Public Safety Committee on Nov. 3rd, 2009

[Don Davies, NDP, Vancouver Kingsway, BC]

In short, Mr. Chairman, part of the amendment to this bill is to allow the registration of people convicted abroad for equivalent offences. You and the committee may remember that I had some questions to make sure that the offences we're registering in Canada are in fact equivalent offences to offences here, because there are certain offences in other countries, in third world countries, that are criminal there that may not be here. For instance, homosexuality is one.

So what this does is clarify that the equivalent offences are on an objective standard. I think the bill, as it currently reads, speaks in terms of that determination being made in the opinion of the minister. I've changed that to say “that is equivalent to an offence referred to in”. It makes it clear that any offence committed in a foreign jurisdiction has to be objectively related to an offence in Canada and then registration would be automatic.

It takes out the subjective discretion, which I'm hearing on the other side is not something they're generally in favour of. So I think they would support an objective standard in this regard as well.

[The Chair, Conservative, Garry Breitkreuz]

Any further discussion on this?

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, thank you.

The government does not support the proposed amendment. Bill C-34 includes provisions to ensure that an international sex offence conviction is equivalent to Canadian law when someone is ordered to comply with the Sex Offender Information Registration Act. So it's already there. This would only lead to clouding the issue. I think it's properly drafted and it should remain as it is.

[The Chair, Conservative, Garry Breitkreuz]

Are there any further comments or discussion on this amendment to clause 18?

Mr. Ménard.

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

I understand perfectly well that the amendment seeks to establish that an offence committed abroad and which may have a different name than it does in Canada is equivalent to an offence included in the list. That should be an objective criterion.

In practice, however, as we are doing with the much stronger antiterrorism provisions, we would want that equivalence to be consistent and to first be studied by the Department of Justice, so that the attorney general can make a decision after reviewing it. That would prevent contradictory court decisions.

I am more inclined to oppose the amendment. I realize that there is a need for a certain level of consistency and that an objective criterion, as assessed by various people, can sometimes be interpreted differently by those people, even when they are acting in good faith. I would opt for consistency by not supporting the amendment, which I understand perfectly well and which is very well-meaning in its intent to put objectivity over subjectivity.

But we are talking about offences that have a certain label in foreign countries, on a very diverse planet. I will tell you that I have always thought that the expression “sexual assault” was a good example of the genius of the English language, but that is not the case in French with “agression sexuelle”. A lot of sexual assaults do not involve any violence. Indeed, they are sexual acts that may not involve any violence but that French calls “agressions sexuelles” in order to show just how unacceptable the crime is.

The French take a more rational approach to labelling. I suppose that it is different in Spanish, Arabic, Chinese and so forth. My preference is for there to be only one interpretation that an offence committed in another country is equivalent to an offence in our Criminal Code and for that interpretation to come from the Department of Justice, as expressed by the Attorney General.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Is there some more discussion?

Mr. Davies, you can wrap it up.

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, Mr. Chairman.

I'd like to thank Mr. Ménard for his usual astute observations, but the reason he's opposing my amendment is one of the very reasons I made it, because the section says:

The Attorney General of a province, or the minister of justice of a territory, may serve a person with a notice in Form 54 only...that is, in the opinion of the Attorney General or minister of justice, equivalent to an offence...

This refers to provincial attorneys general. You could have the attorney general of every province of this country making a different determination of what an equivalent offence is. Now, I didn't say that in my original opening, but that's another reason not to have this. We shouldn't have political interpretations of what an equivalent offence is, because you build in legislation like this and it's basically unappealable, because the act itself says that it's the attorney general whose opinion matters. There should be an objective legal standard, so that if someone comes to this country and we want to have them registered because we consider them to have committed an equivalent offence abroad, and someone wants to challenge that because they disagree with that decision, the test shouldn't be whether an attorney general's opinion was the case.... I don't know how you would challenge that. It should be on whether or not the offence is an equivalent.

So the purpose of my amendment is twofold: one, it does provide an objective standard, and not that I imagine this would happen very often, but it could happen; and two, for the very reason Mr. Ménard said, you don't want attorneys general of the different provinces coming to different conclusions in this regard.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Campbell, you've indicated you have a comment, and then Mr. Rathgeber is next.

[Mary Campbell]

I have just a clarification, Mr. Chair.

There are two situations where the Canadian has committed the offence abroad. There is of course the situation where the person is coming back under the International Transfer of Offenders Act. In those situations, the scheme is that the Minister of Public Safety, who is responsible for the administration of that act, is the authority under law to make the decision about whether the offence is equivalent or not. So the Minister of Public Safety makes that determination in an international transfer case.

Where the situation is a Canadian returning free and clear, if I can put it that way, not under any sentence but simply arriving back in Canada from a trip abroad or living abroad, this scheme provides that where there is information brought to the attention of authorities that they did commit a sex offence abroad, the attorney general or minister of justice in a territory can serve them, because they're the people who do administer that part of the registration process.

The way it's structured here is to say, in those situations, therefore the relevant or appropriate minister would be the decision-maker about equivalency of the offence simply because they're the decision-maker who's serving the person with this notice. That's why it has been structured that way.

There's also provision in Bill C-34, a little further on, that if the offender feels it is not an equivalent offence after the order has been made, they can apply for an exemption order on that basis. That is further along in clause 18.

[The Chair, Conservative, Garry Breitkreuz]

Okay, you're done? Thank you very much.

Mr. Rathgeber, have you any further comments?

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

It's more of a question than a comment, Mr. Chair. It's a question to Mr. Davies.

I'm unclear as to what possible objective standard exists to determine these equivalencies. Our Criminal Code uses specific language, for example, sexual assault. Other jurisdictions, most notably the United States of America, use specific language, like rape. I don't know that there is any objective standard as to how you determine those equivalencies. How are you going to determine these equivalencies if you don't put it in the discretion of an attorney general?

[The Chair, Conservative, Garry Breitkreuz]

Do you wish to respond, Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

I know my friend is a lawyer with long-standing experience, and I guess the difference between a subjective standard and an objective one is that ultimately someone has to make the decision. The only question is whether or not you build into legislation a text that is in the opinion of someone, which is unchallengeable, or whether you build into the legislation an objective standard. But I think the more trenchant observation is the one by Ms. Campbell where she points out, much to my chagrin and embarrassment, that there is a section later on that does provide for a way for a person to get an exemption. Although it doesn't really deal with the matter that I was bringing before the committee, it does give me some comfort.

I'm happy to withdraw that amendment on the basis that there is an exemption process and someone could make that application.

[The Chair, Conservative, Garry Breitkreuz]

Does Mr. Davies have the consent of this committee to withdraw that amendment? It has to be unanimous. All those in favour of allowing him to do that, please raise your hand. Opposed? I don't see any opposed.

(Amendment withdrawn)

So now we're going to vote on clause 18. Actually, we can go from 18 to 26 because we have no amendments anymore to deal with.

I will lump clauses 18 to 26 together.

(Clauses 18 to 26 inclusive agreed to)

(On clause 27)

[The Chair, Conservative, Garry Breitkreuz]

Mr. Davies, you have an amendment known as NDP-4.

Would you like to move that and then discuss it.

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, I so move, Mr. Chairman.

[The Chair, Conservative, Garry Breitkreuz]

Go ahead and discuss it.

[Don Davies, NDP, Vancouver Kingsway, BC]

A major change in the act that, in my opinion, was not adequately explored by this committee was the introduction of the word “prevention” into the act.

The purpose of this act is very clearly set out. I'll paraphrase the original purpose of this act when it was introduced only a few years ago; it was to give police the tools they need to investigate crimes of a sexual nature. The precondition, of course, of searching the registry is that they have reasonable belief to suspect that a crime of a sexual nature has been committed.

We heard evidence in this committee, at least by my recollection, that we needed to loosen that test because it was problematic for police in a number of different circumstances. One circumstance was that they might have the belief that a crime has been committed, but they might not know it's sexual in nature. One of the examples was a parent phoning the police station to say a child has gone missing; the police may think a crime has been committed, but they would have no real reasonable belief to think it is sexual.

I don't want to speak for everybody, but I think we were all sympathetic to that and we thought we should widen it, particularly in light of the statistics showing that speed is of the ultimate essence, particularly when you're dealing with a missing child. We wanted police to be able to access the registry more quickly and in circumstances that aren't bureaucratic for them, but what we have done, as I think we've done in a number of cases with this act, is kill ants with sledgehammers. We're saying that we'll just use prevention as the goal.

Who isn't for prevention of sexual crimes? Everybody is in favour of that. But when this act was brought in, the very purpose wasn't just to help police investigate crimes of a sexual nature; it also recognized society's interest in protecting the privacy and rehabilitation of sex offenders. That's not a bleeding-heart liberal position; it's one that recognizes that we all have an interest in making sure sex offenders do not reoffend, and many do not.

Contrary to some of the statements Ms. Glover puts forward as ultimate statements of fact, my research indicates that some of these statements are actually not true. For instance, one of them was that most sex offenders actually know their victims. She said it is most of them. She said most are family members or they're people who know them, and that it's actually the exception for a stranger to commit a sexual assault on a stranger. Second, she keeps referring to peeping Toms going up a hierarchy of sex offences. My information and research indicate that some peeping Toms do. Those who are peeping in order to scout out committing a sexual crime certainly do, but those who are simply peeping for voyeurism actually do not generally commit sexual acts.

My point is that Parliament envisioned several years ago that in some cases registration can have a negative effect on the rehabilitation of a sex offender, and we don't want that. We want to make sure that people are registered and we want to make sure that police can investigate quickly, but we also have to remember that we want these sex offenders to rehabilitate and reintegrate into society whenever possible, and some do. Some do not, but some do.

When we say “prevention”, we change the act to say that the purpose of this act is now prevention. We heard no evidence, beyond the evidence that I talked about, about what opening up the whole purpose of the act to prevention might look like. If police can now search the registry for preventive purposes, what does that mean? Does it mean they can search the registry and then just go out and gratuitously visit sex offenders in their workplaces? Does it mean they can put sex offenders under surveillance in their homes and their communities? We're not exactly sure what this means, because it changes the basis of the act; the act was originally predicated upon a crime being committed, and then they would leap into action.

Having said all that, on balance I am prepared to support the concept of prevention on the assumption that some of these more dramatic and, I think negative aspects of prevention will not come to pass.

I'm prepared to support the introduction of prevention into this act, but my amendment would add “while exercising the powers conferred by this act in a reasonable manner”.

Subclause 27(1) replaces subsection 2(1) with the following:The purpose of this act is to help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.

Then subclause 27(2) replaces paragraph 2(2)(a) with the following:

(a) in the interest of protecting society through the effective prevention and investigation of crimes of a sexual nature, police services must have rapid access to certain information relating to sex offenders

And my amendment would add:

while exercising the powers conferred by this act in a reasonable manner

I think it's important that we have some legislative basis in the act that would act as some sort of break or limit on untrammelled use of the registry for prevention generally. I would hope that nobody in this committee would be opposed to this, because I don't think anybody is in favour of police exercising these rights in an unreasonable manner. Hopefully everybody in this committee can support that amendment. Because I do think we all are on the same page in this, that we did want to open up the ability for police to access the registry for prevention purposes, but in limited circumstances or circumstances...not meaning that the police would have completely untrammelled use of this registry for all purposes.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Is there any further discussion?

Mr. MacKenzie, please.

[Dave MacKenzie, Conservative, Oxford, ON]

I do appreciate Mr. Davies' explanation of his amendment, but the government does not support the proposed amendment as Bill C-34 establishes parameters so the police may access the national sex offender registry for prevention or investigation of crimes of a sexual nature.

Going back, I appreciate what his comments were with respect to the witnesses who appeared before us, but we did hear beyond that. It was a bit expanded. Parts of what I think he is talking about we did hear, certainly, from some witnesses. But I think we heard from Superintendent Lines from Ontario, who is in charge of the sex offender registry in Ontario and is a criminal profiler. I think she told us quite clearly about instances where they've used this in a crime prevention manner with people who have somehow gotten through the system and ended up either working with children or working in seniors homes and are somewhat of a danger to the people in those environments. For that reason alone, I believe the prevention part is crucial.

The other part is that I hope Mr. Davies would understand that the police community are not going to use the registry to go out holus bolus and tell everybody all of these nasty things, if that's what's perceived. There are other rules that do apply, and the responsibility would be on them, certainly in civil actions, in actions dealing with privacy.

Although I understand it, I believe what he is attempting to do here is not really in the vein of where the act is and the intention of the act. So for that reason, the government does not support that amendment.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Oliphant.

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

I will simply speak in favour of the amendment, for many of the same reasons. I think there's a lack of consistency on that side, because I think they're asking for some discretion on this part, whereas this is tightening it up. Either you're going to tighten it up or give discretion.

I am still in favour of a variety of things that are maybe equally inconsistent, but I will support this amendment.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Ménard.

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

We are going to support this amendment for basically the same reasons. I see that there is a huge difference of opinion. I do not think that people who go out and commit very low-level sexual offences will necessarily commit much more serious sexual offences down the line. I do not buy into that, just as I do not buy into the idea that people who have smoked a few joints will necessarily develop a drug problem later or that someone who starts drinking beer will end up becoming an alcoholic.

I was aware of hundreds of charges involving minor sexual offences. When I started practising, there was a public washroom squad in Montreal. It no doubt arrested a good hundred or so people a day. Senior counsel at my law firm had connections in the police force and would have those cases referred to him. I cannot believe that, after being arrested and arraigned in court, all those people became sexual predators.

What's worse, I have always believed that people with the exact opposite opinion, that is, those who think the most minor offence will necessarily lead to a major one, were engaging in demagoguery. I still respect their opinion, but if we look at other types of crime, we see that it does not apply in those cases, either. Just consider cases that involve drugs, alcohol and even theft. Therefore, it seems to me that one of the provisions put forward by Mr. Davies—not the only one, for that matter—with a view to bringing the act more in line with reality, does more to achieve the true objective behind creating a sex offender registry.

Furthermore, I am not sure where I picked up the idea of “dangerous”. I did a lot of reading to prepare, and I had it in my head that the registry was for dangerous sex offenders. Even though that is not the case, the purpose of the registry is to protect the public and potential victims of serious crimes. If we fill the registry with the names of individuals who have committed minor sex offences....

When I began working in private practice in Montreal in 1968, after being a crown attorney for two years, there was a court that dealt solely with minor sex offences. It handled approximately 100 to 150 cases per day. I find it hard to believe that those individuals were dangerous because they gave in to a certain temptation in a public washroom one time. If everyone arraigned in that court became a dangerous sex offender, Montreal's streets would have become extremely dangerous a long time ago. That court may no longer be around because since then, we implemented a smart measure: we separated urinals. That helped to bring the situation under control, as compared with the late 1960s and early 1970s.

In any case, I want to say again that I quite like this kind of provision. It encourages police officers to use their judgment, which they have, in my opinion.

[The Chair, Conservative, Garry Breitkreuz]

Okay, thank you.

Is there further discussion? We're ready for the vote, then.

I'm sorry, Ms. Glover, please. I didn't see your hand up.