Public Safety Committee on Nov. 3rd, 2009

[The Chair, Conservative, Garry Breitkreuz]

The proper way would be to have you introduce them, so we at least know what we're talking about. Just discuss them briefly and then we'll proceed from there.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chairman, if it's okay with you, I would propose to explain my amendments, and then after I hear your reasoning, I would like a chance to respond to that reasoning.

[The Chair, Conservative, Garry Breitkreuz]

Absolutely.

[Don Davies, NDP, Vancouver Kingsway, BC]

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--

[The Chair, Conservative, Garry Breitkreuz]

Let's deal with the amendments one at a time.

[Don Davies, NDP, Vancouver Kingsway, BC]

I'll be really short on the second one. It's just that I think it's important to understand this.

The second one goes a bit further, and this picks up on a statement I made and a comment the other side had. Mr. Rathgeber and I had a bit of a conversation on this.

The first amendment I made relates to indictable offences. The second one is by summary conviction, and it says that the court shall not make the order under subsection (1)--that's automatically applied for--if the conviction is imposed pursuant to a proceeding by way of summary conviction unless the court believes it is in the public interest to do so.

The reason I have split the indictable offences and summary is that this also now allows a little bit of prosecutorial discretion when the charge is laid. So a prosecutor, when laying the charge, can choose to go by way of summary conviction, knowing that if they do that the test for registration will be a little bit less. It will be whether the court believes it's in the public interest to do so.

In summary, I think this fixes the problem we all heard, that applications are automatic, and it preserves judicial and prosecutorial discretion in the appropriate amount. I would urge all committee members to support this, and I point out one last time that the list of offences that we are purporting to make automatic is far longer than Ontario's and we've heard no evidence about the impact that might have on people.

The last point I'll make in speaking in favour of these amendments is that we heard evidence from a number of witnesses that simply opening up the registry to mass registration may be counterproductive in that we will be registering all sorts of people who are not appropriately registered, and this may actually slow down police investigations and make them less efficient in investigating sex offences because they'll be checking out people who there really is no need to check out.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Is there any discussion on this?

Mr. Holland, and then Mr. MacKenzie.

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

Thank you, Mr. Chair. I have a quick question.

Is the committee's report on the sex offender registry now public? Has that been tabled in the House?

[The Chair, Conservative, Garry Breitkreuz]

No.

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

Okay. I was about to speak on that, so thank you for letting me know.

On that basis, then, I'll skip a couple of the comments I was going to make and just say that I completely agree with Mr. Davies. It's important to maintain some degree of judicial discretion.

Are we dealing with the first amendment first, Mr. Chair, or are we dealing with both of them?

Okay, on the first amendment, saying that it would be grossly disproportionate to the public interest sets a very high standard for not including somebody on the registry. One of the things we heard from witnesses was the importance of keeping the efficacy of the registry by making sure that the individuals who are on it are people who belong on it. We were all frustrated, I think, because there were certain individuals who weren't being placed on the registry who we wanted to see there. We wanted to have that automatic inclusion. But similarly, we could have a problem on the opposite side, where there would be people included on the list inappropriately.

We have to recognize, as we've modelled a lot of what we're doing after Ontario--to echo Mr. Davies--that this is a longer list. As such, there might be some inclusions that are inappropriate or, in the words of this amendment, “grossly disproportionate”.

On that basis, I think it's critical to leave that there, because the public interest clearly isn't served. And this isn't just about the offender. This isn't just about a gross injustice being carried out against an offender who, because of automatic inclusion with no outs, somehow gets trapped in a situation that's unjust or unfair. It's about keeping the efficacy of the registry and making sure that the individuals who go on the registry are people who need to be on there, so that when the police utilize this tool, they're going to places, first and foremost, that are going to have the greatest likelihood of having somebody as a person of interest relative to whatever that crime is. If you overpopulate the registry or start having people on that registry who don't belong there because they've been included even though it was grossly disproportionate to the public interest, you're going to reduce the efficacy of that registry.

It establishes an extremely high bar, but I think it's necessary to leave that small amount of room to make sure that in circumstances that we either cannot foresee or are foreseeable, we don't have a situation where something is simply a miscarriage of justice and not in line with what we're seeking to do as a committee.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Mr. Holland.

Mr. MacKenzie, Mr. Oliphant, and Mr. Kania.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

By way of introduction, I can tell you that the government does not support either one of these proposed amendments. We did take action to move to an automatic inclusion model in order to address concerns that some convicted sex offenders were not being included on the national sex offender registry, and that's certainly the case with both of these amendments. When my colleagues talk about discretion, let me tell you, there's a great deal of discretion all the way through the process, beginning with the police officer who first investigates, who does use a great deal of discretion in these matters. The prosecutors will also use discretion on moving forward with them. Certainly, it doesn't take away the entire discretion of the judiciary. They're ultimately the people who will decide on the guilt or innocence of the people, and they may very well have their own opinions about a variety of things.

To water down the registry by moving to the situation of 'may' or 'may not', I think, is counterproductive to what we heard people asking for. I would agree that it's longer than the Ontario registry. Don't forget, the Ontario registry has been in place for some time. Perhaps if Ontario were to revisit it, they may match ours. I don't know that, but I wouldn't say that we should simply mirror what Ontario has in everything. There are good parts of it, but I do believe this is the proper balance.

What we're talking about are convicted sex offenders. Make no mistake, sex offenders typically do not start at the top of the list of offences, they start at the bottom and typically build. So having lots of information in there, the police community can certainly weed out the wheat from the chaff when it comes time to investigate offences. I think it's so important that we put in these clauses the way they're drafted in order to give that information and those tools to the community at large, but certainly to the investigative authorities and also to the prosecutors.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Mr. MacKenzie.

Mr. Oliphant, please.

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

Thank you.

I'm speaking in favour of the amendment for three reasons. I won't repeat what Mr. Holland or Mr. Davies said--or maybe I will a bit. The first is consistency with what we heard as evidence in our own hearings. Even though they weren't on this bill, they were on our review of the act. I think these amendments are consistent with our evidence, and I like to be consistent with evidence. I think that's part of our process.

The second thing is that while I agree with Mr. Holland in his underlying “grossly disproportionate”, when I support it, I would actually underline that but also “public interest”. This is not about being somehow in the interest of the offender. You need to leave some discretion in the interest of the public. So that's why I speak in favour of it.

The third reason would be that actually, for the reasons Mr. MacKenzie gave, I would use it the other way. Because there is discretion in the system in earlier places, I think, to be consistent, we need to keep that discretion. The discretion given to police officers, to the crowns, and to the whole system needs to be preserved, and we need to keep that with the judiciary as well.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Mr. Oliphant.

Mr. Kania, please.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you.

I think Mr. Davies makes a good point in that some of the offences should not necessarily be automatically included, but I do not support this particular amendment. If you look at proposed section 490.012, exactly where this would be added, the effect would be to put an onus on the court, so that the court perhaps would not order automatic inclusion for any of these most serious offences.

In paragraph (a), offences in relation to sexual offences against children, you have child pornography, you have aggravated sexual assault. You have, in proposed paragraph (c) rape, attempt to commit rape. Under paragraph (c.1) you have sexual assault, sexual assault with a weapon, aggravated sexual assault. The effect of this amendment would be to not provide automatic mandatory inclusion as a possibility for any of these serious offences if this test could be met.

So I think that's wrong. I think the witnesses spoke to the fact that one of the greatest problems was that we did not have automatic mandatory inclusion. Because these most serious offences are included, I believe this should not be supported.

[The Chair, Conservative, Garry Breitkreuz]

Monsieur Ménard, and then maybe, Mr. Davies, you can make some final comments.

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

Like Mr. Davies, I would like to talk about the two proposed amendments because, the way I see it, they are related. Both amendments follow a certain logic. Some people may not see them as logical because the amendments focus on the most serious offences targeted, but those people should know that that lack of logic is already in the Criminal Code, since it puts more serious offences right alongside less serious ones, such as gross indecency, which I would say is more of a manifestation of.... I will not even say it.

I argued those kinds of cases when I started my practice. I looked like a school kid, and I was working for other people. Squads would patrol men's washrooms to catch people masturbating. I do not believe that, in the case all of those individuals, a somewhat unhealthy behaviour was going to develop into exhibitionism, followed by sexual assault or things of that nature. I think that being dragged before the court a single time was embarrassing enough for them to draw the line there. As for those whose behaviour did develop further, they can always be arrested at some point.

If, in the course of the trial, we see that people who commit offences are disturbing those around them but not really disturbing society any further, I do not see why we would want to add them to the registry of dangerous sex offenders.

What needs to be understood is the distinction between the two amendments. In the first, we are talking about indictable offences. But even then, certain offences are serious, while others are much less so. Because they are indictable offences, the burden—and it is a heavy one—is on the accused or the convicted person to show that they should not be included in the dangerous sex offender registry.

The second clause does not target indictable offences, but summary conviction offences, which cover the least serious offences in the Criminal Code. Federal legislation recognizes only two types of offences: summary conviction offences and indictable offences.

Of course, the majority of laws that do not fall under the Criminal Code use summary conviction offences a lot. In rare instances, as with environmental protection legislation, indictable offences are used in serious cases. The Criminal Code already sets out that fundamental distinction. Summary conviction offences refer to behaviours that are not really punishable by indictment but that are prohibited.

In the majority of cases under the Criminal Code, the crown attorney has the choice at the beginning whether to proceed by indictment or by summary conviction. The reason he opts for summary conviction is that he believes the offence to be among the least serious. So a judgment call is already made.

So, in theory, the thinking is that it is not worth including those individuals in the dangerous sex offender registry. If the crown attorney had deemed them to be dangerous, he would have proceeded by indictment.

That being said, if, in the course of the trial and contrary to the initial assessment, the person is thought to be more dangerous than initially believed, there is nothing stopping the Crown from requesting that the person be added to the dangerous sex offender registry.

I think that all the safeguards are there. These provisions toughen up the act. We have heard witnesses denounce the act as it stands now because, very often, crown attorneys were not requesting that individuals be added to the dangerous sex offender registry.

So these amendments are based on the premise that crown attorneys should not have to make the request, and they allow the convicted individual to make the request himself in rare cases. He must reverse a heavy burden of proof if he is being prosecuted by indictment. That is the first of the proposed amendments. There is a lighter burden, but a burden no less, to show that the judge must believe that it is in the public interest to add the individual to the registry.

So the Crown has the option. It can decide right off the bat that the burden would be too onerous to proceed by indictment. Furthermore, if the Crown proceeds by summary conviction, meaning, the least serious offences in all federal legislation, but during the course of the trial, believes that it should have requested more, the Crown can do so, and the judge can order it.

I think that is well thought out.

[The Chair, Conservative, Garry Breitkreuz]

We have a point of order. Are you finished, Monsieur Ménard?

Okay. We have Mr. Holland on a point of order.

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

I apologize, but perhaps there was some confusion. I didn't realize that it was your determination that these were not receivable, in which case I think that's a matter we should determine before proceeding any further today.

[The Chair, Conservative, Garry Breitkreuz]

I actually had not made that ruling. I was just telegraphing that it would be an issue. I wanted to listen to all the--

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

If I may, Mr. Chair, just because I think we need to expunge that issue before dealing with others, it doesn't make a good deal of sense to debate the matter without knowing whether or not it's receivable. Could we deal with that matter first before proceeding further?

[The Chair, Conservative, Garry Breitkreuz]

It's up to Mr. Davies.

Mr. Davies, you have the final comment here.

[Don Davies, NDP, Vancouver Kingsway, BC]

Raising that is a little bit like raising it after the horse has left the barn here. I mean, I started off this morning by asking that very question, and I thought it was your decision to proceed, Mr. Chair, and that we would go with this.

[The Chair, Conservative, Garry Breitkreuz]

It was. I wanted to have a brief discussion. It's actually getting to be a lot longer than I thought it would be.