Public Safety Committee on Oct. 6th, 2010

[The Chair, Conservative, Kevin Sorenson]

We welcome our listening audience to meeting number 32 of the Standing Committee on Public Safety and National Security, on Bill S-2. We will proceed to clause-by-clause consideration of Bill S-2, an act to amend the Criminal Code and other acts.

We also have some senior officials here today. I would invite you at your convenience to come to the table. You are welcome to. It looks like you are all set up over there, but it's wherever you feel most comfortable, I guess.

Mr. Holland.

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

Mr. Chair, it's not that I wouldn't want to hear from the witnesses, but as we've studied this issue fairly exhaustively, perhaps we could avoid opening comments in the interests of expediency and just allow members to pose questions, should they have them, of the witnesses.

[The Chair, Conservative, Kevin Sorenson]

That's fair enough.

All right. You have your bills before you. We have received a couple of amendments and we'll deal with them when we get to them.

We will proceed. We'll postpone clause 1, the short title to this bill, until the end of the bill, when we will come back and look at it.

There are no amendments until clause 5.

(Clauses 2 to 4 inclusive agreed to)

(On clause 5)

On clause 5, we have one NDP amendment that has been brought forward. I think we have already been in some discussions with Mr. Davies on this amendment, and it has been ruled out of order.

Mr. Davies, you may speak to this.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chairman, while I respect that ruling, the purpose of this bill, in my understanding and after listening to all of my colleagues and the testimony, is to strengthen and enhance the effectiveness of the sex offender registry. It is my belief that my amendment does exactly that.

We heard testimony before this committee from people who use the sex registry, testimony that indicated that, at least in the opinion of some witnesses, if we register every single person convicted of an offence, we may risk clogging the registry with a number of names that are not appropriately on the sex offender registry. If that's the case, when an emergency situation arises where the police need to do a very, very fast search, such as in a case where a child goes missing, this will cause them to have to search and investigate many more people, some of whom would be a waste of time, and that will slow down the police.

Now, I recognize that not everybody may agree with that testimony, but I certainly was struck by it. So while I respect the ruling of the chair, I would respectfully challenge the ruling of the chair, at least so that I can put my amendment forward, have a discussion with my colleagues, and then have a vote on it. I would respectfully challenge the chair's ruling that my motion is out of order.

[The Chair, Conservative, Kevin Sorenson]

My ruling has been that it's out of order, and of course it's not something I've just indiscriminately made a ruling on; it has come from legal services. Again, I can read you the whole ruling, but 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. The amendment goes against the very principle of Bill S-2, and for that reason I've ruled it inadmissible or out of order.

Mr. Holland.

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

I know there's no debate on challenges to the chair--

[The Chair, Conservative, Kevin Sorenson]

That's right.

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

--so I'm really stretching things here, but it's just to say that while I don't support the amendment, I do support Mr. Davies' right to bring it forward.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

All right. So unless there is other debate, it has been ruled out of order.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Chair, I'm challenging your decision. I'm challenging your ruling.

[The Chair, Conservative, Kevin Sorenson]

All right.

There is no debate, as Mr. Holland has already suggested, on the challenge that has been brought forward--by the table, I guess, by the legal...by the clerk.

Let me just read to you what they have said, and then we will take a vote on it:

Bill S-2 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 an 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. As House of Commons Procedure and Practice (2nd Edition) states on page 766: "An amendment to a bill that was referred to committee after second reading is out of order if it is beyond the scope and principle of the bill." In the opinion of the Chair, the introduction of the concept of discretion is contrary to the principle of Bill S-2 and is therefore inadmissible.

So shall the chair's ruling be sustained?

(Ruling of the chair overturned)

[The Chair, Conservative, Kevin Sorenson]

All right. We will then open this for debate.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman. I appreciate the support of my colleagues to at least put this amendment forward and have it debated, while I recognize of course that not everybody is convinced that this amendment is desirable.

I won't speak a long time on this, Mr. Chair, because we have had a lot of talk about this, but I do want to highlight a couple of the points that support this amendment. The current legislation provides a very tight and strong system for registration. Currently if a person is convicted of one of the enumerated offences then an application may be made to the court by the prosecutor. If that application is made, the current legislation requires that registration occur unless the defendant or the convicted person at that point can establish using a very high test that the impact on his or her personal situation greatly exceeds the purposes of the registration. The situation in which that would happen has been described as being very rare.

One of the main bits of mischief that this committee heard was that prosecutors either forget or omit to make that application. So my amendment clears up the mischief that we heard at this committee by making an application before the court automatic upon conviction. No longer would we face a situation in which, upon a conviction, a prosecutor would forget to make that application. It will automatically be before the court.

My amendment preserves the current test under the legislation, which still sets an extremely high burden of proof for the convicted person to meet to show why registration may not be appropriate, because there may be the rare case in which registration is not appropriate. It preserves the concept of judicial discretion.

We heard testimony that filling the registry with the names of those who do not pose a danger or risk of reoffending could harm public safety by slowing down police investigations. Having police follow up on what could turn out to be, as evidence would suggest, useless leads from the registry wastes precious time in investigations when time is of the utmost importance.

Of course my amendment would solve the main problem of prosecutors forgetting or neglecting to apply for registration, but it would still allow for the small possibility, once again with a high burden of proof, for an individual to make the case to a judge that registration was not in the public interest.

We heard testimony from the government's own justice department that the current system of judicial discretion was working well. On Tuesday, April 21, 2009, at SECU meeting number 15, Mr. Douglas Hoover, counsel for the criminal law policy section at the Department of Justice, testified thus:

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 [registry]. 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.

There are also questions, Mr. Chairman, as to whether fully automatic registration would be constitutional.

I will quote again from the testimony before this committee on the same day from Mr. Hoover.

Mr. Davies referred to the Dyck case, in Ontario, where the issue was omnipresent whether a registry that was automatic was constitutional. That matter has still not been settled fully by the Supreme Court of Canada, so if we do go automatic it will be an issue.

So again we're not even sure that the legislation we're passing right now would survive a constitutional challenge.

I want to point out one last feature that everybody in this committee will remember. Before this bill was drafted and presented by the minister in the House and the Senate, our committee undertook a very lengthy study of SOIRA, the Sex Offender Information Registry Act. We heard from many witnesses, and we were just finishing off our report when the minister tabled his legislation in the House of Commons without even waiting for the benefit of our report. Our report at that time had failed to find the case for automatic registration.

After extensive study, it was the will of this committee that we not have fully automatic registration but that instead we recognize that there may be the exceptional case when registration is not appropriate. We've heard of situations in which a very young person may be involved. We may not be at all convinced that the person would reoffend or should be subject to what could be a very onerous registration process whereby they may be under extreme conditions for up to ten years. So preserving judicial discretion while making this an extremely tough test is important.

My final point is that we also have to bear in mind that under this legislation, as opposed to the case in Ontario, the list of offences we would be subjecting to automatic registration would be much longer. Again, I always point out that it includes sexual assault, both by indictment and by summary offence. And while every sexual assault is, of course, serious, and while we should condemn every sexual assault in the strongest terms, there may be an exceptional case when it may not be appropriate to put someone convicted of a summary conviction sexual assault into a sex offender registry, with all the attendant impact that may have.

I would urge my colleagues to support this amendment and to at least allow for the possibility that registration may not be appropriate in every single case, although it would be appropriate in the vast majority of cases.

Thank you, Mr. Chair.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

We'll go to Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you, Mr. Chair.

I'm not going to be long. What I wanted to indicate was that I supported Mr. Davies' right to have this discussion, in terms of challenging the chair, but I strongly oppose the amendment itself.

We went through this as a committee when we were studying Bill C-34, when it was introduced by the government in the House. We had hearings, and I spoke in the House of Commons about this. I spoke very strongly in terms of challenging the government to make its bill tougher.

For example, one of the loopholes it left was in requiring sex offenders to register their licence plates and details about their vehicles, which is actually now in the legislation. It's been corrected. What we've really done is try to make this into a stronger, or even broader, version of Ontario's Christopher's Law.

I think that the current legislation, as we have it before us, is good, and we need to make it as strong as possible. I do not think there should be judicial discretion for the specific examples he has noted here. We need to make this law tough to protect our citizens. So I oppose it on that basis.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Kania.

We'll go to Mr. Rathgeber.

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

Thank you, Mr. Chair.

I agree with my friend, Mr. Kania. I don't have a comment so much as I have a question for Mr. Davies.

It appears to me that his amendment is attempting to replace prosecutorial discretion with judicial discretion. I'm really curious as to why he thinks that's superior. Does he not believe, or has he not considered, that some of the cases he's cited as potentially inappropriate for automatic registration might actually be better dealt with by having prosecutorial discretion?

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Rathgeber.

You obviously wanted to respond to the question or to summarize your amendment.

[Don Davies, NDP, Vancouver Kingsway, BC]

Yes, I will respond briefly to Mr. Rathgeber's question.

There always was judicial discretion under the current legislation, and there would be judicial discretion under my amendment. Of course I believe in prosecutorial discretion as well. But according to the evidence we heard from prosecutors, and it was a concern of this committee, if you leave the discretion in the hands of prosecutors to make an application, sometimes it's not done. Sometimes it's inadvertent. Sometimes it's plea-bargained away. And I think we all agreed that we didn't want that to occur. We wanted an application to be before the court automatically upon conviction, and I'm comfortable with that.

What I do think, though, is that none of us in this room can say that every single case of a conviction for those offences, in all circumstances, always, should result properly in, and that justice will be served by, having registration occur. That's why I still think that in the rare case when the case can be made before the court.... And remember, the onus is on the convicted person to meet that burden. I know that my friend's a lawyer, and he knows what the burden of proof means. He knows what an onerous burden of proof is, and he knows what a reverse onus of proof is. With those protections, I trust the courts of this land to interpret that test, as they have.

Finally, I will point out one more time that the evidence before this committee from the Department of Justice officials was that the current system, which has judicial discretion, is working well. We did not hear any evidence of any situation when someone escaped registration who ought to have been registered. So I would urge us to make a decision based on evidence and not on speculation.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

Are we ready for the question?

Madam Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chairman. I would like to present our perspective on it. First of all, we are not proposing any amendments. Furthermore, we agree with many, if not the vast majority, of the points that have been made today.

However, the amendment proposed by my colleague, Mr. Davies, brings an interesting dimension to this. In the amendment, which I'm reading in French and which must be the same in English, uses the expression “grossly disproportionate”.

It includes the concept of reverse onus and automatic registration. It would be up to the accused to establish that registration would have a grossly disproportionate effect. The standard of proof is extremely high.

It seems to me, therefore, that the most serious cases, as well as the vast majority of cases, would not pass the test of reversal of automatic registration.

On the other hand, this amendment does make other things possible. I'd like to give you an example to demonstrate the need to consider this possibility. Imagine a case where an 18-year-old youth expose himself to a 15- or 16-year-old-girl. It is generally acknowledged that, between 16 and 18, the age difference is minimal. However, when you are 18, you are a person of full age and are therefore subject to the Criminal Code.

Supposing these young people meet at a party and one of them exposes himself to some young girls in a very specific context. Consider this. These are our young people. It could be our daughter, our child. Would we be in favour of our child's name being listed for the rest of his life in a sex offender registry? Furthermore, it could also have been a case of mutual consent.

As we know, the current registry in the U.S. is a disaster. It contains all kinds of information, for completely minor offences.

In addition, the standard of proof is so high that the judge must be given some discretion to exercise his own judgment. After all, if you're a judge, you are capable of using your own common sense in assessing the situation. I think this is a reasonable amendment because it is neither too open-ended, nor too lax; it is still quite strict.

The requirement to show a grossly disproportionate effect sets the bar very high. This would prevent people from abusing the system, and it reflects the kind of balance we should be seeking to achieve whenever legislation is being drafted.

Furthermore, the second part of the amendment provides for a review or assessment—essentially a report that assesses the new provision. That is absolutely critical, because it is possible that, two or three years from now, the legislation will be struck down.

It is important to remember that, as well as the fact that we may realize that this provision--

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

Point of order, Mr. Chair.

[The Chair, Conservative, Kevin Sorenson]

Madam Mourani, there's a point of order. Before I hear from Mr. Rathgeber, that deals with an amendment later on. I think that probably is the point of order.

[Maria Mourani, Bloc, Ahuntsic, QC]

I would like to finish making my first point. I would ask my colleagues to reconsider their decision. The whole purpose of the Committee's work is to try and improve the bill. I think Mr. Davies' first amendment brings a dimension that will make it possible to set aside the vast majority of cases. Whenever the offence involved is sexual assault, sexual interference, invitation to sexual touching, sexual exploitation or incest—it's very well defined—that person's name will automatically be listed in the registry. Automatic registration is not being removed. Whenever an individual commits a sexual offence, as laid out in Bill S-2, that person's name will automatically find its way into the registry.

Having said that, the additional dimension included in this amendment is such that consideration can be given to a situation where the offence is extremely minor and of little consequence. An example might be an 18-year-old boy and a 16-year-old girl who love and enjoy each other. If the parents are not in favour of the relationship and make a complaint of sexual assault involving a 15-year-old girl and an 18-year-old male, what is going to happen? Should that young man be labelled a sexual offender for the rest of his life, even though he was actually only involved in a consensual relationship with a 15-year-old girl? I think we have to consider these issues and allow the judge to determine whether the accused has proven that the effect of registering that individual would be grossly disproportionate to the public interest in protecting society.

Mr. Chairman, I believe Mr. Davies' amendment brings a new dimension that is worth considering.

[The Chair, Conservative, Kevin Sorenson]

All right. Thank you, Ms. Mourani.

I have no other speakers on the list. Are we ready for the question on Mr. Davies' amendment?

(Amendment negatived)

(Clauses 5 through 63 inclusive agreed to)