Mr. Chairman, we've talked a lot about this issue, so I'm going to try to be as brief as possible on this subject.
The present act sets out that registration for sex offenders occurs upon the prosecutor's application to the court. Once the application is made by the prosecutor, under present circumstances under the law, as it has been for the last several years, the registration is virtually automatic, subject to the defence's having the burden to discharge what I think we all regard as a very heavy onus, which is to show the court that registration under the act would have a grossly disproportionate effect upon the offender's privacy and rehabilitation prospects, as distinct from protecting public safety.
The mischief that I say I heard from all the witnesses who testified at this committee was that prosecutors across the land often did not make that application, for a couple of reasons. The two primary ones I heard were that they were often too busy and overworked, so they would sometimes forget to make such an application; the second was that they might be plea-bargaining with the defence in exchange for guilty pleas and had agreed not to make the application. To be honest, I don't remember actually hearing that from any particular expert; it was the former reason that I heard time and time again.
That being the case, what my amendment would do is cure the mischief that I think this committee heard. That is the aim of my amendments. There are two of them together, but they basically work hand in glove.
You will notice that the bill amends the act to purport to make registration automatic: it says “upon conviction the court shall make the order...”. My amendments would not change that, and it would cure the mischief that I just described, so that no longer would a prosecutor have to make the application before the court. My amendments leave the section in the bill that says that “upon conviction the court shall make an order”, so that no longer do we have to worry about prosecutors forgetting to make an application or pleading away, at least for an indictable offence.
What my first amendment does is leave judicial discretion in place by saying that the court is not required to make that order under subsection (1)—the order that is automatically made— if the defence shows convincingly that the impact upon the convicted offender's “privacy, liberty or prospects for rehabilitation would be grossly disproportionate to the public interest in protecting society through the effective prevention and investigation of crimes of a sexual nature”.
So although the application is made automatically, what I think this does is make a fairer and more sensible approach to the law by moving the burden off the prosecutor to make the application onto the defence. Now the burden is on the defence to make the application to the judge, if they wish.
I want to point out that this is the first positive step of my amendment: it relieves the prosecutor and puts the onus on the defence. Second, it still preserves what I think we all recognize is a very onerous legal test. When you have to show that an effect on the accused is grossly disproportionate to the public interest in protecting society, I think it will be a very rare occurrence for the court to decline to make that order.
The second amendment I've made--