Mr. Speaker, it is rather surprising to have such an audience at this late hour, but I am still very happy to speak today to the Senate amendments to Bill C-7, which amends the Criminal Records Act.
Bill C-7 proposes preventive measures against recidivism for sexual offenders who have been granted a pardon and who would be tempted to work with children or other vulnerable groups.
So that members can fully understand the proposed amendments, I would like to remind them of the circumstances under which the present legislation was enacted and to say a few words about the amendments.
In 1969, the Ouimet report recommended the adoption of a federal act on rehabilitation. At the time, the goal was to rehabilitate offenders who had been of good conduct since having committed their crime.
The Criminal Records Act was passed in 1985. This act allows the offender to apply for a pardon. It sets out the terms and conditions for obtaining what is commonly known as a pardon.
Under the present legislation, an individual is eligible for a pardon if he or she participates in good conduct for a certain length of time after the legal termination of his or her sentence. That period is of five years if the person was convicted of an indictable offence, and three years, for a summary offence conviction.
What are the effects of a pardon for the offender? According to section 5 of the act, the grant of a pardon is evidence of the good behaviour of the applicant. It restores his or her reputation and vacates the conviction in respect of which the pardon is granted. There is controversy over what the expression “vacates the conviction in respect of which it is granted” means. Based on the French version of the text, some claim that the pardon retroactively erases the conviction. Others maintain, based on the English version, that the pardon simply makes the information concerning the conviction confidential.
in fact, this matter was debated by the Quebec appeal court in the Justice Richard Therrien case. The court reached the conclusion that the safest interpretation of the law acknowledges that, while a pardon does not erase the conviction retroactively, it mitigates its effects by extinguishing them as much as possible and by banning discrimination against a person who has benefited from this measure.
The court adds that section 5 of the Criminal Records Act is therefore limited in scope. Essentially it is intended to remove the effects of any disqualification created under an act of Parliament. In addition, the legislation does not contain any provisions preventing the criminal record of an individual from being questioned.
In practice, a pardon eliminates the criminal background from the automated criminal conviction records retrieval system maintained by the RCMP, known as the CPIC, the Canadian police information centre.
This is the official criminal records bank in Canada. When a pardon is granted, the record is removed from the system and is no longer accessible, unless authorized by the Solicitor General of Canada.
The present law provides for the revocation of a pardon. A pardon may be revoked if a person is convicted of a further criminal offence punishable by summary conviction or is no longer of good conduct, has knowingly made a false or deceptive statement, or concealed some material particular. On the other hand, the pardon granted to an individual convicted of an offence punishable by way of indictment is automatically cancelled.
The Criminal Records Act provides that applications for pardon must be submitted to the National Parole Board. The board then investigates the applicant. If the National Parole Board decides not to grant a pardon, there is no provision in the existing legislation preventing the applicant from immediately submitting a new application after having been denied a pardon.
About 250,000 pardons have been granted since the act came into effect, and the recidivism rate among those who were granted a pardon is approximately 2%. Fewer than 2.4% of the pardons granted have been revoked.
Some 4,000 of these 250,000 pardons were granted to people who had been convicted of sexual assault. It is estimated that 114 of these 4,000 offenders committed another crime of a sexual nature. We have heard sordid stories about children sexually assaulted by individuals who were in a position of trust relative to them. Even if the number of repeat sexual offenders who have been granted a pardon is low, just one sexual assault involving a child is one too many.
The government adopted a series of measures to prevent child sexual abuse. The proposed amendments to the Criminal Records Act are part of that arsenal. The main measure proposed in Bill C-7 is the development of a system to identify child sex offenders who were granted a pardon and who are trying to work with children or vulnerable persons.
Any person who applies for a job that would put him or her in the presence of children or vulnerable persons might be subject to a review of his or her criminal record. That check will allow officials to determine whether the applicant was granted a pardon for an offence of a sexual nature.
Bill C-7 also includes other amendments to the Criminal Records Act. It clarifies the effect of pardon. The controversy regarding the interpretation of section 5 is eliminated. Moreover, amendments are made regarding the time when an individual can re-apply for a pardon following a refusal. Finally, the grounds for the revocation of a pardon are changed.
Let me elaborate on these changes.
First, clause 6 of the bill stipulates that an applicant for a paid or volunteer position of trust or authority with children or other vulnerable persons may be subject to a verification for the purpose of determining whether they have been granted a pardon for a sexual offence. This flagging mechanism would work as follows.
An individual submits an application to an organization or person responsible for the well-being of children or other vulnerable persons. Under the proposed legislation, a future employer will be able to verify whether an applicant has been granted a pardon for a sexual offence. The applicant must, however, consent to this verification in writing.
The manner in which consent is to be given is governed by the regulations. Once consent has been obtained, a police force or other authorized organization will conduct the verification.
Detection will be as follows: the RCMP commissioner will be required to include a notation in the automated criminal conviction records retrieval system so that police will know whether someone has been granted a pardon for a sexual offence. The flag in question could take the form of a red warning light. It will not reveal details of the offence in question to the police.
If the red warning light appears during a verification, it will mean that an applicant has been granted a pardon for a sexual offence. The RCMP commissioner will then send the file to the solicitor general, who will disclose the file, in part or in whole, to the authorized police force. Consent will have to be obtained again from the applicant before his or her file can be transmitted to a future employer.
Under this bill, it would be up to the governor in council to prescribe by regulation which offences should be flagged. Also, “children” and “vulnerable persons” would be defined in the regulations. However, the Senate proposes that the list of offences to be flagged be incorporated in the act. I will get into the details of this proposition made by the Senate a bit later.
The government proposes to define the word “children” as “persons who are less than 18 years of age”. The definition of this term would then be based solely on age, as is the case in several other pieces of legislation.
As far as the expression “vulnerable persons” is concerned, the proposed definition is the following: persons who, because of their age, an impairment, a disability or other circumstances, whether temporary or permanent, are in a position of dependence on others, or are otherwise at a greater risk than the general population of being harmed by persons in a position of authority or trust relative to them.
But we will see later that, in its proposed amendment, the Senate has removed the terms “impairment” and “disability”.
The second change brought about by Bill C-7 is the elimination of the controversial section 5, which is replaced by clause 4 designed to further clarify the effects of a pardon. It very simply states that it “requires the judicial record of the conviction to be kept separate and apart from other criminal records”.
Bill C-7 makes a third amendment I should mention. It provides that the pardon will be automatically revoked if a new offence is committed, whether it is an offence punishable on indictment or on summary conviction. Finally, it provides for the imposition of a one year waiting period prior to reapplication for a pardon following a denial by the parole board.
This bill received strong support from members of the House of Commons. The proposed measures respond to a basic concern of all of us, namely the protection of our children against sexual offenders.
The record of a pardoned sexual offender, like the record of any other pardoned offender, does not come up during a search of the CPIC computer files. As I explained earlier, the record of a pardoned offender is sealed and cannot be disclosed.
However, when an individual wants a job that might put our children or vulnerable persons at greater risk, an exception to this rule seems justified to me. This is why I support the proposed amendments. These changes are preventative measures which will prevent tragedies.
Yet it is important to mention that only the police and authorized personnel will have access to the information regarding the offender, and his consent will be needed to have his record checked. This guarantees the protection of the pardoned individual.
Bill C-7 was referred to the Senate on October 18, 1999. After reviewing it, the Senate has proposed four amendments on which we have to vote today.
First, the Senate is suggesting that the definitions of “children” and “vulnerable persons” be included in the act itself, whereas the government was proposing that they be defined in the regulations.
Criminal law is particularly important as it condemns those acts society finds the most reprehensible. It concerns the Canadian population as a whole. For this reason, I believe using regulations in matters of criminal law should be avoided.
Parliament must retain the power to determine the categories of persons affected by these acts, and these must be subject to debate. In its amendments, the Senate confirms the definition of “children” as proposed.
In the definition of “vulnerable persons”, The Senate recommends that the words “handicap” and “infirmity” be replaced by “disability”. The definition of vulnerable persons would be as follows: persons who, because of their age, a disability or other circumstances, whether temporary or permanent, are in a position of dependence on others; or are otherwise at a greater risk than the general population of being harmed by persons in a position of authority or trust relative to them.
The words “handicap” and “infirmity” are seen as inappropriate or obsolete and the word “disability” seems more appropriate.
Second, the Senate proposes that clause 6.3(1) of the bill be amended in order to describe the type of offence covered by the legislation.
I support these amendments since they specify the scope of the legislation. What this legislation seeks to do is to identify the individuals who were granted a pardon for a sexual offence and who might be likely to reoffend when in a position of trust with children or other vulnerable persons.
The other types of offenders are not affected by this legislation. This sets a balance between the protection of the public and the right of individuals to enjoy the full effect of a pardon.
Third, the Senate proposes that a schedule be added listing the sexual offences provided for in the criminal code and referred to in the legislation.
I repeat the comments I made earlier. Originally, the government wanted to let bureaucrats make a list of offences, through regulations, without having to report to parliament. I believe it is essential, in criminal law, for the freedom of bureaucrats to be limited and for parliament to retain the responsibility of determining which offences must be provided for in the legislation. This is why I support this Senate amendment.
The last amendment relates to the possibility for the governor in council to change the schedule, through an order in council, to add or remove a sexual offence. I am in favour of this amendment, because it gives the latitude required for developing and updating the list of offences provided for by the legislation. If the criminal code provides for new sexual offences, the schedule could be changed accordingly.
A pardon has an important value in our society. People facing criminal justice are, following a conviction, punished for their crime. Often, we see that the stigma of a criminal record remains long after the sentence has ended, even if the individual does not reoffend and leads an exemplary life.
The Criminal Records Act was passed to allow these people to lessen the effects of a criminal record by obtaining a pardon. However, some people who were pardoned for sexual offences have reoffended. Often, they commit their crime while in a position of trust with children or vulnerable people.
I have found two very disturbing cases that are good examples of what we want to avoid with this bill. The first one concerns Paul Gervais, who received a suspended sentence in March 1999 for sexual assaults on several teenagers in Ottawa in 1997 and 1999.
We read in the Ottawa Citizen that it was discovered during submissions on sentencing, that Paul Gervais had been sentenced 20 years earlier for similar crimes. He was granted a pardon for those offences, and it was impossible to retrieve his criminal record.
The second case reported by Shafer Parker Jr. in the British Columbia Report concerns Paul Leroux, who was accused of pornographic material possession in April 1997 and indicted on 32 counts of sexual assault on 15 boys.
During the investigation, it was discovered that in 1979 Paul Leroux had been sentenced for molesting a boy when he was a supervisor in the students' residence at Grollier Hall high school in Inuvik. He had been granted a pardon.
It is true that there are very few repeat offenders but there should be zero tolerance when it comes to the protection of our children. Bill C-7 was introduced to prevent abuse and to protect our children from it.
In conclusion, the Bloc Quebecois will support this bill and the Senate amendments.