Evidence of meeting #62 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was database.
A video is available from Parliament.
February 18th, 2015 / 3:35 p.m.
Conservative
The Chair Conservative Mike Wallace
Thank you, Mr. Casey.
Are there further comments on this grouping? Seeing none, I will call the question on clauses 8 through 20.
(Clauses 8 to 20 inclusive agreed to)
(On clause 21)
That brings us to clause 21, where there is a government amendment, G-1.
The floor is yours, Mr. Dechert, to explain the government amendment.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Mr. Chair, this amendment is technical in nature. It would alter the definition of “sexual offence against a child” in clause 21 to (a) clarify that a designated offence as defined in subsection 490.011(1) of the Criminal Code applies where it is committed against a person under 18 years of age and the offender is required to comply with the Sex Offender Information Registration Act; and (b) it would specify that it applies to an offence that is committed in a foreign jurisdiction against a person who is under 18 years of age where the offender has been served with a notice to comply with the Sex Offender Information Registration Act.
The current definition refers to subsection 490.011(1) of the Criminal Code, which includes non-sexual offences under paragraphs 490.011(1)(b) and (f). The proposed amendment clarifies that the definition applies to offenders who are required to comply with the Sex Offender Information Registration Act, which excludes offenders convicted of a non-sexual offence where it had not been established beyond a reasonable doubt that the offender had intended to commit a designated sexual offence.
The proposed amendment would therefore ensure that there is no incorrect interpretation that non-sexual offenders would be among those subject to the proposed new provisions in the Sex Offender Information Registration Act for child sex offenders, such as, for example, reporting obligations regarding travel and information sharing with the Canada Border Services Agency. Also, the current definition does not specifically address sexual offences that are committed outside of Canada against a person under the age of 18 years where that person subsequently returned to Canada and is on the national sex offender registry.
The proposed amendment includes foreign sex offence convictions in the definition, which would ensure that these child sex offenders would be subject to reporting obligations regarding travel and information sharing with the Canada Border Services Agency in accordance with the proposed new Sex Offender Information Registration Act provisions in Bill C-26 for child sex offenders. Similar amendments are also being proposed to clause 29 of the bill in the definition used for “sexual offence against a child” with regard to the proposed new high risk child sex offender database that's contained in this bill.
For those reasons, we're proposing the amendment and will support it.
NDP
Françoise Boivin NDP Gatineau, QC
On the amendment, I'm a bit surprised to hear from the government that they call this technical. I'm wondering why it was not thought of before. I always hate these types of amendments that could have been covered through questions prior to doing clause-by-clause study.
In my legal mind, it doesn't sound technical, especially (b). I'm not saying that I'm against it, but I'm saying that I don't think we can qualify this as technical, because it's bringing a broader thing. For my second point—and I would like some answers to that—give me some examples of the situation in (b), because it is still required to comply with this act. When would it be? Give me examples of that and especially why that was not in the bill at first.
Conservative
The Chair Conservative Mike Wallace
Which department would like to answer those two questions?
Daryl.
Daryl Churney Director, Corrections and Criminal Justice Division, Department of Public Safety and Emergency Preparedness
I think the answer, Mr. Chair, is that really it was no more than a drafting oversight. It was always the policy intent of the government to include the capture of these two provisions within the scope of the act.
In respect of the first item, the issue there is that as a sexual offence against a child is defined in the Criminal Code, it essentially includes two broad subsets, under new proposed paragraphs 3(1)(a) and (b). Whereas (a) is a list of clearly sexual offences, (b) includes offences that on the face of them are not sexual offences but where the crown has to prove sexual intent behind a particular offence in order to secure a conviction. An example of that would be something like trespassing at night, under section 162 of the Criminal Code, or voyeurism, for example.
On the face of those two examples, those would not be sexual offences unless the crown had proven intent. We wanted to be absolutely certain that we were not, by consequence, including those convictions where there is no sexual intent whatsoever. It's really just a matter of clarity, to make sure that we're not over-capturing people within the definition.
On the second issue, again with respect to foreign convictions for a sex offence, I would reiterate that this was always the government's policy intent to ensure capture of that group. Those persons who return to Canada, whether at the end of sentence with already an existing obligation to register under SOIRA, the Sex Offender Information Registration Act, or who are transferred through an international transfer of offenders application under the International Transfer of Offenders Act and then also have the same obligation to apply under SOIRA, would still be under the broad capture of SOIRA writ large, but we want to also make sure that those persons with a foreign conviction are included in the information-sharing provisions under Bill C-26. Basically it's with respect to the information-sharing provisions between the national sex offender registry and CBSA.
NDP
Françoise Boivin NDP Gatineau, QC
I am trying to understand the following: “an offence that is committed outside Canada against a person who is under 18 years of age and as a result of which the offender is required to comply with this Act.”
That refers to the registry. The person would have allegedly committed an offence somewhere. I am trying to see how you are going to include that in the criteria of the definition listed later in clause 29. I have a bit of trouble seeing the practical side and how you are going to be able to do that.
Perhaps that is one of the reasons why it was not in the bill initially. It is a bit more complex and it should have been studied in more depth.
Conservative
Director, Corrections and Criminal Justice Division, Department of Public Safety and Emergency Preparedness
I could certainly ask legal counsel to weigh in, but again, I would just say that we did consult with the Department of Justice to get legal counsel to assess whether or not these amendments were within the purview of the bill—within the scope of our cabinet authority, for one—and to ensure that they were within the scope of a technical amendment. The advice from the Department of Justice was that they were.
NDP
Françoise Boivin NDP Gatineau, QC
How can we say it's in order when it's bringing in something that is different, that wasn't there? We're covering something that is outside the territory.
I'm just curious about how the legal process works on that.
Conservative
Conservative
The Chair Conservative Mike Wallace
—but it's on the advice of our legal clerk.
Do you want to say anything to this?
The answer, through me, is that it's based on the amendment and the effect it has on the actual act. They just decide whether it's admissible or not, and they make a recommendation on whether it's admissible or not. Then the chair decides. For example, with Mr. Casey there was a question on whether it was admissible or not, and I said it was.
So it's not really the legal aspect; it's just the procedural aspect.
NDP
Françoise Boivin NDP Gatineau, QC
Okay. You've convinced me.
Finally, just to be clear, this is not technical. This is something that was in the intent, I understand, but just to be correct, for me, a technicality is more like we had, I think, in the prostitution bill, when Mr. Goguen was presenting certain amendments that were definitely just a little mistake in something. This is bringing something of content, so you cannot qualify it as technical.
Am I right or am I wrong?
Director, Corrections and Criminal Justice Division, Department of Public Safety and Emergency Preparedness
I understand your perspective in that “technical” could be something like a misnumbering of the section, or—
Director, Corrections and Criminal Justice Division, Department of Public Safety and Emergency Preparedness
Right.
All I can say is that it's within the scope of the bill. It's consistent with the policy intent.
NDP
Françoise Boivin NDP Gatineau, QC
That's better.
Thank you.
(Amendment agreed to [See Minutes of Proceedings])
(Clause 21 as amended agreed to)
(Clauses 22 to 28 inclusive agreed to)
(On clause 29—Enactment of Act)
Conservative
The Chair Conservative Mike Wallace
We have a number of amendments on clause 29.
The first one is an amendment from the government.
Mr. Dechert, the floor is yours on amendment G-2.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
This is related to the amendment we just proposed a moment ago to clause 21. The purpose is to alter the definition of “sexual offence against a child” in proposed section 2 in clause 29 to clarify that it means a non-sexual offence as defined in paragraphs 490.011(1)(b) and 490.011(1)(f) of the Criminal Code only where it has been established beyond a reasonable doubt that the offender committed the offence with the intent to commit one of the designated sexual offences against a person who is under 18 years of age, and to specify that it means a sexual offence that is committed in a foreign jurisdiction against a person who is under 18 years of age, or the offender is currently or was previously required to comply with the Sex Offender Information Registration Act.
As with amendments in clause 21, the purpose is to ensure more precision in the definition of “sexual offence against a child” in the new high risk child sex offender database act.
The current definition refers to subsection 490.011(1) of the Criminal Code, which includes non-sexual offences under paragraphs 490.011(1)(b) and 490.011(1)(f). The proposed amendment clarifies that the non-sexual offences in paragraphs 490.011(1)(b) and 490.011(1)(f) would apply in this definition only where it has been established beyond a reasonable doubt that the offender had committed the offences with the intent to commit a designated sexual offence.
The proposed amendment would therefore ensure there is no incorrect interpretation that non-sexual offenders would be among those who could be included in the proposed new high risk child sex offender database.
You'll note that the proposed amended definition used in this clause varies from that in clause 21 in that it does not include that the offender be required to comply with the Sex Offender Information Registration Act. This allows for the possibility that an offender who may not have been served and ordered to comply with that act prior to 2011 when the requirement for mandatory orders was implemented could be included in the new high risk child sex offender database.
Finally, as in clause 21, the current definition in clause 29 does not specifically address sexual offences that are committed outside of Canada against a person under 18 years of age, subsequent to which the offender returns to Canada and is required to comply with the Sex Offender Information Registration Act.
The proposed amendment includes in the definition for those on the national sex offender registry convictions for foreign child sex offences, to ensure they could be among those included on the proposed new high risk child sex offender database while other criteria for inclusion are also met.
For those reasons we are proposing and will support this amendment.
NDP
Françoise Boivin NDP Gatineau, QC
I will not go back over all the points I raised because it is exactly the same thing.
Mr. Churney, in response to one of my questions, you said that you checked with the Department of Justice to make sure that everything was fine.
When did you start working on the idea of extending this provision to those convicted abroad? When did you start analyzing and drafting this provision?
Director, Corrections and Criminal Justice Division, Department of Public Safety and Emergency Preparedness
I think this issue came up within the last week or so as Justice drafters were doing a final review. It was brought to our attention just that recently that we had possibly “under-included” and “over-included” some persons within the definition.