Mr. Speaker, I am pleased to resume debate on this bill. When my remarks were interrupted just prior to question period, I was dealing with clause 2 of the bill, which would create a new section.
As we had discussed earlier, throughout the debate, this bill is about the sex offender registry. It is not clear to me why clause 2 was inserted into the bill. As I was pointing out, the bill would rewrite a section of the Criminal Code that deals with the criminal act of exposing one's genitals to a person under 14 years of age; that is, subsection 173(2). I just did not quite understand the relevance of clause 2 in this particular bill that we are dealing with. We have rewritten the section, or at least part of it, to say it is an offence for a person in any place, for any sexual purpose, to do that to a person under the age of 16. It is just merely the exposure, not any other sexual act.
The way the section was written previously, it applied to individuals under 14 years of age.
This would include 14- and 15-year-olds. It just seems to me quite odd that in the year 2010 we would criminalize 14- or 15-year-olds for the simple act of exposing genitals.
I am only guessing, but a provision such as this had to have been written by someone who was a little bit older. I cannot imagine that a young person would regard this as a serious criminal act, yet that is what this section would do.
In the end, I am probably going to end up voting in favour of the larger bill, but I am flagging this particular issue because it would criminalize the conduct as between two 15-year-olds that I am not so sure all Canadians would think was criminal. However, somebody, in writing this bill, decided that it would be criminal. In the particular case of two 15-year-olds, they would be dealt with under the Youth Criminal Justice Act; they would be dealt with as young offenders.
My point is that this would criminalize something and would probably insert it into the bill that we are dealing with here. Let me just say that although it is a numbered section in the bill, it seems to me that it would make an amendment to the Criminal Code by stealth. The bill was written for an entirely different purpose, that of dealing with the sexual offender registry.
In any event, I have made the point and I regret that it was included. However, I am sure there are Canadians who would disagree with me.
The next thing I want to talk about is the category of mental disorder.
This particular bill would include, in those who are made part of the sex offender registry, those who are not criminally responsible because of a mental disorder. That is fine. There are two ways to look at this and both are valid.
One way of looking at this is that, because someone has a mental disorder, he or she absolutely should be recorded in the registry. There is some sense in that. If someone has a mental disorder that may predispose him or her to the commission of a crime of this nature, then it does make sense.
Another way of looking at it is that, should persons with a mental disorder for a short period of time in their life become implicated in the act, should they have this type of difficulty, the act would actually, in many cases, put them into the sex offender registry and they might up staying on it for their lifetime.
It is not clear to me that in every case someone who has a mental disorder at a certain point in his or her life, being subjected to the virtually automatic procedures under the bill, should be placed in the registry indefinitely. It could be said that there are provisions in the act to either terminate or exempt the registration, but for individuals who are not rich, who are poor or without means, in many cases they may just drift through life and stay on the registry when they do not pose a risk. I wanted to ensure the record was clear on that.
I want the record to show just how comprehensive the legislation is. I will not read every section of it, but only the sections of the code that require someone to be included in the registry automatically. There are offences in relation to children, sexual interference, invitation to sexual touching, sexual exploitation, compelling the commission of other sexual offences, a parent or guardian involved in this activity, child luring, stupefying or overpowering for the purpose, living off the avails of prostitution and obtaining prostitution of a person under the age of 18.
In relation to those latter sections, the person who is accused and convicted is a person who might not even be involved in a sexual offence. Therefore, one might ask this. What risk of committing a sexual offence do those people pose and why should they be on the registry? I will leave that question unanswered.
The committee has reviewed the bill and has seen fit to include that section. My colleagues in the House believe there is a risk posed. I do not see it quite as clearly as they do. The linkage could be drawn between someone who lives off the avails of prostitution, but it is not exactly clear how he or she would be a risk to commit a sexual offence later on. I understand the human rights and the issue involving people who are subjected to the criminal and other subjugation of people of that nature.
The statute fortunately retains procedures for deleting, exempting and terminating the registry. However, in every case, it requires a court application. I regret the removal from the Criminal Code of a section which, in my view, was balanced, proper and guided these provisions in all of the years since they were first enacted in the 1990s. The last amendment to these sections occurred in 2007 under the Conservative government. It is not clear why it has decided to revisit it. I can see the general purpose, but three years later, it is not clear to me what the motivator is at this time.
I want to point out the section that was dropped, which states:
The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
That provided the court with the opportunity, before a person's name was included in the registry, of saying no. In this case, the circumstances, the position of the victim and the offender were such that there would not appear to be any public purpose served by including the convicted offender in the sex offender registry. The facts might have simply been a one-off, a bad day, a family situation that was corrected, any number of explanations.
I regret that provision is gone and that our judges will not have the ability to balance the positions of the offenders and victims and the needs of future law enforcement. At least if this bill passes, it will be gone.
I want to refer to a concept that other members have called the automatic inclusion of people in the sex offender registry. What the government has put forward is a huge list of crimes, some of which I referred to earlier in my remarks. We are holding out that it is those offences that cause the inclusion in the registry. At the end of the day, people are being included in the registry, not offences. The statute seems to forget that we are dealing with people and not offences. I call it a meat chart approach.
I have not been able to determine if any offences of this nature have been left off the list. It simply says everything having to do with sexual offences are going on the list, everybody convicted a first or second time is going to be going on the list and has to provide DNA, and that is how it is going to be done. That meat chart approach, which varies from the judicial override that I described a little earlier, runs the risk of including in our registry a whole lot of names and DNA that will not be helpful to police enforcement.
I will confirm that my party will support the bill, notwithstanding the warts and flaws. I wish it could be otherwise but that is the nature of passing legislation.