Public Safety Committee on April 23rd, 2009

[The Chair, Conservative, Garry Breitkreuz]

This is the Standing Committee on Public Safety and National Security, meeting number 16.

I'd like to inform everyone that we are continuing our study of the Sex Offender Information Registry Act. It's a statutory review of the act.

We have before us witnesses from the Office of the Privacy Commissioner of Canada, Mr. Carman Baggaley and Ms. Lisa Campbell; from the Canadian Council of Criminal Defence Lawyers, Brydie Bethell; and as individuals, Anna and Jim Stephenson. We welcome you all to our committee.

I think you have agreed to go in the order I have just listed.

You may introduce yourself and also maybe just give a brief résumé of yourself.

Mr. Baggaley, you may begin.

[Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada]

Good morning. My name is Carman Baggaley. I'm a strategic policy advisor with the Office of the Privacy Commissioner of Canada. I'm here with our general counsel, Lisa Campbell. We're pleased that we were asked to appear to comment on the Sex Offender Information Registration Act.

Our office has an obvious interest in the act. The act requires convicted sex offenders to register with the police and, after they've been released, regularly inform the police of their movements. In addition, they're required to provide personal information, telephone numbers, secondary addresses, and other information that potentially allows the police to contact them. These are requirements that are not imposed on other types of offenders who have completed their sentences.

We understand why this is the case, given the seriousness of these offences. Nonetheless, this is a significant intrusion into an individual's privacy, an intrusion that can only be justified on the grounds that it produces a clear and demonstrable public safety benefit that cannot be achieved through less intrusive means.

One way to assess the reasonableness of the inherent intrusiveness of the legislation is to look at its effectiveness. We know that questions were raised about the potential effectiveness of the registry when the legislation was first proposed. We're not aware of any formal evaluations that have been done since the act came into effect that would directly answer these questions.

We're also aware of testimony before this committee that casts doubts on the effectiveness of the registry. Assessing the effectiveness of the scheme is very important. If it's not effective, then the privacy intrusion is for nought. Sacrificing someone's privacy in the hope that this may protect society is a dangerous precedent.

We expect that the committee will hear many suggestions to improve the registry, and we expect that many of these suggestions will involve expanding the scope of the regime. This could involve a number of possible changes, such as increasing the number of designated offences, eliminating judicial discretion with respect to the issuance of orders, or allowing greater or broader use of access to the registry.

We would urge the committee to avoid trying to improve the effectiveness of the registry by allowing its broader use. Providing public access to the registry or allowing it to be used for community notification could be counterproductive. Incidents have occurred in both the United States and the United Kingdom in which members of the public have attacked and even killed people suspected of being sex offenders, based on information contained in the press or accessible through the Internet.

In addition to the harm caused to the offender, or, in some cases, people wrongly thought to be an offender, this publicity may be counterproductive. It can drive offenders underground and make them less likely to comply with registration requirements. One of the purposes of the act is to help police investigate crimes of a sexual nature by requiring registration of information related to sexual offences. Making changes to the act that would reduce the likelihood of compliance runs counter to this purpose.

Publicizing the identities of offenders may also make them less likely to seek treatment, and it could make it harder for them to establish a stable environment, increasing the possibility that they may reoffend.

We did not come here this morning to urge the committee to recommend withdrawing the legislation. We know this isn't going to happen. We know there is considerable pressure to change the legislation. We would urge the committee to look at any proposals carefully, particularly proposals that would increase the amount of information being collected or disclosed or expand the permitted uses.

There may be ways to make the scheme more effective, perhaps through increased resources or through procedural changes that would enhance the effectiveness and value of the legislation without increasing its intrusiveness.

We'd like to conclude by offering two specific suggestions. First of all, we think there should be greater transparency and openness about the program. For example, we weren't able to find any information on either the RCMP's website or Public Safety's website about the number of registered offenders. In contrast, one can look at the DNA data bank. It publishes an annual report. You can go to its website and find out a great deal of information about how that program operates.

The other recommendation we would make, and we think this is critically important, is that there should be a formal evaluation of the effectiveness of the legislation. This should be done by an independent third party. We would strongly recommend that this evaluation be done before any significant changes are made to the legislation.

Thank you for your time. We'll be pleased to answer any questions you may have.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, sir.

We'll now move over to the Canadian Council of Criminal Defence Lawyers, Ms. Bethell, please.

[Brydie Bethell, Barrister, Canadian Council of Criminal Defence Lawyers]

Thank you.

My name is Brydie Bethell, and on behalf of the Canadian Council of Criminal Defence Lawyers, I'd first like to thank the committee for the opportunity of being here, as well as Mr. Baggaley and Ms. Campbell for their comments. I'd also like to commend Mr. and Mrs. Stephenson, who are here this morning, for the courage that it no doubt takes them to do so.

As you probably know, the Canadian council is a national council, as compared to some of the other organizations in the country. It has representation right across the country, from coast to coast to coast, including our three territories in the north. We offer a national voice, not on behalf of defence counsel so much as on the administration of justice in relation to the preservation of due process.

We're very grateful to be here, and it is the council's hope that we can assist the committee in any way we can. This is not an easy issue. This issue strikes at the core of our hearts as human beings and as parents, as many of us in the room today are. All of us want to protect our children and our communities. It's almost impossible to think we would not do anything in our capacity to do so. The issue also strikes us, however, at the core of who we are as citizens in this country. The reason that Canada is the envy of the world in many respects is because we as citizens have sought to uphold the principles of democracy in the choices we make for our communities. We compromise and we balance. We balance competing interests.

I'm sure none of you believe this, and I hesitated about whether I would say exactly this, but it's often the case, and this is true among my friends as well, that as a defence lawyer I protect the rights of offenders, but that's not what I'm here to do today. We are all together here today as citizens to figure out what the right thing to do is with respect to the national sex offender registry. I don't think there is anyone here who would disagree with me that we are here to strike the appropriate balance, to step back and look dispassionately at what we have, what's missing, what's needed, and why we are doing this. This is not a we-and-they issue, but it is an issue that requires us to balance individual and collective rights.

The criminal justice system in this country exists because it is a system to which we turn to address wrongs committed against society. We don't address those wrongs ourselves. When a criminal offence, for example, of a sexual nature occurs, we don't put a sign on someone's lawn because we think that person has done it. We go to court to have the problem addressed appropriately.

I'm not here to tell you what the law should be; it's up to you as parliamentarians to decide what the law should be. I view my role here today as to help you decide what the balance should be. In doing so, I would urge you to consider the following questions, and I hope this idea, these two questions, will help you to frame the way in which you will approach the solution to this problem.

First, what is the purpose or goal of the registry, and what are the purposes of the proposed changes? Secondly, if the changes are made, how would this affect accused persons across the country, not just here in Ottawa, but for the farmer in Saskatchewan, for aboriginal persons working the seasonal traplines in fly-in communities in Nunavut?

It's my understanding that there are serious concerns about the effectiveness of registries in either solving or preventing reoffending, and I emphasize the word “reoffending”. Two possible reasons for this are as follows. Registries can do little, if anything, to capture first-time offenders. The registry is about catching reoffenders. Secondly, the majority of sexual assaults occur between people who know each other--family, friends. So it is a serious question to ask whether registries in fact make society safer and at what expense.

On the practical level, resources are another factor to consider. Resources, as parliamentarians, we all know, are not infinite, but demands, both financial and administrative, are. So there are choices to be made when making sensible investments in our law enforcement policies. The question, I think, is what is the best way to spend our limited law enforcement dollars, especially when we marry this question with the serious issue of effectiveness.

Also relevant when considering whether registries add value to the process is the fact that there are alternatives already functioning in the criminal justice system. For example, we have the ability to make designated offender designations, as well as the ability to make long-term-offender designations. There are others--for example, the 810.(1) peace bond provision in the Criminal Code, and probation generally, which is designed for rehabilitation and social integration and is tailor-made to the needs and requirements of the offender and the offence.

My final point is a note about discretion. An integral part of the criminal justice system, in my view, is the ability of judges and prosecutors to deal with the offender and the offence on an individualized basis. This is consistent with another principle of our criminal justice system, which is respect for the independence of the judiciary. When we give judges and prosecutors discretion regarding who is placed on the registry, rather than requiring placement and permitting exceptions on a high test of “grossly disproportionate”, it takes away from the ability of judges and prosecutors to use discretion.

This is a national registry, so its impact must be considered with respect to all Canadians. I would ask you to consider whether it would be a principled approach to take away from the ability of the present registry to individualize and not arbitrarily sweep up all persons based on the class of offence.

To return to my main theme this morning of balance, the difficulty of resolving the issue between getting the compromise right between collective rights and individual rights, the question we're all here to answer is, what are the reasonable limits on a person's rights and freedoms in pursuing the particular objectives of this legislation? We must be alert in answering that question so that we do not use means that are broader than necessary to accomplish that objective, which is an inherent principle of our Constitution--that is, to not go overly broad in achieving that objective. We all feel the need emotionally to respond to serious tragedies, but we must react to legislation and proposed amendments on a principled basis.

Those are my submissions. Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll now turn to Anna and Jim Stephenson. Who is going to present?

Mr. Stephenson, go ahead, sir.

[Jim Stephenson, As an Individual]

Good morning, Mr. Chair. Good morning, committee members and other witnesses.

My name is Jim Stephenson. This morning I am joined by my wife, Anna. We are here today to share our views and concerns about the national Sex Offender Information Registration Act, SOIRA, as the acronym is probably more commonly understood, to share our concerns with you.

With all respect for the viewpoints and perspectives submitted earlier this week, together with those we have heard in introductory remarks today, we believe that you will find that what we have to say this morning somewhat unique, unique not only for the reason that we are the parents of a child abducted, sexually assaulted, and murdered by a known, convicted sex offender, but also because of our determination to see to it that communities will be better protected from such offenders than we were.

To accomplish this it was necessary to bring about significant systemic changes in the manner by which authorities manage convicted sex offenders released into communities. Earlier this week, you heard testimony about the legislation that created Ontario's sex offender registry in 2001. That legislation, of course, is named Christopher's Law, in memory of our 11-year-old son who died very violently and tragically on the 1988 Father's Day weekend.

Ontario's sex offender registry is proactive. Registration is automatic following conviction of a criteria offence. Law enforcement officers are proactive in consistently verifying the information contained in the registry's database to ensure that it is up to date and completely accurate. More importantly, the information is available for sharing with other police agencies that are investigating sex-based crimes. These features alone underscore reasons for the provincial registry's success.

The SOIRA was proclaimed in early 2004 and became operational later that same year, more than 10 years after a 1993 inquest into our son's death had recommended that the federal government move immediately to create a national sex offender registry. In statements we made during public hearings into the proposed legislation over five years ago, we expressed serious concerns relating to a range of features of that legislation. We were troubled then, as we continue to be troubled today, that registration does not follow automatically upon conviction.

Our concerns today are heightened more so when we learn, as you did earlier this week, that nearly one-half, or 50%, of those convicted of criteria offences are literally excused by the courts from being required to register, without those same courts providing an explanation for such a disposition, which is clearly stipulated in the legislation.

It is my understanding, as it is, I'm sure, everyone's in the room, that federal offences are more serious than those dealt with through the provincial courts. In the case of the latter, the provincial system, registration is automatic for all convictions named under the legislation.

Mr. Chair, committee members, to me it just doesn't seem to make a great deal of sense. I would respectfully submit that if the judiciary does not comply properly with its responsibilities under the legislation, then it is broken and badly in need of major repair. In the words of a popular home repair television personality, “Let's make it right”.

From the time the federal piece was first being developed, we have held concerns about the effectiveness of the national registry, and I have often been quoted as referring to it as a notional concept of a sex offender registry. Unfortunately, I believe that the public has been misled into assuming that practical safeguards are in place for their security and protection, when this in fact is not the case.

There is in fact a troubling parallel between the state of the NSOIRA and a fairy tale that we would often tell to our son and daughter when they were very young. The tale involved a monarch who desired a new wardrobe to impress his subjects when he frequented the town and surrounding countryside. He would not consider any of the designs submitted by the court tailor, who had for many years been responsible for the king's wardrobe, although many of his advisers felt the designs were truly exceptional. Finally, after considering many different designs from many of his loyal subjects, he appointed a lowly stable boy to design his new wardrobe.

The trouble was, the stable boy knew nothing of clothing design. Convinced that he would suffer dire consequences if he could not come up with something his monarch would accept, he determined finally to persuade the monarch that he had created an invisible fabric that was superior to anything yet seen. In fact, the stable boy had created nothing and counted on his ability to convince his king that he was outfitted in the finest cloak and vestments ever seen.

In the end, a completely naked monarch walked among his subjects convinced that he possessed a most wonderful and unique outfit. At first no one dared to tell the king the truth. But finally a young man who had been watching the king's procession uttered the words to everybody's surprise, “But the king has no clothes.” The villagers all broke out into laughter and the king then realized his folly.

Mr. Chair, committee members, I submit that in its present form the NSOIRA has no clothes either. It is dysfunctional and fails to properly protect Canadians from becoming victims or from being re-victimized by offenders released back into their communities.

Earlier I mentioned that our presence here might be considered unique and provided some reasons why. Let me close my opening and formal remarks this morning by adding one more argument for this uniqueness. The other parties appearing before you have done so as part of their job, and it is safe to assume that they have been paid for their time. Anna and I, however, speak to you today because we have paid and paid dearly to be here. No doubt that distinction will be weighed carefully in the final determination that this committee will make on the future direction of the national sex offender registry.

We look forward to questions from the chair and members of the committee during the remaining time available here this morning.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you. We appreciate your appearance before this committee.

Mr. Oliphant.

[Rob Oliphant, Liberal, Don Valley West, ON]

My thanks to all the witnesses. We're very happy that you're here as part of this review. This is part of an independent review. The parliamentary committee has the ability to look at this legislation, and that's exactly what we're doing. At the end of this, we will be making recommendations to the government about this legislation.

I have a couple of questions for Mr. Baggaley. You mentioned in your statement that you understand why this is being done, given the seriousness of these offences. I think it's also the nature of the offences and the nature of the offenders that have provoked this kind of legislation. There are many serious crimes, but my sense is that we have this legislation because the nature of some offenders is different and their potential to reoffend is greater.

While I respect and in fact treasure our privacy, does the Privacy Commissioner actually think there are some offences that demand the lessening of one's privacy?

[Carman Baggaley]

We recognize that people convicted of offences have a reduced expectation of privacy. As it turned out yesterday, we appeared before the Senate to discuss the review of the DNA Identification Act. That's an example of another piece of legislation that's based on the assumption that people who have committed certain offences have a reduced expectation of privacy.

Having said that, we certainly don't believe that someone has no expectation of privacy, that it's completely eliminated as a result of offending. And the question we would ask you to consider is whether there is a clear benefit from this regime that justifies the reduction in the privacy of the individuals in question. We've heard a great deal of evidence about the effectiveness of it. The question you should ask is whether it's possible to make changes that would enhance the effectiveness to further justify that reduced privacy.

[Rob Oliphant, Liberal, Don Valley West, ON]

With respect to the changes in your early text, your major concern seems to be the expansion of the use of the registry into non-police agencies, into public use, into access by other agencies or people that may be interested. This is my grave concern as well. I acknowledge that I don't want people to have a public registry where they can Google someone and find their name. That, to me, is totally inappropriate. This is for police agencies.

But later you talk about the amount of information being collected. You just mentioned it at the end of your presentation. It seems to me that to make this more effective, the amount of information that a restricted number of agencies would have—the police agencies—could improve the effectiveness and yet not expand the use of the registry.

I'm just wondering whether you agree with that or whether you want to push back on that.

[Carman Baggaley]

I think we'd have to see what additional information that's proposed would be collected. There is a significant amount of information that is collected now. I understand that there is some debate about the fact that the taking of photographs isn't mandatory. But I think it really would be a question of what other pieces of information we are talking about. We would look at that, and again sort of look at it using a kind of proportionality test, depending on what was being proposed.

[Rob Oliphant, Liberal, Don Valley West, ON]

I guess I'll end up pushing back on that because there is some identification information there, but not enough to make it effective. You might as well not have any because if the police officers don't have enough information, it's just not going to work. But we'll get to that later.

Ms. Bethell, thank you for your remarks as well. I've spent lots of time with offenders and appreciate due process completely. I think you're absolutely helpful in reminding us that Canada is based on due process and all that. One area I wanted to ask you about is some of the alternatives to the registry, such as section 810 peace bonds, and some probation, have also been criticized as not being as effective as they could be. Has your association made representation to anybody about how we could improve some of those alternatives: probation, designations of long-term offenders, designated sex offenders?

[Brydie Bethell]

I don't know if the council has made any submissions on that, so I'll leave that aside because I just don't know the answer to that. But I can tell you that the system isn't perfect. There are lots of things that we can improve on in the present tools that we have, both in terms of crime prevention and crime investigation.

One of the main criticisms, of course, for any kind of supervisory order, which is true for probation—and long-term-offender designations entail a type of probationary supervision—is that there aren't enough probation officers, and the rehabilitation side and treatment side of our criminal justice system is lacking in resources.

I guess that comes back to the point I made about how we decide where our money goes. Does it go to the rehabilitation side or does it go to the registry side? Can the two interact? Can the two work together? Can there be some way of coming to a middle ground so that the two regimes can work together? That may be.

[Rob Oliphant, Liberal, Don Valley West, ON]

One last question. I value judicial discretion. I absolutely believe in it. I also believe that there should be a possibility of a double judicial discretion, not only to lighten or lessen—that's why I tend to not believe in mandatory minimums, because I think judges need to look at every case individually—but also I think there are times when they should have discretion to increase penalties, such as in multiple incidents where the 17th offender isn't even heard at trial, as in B.C. or in several other cases. Has your association had any discussion on giving judges more authority to have discretion on the other end, to increase penalties?

[Brydie Bethell]

I would disagree with you. I think that already exists.

In terms of the ability for the Attorney General to make a dangerous offender designation, that application comes from the Attorney General's office, but the decision is ultimately made by the judge. For a dangerous offender designation, the offender remains in custody indefinitely so long as that offender is deemed a threat. The long-term offender designation carries not an indeterminate length but it has a much greater custodial and punitive aspect to it.

So I wonder whether that doesn't already exist.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm thinking of non-custodial, moving into non-custodial effects beyond probation.

[Brydie Bethell]

Okay.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm just trying to open up the box to look at some new ways that we can actually deal with this.

Thanks, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

We can come back to this issue maybe a little later.

Monsieur Ménard, please.

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

First I would like to thank all those who have testified before us and to congratulate them on the quality of their presentations. I also want to emphasize to the Stephenson family that we have a great deal of sympathy for them in view of their misfortune. We are all married and—

[The Chair, Conservative, Garry Breitkreuz]

Sorry to interrupt, but we have to provide some technical assistance here.

Okay, go ahead, Monsieur Ménard; I will start the clock from the beginning.

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

Once again, I would like to thank the witnesses whom we have heard this morning for their excellent presentations on a very delicate subject. First of all, I would like to say to Mr. and Mrs. Stephenson... I believe that all of us here have children. I'm very happy in my marriage. My children are now adults. My daughter is pregnant with twins. If one of my children was attacked, I don't know how I would react. My first reaction would definitely be very violent. I understand your suffering.

I also very much appreciate Mr. Baggaley's presentation and the principles of which he reminds us. I think that's consistent with the balance that Ms. Bethell urges us to seek.

I would like to ask a few specific questions. Mr. Baggaley, you talked about the fact that there should be a formal evaluation of the registry by someone independent. I quite agree with you.

What kind of evaluation are you thinking of. What suggestions can you make? Should we appoint a judge? I don't believe a mere committee such as this one can conduct the kind of evaluation you are proposing. We need more investigations, in greater depth. Time is very short and we can't get to the bottom of such a delicate subject.

[Carman Baggaley]

There are several possibilities.

One potential possibility would be the Auditor General. I know the Ontario Auditor General reported on the Ontario registry in 2007. The Ontario Auditor General came to the conclusion there was no clear evidence the Ontario registry was effective.

You could retain academics who have expertise in social sciences, in criminology.

This is a very complex issue. I've looked at studies that have been done with respect to the registry in New York State, which came to the conclusion there was no evidence the New York State registry is effective.

This is, admittedly, a very difficult issue, partly, as I think you discussed on Tuesday, the challenge of proving a negative, and that's part of the challenge. But since the effectiveness of the registry is such a critical issue to your process, I really think it would be very valuable to have an assessment of whether it's working, and if it's not working, why not, before you make significant changes.

Thank you.

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

Thank you.

Mr. Stephenson, I understand why you prefer the Ontario system. However, I understood from your presentation—which may have been too short—that the major difference, in your mind, is that registration is mandatory in Ontario, whereas you believe it's optional.

However, when I read the exceptions contained in the legislation, I find it ultimately very restrictive, and I wonder whether people indeed weren't entered in the registry.

In any case, what are the other aspects of the Ontario system that, in your view, should be incorporated in the federal scheme?

[Jim Stephenson]

Thank you.

Of course, the mandatory registration feature is paramount in any revisions being considered to the NSORIA. But in addition to that, there are other features in the Ontario model that are well worth looking at.

I believe that in testimony earlier this week you heard mention of the recommendation that the Ontario registry be adopted as a model for the national registry. I think this came out of a proposal by the commissioner for the OPP, Commissioner Julian Fantino.

To answer your question, in addition to that mandatory order to register, I think there should be much more ability on the part of the national police force--in this case it's the RCMP--to enforce and follow up on the registration requirements.

There was a very tragic case in Toronto, the Holly Jones abduction and murder, in which this ten-year-old girl was abducted, murdered, and her body was taken apart and hidden in various places. One of the things that came out of that tragic case was that the police force involved in the investigation at that time had a whole range of potential offenders to look at, and resource deployment is critical in an investigation such as that.

We talk about whether there are enough police officers. Probably there aren't. Some of us would like to see a police officer for every law-abiding citizen, and that would eliminate anybody from ever offending, but of course that's something that isn't going to happen.

In the case of the Holly Jones investigation, let me get to that point specifically. Within a very short period of time they were able to look at a range of about 60 offenders, 60 potential offenders, who had registered addresses in the immediate area surrounding the area where Holly Jones was found. They were able to eliminate those suspects within hours of the discovery of Holly Jones' body and immediately deploy those resources into more productive aspects of the investigation, and the investigation did end successfully with an arrest being made, charges laid, and a conviction won for her abductor and murderer.

That is the type of information that has to be available and accessible to all police forces. The national registry, if it were beefed up, if we gave it some steroids, and gave it the ability to expand the database of convicted sex offenders, those who we know have committed serious offences, if we have addresses on them and we know for a certainty that those people are at those addresses.... Follow-up on registration is an important feature of the enforcement component. Police services are required to do this in Ontario. Once an offender has registered, there's a follow-up procedure. A door knock is done to ensure that yes, that is the correct address, this individual is here. Once that information is verified and currently maintained, it is extremely important in the investigation of any crime of a sexual nature.

Accurate information that is up to date and current and has been verified is a component that I think should be transferred from the provincial registry to a national revision. I would like to think, too, that there would be more transparency between the two. There should be an ability with the Ontario registry to have information flow back and forth between its database and the federal database. This has encountered some serious problems in the past.

I'm not certain that I am the party to talk in detail about the changes that should be transferred from a very successful Ontario model to the federal model. I would comment, though, if I could--