Public Safety Committee on April 23rd, 2009

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

We don't have much time, Mr. Stephenson, but I believe I clearly understood your remark that we could adopt the Ontario system and that that would be a major step forward.

[Jim Stephenson]

I'm sorry, I didn't catch all of that.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Your wife understood, I believe.

[The Chair, Conservative, Garry Breitkreuz]

We'll have to wrap this session up. Please give a quick response.

[Jim Stephenson]

That would be the case.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

With your permission, Mr. Chairman, I would like to put just one more question to Ms. Bethell.

[The Chair, Conservative, Garry Breitkreuz]

You will have an opportunity in the next round. You're three minutes over.

Mr. Davies, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

I very much appreciate the physical manifestation here today of the diverse perspectives on this. We have the valid voice of due process, privacy, and the particular horrors experienced by those who have suffered the victimization of this. I think these are all very important voices added to this discussion, along with hearing the police perspective on Tuesday.

I want to express my deepest sympathies to the Stephensons at the outset.

I'd like to start by asking about something the police representative said on Tuesday. If I understood them correctly, they said that there are certain specific and unique attributes to offences of a sexual nature. One of them is the need for speed. They claimed that when a child is abducted, or if there's any kind of sexual abduction, the chances of the victim being murdered are very high within the first 24 hours. There seems to be a particular urgency to these kinds of offences. Second, they asserted that very often there are multiple offences, whether discovered or not. They seem to suggest that if you caught an offender, even a first-time offender, the chances of that person having done it before on many occasions without being caught were quite high.

I'm wondering if you have any comment on that . And if you accept those comments, do you think that those particular attributes justify a more robust approach by Parliament on this to ensure that the registry be tougher because of those reasons?

[Carman Baggaley]

Clearly, we don't have any expertise with respect to law enforcement, but unfortunately on Tuesday I believe Sergeant Nezan commented that the national sex offender registry had not been used to solve a single crime. If there are ways from a systems perspective to make it easier and quicker to search the information in the database to deal with the very understandable need to get access to information as quickly as possible, by all means make those system changes--whatever is required. However, I understand there are 19,000 names in the registry now. If with 19,000 names it hasn't been used to solve a crime, would increasing that to 25,000 or 28,000 suddenly make it significantly more efficient? It's not clear to me why that would be the case. I think until you have a very clear idea of why it's not more effective it's very difficult to get a sense of what the changes needed are to make it more effective.

[Don Davies, NDP, Vancouver Kingsway, BC]

I'm not sure that I heard Inspector Nezan actually say that the registry had not been used to solve a single crime. I think what he said was that the registry had not been in place long enough and the data has not been compiled to draw that direct conclusion. I'm not sure that his remarks would be interpreted quite that way.

I want to move to judicial discretion. Under the present circumstance, of course, we don't have automatic registration. However, if I understand correctly, there's a reverse burden on the offender, because they would have been convicted at that point, to satisfy the court on a gross disproportionality test that his or her privacy interests outweigh the interests of protecting the public.

I'm wondering, Ms. Bethell, or the privacy people, if you can give me an example of where you think an offender would not properly be the subject of an order.

[Brydie Bethell]

There is a whole range of sexual offences under the Criminal Code. At a drunken office party, a person who is otherwise a very law-abiding citizen commits an indiscretion—and I don't want to minimize that at all. I'm a woman and I understand that. I don't want to minimize that at all. If we take the mandatory system in Ontario, if that person who committed and was convicted of that sexual assault—that kiss at an office party—goes on the registry, is that a reasonable limit on that person's freedom, to achieve the objective we're trying to achieve with this legislation? For ten years after serving that sentence, the guy who kisses the colleague at the office party, should that person's privacy be limited for a period of ten years? Does that make sense? Is that an appropriate use of that power?

That may be an example of one situation where it may not be appropriate, but that's up to you guys to decide.

[Don Davies, NDP, Vancouver Kingsway, BC]

And I also thought it was an important point to make that it's not just judicial discretion we're talking about, but prosecutorial discretion as well. Do I have that correct?

[Brydie Bethell]

That's correct. Currently as I understand the legislation, the prosecutor is the one who initiates the registration. So the form 52 is commenced by the prosecutor and then it's the judge who decides whether or not to proceed with that procedure.

[Don Davies, NDP, Vancouver Kingsway, BC]

The chair is giving me a very short period of time, so I'll just quickly get this out. The officers wanted to make the system more effective with the addition of vehicle information and I think a broadening of the sharing of information among law enforcement agencies. Could you give a brief comment? From a privacy point of view, do you have any concerns or problems with either of those two enhancements to the information collected?

[Carman Baggaley]

With the very important caveat of the overriding question of the effectiveness of the scheme, adding vehicle information is a relatively minor additional piece of information to what's already being captured. Keep in mind that, since people do change their vehicles frequently, it does impose that extra compliance requirement and the administrative burden of keeping the vehicle information up to date.

[The Chair, Conservative, Garry Breitkreuz]

Thank you. Very good.

We'll now go over to Mr. MacKenzie, on the government side.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

Thank you to the panel for being here.

I have listened very closely, and I share some of the same views as Mr. Oliphant.

I have certainly dealt with a number of offenders and I've also dealt with a number of victims. When you look at it from all sides, I think we have let society down somewhat with an expectation that we have a system that is effective. We heard very clearly, and Mr. Davies pointed it out in what we heard.

Ms. Bethell, you indicated a drunken kiss at an office party. That wouldn't result in the conviction of a sexual offence. We need to make certain that we understand here that these are people charged and convicted of sexual offences.

I listened to some of the concerns, and I appreciate what the concerns are, but Mr. Baggaley, I think you'd have to agree that anybody convicted of a sexual offence generally has had their name in the press, and frequently the public could Google that name. What in the world would be wrong with the police agencies having that information available to them in a central system, where they can access it?

The effectiveness of the program obviously won't work if we don't put the right information in. Take for example car registration. I think you'd recognize that. Registration of cars is in the system now.

What would be wrong with assembling that? Those people convicted of these sexual offences have been fingerprinted and photographed. What would be wrong with having some additional information there to deal with these issues to help the police in those cases?

And these are serious cases. When we have people coming here today, like the Stephensons, who have experienced that, I don't know how we can say to Canadians that we're trying to protect them by keeping other people's information secret when the information has already been made public. I look at this whole scenario, and I think sometimes we set up bridges—and I think Mr. Stephenson used a prime example—we set up the system with not enough information, and it won't work.

I think we heard from all of the police officers here on Tuesday that the systems we have in place do not cost a great deal of money. We don't seem to mind spending money on other registries, from a federal perspective, that are somewhat questionable. Why would we not want to expand this to give it the worthwhile tools to help the police community, to help our families, in many cases, come to a quicker conclusion?

Could you explain to us, under the privacy legislation, what would be wrong in enhancing that registry by putting the information in there that's already known?

[Carman Baggaley]

Well, let me make a couple of comments.

First, as I think I suggested, we didn't come here today to advocate the abolition of the scheme, so we're not saying that you should do away with this.

One of the other concerns of our office, quite frankly, is with the amount of information that's available over the Internet, the amount of information that's generated through administrative tribunals, very sensitive information about individuals. There is, however, a difference between a newspaper's reporting on a crime, reporting on the conviction of an individual, and people forgetting about it, and for example the types of schemes we have in the United States, where the information is posted on a website.

You know, we did have the situation of a young man from Nova Scotia going to Maine and killing two people.

[Dave MacKenzie, Conservative, Oxford, ON]

But if I could interrupt you right there, there's never been a suggestion from this committee or anywhere else that I know of that the intent is to make the information generally known to the public. I have a serious problem if we look at what's going on in other jurisdictions. We need only look in our own jurisdiction. We heard very clearly that we could enhance the system by putting in more information, which is already known.

[Carman Baggaley]

I guess the question is, how much more information? You have all of the physical characteristics of the individual. He or she's required to provide an address, keep it up to date. The possibility of adding information about the vehicle, we've discussed that. I guess it would be a question of what other information you're suggesting.

The individual is required to provide information about his or her place of employment at the moment, required to provide information about aliases, distinguishing characteristics. The database contains information about the types of offences the individual has committed in the past, the age of the victims.

If there are problems with the way in which that information is made available to law enforcement agencies, then you should look at whether there are ways to make this information, which is already collected, more readily available to law enforcement agencies, provided they have a reason to be looking at it.

[Dave MacKenzie, Conservative, Oxford, ON]

Sir, with all due respect, law enforcement agencies have access to the information on registration of vehicles, they have information on convicted criminals, all of those things. Why would it not make sense that in this particular case we put it into a registry that just deals with these types of offences? I understood from your comments that you've looked at the evidence that was heard here on Tuesday. I think we heard about some effectiveness from the Ontario registry, from the people in charge of it. It has been beneficial in at least taking people out of situations where they had access to potential victims. The federal system doesn't have that capability in it.

What would be wrong in importing the Ontario system into a national system? How does that hinder the protection of privacy of individuals other than those who are potential perpetrators? They've already been convicted.

[Carman Baggaley]

My understanding is that the most significant difference between the federal system and the Ontario system is the issue of discretion. We've discussed the issue of discretion, and perhaps my colleague can comment on the issue of discretion.

[Lisa Campbell, Acting General Counsel, Legal Services, Policy and Parliamentary Affairs Branch, Office of the Privacy Commissioner of Canada]

Good morning, sir. Thank you very much for your comments. My name is Lisa Campbell.

Our point of view is that privacy's a constitutional right, which we have to remember. Even after a person's been convicted of a very serious offence, they still have some rights. It's in our best interest as a society to ensure their legal rights are protected for rehabilitation purposes.

We agree with you, and with the Stephensons for that matter, that if you're going to establish a system like this, it should be effective. It should make effective use of the personal information that's collected. You make a good point, that much of the information you're talking about is already available in other databases. I think our main point, and I think the Stephensons' as well, is get some empirical evidence on how it's working now, before you make further changes.

[Dave MacKenzie, Conservative, Oxford, ON]

Maybe our problem is that we don't have the system in place. We need to work on the system to get the evidence. I think our Constitution also provides for the safety and security of the individual. We also have to look at that as being one of the tenets of this whole system. I think we have failed because we haven't set up the system with the breadth and the depth it needed.