Thank you for inviting me to take part in this consideration of Bill S-12.
I'm sorry to say, because we're starting just a little bit late, that I do have to teach at 2 p.m. Vancouver time, which is 5 p.m. your time, but I hope I can be here for most of our discussion.
I'm going to focus my remarks today on the proposed changes to the sex offender registry. Not surprisingly, some of the things I'm going to say will track the points that Professor Fehr has made.
I conducted research a number of years ago that was referred to in the Supreme Court's decision in R. v. Ndhlovu. While I prefer the approach of the dissent in that case, at this point the decision for you is how to respond in a way that respects the charter, preserves the integrity of the registry and reflects the realities of how sexual offences are committed, prosecuted and sentenced.
The bill, as I read it, proposes making registration automatic in a few cases and strongly presumptive in others. I have two concerns about the current bill that track what you've just heard. One has to do with the trigger for mandatory registration. The other has to do with the factors the judge must consider in deciding whether to grant an exemption when registration is merely presumptive.
The first goes to a point that's already been raised with you, which is that this bill, as I read it, is saying that registration is mandatory for first offenders, and that it is triggered where the offence is prosecuted on indictment, the sentence is two years or more and the victim is under 18. This is a very high bar that is not, obviously, required by the Supreme Court.
The reality today is that major sexual assaults are often prosecuted by summary conviction for various operational reasons. The maximum penalty for sexual assault prosecuted summarily is only 18 months—there's an anomaly in the Criminal Code—unlike two years for other summary offences.
These serious sexual assaults against children will not attract the same mandatory registration, despite the fact that the circumstances of the offence and the risk of reoffence may be identical. Summary conviction offences are not invariably minor offences. I think it's important to stress that point.
The two-year threshold is also high. The resurgence of conditional sentences for sexual offences, including sexual offences against children, means that no offence where a conditional sentence is applied will attract mandatory registration either. You will see the avoidance of mandatory registration becoming a chip in plea bargaining, as well as a reason that some judges may sentence to less than two years to avoid that collateral consequence of conviction.
I would just say that if you are being sentenced to imprisonment for a sexual offence against a child, whether on summary conviction or by indictment, surely it cannot be unreasonable to also expect that you will be placed into the sex offender registry. To me, that trigger doesn't make a lot of sense. I think it could be lowered.
The second point—and it's one that has already been raised—is what happens if registration is not mandatory and only presumptive. Here we see the exceptions, and you've heard some concerns with those.
We know the problem is that, in the past, when judges were given discretion along these lines, they ordered exemptions frequently. My research showed that they did so in up to a third of cases, at least for those for which reasons were available. These exceptions weren't exceptional at all.
This is part of a pattern. When judges exercise unfettered discretion in the context of sexual offences, they fall into stereotypical reasoning. We've seen it in the context of sexual history evidence, private records in the hands of third parties and in the sentencing of offenders for both adult and child victims. There is the myth that opportunistic offenders are not real sex offenders, that men of good standing in the community are not real sex offenders, and that where no additional violence is used or children give de facto consent, these are not real sexual offences.
Bill S-12 does attempt to offer some conditions that must be considered by a judge in deciding whether to grant the order. However, most of them are vague and general and permit myth-based reasoning.