Public Safety Committee on April 23rd, 2009

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So is not the solution to this problem--if we were to make registration of the designated offences mandatory, such as it is in Christopher's Law in Ontario--to make the discretion, in the trier of fact, limited to those convictions where the crown has proceeded by summary conviction? Doesn't that solve the office kiss problem?

[Brydie Bethell]

It may solve the office kiss problem. It may solve the idea of sweeping up arbitrarily all persons into the registry who may not be appropriately there. That may solve that problem, and that's something to consider, but again, the issue with making it mandatory is that it leaves the prosecutor and judges without any discretion at all.

Right now in the criminal justice system—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But the prosecutors have the discretion to proceed by summary conviction.

[Brydie Bethell]

Sorry...?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

The prosecutor has the discretion to proceed by summary conviction.

[Brydie Bethell]

Right, with respect to the Ontario registry. So you're saying that a summary conviction—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

No, no, with respect to any sexual offence anywhere in Canada, if it's a hybrid offence, the prosecutor has the discretion to proceed by summary conviction.

[Brydie Bethell]

Yes, they do.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you. So you're not taking away the crown's discretion.

[Brydie Bethell]

I'm sorry...?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You're not taking away the crown's discretion on a hybrid offence. That is my question.

[Brydie Bethell]

No, the discretion is with respect to the registration. That is what I'm talking about.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Is that my time?

[The Chair, Conservative, Garry Breitkreuz]

I'm so absorbed in listening here that I wasn't watching. Yes.

I have a question. I was hoping in all the rounds of questioning that we would come back to something we heard last Tuesday, and that is that in the U.S. the public has access to information about who is living in their communities. Could each of you give me a brief comment on whether you would agree it would help in protecting the public if it had access to the information that is contained in the sex offender registry? Could each of you give me a brief comment on that?

[Brydie Bethell]

I will come back to a comment I made in my opening statement, which is that in a democratic society, we make the decision for the prosecution of offences and the investigation of offences to be undertaken by the criminal justice system. We don't undertake that obligation or responsibility ourselves as individuals. So in my view, that would be an impermissible breach of privacy rights.

[Carman Baggaley]

There are already provisions under the Conditional Release Act that allow, on a case-by-case basis, information to be released to local police forces and to the community, when someone is released who is considered to be a threat. We would much prefer this to be dealt with on a case-by-case basis as opposed to making the registry open.

[Jim Stephenson]

Just prior to commenting on the question, I'll make another comment. That is, I'm absolutely stunned by the amount of attention that has been paid to this office-kiss scenario. We are talking about the national Sex Offender Information Registry Act, which covers a range of offences, sexual offences, from homicide to an office kiss. The majority of the offences for which convictions are brought down fall well within those ranges, and it is just stunning to spend the amount of time we have this morning on discussion about whether or not an office kiss should result in the offender being placed on the registry.

However, having said that, at the time the Ontario registry was in its conceptual state, we were approached with the question of whether or not the information should be made public, and our advice on that was no, absolutely do not make it public. The last thing we need to do is put information about offenders, who may or may not be guilty of a particular offence that is under investigation, in the hands of the public, particularly concerned family members who may take the law into their own hands and do something they would regret and society would regret at a later date.

I'd like to make another comment, too, on the registries that exist in other jurisdictions. This seems to have been something that someone has thrown up on the wall. It seems to have stuck that the Ontario registry, compared to other registries in the States, doesn't seem to have the same kind of power of police search capability or the ability to assist in an investigation. I would think Ontario's model is, as I've mentioned in my presentation, state of the art. Registries in the States, in various jurisdictions south of the border, range from notebook information maintained at various central police stations, to Hilroys that go absent and are taken home by officers who are involved in management of the information, to models that are computer-based, similar to Ontario's.

So to compare apples with oranges is a mistake, and I would think if we look at the success or lack of success of models in the States as a benchmark for what we should be doing in Canada, we're making a bit of a mistake and we're shortchanging the ability of a model that is based on current IT and is aggressive and proactive. The jurisdictions in the States cannot boast similar models in operation in their investigations.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Mr. Kania, please.

[Andrew Kania, Liberal, Brampton West, ON]

First, to the Stephensons I'd like to sincerely say that I am truly very sorry for your loss.

Speaking to the reason we're here today, my perspective is that we have to develop a system that is as strong as possible, taking fairness and privacy issues into account, but unfortunately, we're here seven months after amendments were passed. I think most of the members of this committee would agree that when Bill S-3 was proposed and passed under the leadership of the Conservatives, they left a number of problems unsolved. What I'd like to discuss is those problems and how we best can develop a system that focuses more on prevention.

We have discussed mandatory inclusion, automatic registration, the use of the system proactively, so that they can try to find people who have been abducted, as one example.

Concerrning identifying people, I find it quite amazing that under the amendments they didn't allow for warrants to be issued or for publicizing people who have not registered, as they are supposed to do. Failure to use licence plates on vehicles I can't understand either.

What I'm looking at is something that tries to fix these problems that were left unresolved when the Conservatives passed these amendments seven months ago.

I will address the Stephensons first. You say the Ontario system is state of the art, and I know it is much better than the federal system, so my first question is whether you think there are any ways that the Ontario system should be improved, so that we would take that into account when trying to do something else now.

[Jim Stephenson]

You mention the amendments that were legislated about seven months ago. They came as a result of the findings of the Auditor General, who had done an audit on the sex offender registry. He mentioned a number of shortcomings and gaps and soft spots in the existing legislation at the time. The provincial government's response to that was to move to close those gaps and loopholes, as he had suggested in his report.

Beyond that, I am not aware of and cannot recite any further enhancements that we would submit here today.

[Andrew Kania, Liberal, Brampton West, ON]

This is to the Privacy Commissioner. In your report, you made a comment: “There may be ways to make the scheme more effective through increased resources or through procedural changes that would enhance the effectiveness and value of the legislation without increasing its intrusiveness.” When I read the words, “without increasing its intrusiveness”, I understand, don't put in mandatory inclusion and don't remedy all these various problems.

What I'd like to know from you, either today or through a written response at some point, is what you would suggest to improve the system to the strongest possible level without violating privacy rights that you are responsible for. That is something I want to address.

I am going to suggest one potential compromise. If the legislation is made stronger, and I'm not going to suggest what should be included, but if it is made stronger to try to address some of the problems, what about a potential compromise? Right now section 17 of the statute provides penalties for the improper use of the information. One suggestion perhaps, and I'd like to hear your opinion on it, would be to make that even stronger, to really provide a disincentive to anybody to improperly use this information at the same time as we're strengthening the legislation to make it more helpful for preventative types of activity.

I'd like your comments on that.

[Carman Baggaley]

I'll be brief.

We're not convinced that this would necessarily be more effective, unless we have some reason to believe that there's a problem now that the information is being misused. From our perspective, the privacy intrusion is not about the misuse of the information in the registry, but rather about the collection of the information, the monitoring of the individuals. That's why we're saying that there needs to be a balance, and one way to look at the balance is to assess its effectiveness.

Concerning ways to make it more effective, resources is one possibility. I suspect that one of the problems with the scheme is that ultimately it is a national scheme and not a federal scheme, that much of the day-to-day work is not done by the RCMP but by local police forces. How you get them to cooperate or how you get them to take a more active role is likely to be a challenge.

Are there systems ways to make it more effective? One of the problems, I understand, is that when the year is up and the individual has perhaps not re-registered, there isn't a simple systems way of identifying the fact that the person has failed to re-register. Are there ways to address some of the problems that would not increase the intrusiveness?

[The Chair, Conservative, Garry Breitkreuz]

I want to make the committee aware of and would like to welcome the group of grade nine students who have come to observe the proceedings of this committee. They're from the Woodbine high school in Toronto, and I believe they want to see how Parliament works outside the House of Commons. I hope they will see that some real, serious work goes on here that is generally not as political as what they would normally observe.

Welcome. We appreciate your taking the time to observe what we're doing here. Thank you.

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

We are the best committee.

[The Chair, Conservative, Garry Breitkreuz]

That comment you heard was that “we are the best committee”. I won't object to that.