Justice Committee on Oct. 19th, 2023

[Larry Brock, Conservative, Brantford—Brant, ON]

Madam Chair, thank you. I just wanted to add something for discussion.

I believe we heard some evidence—perhaps Matthew Taylor or Ms. Wells can weigh in on this—that in practical terms, the vast number of convictions of sex offenders involving children under the age of 18 proceed by summary conviction. As the Criminal Code is set out, if proceeding by summary conviction, the maximum penalty is 18 months. In my view, as a former prosecutor, whether it's a history of sexual offending or a one-off involving a child, whether it's a judge with or without expert evidence from the defence or from the Crown.... In my respectful view, a low risk is still a risk, and that's the same language that came from the dissenting opinion of the Supreme Court of Canada.

Let's take a look of the identity of the justices who were part of that dissenting opinion. We have the chief justice of the Supreme Court of Canada. We have Justice Moldaver, who is now retired. Matthew Taylor and Joanna Wells can confirm—because I know my colleague Mr. Caputo can certainly confirm this—that he was considered the expert. He was the dean insofar as criminal jurisprudence was concerned.

I agree it's dissenting and it's not binding, but I take that language very seriously. This particular bill broadens that net to ensure that all of those offenders, whether their cases proceed by indictment as contemplated by Bill S-12 or by summary conviction, will be captured by the Sex Offender Information Registration Act

Am I correct, Mr. Taylor?

[Matthew Taylor]

Thank you for the question. I don't have the specifics for the charging breakdown for summary conviction versus indictment. We talked previously, and Ms. Wells talked previously, as to why the criteria have been set the way they've been set.

Certainly, in a case in which the Crown believes there is a risk and it wants the mandatory registration, it has the option to proceed indictably. However, importantly—and Ms. Wells can supplement—even in cases in which they proceed summarily, they will be presumptively registered. They are on the list unless the offender can demonstrate why they shouldn't be on the list.

[The Chair, Liberal, Lena Metlege Diab]

Are there any more speakers on this one? Seeing none, I'm going to ask for the vote.

Shall CPC-4 carry?

(Amendment negatived: nays 7; yeas 4)

We now have CPC-5.

Is there a mover for this one? Is it Mr. Caputo?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes.

[The Chair, Liberal, Lena Metlege Diab]

Before you move it, if CPC-5 is adopted, CPC-6 cannot be moved due to a line conflict.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

May I just add, please, Madam Chair?

[The Chair, Liberal, Lena Metlege Diab]

Yes, please.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I'm just going to echo the sentiments, again, of Mr. Brock. I think that if we were to go and look....

Candidly—it may not surprise people around the table—I'm a bit of a nerd. I still read a lot of case law because I find it interesting, and I also want to know what we're dealing with, especially in areas like this.

When it comes to B.C. Court of Appeal decisions and B.C. Supreme Court decisions, for instance, I frequently read the decisions. I can tell you that it is not uncommon but actually very common to have sentences for offences under subsection 163.1(4) of the Criminal Code—which is the possession of child sexual abuse and exploitation materials—be under two years or for the cases to not be proceeded with by indictment, and that sometimes is done by consent.

When we look at this and consider whether or not that person should be registered, at the end of the day, not only has somebody victimized that child, but that child has been revictimized, in the case of possession of those materials, time after time after time. Research tells us that the person who has done so is at an elevated risk, a substantial risk—not even just a 50%-plus, but a substantial and elevated risk—to offend. Somebody who is seeking out that material is seeking it out for a reason, and in my view, there is often an escalation of what somebody does. Usually the offending behaviour does not decrease, but it will increase. I don't know how we, as a committee and as parliamentarians, wouldn't want to recommend the inclusion of such people, rather than restricting them because so few people will be caught by this.

I'm mindful of the presumption, but this isn't a matter of presumption. We in Parliament should be speaking and saying that those who are at a heightened risk or who are even at risk to offend against children will not be presumptive; they will be included on the registry.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Shall CPC-5 carry?

[An hon. member]

I'd like a recorded division.

[The Chair, Liberal, Lena Metlege Diab]

(Amendment negatived: nays 7; yeas 4 [See Minutes of Proceedings])

I'm going ahead here too fast, but we are continuing, folks, just so you know.

Now we have CPC-6.

[Larry Brock, Conservative, Brantford—Brant, ON]

Madam Chair, could I get clarification? Are we continuing beyond 5:30 p.m.?

[The Chair, Liberal, Lena Metlege Diab]

Yes.

I'm going to continue now with CPC-6.

[Larry Brock, Conservative, Brantford—Brant, ON]

I can speak on it.

CPC-6 is largely CPC-5 language. The rationale behind it from both my interventions and Mr. Caputo's interventions still applies. The difference between CPC-6 and CPC-5 is that it doesn't have the addition of an offence involving a person with a disability.

[The Chair, Liberal, Lena Metlege Diab]

I will now ask if CPC-6 carries.

(Amendment negatived on division [See Minutes of Proceedings])

Thank you.

Now we have CPC-7.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I don't have that amendment, Madam Chair. I imagine it's part of the amendments.

Could the clerk tell me where to find it?

[The Clerk]

It's like the other amendment earlier, Mr. Fortin: it was sent at the beginning of the meeting. It's a single amendment.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I just found it. I'm sorry, you're right.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Van Popta, do you move this?

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I move CPC-7.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'll speak to it. It will just take me a minute.

I was inspired to put forward this amendment by the testimony we heard from Dr. Roebuck, federal ombudsman for victims of crime, and Professor Benedet, who said that the bill would be improved drastically in that in addition to the factors that a judge should consider, there should also be a list of the factors that a judge should not consider.

We were referred to a paper written by Professor Benedet on exactly that topic. I read the paper. She studied 155 cases in which a judge gave an exemption from an order. She analyzed them and found that there was, in her opinion, flawed reasoning. I'm just going to read one section:

Taken as a whole, these decisions provide some interesting insight into how judges understand the seriousness of various kinds of sexual assaults and the purpose of the registry. More specifically, they show the way in which rape myths can creep back into judicial decision-making even after conviction and sentencing.

She concluded with:

...Parliament could respond by setting out a list of irrelevant factors akin to those found in the Criminal Code provisions on the production of third party records in sexual offence prosecutions.

Dr. Roebuck and Professor Benedet both spoke to that at Tuesday's meeting, and CPC-7 captures that.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

I have Mr. Maloney.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I remember the evidence because I think I was the one who actually asked the question, but in my experience, the more you include, the more you exclude, because crafty lawyers like those on the other side of the table will see a list and then argue that it's exhaustive. We've all encountered that many times, and it's a pitfall I don't think we necessarily want to fall into here.

[The Chair, Liberal, Lena Metlege Diab]

Shall CPC-7 carry?

(Amendment negatived on division [See Minutes of Proceedings])

(Clause 7 agreed to)

Please listen carefully. There are no amendments submitted to clauses 8 to 48. Do we have unanimous consent to group them for the vote?