Thank you.
In addition to being a practising defence lawyer in Toronto, I also have served as a part-time assistant crown attorney and a standing agent for the Attorney General of Canada, so the perspective I bring encompasses both defence and prosecution experience.
The CBA supports measures that enhance the safety of Canadians, particularly the most vulnerable members of our society. It is vital to use the correct measures, and this is especially important when we consider how best to protect children. We must avoid measures that exacerbate the problems of abuse. This is complex, and simple one-solution-for-everything approaches are often not appropriate.
I would like to address two main points in my remarks: first, the sexual offender registry; second, the use of mandatory minimum and consecutive sentences in certain situations.
There is little evidence to suggest that sexual offender registries, as they are presently constituted, prevent sexual assaults. This can be seen in both the reports of the Auditor General of Ontario and the John Howard Society, cited in our written submission.
This bill does not make the prevention of sexual exploitation any more likely. It's reporting requirements are unlikely to have any discernible effect on public safety, or will be unenforceable when they deal with matters outside our country. Requiring an offender to report that he or she has a driver's licence as provided will not protect anyone.
It is well known, and confirmed by the government's own statistics, that in 88% of sexual offences against children and youth, the perpetrator is known to the victim. An offender registry does nothing to prevent abuse by a relative. Similarly our submission quotes a senior member of the Ontario Provincial Police in an affidavit used before the Supreme Court of Canada noting that many sexual offences are crimes of opportunity. A registry will not prevent these incidents.
One of the most important ways to ensure a safe and just society is by rehabilitating offenders. Once rehabilitated, that person no longer presents a threat to the well-being of our society, and in this way the national or social interest and the interest of the rehabilitated offender are congruent. To address rehabilitation, prevent recidivism, and promote offender reintegration into society, offenders need treatment and counselling. This requires resources, but it is the most effective way to ensure the safety of the community. A simplistic approach of increased sentences will not do this.
The bill proposes a publicly searchable database be created, claiming it too will enhance public safety. A public database is more than likely to have the opposite effect, thus increasing danger to the vulnerable.
It is no answer to say that such a database will only deal with high-risk recidivists. We do not know how or if the government of the day intends to determine by regulation the meaning of this term, and prior testimony before this committee indicated that a determination of who was a high-risk offender may be left to individual police forces. This creates inconsistency and uncertainty.
Further, public access to such data is likely to drive offenders underground, away from police scrutiny, away from treatment, and away from supervision. As sex crimes are often crimes of opportunity, untreated offenders are more likely to repeat an offence creating more victims. This is entirely preventable. In addition, innocent parties have been mistaken for offenders when vigilantes wrongly suppose it is proper to take the law into their own hands. Nor can it be acceptable that self-styled avengers decide to become executioners. In our submission we cite several examples from the United States. There is no reason to believe this would not happen in Canada.
The second issue I want to address is the use of mandatory minimum sentences. Criminal sentences must be proportionate to both the offence and offender. This is a constitutional requirement. The courts of this country take offences against children very seriously, and it is a myth to say those who abuse children receive minimal sentences. It is also well established that mandatory minimum sentences are of little, if any, value in deterring crime.
Considering time, as my colleague from the Criminal Lawyers’ Association mentioned, sentences must be proportionate. If they are not, there will be constitutional litigation in order to deal with these things, which is costly, and the bill is constitutionally vulnerable on these grounds.
I would be pleased to answer questions when we reconvene.