Public Safety Committee on Nov. 3rd, 2009

[Don Davies, NDP, Vancouver Kingsway, BC]

Well, in some ways, I think it's helpful to do it the way we're doing it, because it allows all the committee members to hear what the amendments really are, how they work, and what their purpose is before we get into a discussion about whether they're.... I think you've telegraphed that you think it may be contrary to the purpose of the bill. So it's probably six of one, half a dozen of the other.

I'm in your hands, Mr. Chairman, but I would like to respond. Maybe having proceeded in the way we have, I could just finish my comments and then we can get to that.

[The Chair, Conservative, Garry Breitkreuz]

Okay, quickly.

[Don Davies, NDP, Vancouver Kingsway, BC]

The first thing I want to do is respond briefly to Mr. Kania directly and then to the committee as a whole.

I applaud Mr. Kania very much for what I think is a really sincere and committed desire on his part to protect his constituents and to protect Canadian citizens. I know that's where he's coming from, but I would say this. The present law allows an application to be made, and once the application is made, there is discretion by the judge on every type of crime. That's the way the law has been for the last four years. Once the application is made, registration is automatic, except the burden goes on the defence. For every single crime you could imagine, not one person appeared before this committee and said that was a problem. Not one person said that mechanism resulted in judges not making orders under SOIRA when they thought they should be made.

On the contrary, I'm going to quote from Mr. Hoover today. This is Mr. Hoover's testimony before this committee:

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.

That's right now, on every single sex offence you can mention, from the most heinous to the least serious, so when Mr. Kania says these amendments would allow the defence to raise an objection to any offence, that's true, but we don't have a whit, a jot, an iota of evidence before us to suggest that our courts would not make the appropriate orders any time that issue comes before the courts.

I am confident that our judges and our prosecutors can continue to do the good job that the evidence before us shows they are doing. While it is an excellent theoretical concern Mr. Kania raises that if we have this process it will allow a defendant to make an application not to be registered in perhaps a very serious crime, we have no evidence before us that this would be successful.

Again, all I will say is that our job here, as parliamentarians, is to make good law. It's very important for us to act on the evidence before us, not just based on politics, and the evidence before us, once again, is not that this country needs automatic registration for the offences that are under the federal jurisdiction; it is that we need a process that will make the application before the judge. Not one witness came before this committee to say they were concerned that a judge would misuse his or her judicial discretion and not give an order when one was warranted. That's what the effect of automatic registration does.

Again, I would urge the committee to consider this seriously, although I am open to other kinds of amendments that would preserve discretion. I certainly don't have a lock on this. If there are other people who have ideas on this, we could look at it. Maybe Mr. Kania's suggestion that you could have automatic registration on the most serious offences and keep discretion on another list of offences is an idea worth exploring. I'm happy to look at that too, but what I will argue against vociferously, based on evidence, is that we go to an Ontario model of automatic registration for a longer list of offences when I don't think the evidence supports that.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

I appreciate the discussion all around, but I don't hear anything that would change the essence of what I have to say.

With the advice that I've received, I will give my ruling.

This bill, Bill C-34, amends the Criminal Code to require that a court shall make an order in form 52 with regard to a person sentenced to a designated offence, or a person found not criminally responsible on account of mental disorder, requiring the person to comply with the Sex Offender Information Registration Act for the applicable period. This amendment proposes to allow the court to exercise discretion and to not make that order if it is satisfied that certain conditions have been met.

Now, if we look at House of Commons Procedure and Practice, on page 654 it says, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In my opinion, the introduction of a concept of discretion is contrary to the principle of Bill C-34. Therefore, I rule this inadmissible.

You cannot discuss that. Once the chair has made a ruling, there's--

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

I challenge the chair.

[The Chair, Conservative, Garry Breitkreuz]

Okay. Mr. Holland has challenged the chair.

We'll take a vote on this and see how the committee stands.

[Don Davies, NDP, Vancouver Kingsway, BC]

On a point of order, Mr. Chair, is there any debate or discussion on this?

[The Chair, Conservative, Garry Breitkreuz]

Not when someone challenges the chair; we simply vote on that.

I've actually allowed a fair amount, I think, of discussion on this. I tried to clearly indicate the ruling as legislative counsel has analyzed this.

Yes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chairman, if there's no debate on it as a matter of procedure, I accept that, but you have not allowed any discussion on the issue of ruling it out of order. I mean, that's something that I would address, because I certainly disagree vociferously that these amendments are contrary.

But if it's not debatable--

[The Chair, Conservative, Garry Breitkreuz]

Anyway, you're starting to discuss.

We will have the vote on the ruling of the chair.

(Ruling of the chair overturned)

My ruling is overturned.

We will go back to debate on the amendment.

Ms. Glover.

[Shelly Glover, Conservative, Saint Boniface, MB]

I want to add that I'm very disappointed to hear some of the commentary from opposition members. I worked for four and a half years with victims of sex crimes, and I can assure you that there have been a number of cases in which I would have loved to have access to a bigger pool that might have left me with an investigation that was successful and might have prevented the occurrence of further sex offences against young children or upon women and men. We're talking about Canadians' safety here, and it's very disappointing to hear the political jargon being used.

This bill is going to address the fact that police officers need tools to prevent these crimes from happening. Providing more discussion in court, more loopholes in court, is not what this bill was about. What the introduction of these two amendments is going to do is lengthen the court proceedings; it's going to bog down the court process even more.

Mr. Holland, with all due respect, I don't know of a single police officer who would ask that you reduce the amount of information he or she has to do their jobs effectively. Not only that, I don't know of a single defence lawyer who would argue that less information should be included. Most often, they want to see a fair and transparent process by which their client has not been focused on. We do not want to see tunnel vision in our investigative process. I would argue that in making this amendment, you're actually negatively impacting the clients who are charged with these crimes.

I also want to address what Mr. Ménard had to say. Nowhere does this sex offender registry, sir, use the word “dangerous”.

I'm not sure why Mr. Ménard keeps going back to “only dangerous”. This is a sex offender registry. It has nothing to do with what kind of crime. These are convicted criminals who have completed illegal sexual acts upon victims. They've been heard, and a judge has made a ruling. I want that information when I investigate as a police officer. I want to be able to protect potential victims, and the only way I can do that is to ensure that people do not allow even those who are convicted of what some of you call “less severe” crimes.... I need them on that registry. They start with being peeping Toms; they start with masturbating in parks; they progress up to a level where they are committing absolutely heinous crimes against our Canadian people. I want this information absolutely in this registry.

I'm actually begging you to consider our victims here, because we are going to lose some of our ability to successfully complete these investigations if we as a committee do not ensure that every single person who might potentially be responsible for these crimes.... If they are not on that list, you are going to damage the investigation process of all of the police officers involved in these cases.

Thank you, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Ms. Glover.

Mr. Holland, please.

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

Thank you, Mr. Chair.

Ms. Glover, I care as deeply about victims as you do. I care as much about the safety of my children as you care about the safety of your family. I honestly believe the approach you're taking is one you believe is in the best interests of the public, and I would put to you that I believe what I'm doing is in the best interests of the public, so we should start the debate there.

There's no unanimity on this, but more often than not the concern of chiefs of police and different officers I've talked to about the sex offender registry is the number of people left off who shouldn't have been. It's a concern I share; it's why I support this legislation. They also expressed concern that for this list to be effective, it's essential that the people who are on this list are the right people, because time is of the essence when they're going to houses.

One of the things you stated in your comments--and it has been stated by that side--is that you believe in prosecutorial discretion, in discretion by officers, but you don't believe in judicial discretion, and I think there is a contradiction there. If you believe that to make sure mistakes aren't made--and mistakes do happen--you set an extremely high bar that says--and I'm quoting directly from this amendment--“grossly disproportionate to the public interest”.

That isn't some giant hoop you can leap through; that is an extremely high bar. You've rightfully made the point that an officer and a prosecutor must have discretion, also with a very high bar, so we should enable our judiciary to have discretion, because things can transpire that we as a committee can't contemplate. To tie the hands of the judiciary, to say you must do this regardless of the evidence before you, regardless of how it does not serve the public interest, doesn't make sense to me.

As a committee, we should establish an extremely high bar, but not put ourselves in a position where we think we can foresee every possible outcome and every possible scenario. The best way of doing that is by saying there's a very small amount of room, but there has to be an overwhelming case for why this isn't used. As I said earlier, that not only serves the interest of the offender, but most importantly, it serves the public interest in ensuring a strong and effective registry.

That's what I'm speaking for, and I believe that furthers the interest of public safety.

[The Chair, Conservative, Garry Breitkreuz]

I have one more person on my list, Mr. McColeman, and then I guess we can proceed to the vote.

[Phil McColeman, Conservative, Brant, ON]

I would like to reinforce and underscore Mr. Kania's view that this is not an appropriate amendment.

These are convicted people who've had their day in court. I want them on the registry the day after they're convicted. I don't want any more messing around with trying to make another test. I'm going to leave it at that. That keeps my public safe.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

Now we've lumped one and two together, and I will give you the same ruling....

Mr. Davies, you will have to officially move your second amendment as well.

[Don Davies, NDP, Vancouver Kingsway, BC]

I so move, Mr. Chairman.

[The Chair, Conservative, Garry Breitkreuz]

We've had discussion on these two together. Seeing no more hands being raised, we'll go to the vote.

I could go through this whole procedure again of ruling this out of order, but I won't do that at this point. You know the feeling of the chair on this. Let's simply vote, for expedience's sake, on this second amendment from Mr. Davies, which is NDP-2.

(Amendment negatived [See Minutes of Proceedings])

We've cut a few corners. I hope that doesn't offend anybody.

We are finished with the discussion on clause 5. Shall clause 5 carry? It was not amended.

It is carried.

Yes, Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

I'm sorry, Mr. Chair, I'm not sure the committee is with you on this. I'd ask to slow you down. I noticed nobody voted on this side.

You're clearly calling the vote on clause 5 in the bill.

[The Chair, Conservative, Garry Breitkreuz]

That's right. The amendments that you proposed were defeated—

[Don Davies, NDP, Vancouver Kingsway, BC]

I understand that.

[The Chair, Conservative, Garry Breitkreuz]

—so now we are simply voting on clause 5.

[Don Davies, NDP, Vancouver Kingsway, BC]

Would you mind doing that vote so that we can...?

[The Chair, Conservative, Garry Breitkreuz]

Okay, I'll redo the vote at the request of Mr. Davies.

(Clauses 5 to 7 inclusive agreed to)

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

Can we take these as groupings where there aren't amendments that have been tabled?