Public Safety Committee on April 23rd, 2009

[The Chair, Conservative, Garry Breitkreuz]

I think you'll have to come back to that a little later.

Mr. Holland, please.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you, Mr. Chair.

I want to start by thanking the witnesses for the intelligent and sensitive way in which they approach what is a very difficult, sensitive topic. Particularly, I want to thank the Stephensons for all the work they've done. It's a great tribute to your son, everything you're doing, and it really is remarkable. I thank you for appearing today.

I want to start with a point before I go to my questions, because we really can't address it today. I think one of the things we have to underscore in this, because I very much support the sex offender registry, is I think it's also important to not hold it out as a panacea, that it unto itself is going to solve the problem. Often we talk a lot about enforcement, but I don't think we spend nearly enough time talking about either prevention or rehabilitation. I think it's an area of great failure that we have to be a lot stronger on. When we're talking about enforcement, I think it's important to hold our minds to that topic.

With respect to data, one of the things I'm trying to look at is the Ontario example, where there's an automatic addition, as opposed to judicial discretion. Ms. Bethell, the example you gave strikes me as sexual harassment, not a sexual offence as it's been defined as an example in Ontario. Ontario has a very defined sense of a sexual offence that certainly would preclude the example you gave.

I'm concerned that so many people are being left out of the system, and this registry, because it's not being publicly disseminated, is for the information of police officers. I'm wondering, though, because right now under the federal system we have a number of things here that are a little sticky and it would be hard to know exactly how to pinpoint. For example, right now in the federal registry you can have trespassing at night listed, or breaking and entering. I'm presuming the intent there is that if you're breaking and entering with the intent to commit a sexual offence, that puts you onto the registry. Yet I don't see that in the provincial law.

It seems to me the province has taken a very narrow view of looking at this, and the federal legislation is much broader. Maybe that's why it's not automatic. If we were to do what Ontario did, which is make the list of offences narrower and have it be automatic, would that assuage some of your concerns, or is there a way of dealing with some of these so we can make sure they're caught? I share the concern that a lot of this is not being picked up in the system. Personally, I don't believe it's somebody kissing somebody at a work party.

[Brydie Bethell]

The offence of sexual assault encompasses a wide variety of behaviour and what's called the actus reus of the offence, which is the actual act and not the intent involved. It encompasses a wide variety of behaviour, which can be determined on the basis of circumstances: things said, what is done and in what context, and what the relationship is between the two. So in fact, depending on the circumstances, yes, where there's no consent, an indiscreet and inappropriate kiss at an office party can be deemed sexual assault.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Okay, but let me, just to be clear, and I won't read them all, read some: sexual offence against a child by a Canadian citizen; sexual exploitation of a person with a disability; accessing child pornography; luring a child by means of a computer system; stupefying or overpowering for the purpose of sexual intercourse; living off the avails of prostitution; purchasing sexual services of a person under 18; removal of a child from Canada for sexual offence purposes; rape; attempt to commit rape; indecent assault on a female. I guess that's the one you would have a concern with, then. Is it possible, then, to...?

[Brydie Bethell]

Are you reading from the Ontario legislation?

[Mark Holland, Liberal, Ajax—Pickering, ON]

This is my example, the Ontario one, to address your point, because my point is that Ontario has made it much narrower. They've said that these are the offences we've deemed sexual offences for the purpose of putting somebody on the registry. If we're looking at this issue of automatically being placed on the registry, isn't part of the solution having a narrower list of definitions, as has been done in Ontario, to ensure that we preclude the type of situation you're stating while also dealing with the Stephensons' concern that you have a very large number of people who don't seem to be put on the registry right now?

[Brydie Bethell]

Yes, I was getting to that. The designated offences under the national sex offender registry right now include, as you say, a wide variety. So I was just addressing your comment about whether a sexual assault would put a sex offender on the national sex offender registry.

I know much less about the Ontario law, so I'm afraid I can only talk in generalities. I think that may be one way to strike the right balance in terms of not casting the net so arbitrarily wide as to encompass all offences and all variations of assaults. That is one possibility. But I think there are other ways to make the national sex offender registry more effective without making it mandatory. For example, some of the members of the council, who work right across the country, have told me that one improvement to the registry might be to list the factors a judge could take into consideration when putting an offender on the registry. Right now there is no enumerated list. A judge can take into account a wide variety of factors. That is discretionary, and it's up to the judge to make that determination. That may be a good thing, but one of the criticisms of that is that the law is applied inconsistently. In one case a judge might take into account some factors, and in another case the judge may not take into account those same factors.

One possibility, rather than having a mandatory list, might be to keep the list of designated offences but enumerate the factors a judge takes into consideration when making the determination on whether an offender goes on the registry.

[The Chair, Conservative, Garry Breitkreuz]

We'll have Mr. Norlock, please.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much.

And thank you to the witnesses for coming this morning. We've heard some very good evidence.

Last night, when I was having the second part of my evening meal at my apartment, I happened to be needing some brain candy. I didn't get any, because there was a program on, one of the more popular police-type shows. It had to do with the very subject matter we're talking about here today.

Earlier on in the week we heard some testimony from the police witnesses, and then this morning of course we're building on that and dealing with some issues. I don't think anyone, whether they be police officers, defence counsel, prosecutors, judges, or even victims, for that matter, would want their personal privacy to be exposed to the extent that they would really have none. But that's not the purpose of this registry, at least as far as I know.

Nor would we want to restrict the ability of judges to exercise discretion. But in the view of many people--and I believe Mr. Stephenson--this discretion has gone to the point where the weight of the needs of society and the victim seem to be still tilted towards the needs of the accused. We get so worried and so bound up in making sure the person who has perpetrated the crime--and in this case it's on conviction, so we're not dealing with somebody who is accused, we're dealing with somebody who's been convicted--that we forget what the purpose is.

This program has some similarities to what the police said. Number one, the first few hours of the investigation are crucial. We're dealing with the office kiss and that. I'm going to allude to that, and then I'm going to ask for some comments from the Stephensons. But the first few hours are crucial if you're going to find that abducted person who will be sexually assaulted. The first few hours are critical, and the whole purpose of the registry is to give the police a tool.

When we talk about the efficacy of the registry, it's not actually designed to solve the case; it's designed to assist the police in narrowing in on the few individuals who might be the perpetrator of the crime and then solve it. It's only part of it. In that way, I guess it's very difficult to quantify. It's very difficult to say how good it is except to ask the very people who use it and who do the investigations.

If we look at their testimony, it leads us to a few things: time is of the essence; as much information as can be gleaned from the convicted persons...their habits, sexual preferences, sexual appetites; and then of course the very significant part is where they live, because that's going to narrow in where the crime occurred, etc. The other thing of course is that you bring in people like profilers who help with that.

My question to the Stephensons will be this. I don't want you to go into something that would be difficult for you emotionally, but talk about the system you would like to see. It sounds like it would be a system similar to Ontario's, with a few things that are better.

Based on your experience, and from similar cases, which I'm sure you've look at, do you think there would have been a more successful outcome were there a better system? I would like you to comment on that.

[Jim Stephenson]

My immediate response to that is yes, I think there would definitely have been a very different outcome. In our case, Christopher was abducted from the mall, on a shopping trip with his mother and younger sister, and he was taken from the mall to the offender's residence. He was held there against his will, for approximately 36 hours, at an address and a location that was probably about a block away from where we lived, and continue to live to this day.

At the end of that 36-hour period, the attacker, the man who murdered him, decided that he had no alternative, unless he wanted to go back to prison, but to do away with Christopher, to end his life, preventing him from testifying or identifying him should he ever be apprehended. And that was his whole modus operandi.

Today, if we had the sex offender registry that is in place in Ontario—which is a state-of-the-art role model for registries in other jurisdictions—the outcome would have been very different. Time is of the essence in these investigations, and police were on the scene within about three minutes of Christopher's abduction. They responded very quickly but did not have much information to go on. They had no information on sex offenders who were living in the community, although by order of his release from the institution, Fredericks—who had abducted and murdered Christopher—had registered his address with the police services, as he was required to do. They had no access to that information. It wasn't contained on a database. It was contained in the local police station where he registered, and it was confined there. It was held basically in a Hilroy exercise scribbler. That was where the information was stored.

Today we have a database with IT support that is second to none. There is no comparison. Today that information would have been available to officers immediately on the response to the call to the shopping mall, and within minutes they would have had a list of known sex offenders, child molesters. Fredericks had been convicted of a sexual assault on a young boy in this very city some three years before he abducted and murdered Christopher. So he had a record, and this information would have been available to police officers.

I mentioned Christopher's being held for 36 hours. Certainly a police intervention would have taken place much before 36 hours, and this would have made an incalculable difference to his mother and me.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

We'll now go over to the Bloc Québécois.

Monsieur Gaudet, go ahead.

[Roger Gaudet, Bloc, Montcalm, QC]

I only have a brief observation to make. Then I'll hand over to my colleague.

I'm in favour of recording information on sex offenders in order to assist police, just as I am in favour of registering firearms. My colleague Mr. MacKenzie is in favour of recording information on sex offenders, but he does not want to register the weapons with which sex offences are committed most of the time. We have to be consistent in our opinions. That was my observation.

As I am not very informed about justice, I will let my colleague Mr. Ménard continue asking you questions. If you want to answer, you have the right to do so.

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

In fact, the question I wanted to ask Ms. Bethell has already been asked by the New Democratic Party representative.

However, I would have liked you to elaborate a little more. I practised criminal law for more than 30 years. I was Quebec's minister of public security for a long time, and minister of justice as well. So I'm quite familiar with the subject. You said that more than half of sex offences are committed between people who know each other. I imagine your practice has given you more examples than that unwanted kiss at the Christmas or New Year's party.

Are there any other situations for which you believe registering sex offenders is not effective in solving other sex crimes that might be committed.

[Brydie Bethell]

Thank you.

My answer to that question is that I don't know what crimes or offences the registry would be able to solve or prevent. From what little I do know about the registry, albeit it is little, I have yet to see any empirical evidence that it works for any offence. That's not to say I don't think it could; it's very possible, and I'm open to that. It's simply that in order to be satisfied that we are conforming to the principles of fundamental justice when we enact certain laws, we should be doing so with not too broad an objective and we should have an understanding of what it is the legislation is going to solve, the problem we're going to solve. Is there evidence that a particular solution will solve that problem? I haven't seen it. I'm open to seeing it. I hope the registry will solve some problems, but I wonder where the evidence is that it can, does, or will.

It's true that if a first offender commits an offence, the registry will not catch that person because that person has not been convicted before. The registry is only for someone who has been convicted before, so the issue is reoffending, not the global idea of the offences themselves.

Of course, as we know, the vast majority of sexual offences occur between people who know each other. The horrible tragedies where it is an offence committed by a stranger are in fact rare. That's not to diminish that we shouldn't be very alive to doing everything we can to prevent that, but again, we have to maintain a perspective on what the levels of incidence are vis-à-vis what kind of solution we design to address that problem.

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

Before saying that I'll put the same question to Ms. Campbell or Mr. Baggaley, I believe we all agree that the kind of offence committed by the offender who assaulted the Stephenson boy is definitely a striking example of the usefulness of this registry. I also think that all the examples cited by my colleague Mark Holland are cases where that is not a problem; that's very clear.

It's true that the majority of sexual offences committed on a daily basis, which do not make newspaper headlines but are judged before the courts, generally involve people who already have sustained relations not only within the family, but very often at work. These offences are sometimes also committed in the field of education. They also occur among people who fall in love but do not have the matter prosecuted in criminal court because that would be contrary... That is the case in certain professional relationships and so on, and these are classified as sex offences.

I believe that Ms. Campbell is ready to respond to those concerns.

[Lisa Campbell]

Yes, thank you very much.

The point you raise is very important. What is the purpose of the act? As Ms. Bethell said, a significant number of sex offences often involve people who know each other, and those offences are committed in domestic situations. They are often committed by young people who do not commit other offences during their lives.

Earlier we heard that the Ontario act contemplates a limited number of offences. And the purpose of that act is indeed to assist police where offences have been committed.

However, the federal act, which affords discretion, includes a broader range of offences, offences that people may commit before committing more serious offences, such as the one the Stephensons experienced.

It depends on what you want to do: do you want to assist police in preventing serious crimes, or do you want to help them rule out suspects in an investigation? That's the distinction between the two models.

The current federal model could also help prevent serious offences, while respecting the privacy rights of the persons involved. Does that answer your question somewhat?

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

Yes, but I'm ready to answer the one you're asking us.

I believe that, if possible, we all want to prevent as much as to prosecute quickly those who commit offences. That's the idea.

I'm talking about professional relations, such as those between a psychologist and patients, those between a teacher and a student where the age difference is not great, even though the student is a minor. These are all sexual relations that are characterized as assaults when the cases are brought before the courts.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll go to Mr. Rathgeber, please.

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

Thank you, Mr. Chair.

To all of the witnesses, thank you very much.

I'd especially like to thank you, Mr. and Mrs. Stephenson, for coming here and sharing your story and your passion on this very important issue.

I'm somewhat troubled by some of the comments I heard from the Office of the Privacy Commissioner, so I'd like to go there first.

Mr. Baggaley, I accept the premise that society, and we as parliamentarians, must balance privacy versus the value that a sex offender register brings to society. But I suggest to you that it becomes a self-fulfilling prophecy that a sex offender registry becomes ineffective if, by statutory definition, you limit its scope.

Now, we've heard some suggestion that the Ontario registry is more effective because it is more exclusive, and therefore, by definition, the national registry is less efficacious because it is more restricted. Do you agree with my premise that if you restrict its application to such a narrow...or to making it optional, at the discretion of the judge, by its very definition you're going to capture fewer offenders?

[Carman Baggaley]

I have a couple of comments.

First of all, on the issue of discretion and the percentage of offenders who are in the national registry, one of the things I would suggest is that you try to get a very clear sense of why you're not capturing a higher percentage. Would a reasonable person look at it and say that these are cases in which the judge reasonably exercised discretion? Are these cases of plea bargain, or cases of the prosecutor not even asking?

So you should have a clear sense of why you have a much lower percentage.

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

Right. And the registry has only existed for four-plus years, so it's still in its infancy, especially compared with the Ontario registry, which has been with us nearly a decade.

[Carman Baggaley]

That's a fair point. But with respect to, I guess, the heart of your question--whether too much focus is being placed on the privacy rights of the offenders, and therefore, by definition, you've built in failure--I'd go back to the point I made earlier. It seems to me that a huge amount of information is already collected about the offender; I would ask what additional information you're proposing to add.

If there are problems with respect to police agencies not being able to access this, or if the system is structured in such a way that it's not easy and quick to search the registry, then by all means make those changes. The worst possible case would be to have this information, to intrude on the privacy of the individuals by collecting this, and then have a system that doesn't work.

You either make it work, preferably by measures that are as least intrusive as possible, or come to the conclusion that, by the very nature of the offences, this type of registry is not going to work.

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

On that point, we agree. I think we have to make it effective if we're going to compromise on the privacy rights of individuals. It's certainly my motivation, as I think it is for all of my colleagues, to make it effective.

Ms. Bethell, I want to challenge you on this hypothetical analogy that's been the subject of some questioning here, and that's the office kiss. I thank you for lending me your Criminal Code, which confirmed what I had suspected: sexual assault, section 271, is in fact a hybrid offence. The crown has the discretion to proceed by indictment or by summary conviction; you'll agree with that.

[Brydie Bethell]

Yes.