Public Safety Committee on Oct. 6th, 2010

[The Chair, Conservative, Kevin Sorenson]

We have been supplied with an amendment, again by Mr. Davies of the New Democratic Party. I'm going to ask Mr. Davies if he would speak to his amendment to add a new clause 63.1.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

This amendment would simply provide that two years after this current act receives royal assent, the Standing Committee of the House of Commons on Public Safety and National Security, or such other parliamentary committee as Parliament may designate, shall review and report to Parliament on the operation of the following provisions of this act: those provisions that would amend the Criminal Code to make subject to an order for automatic inclusion in a national registry the offences the act covers, and those provisions that amend the act to include the prevention of crimes of a sexual nature.

The reason is that there are two very substantial and profound changes to this act. The first, of course, is that the committee has, in its wisdom, now passed the provision for automatic registration; and the second is that we have added prevention of crimes to the purposes of this act.

I won't belabour the first point, but I think that because we've made such a substantial change to the legislation, we should have a review two years from now in order to see how that has worked out in practice, and to hear from law enforcement officials and the justice department about how that has worked. It would give us an opportunity to have an update on constitutional challenges to that section, because there may be a difference at that time.

I would point out that the original Sex Offender Information Registration Act, which was passed by the House of Commons in a previous Parliament, did provide for a mandatory statutory review, which resulted in this committee making an extensive review of this act. I would venture to say that this committee did some excellent work in reviewing that act, and I think we found some very important amendments and we took some important steps to improve the act.

One of them, of course, is that the previous act did not include putting vehicle licence plate or registration information into the registry. So we found that sex offenders who were using vehicles, perhaps around schoolyards, were not required to register their vehicles or licence plate numbers with the registry. We found that was a significant loophole in the legislation, and through the work of this committee we identified that.

So I think it's very important that we do the same thing two years from now, particularly when we've taken the substantive move of going from a prosecutorial and judicial discretion process to one that's automatic.

The second and final point of this is that we have added prevention to the purposes. Now, we're all in favour of prevention, but we don't really know what that means in the context of this act.

When this act was drafted careful parliamentary work was done and wording was created to specify that the purpose of this act is to keep communities safer from sex offenders while also recognizing that the rehabilitation of sex offenders is an important part of that. Again, I'm not just talking about rehabilitation of sex offenders vis-à-vis helping the sex offender. In terms of community safety, the framers of the legislation recognized that we have an interest in making sure those sex offenders do have successful rehabilitation to keep us safe from a reoffence. That's why there were certain privacy protections put in for the sex offender, because interfering with their rehabilitation was considered to actually have detrimental effects on their rehabilitation, which would in turn threaten public safety. Because we've added prevention now, and we've given police the ability to access the registry--not once an act has been committed, but at any time--I think we need to review that.

My final point will be this: under the previous legislation, the police could access the registry only if they had reasonable grounds to suspect that a crime of a sexual nature had been committed. We all agreed that was too tight a test, and that police need to access the registry in far looser circumstances. One of the examples was that if a child went missing and a mother or a father phoned in but they weren't sure that the disappearance was of a sexual nature, police would be prevented from searching the registry. We all agreed that was unacceptable.

So we all agree, as committee members, to expanding access to the registry. But when we add “prevention of a crime”, we leave open the possibility that police could actually go, let's say, to an offender's place of work. They could interfere in a detrimental manner with that offender. And my prime concern is that doing so would possibly interfere with the offender's rehabilitation and thus leave us less safe.

For all those reasons, I would suggest that this committee put in a clause as I have proposed that would cause us to examine this legislation, particularly those two those aspects of the act, two years from now. Let's see how those things are working. We may need to fine-tune this legislation to make it even more responsive to public safety and to keep Canadians safe from sex offences, which is the goal of all of us.

Thank you, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Davies.

I don't have any other speakers on this. Are we ready for the question?

Madam Mourani, the addition of this would become clause 63.1, and it would be an addition immediately following clause 63, which we just passed.

Madam Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Thank you, Mr. Chairman.

I would like to ask a brief question before making my comments. If I correctly understood Mr. Davies' explanation, two years from now, a report would be prepared on what is stated in paragraphs (a) and (b) with respect to the provisions of the bill that is going to be passed, and particularly automatic inclusion in the registry. Is that correct, Mr. Davies?

[The Chair, Conservative, Kevin Sorenson]

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

It would be automatic participation and adding prevention.

[Maria Mourani, Bloc, Ahuntsic, QC]

Yes, prevention. I wanted to be sure my understanding was correct.

We will also be supporting this amendment, for the simple reason that we will be introducing a new way of doing this that is far less restrictive, but at the same time essential and important, because the previous process allowed some offenders to avoid inclusion.

In a way, we will be closing the loop. This tightly closes the loop, and since we did not pass the first amendment, which would have given judges greater discretion over the least problematic cases, it seems to me it is even more critical that there be a report.

Furthermore, taking two years to assess new legislation is a good thing. At the same time, I am concerned about how effective this registry will actually be, since everyone will be included. Will the data be accurate? Will there be enough money to manage the data base? That's fundamental.

The best example is the current no-fly list. It includes minors, and gives rise to false positives and false negatives. It includes anyone and everyone, which means that people don't have the right to fly. Let's compare that to the situation of accused persons who automatically appear in the registry, even though the judge and even the prosecutor do not want them to be included. We will end up with a very long list.

First of all, that means there will need to be money to pay for this. I hope the government won't do what it generally does, which is to pass laws without investing any money. I hope there will be money there.

I also hope there will be quality control of the registry. We wouldn't like to see people being deprived of the right to work in a daycare centre because they have a name similar to that of someone who appears on the list. I hope all of that will be considered under this legislation.

So, it is important for there to be a report setting out all of the potential shortcomings of the list, and how much it's costing, so that we know whether the government has invested the necessary funding to ensure that the list is effective and enforceable

We will also need an evaluation report setting out whether the registry is effective and has actually made it possible to prevent sexual offences. All of that is absolutely critical, because it can only help us to be better and have better legislation.

It's possible that the current legislation is flawed in terms of its enforcement. There is no way of knowing whether a law is defective or inappropriate if it's not being enforced.

That's why, two years from now, this report should be able to tell us whether the legislation is appropriate and effective and whether the funds necessary to enforce it are available. That is fundamental.

I am surprised to see that government members, as well as Liberal members, do not seem to be reacting. I am very surprised by that. I expect Liberal colleagues to support a review of the legislation two years from now, and I expect the same from the government.

You have to be sure that this is right. You should be happy that someone is proposing a review of the legislation two years from now. I don't understand why there is no reaction. I hope I am wrong, because I have serious concerns about passing legislation without wanting to know more about how it works or whether or not it is effective.

We will pass legislation, and people on the ground will not have an opportunity to tell us whether it is good or not, and we just won't pay any more attention to it. It makes no sense.

We have to do what is necessary; we have to ensure that this legislation operates effectively on the ground. We also have to ensure that it is enforced; we're not just passing legislation for the sake of it. The best example would be the law we passed in 1995 on human trafficking. Fifteen years later, we have nothing. As I recall, there have been three, four, five or possibly six convictions for trafficking in Canada. Laws that we pass have to be effective, because otherwise, there is no point; we are wasting our time and taxpayers' money.

The best way to assess the effectiveness of a law is to test it. So, we are going to test it. However, if we test it and we have no report subsequently, we are not doing anything. We will simply be producing another law without knowing whether or not it works.

That is fundamental, Mr. Chairman. We should at least consider this amendment and reflect on the fact, as a group working together, that we need to take the time, two years from now, to assess the relevance of that legislation. I therefore invite all my colleagues, in good faith, to support this amendment, which I know is both worthwhile and important.

Thank you, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Madam Mourani.

Let me also add that committees are able to take up studies and look at effectiveness of bills at any time. Even if this amendment doesn't pass, the option is there for a committee to pick it up.

Mr. Holland.

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

Thanks, Mr. Chair.

I have two points to make. My first point is the one that the chair just made: the committee always has the opportunity to review an issue if it doesn't feel it's working. So I don't think there's a need to support this motion, and there certainly isn't a need for the kind of urgency I'm hearing.

The second point, and it's just as important, is the fact that this is modelled after Christopher's Law in Ontario. This is something that is in place, working, and seen to be highly effective. This committee has just taken a lengthy period of time to review that law, and we have seen it to be effective.

So I don't understand or see the need for it, and on that basis won't be supporting it.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Holland.

Ms. Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

Mr. Chairman, thank you.

I understand my colleague's position based on the Ontario example. However, don't forget that Ontario is a province. It passed a bill and now has a registry which operates based on its own criteria and parameters. That does not necessarily mean that when it's in place across Canada, and therefore affecting a larger proportion of the population, the effect or scope will be the same.

We're talking about one population and comparing it to a larger one. Will the registry have the same effects? Will it include the same number of offenders? Who will it operate? We're not sure.

If the Ontario model is working, that's great. Surely they have to review it there as well, to make adjustments. However, we cannot make comparisons saying that if it worked in Ontario, it has to work in Canada. We can make that assumption. We can assume that this model will work as well in Canada, but there is no guarantee. We have to review it in order to be sure. It's quite true that the Committee can look at this at any time and that it can review any matter it decides to. However, this amendment would require it to carry out such a review, so that it would no longer be based on whether the Committee felt it was necessary or not.

Mr. Chairman, members of Parliament come and go. Governments also come and go. Now, the situation around this table is what it is. It may be different two years from now. We don't know. Today we may all be very interested in reviewing the national sex offender registry, but two years from now, the people sitting at this table—may not be us—may not be interested in looking at whether this legislation is effective.

However, if it is an obligation under the act, they will be required to do so. They will have to look at this. Do you understand the difference, Mr. Chairman? It's a significant one. It may seem to be a minor distinction, but it is actually a very important one.

That's why I invite my colleagues to reconsider their position. We are all human, we are all entitled to make mistakes; that's what makes us human. So, we cannot say that we are 100% certain that all the laws we pass are perfect, because we are basing ourselves on an example either in Ontario or elsewhere in the world.

Let's look at the American example. It doesn't work. There is the infamous problem of false positives and the fact that people are included whose names should never have been there. The best example I can give you is the 18-year-old boy and the 16-year-old girl who are in love. That's really the typical example.

What are we seeking as a society? Do we want our young people to end up in a sex offender registry because they had sex with a 14-year-old girl? I don't understand. Do we want to make a judge powerless and force him to say to an 18-year-old boy that he is sorry, because if he had anything to do with it, he would not have included him in the registry? Unfortunately, because there is no loophole there, and even though he knows that the young man's name should not be in the registry, and even though the young man himself and his lawyer could demonstrate that his name should not be included, it's too bad, but the legislation forces a judge to include him in the registry.

Mr. Chairman, I have learned one important thing over my years in Parliament. When you include someone's name in a registry, it's extremely difficult to remove it afterwards. The best example of that are the people who are on a no-fly list. They have to fight and go to extreme lengths to have their name taken off the list because they are no longer allowed to fly. They are prohibited from flying. Why? Because their name resembles that of another supposed terrorist.

Again, we're dealing with assumptions. You may say that in the case of a sex offender registry… the person is charged and convicted of a crime, and so on. I understand all of that. However, in the exercise we are engaged in today, I think it's a shame we will be giving no opportunity to a judge to decide whether the person appearing before him could or should not be included in the national sex offender registry because, for example, the individual in question, who is an 18-year-old boy, had a relationship with a 16-year-old girl—he loves her, but the parents do not approve. I can imagine that happening. There are all kinds of scenarios that come to mind.

There is another more ridiculous scenario I could point to: one involving a man who is bathing naked—you obviously have to be naked when you bathe—in his bathroom, with the window open, and someone sees him. He is accused of being an exhibitionist. The lady across the street has a fit, exclaiming: “Good heavens, what is this? He is walking around naked! That's not right! I'm calling the police. He is an exhibitionist, officer.” Then the man is told that he was seen, not only by the lady on the first floor, but also by a little 2-year-old girl, etc. And this fellow ends up in court. You're an exhibitionist, are you? So what are we going to do? Put his name in the sex offender registry, without giving him any opportunity to prove that including him in the registry is not really useful? That is the substantive question we should be asking.

And there is another question, which concerns me greatly: will this registry be effective? Witnesses who came before the Committee told us that there are too many names in the registry—like the U.S. example—and that it's not effective. We need an effective registry which clearly identifies sex offenders. We need to put money into it, and we need to be able to assess it. It's true that the registry is already in place, but because of this new way of managing it, we have to know whether it's working or not. And that requires an evaluation—not a “possible” or “probable” evaluation, “if the Committee feels like it”. There has to be a statutory requirement with respect to the registry.

In closing, I'd just like to say that it is critical that this bill be evaluated, but not based on the whims of certain members of the Standing Committee on Safety and National Security who may be sitting at this table two years from now; it has to be prescribed by law. It doesn't commit you to anything. In fact, when you are sure of yourself, and when you know you have a good law, you shouldn't be afraid to have it reviewed subsequently. Why this fear? I can understand as regards the first amendment, which gives the judge that option, and there is reverse onus on the part of the client. It may be ideological, and depending on the period, we may be a little further to the right or to the left. However, when it comes to a report, how can we not agree?

The only thing I can see is that people are clearly not interested in being told two years from now that this registry may not be that effective. I would just like to say one thing, Mr. Chairman.

If, two years from now, I am still alive and am sitting in front of you or in front of your chair—because you may not be there at that point—I will request such a report. That is something I can say; in fact, it's already in writing.

Thank you, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Ms. Mourani.

Seeing no other debate--and Ms. Mourani having no other examples of the registry--are we ready for...?

Go ahead, Mr. Gaudet.

[Roger Gaudet, Bloc, Montcalm, QC]

I would like to continue along the same lines as what Ms. Mourani has just said. A thought came to me: if it's a majority government and it doesn't want to do this, what happens then?

Earlier, Mr. Chairman, you said that the Committee can meet at any time to review the effectiveness of the legislation. However, what happens if the Committee cannot do that?

I intend to be polite with you. In my opinion, the Liberals expect to return to office one day. They don't want to hurt anyone because, at some point, they will be sitting on the other side. I can't stand that kind of thing, to be perfectly frank. When I hear the Liberals and Conservatives talking about a coalition… There is already such a coalition in terms of every bills that's considered, because they are certain to regain power one day. The Bloc will never form a government, I can assure you of that. As for the NDP, I hope they can, but I'm not at all certain it will happen.

[Maria Mourani, Bloc, Ahuntsic, QC]

We don't want your power. Ah, ah!

[Roger Gaudet, Bloc, Montcalm, QC]

You know what I'm driving at. You'll note that for every single bill, there's a coalition between the two.

I'll give you another example: a 17-year-old boy and a 17½-year-old girl who sleep together. When the girl turns 18, and the boy is only 17½, if the girl's mother doesn't want her daughter to go out with the boy anymore [Editor: Inaudible]. Be very careful, because the way it is currently drafted, it's a very bad bill. It's a purely ideological bill; nothing more.

Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Gaudet.

Seeing no other debate on this, are we ready for the question on the amendment?

(Amendment negatived)

(Clauses 64 and 65 agreed to)

Back to the beginning, shall the schedule of the bill carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Kevin Sorenson]

Shall the short title of this bill, clause 1, carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Kevin Sorenson]

Shall the title carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Kevin Sorenson]

Shall the bill carry?

[Some hon. members]

Agreed.

[The Chair, Conservative, Kevin Sorenson]

Shall I report the bill to the House?

[Some hon. members]

Agreed.