Public Safety Committee on April 21st, 2009

[Insp. Pierre Nezan]

Exactly.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Has the act achieved its objectives? What change would you like to make to it?

[Supt David Truax]

The changes we suggest in light of our experience in Ontario would be automatic registration for any resident convicted of a sexual offence, notice of absence, information on offenders' vehicles and the introduction of a card. The Ontario sex offender registry contains maps showing offenders' places of residence relative to the scene of the offence. I should also point out that we would like to obtain the necessary funding to improve the national registry.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

With regard to vehicles, what is the argument of people who have refused to allow that information to be included in the information on a sex offender? It's possible in Ontario, but not at the federal level. Why is there this difference?

[Supt David Truax]

Improvements were made to the provincial act in 2008 to add information on vehicles. This is a very important investigative tool. As you know, when an offender approaches a child in the street, there is often a description of the vehicle. We are able to find detailed information in the data base identifying persons of interest or suspects.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Is your data base in Ontario also used to do prevention?

[Supt David Truax]

Yes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Have you been successful in preventing crimes in this way?

[Supt David Truax]

It's hard to cite any cases in which we've achieved the prevention objective. However, in 96% or 97% of cases where we have the information, we think we are able to prevent crimes. We have a few examples in which we are able to find information in the data base to improve or assist in investigation. However, I can't give you any exact details on the number of times that has enabled us to engage in prevention.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

All right.

Ms. Lines, would you like to speak?

[C/Supt Kate Lines]

I could also add, in relation to success, that perhaps it's not necessarily finding the person responsible. In many investigations, there are multiple suspects. If there are suspects we can go to initially, and we have this information and know that they don't match the physical description, they're immediately no longer on the police list, and police are able to concentrate their investigative efforts and their resources on other areas.

So even from a very practical standpoint, for investigators to be moving in the right direction and discounting suspects has value as well, because it allows us to move the investigation forward to the more likely suspects.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Ms. Campbell, is it your impression that the act has achieved its objectives?

[Mary Campbell]

As the other witnesses have said, I think it depends on what your measures of success are. Obviously, the most important one is the overall objective of being a useful tool for investigating crimes. I defer to my police colleagues on that matter at this point.

Other measures we look at, for example, include whether the legislation has withstood challenges in the courts. So far, the answer is yes. That's an important factor. You want to have a model that is going to be workable and not be out of business the next day.

We look at a measure of success: is it meeting the needs of all parts of the country? Everyone shares the same objective. There's simply no debate about the objective of protecting vulnerable citizens. Some features may perhaps be more appropriate or more useful for a larger province than a smaller province or for one area of the country with a different crime pattern than another area of the country. Those are matters that we, as officials, take into account when developing our advice. You can have a model that may be very good but is not suitable for the north as compared to the south.

Whatever model of registry Parliament chooses, of course, you want it to be the best one possible. There are many different models of sex offender registries, and you can look at the U.S. for that.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Lavallée, I'm sorry, but the time has expired.

We're going to have to move on to Mr. Davies, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

Thank you for appearing before us today. It has been very helpful.

First, I am interested in exploring the registration as it is currently. Under subsection 490.012(4), the court is not required to make an order under the section if it is satisfied that the offender has established that, if the order were made, the impact on him or her would be grossly disproportionate to the public interest in protecting society, through the effect of investigation. This tells me that the onus is quite clearly on the applicant, and probably as it should be.

I'm just wondering if you are aware of any cases where courts have refused to order registration.

[Mary Campbell]

Yes. The reported case law has indicated that there have been some situations in which the offender has made that argument and has been successful.

I'd invite Mr. Hoover to comment.

[Douglas Hoover]

When we first designed this, we were borrowing from the template and the case law that came out of the DNA requirements in the Criminal Code, which uses the same language.

My view was that there was going to be some shakeout in the lower courts and that probably, as it was in the DNA experience, the Courts of Appeal would step in to ensure proper interpretation. I believe that's happened. We've had a number of Court of Appeal decisions on “grossly disproportionate” to confirm that the onus has to be on the offender. He has to step up. He has to prove this to the court's satisfaction. This is a very strict test. I think the Court of Appeal in an Ontario case used the term “in the rarest of circumstances”, which is similar to the language in a Nova Scotia Court of Appeal decision on the DNA.

So while there were some early and I guess interesting decisions in the lower courts, we're confident that right now it is working fully as intended, whereby probably 90% of applications that are brought before the courts result in an order of the court for the individual to register.

[Don Davies, NDP, Vancouver Kingsway, BC]

Shifting a little bit to the recommendation for automatic registration as opposed to having the discretionary application process, I take it, then, that your main concern would be the uneven application across the country of the prosecutors seeking such an order. That seems to be the main problem.

[Mary Campbell]

We have heard from some officials from the working group that crown attorneys, on some occasions, simply through pressure of time or workload, what have you, forget to ask for the order, so it's partly just human frailty, and learning, of course.

A model that uses automatic inclusion is a viable model. Obviously, it's the Ontario model. There are pros and cons for either model. Those arguments are looked at in the working group.

[Don Davies, NDP, Vancouver Kingsway, BC]

I think it was the Ontario High Court that in 2005 expressed one concern about automatic registration, which is one of these laws of unintended consequences. The concern, as I have it, is about everybody being forced to register, including very low-risk offenders. The quote, which I think is from the court, says there's a risk that it would become “so inclusive as to include so many low risk or no risk offenders as to dilute the resources and attention of the police from those that pose a genuine risk”.

I'm curious. Being experts in enforcement, have you any concern that might make the pool so big that it might actually dilute the efficacy of the registration? What is your comment on the court's observation there?

That's directed to anybody who wants to answer.

[Insp Pierre Nezan]

In the RCMP, I think we go back to what the registry's intended to do. Predicting which sex offender will recidivate and which will not is very difficult. We have seen cases of people who have been assessed as high risks and did not offend and cases of people who have been assessed as low risks and did go on to commit serious offences. So in regard to starting from a risk-based assessment, you're already treading some dangerous ground from a law enforcement perspective.

We are able to manage the numbers now. We've looked at the potential numbers in some of the provinces if, say, we had were automatic inclusion. We think it's important to have this populated with sex offenders and it would be of investigative value. It's a mistake, in our experience, and there is research that does bear this out, to assume that someone who has been convicted--and I'm going to use the quotation marks--of a “minor offence” is not at risk to reoffend.

I'm not sure what a “minor” sexual offence is to begin with, but we see through our experience that people are committing what some people call nuisance offences, like voyeurism, and they figure that, really, these are no-harm, no-foul types of offences. But we know from experience and from research that many rapists, and violent rapists, engage in voyeurism. It's part of a wide repertoire of deviant sexual behaviour.

I'm not suggesting that everybody who's convicted of voyeurism or engages in voyeurism is going to take that next step and become a hands-on sexual offender, but the reverse is true. We know that a lot of violent rapists do engage in some of these offences that appear less serious. From our perspective, it's very dangerous to assume that someone who's been convicted of a summary conviction offence or a minor sexual offence should be excluded from the registry.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thanks.

I want to use my remaining time to look at the international application of this registry system. Do you believe the act should be amended to provide for automatic inclusion of Canadians who have been convicted in foreign jurisdictions of sexual offences that are comparable to those found in Canadian legislation? Has there been any work towards that?

[Mary Campbell]

That issue has come up a number of times. It's an important issue. When a Canadian has been convicted abroad and, under the International Transfer of Offenders Act, is transferred back to Canada under sentence, then of course we know about the offence. It would be fairly straightforward, I think, to consider a model that could include those people. Obviously, it wouldn't be happening at the time of sentencing. It would have to be a special application, but there the facts are known.

The more challenging situation is one where a Canadian has committed a sex offence abroad, completes the sentence there, and perhaps remains in that country or may travel to other countries. A significant period of time, many years, may pass, and then they may return to Canada. It's a very practical question of having the information. It's then a question of a police sharing of information. I don't think you would find many people who would quarrel in principle with the idea that they should be in a position comparable to that of a person who'd committed that offence in Canada. The question becomes how you get that information, particularly where years may have passed.

[The Chair, Conservative, Garry Breitkreuz]

We'll come back to you again, Mr. Davies. You're well over your time.

We'll now go over to the government side.

Mr. MacKenzie, please.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

Thank you to those who are here.

This is a very important issue. I know that the committee has been seized with a number of other things that are going to fill our agenda.

I listened to you, Superintendent Lines, and you indicated that you have a presentation that could be available. I think you indicated that we could go to your headquarters or that perhaps you could bring it here. I'm just wondering if the committee would be interested in having an evening in which the committee, not as a formal part of the evening, could invite some of these people here, including the RCMP, so we could get an overview of the Ontario program and perhaps how it could or would function in a national program.

I'm wondering if the committee would be interested and if the panel members would be willing to do that. Certainly, my office would be interested in lining up an evening event somewhere. If there's a willingness for that, then certainly we'll carry that forward and contact everybody.

One of the other things we talked about here was trying to prove a negative. I know that it's always, if not impossible, then virtually impossible, to prove how many it prevented. We simply don't know. I think you've done a good job in trying to illustrate the advantages of the system.

I know we talk about it in this context and others, but the other issue is recidivism. Recidivism is always measured by convictions. It doesn't mean that the offender didn't reoffend; it just means that the offender was never apprehended and convicted. We should not lose sight of that, particularly with respect to the crimes we're talking about here. From a practical perspective, there is enough expertise here that perhaps one or two of you would like to talk a bit about that.

My sense is that pedophilia, males on males, might have a rate of recidivism that would be a lot higher if we could measure the offences as opposed to the convictions of the offender. I wonder if you could explain any of that or take a crack at it.