Evidence of meeting #77 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was bans.
A recording is available from Parliament.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
Okay. If it's not within anybody's realm of knowledge, I'll just ask another question.
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
I'll just say, as I read the legislation the way you have structured it, I'm not sure that it could be plea-bargained away, because even where it's not mandatory it's presumptive. It's only the secondary offences where the application has to be made and that could be the subject of plea bargaining. It's a complex piece of legislation, but that's how I read it.
That was certainly a problem in the past where the prosecution had to request the order, but I don't read this legislation as going back to that model.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Cariboo, BC
I'll just ask one more question, and then I'll give the floor to my colleague, Mr. Van Popta.
When we talk about child sexual abuse material, or child sex abuse and exploitation material—referred to in the code as “child pornography”, but I don't want to use that term here—my understanding is that the research says that, of the number of people who consume this type of media, if memory serves, upwards of 80% will eventually offend against a child, not only over the Internet but in person.
Would that not itself be justification for mandatory registration for these types of offences?
Assistant Professor, Faculty of Law, Thompson Rivers University, As an Individual
The constitutional question turns on this very narrow principle of justice called overbreadth, so if you can find one case where this would apply in a way where that person particularly would not be able to offend or would not likely offend, then the Supreme Court says that this is a violation of section 7 of the charter.
I've written as to why I think, in fact, that principle of fundamental justice is not fundamental justice at all. However, then it goes to the section 1 justification and the question we would have to consider is whether, by getting rid of the discretion that's been so problematic, catching the offenders who will fall through the cracks would be worth catching one of those oddball cases where we might be able to find someone who is not unlikely to reoffend.
Conservative
Tako Van Popta Conservative Langley—Aldergrove, BC
Professor Benedet, thank you for being here.
Thank you to all of you.
Professor Benedet, you said that you affirm or you agree with what Professor Fehr said about listing the reasons a judge cannot consider in determining whether or not somebody's name should be added to the sex offender registry. Could you expand on that? I think that's going to be important for us when we do our clause-by-clause.
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
Sure. I'll just give you an example.
Right now in the Criminal Code, when we talk about an application to access counselling records—third party records, private records of the complainant—there's a list of factors that the judge is not supposed to consider or, at least, is not sufficient justification for ordering production. That was done specifically to try to counter some of the problematic and myth-based reasoning that we had seen in the past, so—
Liberal
The Chair Liberal Lena Metlege Diab
Ms. Benedet, I'm going to interrupt you now, and we'll go to our next questioner.
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
Sure.
Liberal
The Chair Liberal Lena Metlege Diab
Perhaps you'll have an opportunity to pick that up.
Mr. Housefather, you have six minutes—unless it's Mr. Maloney.
October 17th, 2023 / 4:30 p.m.
Liberal
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
It's me, yes. Thank you, Madam Chair.
I want to thank all the witnesses for being here today. I echo what Mr. Caputo said, except I've not taught in any of your classes before.
Dr. Benedet, I'm going to start with you. You started by saying that you prefer the dissent, and then you went on to say that the trigger with respect to the mandatory bans is too high.
I'm not agreeing or disagreeing with you, but do you have specific suggestions for how the language of the legislation could be changed?
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
Yes. I would recommend that the trigger for mandatory registration get rid of the reference to prosecution on indictment and simply say that where it is an offence committed against a victim of under 16 or 18, depending on the offence, and a sentence of imprisonment is imposed, that ought to be enough as the mandatory trigger. I think that would help.
I understand that we're trying to keep that mandatory “no exceptions” ban for a limited range of circumstances, but to me that's more coherent than trying to make a distinction between indictable and summary, or federal sentences and provincial time.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
That would include eliminating the two-year threshold, too.
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
I would as long as it was a sentence of imprisonment, whether conditional or custodial.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
To the other witnesses, do you agree with that?
Mr. Fehr, I'll start with you.
Assistant Professor, Faculty of Law, Thompson Rivers University, As an Individual
Yes. I also wonder, given the Ndhlovu decision, whether it would be possible to just get rid of “on discretion” at all in the context of child sex offences. Now, it may catch some offenders it ought not, but the Supreme Court has never said that a bright line rule is entirely unconstitutional. That goes to section 1 justification of the rule.
Again, given my concerns with the way that discretion has been exercised in the past, this might be something that could be upheld. The Supreme Court was dealing with a much broader application of a mandatory order in Ndhlovu, and this would be a much narrower mandatory order.
Liberal
Counsel, As an Individual
I actually agree with Professor Fehr. I think that it would be constitutional if you limited it that way. In fact, I could just refer back to, ironically, an old case, the 1988 Canadian Newspapers' case that I referred to in my...but in a different context, where there was a really specific reason for a removal of discretion, because that was the issue in that case—the discretionary nature of the ban versus mandatory. They found that when it's linked to a laudatory objective it's constitutional, so I think that limited approach that my friend is suggesting could withstand a constitutional challenge.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay. Thank you.
Dr. Benedet, I'm going to go back to you again.
You talked about the guiding factors in the legislation that judges are supposed to apply. I forget exactly how you characterized it, but I think the word “vague” was used. What criteria would you add to make it less vague or make it meaningful, in your opinion?
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
Right now, it says things like that the judge can consider the nature of the offence and the circumstances of the victim, but all of those invite or at least permit stereotypical reasoning. I would like to see an addition of a list of factors that the judge cannot consider or cannot rely on as a basis for exempting the offender from registration: that the offence was opportunistic or unplanned, that the offender was intoxicated, that the offender no longer practices the profession that gave them contact with the victim and that no additional violence was required to carry out the offence.
Those are the things we saw again and again that drove the decision to order exemptions, and they're all based on myth and stereotypes about what a real sexual offender looks like.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Do you have what you would consider an exhaustive list of criteria that should be excluded? You've given some examples, but if you have a detailed list, I'd like to see it. Perhaps you can send it to us.
Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual
Maybe I could forward that, and that would be more useful than trying to read out a long list here.
