van Gijseghem]

I have been involved in therapy programs for victims. Again, I would be cautious. I do not believe that most of the programs we currently have on the market should be suggested for or imposed upon children in a standardized or automatic way. Here, as elsewhere, we have to approach the issue on a case-by-case basis, to see what the needs of a particular child may be.

I have done research in this area and I would say that some children need to discuss what happened or to “get therapy”, any therapy. However, other children do not need that. There are a certain number of children, rather a large number, who would be better served if we left them alone quite simply, who do better if they are not resubjected to the process of having to discuss their sexual assaults all over again.

That means, I think, that we need to take into account the individual and developmental needs of each child before we sign victims up for existing programs.

I would therefore advise the highest degree of caution in this case. I think a certain number of children have been re-abused through this automatic recruiting into the types of therapy that are currently available. One size does not fit all and we need to apply a differential, case-by-case diagnosis. That is my opinion.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Is it possible to determine whether victims feel differently if the adult abuser is a parent, a family member or a stranger? We are looking at putting them in jail, punishing them. Should they be more harshly punished if they are parents, or strangers?