Mr. Speaker, I am pleased to address Bill C-23, an act respecting the registration of information relating to sex offenders.
Today, I am speaking as the Bloc Quebecois critic on issues relating to the Solicitor General. However, as hon. members have noticed in my previous speeches in this House, I take a great interest in all issues that concern children, directly or indirectly, and this is another reason I am addressing this legislation today.
First, I want to say that the Bloc Quebecois supports the principle of Bill C-23. Protecting children and vulnerable persons is perfectly legitimate and advisable. In fact, protecting all members of the public is a legitimate goal. Incidentally, my colleague, the hon. member for Jonquière, introduced Bill C-399, which seeks to protect the public, and specifically children, from sexual predators.
However, even though we support the principle of the bill, we must remain cautious regarding anything that has to do with its implementation and, more specifically, we must ensure that certain provisions of Bill C-23 are in compliance with the Canadian Charter of Rights and Freedoms.
The Bloc Quebecois is also cautious about the costs relating to the implementation of this bill, because far too much information is lacking in this regard. The government must absolutely avoid making the mistakes it made with the firearms program, which resulted in a financial fiasco. This time, we want to know what it is going to cost.
I think the government will seize this opportunity to make amends, by providing us with the breakdown of the costs for this initiative. It would be deplorable for the government to miss this opportunity to promote transparency and then tell us, some time later, that it is normal for a government initiative to cost one billion dollars. This is what the Minister of Justice told us. The minister had the nerve to say that it is now normal for a program to cost one billion dollars. As far as the Bloc Quebecois is concerned, this is not normal at all.
So, while the objective of protecting society against sexual predators is perfectly worthwhile, since the idea is to provide a means to facilitate criminal investigations, the government must nevertheless act with caution and avoid letting things get completely out of hand. I want to reiterate my position regarding the administrative fiasco of the firearms program.
With regard to other jurisdictions, California was the first to introduce a sex offender registry in 1947. But it was not until the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act was passed in 1994 that the registry was actually used.
The Wetterling act was named for an eleven-year-old boy abducted in 1989. The intent of the legislation is essentially to establish guidelines to require all persons convicted of crimes against minors to register their address for a period of ten years. Under this legislation, the attorney general can also require those convicted of violent sexual offences to register for life with a designated agency.
These guidelines apply in all instances, except if it is determined that a treated sex offender no longer suffers from mental illness or a personality disorder. In short, this guideline does not apply if experts can prove that the individual presents low to no risk of re-offending.
Since the Wetterling act is American legislation, the FBI is responsible for data collection. It should be noted that local police forces help in this collection.
To better enforce this legislation, the United States government even threatened to cut penal system funding to all states that did not comply with the legislation's requirements. As a result, in June 2000, the Wetterling act came into force in all American states.
The Wetterling act works in one of the following ways. First, states can appoint a board to determine the risk level each offender poses to society and apply an action plan accordingly. Second, states can choose to establish categories for sexual predators who must comply with the registration requirements.
A third possibility is to make it incumbent on the offender himself to report his presence to the community. Finally, it may also be up to a community to inquire about the presence of a sexual predator, or to ask for information on such individuals.
Based on the American experience, three groups are directly or indirectly involved with the implementation of the act, namely the organizations responsible for collecting information, the public and the media.
In the U.S., all states have decided to inform schools of the presence of a sex offender in the community. Some states have also decided to warn social housing services, libraries, churches, women's groups or children's groups. As for the media, it is up to local organizations to decide whether they should be contacted and, if so, to determine which ones.
In 1994, the State of New Jersey passed Megan's law, which created the requirement to inform the public of the presence of a sexual predator in a given area. This means that it is now legal to conduct a search by community or by name to find out if a sex offender is living in a given area or neighbourhood. In 1996, a federal version of that law was passed by the U.S. Congress.
The Bloc Quebecois feels that the government should be cautious in this regard. We believe that, contrary to what is provided under Megan's law, it is essential to protect the confidentiality of the information. In fact, this confidentiality is recognized by the Canadian Charter of Rights and Freedoms.
So, Megan's law allows the disclosure of information, but the states should decide which groups are to provide that information. The danger with this process is that the names and addresses of some offenders who are absolutely not at risk of reoffending may be disclosed, while those of more dangerous offenders might not be disclosed, because they are not part of a group identified as one that must be registered in the database.
The same goes for the types of information that must be included in the database. The groups of offenders and the types of information are left to the discretion of the states' legislators. These laws have led to a number of challenges. Some have argued that being registered is a form of cruel and unusual punishment, while others have questioned the retroactive effect of the legislation.
It is these latter challenges that have received the greatest attention from the courts. The U.S. courts have ruled that registration in itself is acceptable and non punitive, despite the fact that retroactive legislation is prohibited under the U.S. constitution.
In the case of Great Britain, the Sex Offenders Act was passed in 1997. The registration requirement of that act provides that individuals found guilty or not guilty for reasons of insanity must give their name, date of birth and address to the police. The police can also take a photograph and fingerprints. In December 2001, 97% of sex offenders had registered. In Great Britain, the legislation applies retroactively.
We reiterate our opposition to such retroactivity.
The big difference between the United States and Great Britain is that the British registry is not accessible to the public. Thus, Great Britain has decided to respect the confidentiality of the information provided by sex offenders.
Nevertheless, the British legislation provides for the release of information as part of a risk-management plan to protect children or vulnerable individuals. The British government believes that interventions by popular militias or vigilantes must be avoided, and we are in agreement with this principle.
The British government is also of the opinion that there is a risk that offenders may enter the country in secret to avoid being targeted by these vigilantes. Early this year, the British government presented a bill to amend the 1997 Sex Offenders Act.
The amendments seek to add a category of offenders, that is, those who have been found guilty of a sexual offence abroad, which would cover those who engage in sexual tourism. In addition, offenders would be obliged to register each year.
In Canada, three provinces have enacted legislation: Ontario, Manitoba and Alberta. Ontario's Christopher's Law—Sex Offender Registry, 2000, was passed on April 23, 2001. This legislation resulted from a coroner's report concerning the death of an 11-year-old boy who was killed in 1988. The coroner had been recommending the creation of a registry since 1993.
The registry system in Ontario is intended for released sex offenders. They have to report to the police yearly, giving their name, date of birth, address, photo and the sex offences they have committed. The sex crimes in question are listed. The register is not open to the public. There is, however, a retroactive aspect and this, I repeat, we are opposed to.
There are provisions concerning the length of time people are registered and the sanctions applied for non-compliance. These range from fines of up to $25,000 to sentences of up to two years imprisonment, or both. The offender is struck from the list only when rehabilitated with respect to all the sex offences in question.
The OPP has an obligation to maintain the register on behalf of the Solicitor General of Ontario, but it is the responsibility of the local police forces to determine where offenders are to report. It is also up to them to ensure compliance.
As for distribution of the information, the Police Services Act allows chiefs of police to release it when an offender whose presence presents a considerable risk to the community is in the community. It must be made clear that there must be considerable risk to the community, a risk that will be significantly reduced by disclosure of the information.
As I have said, there may be some uncertainty when it comes to provisions guaranteeing the balance of proportionality between the means for implementing the objectives of this bill and their impact on rights and freedoms.
That is why it is absolutely justified to question the methods proposed in this bill for ensuring the objective of protecting society. The principle of proportionality is a fundamental right that is recognized by our courts as far as the legislative means used to attain the objective of the bill are concerned.
As I have said, protection of the public is a legitimate objective. Registration does, however, still impose a constraint on certain citizens. The principle of fundamental justice requires compliance with section 7 of the charter in that the mechanisms adopted must not be disproportionate to the intended objective.
The courts refer to minimal impairment. In the case of the bill at hand, the protection of society is tied to the restrictions imposed on the freedoms of sex offenders. It is therefore up to legislators to respect this requirement of fundamental proportionality.
I believe that Bill C-23 is seriously flawed. As far as I am concerned, it does not respect this fundamental principle of proportionality. In fact, the requirement is there for all sexual offenders, regardless of the gravity of the offence. I want to point out that I do not take these crimes lightly, quite the opposite, but we have to take into account the specific circumstances surrounding each case. Under the current wording, the government makes registration obligatory, without any regard for the gravity of the offence. This bill clearly targets the nature of the offence, and not its gravity. This is one of our key criticisms of this bill.
Given that it is only about the nature of the offence and not its gravity, the burden of proof falls to the offender. He must therefore convince the courts that an order to register is clearly excessive in terms of protecting society.
It would be up to the offender to prove that being registered in the database would have an unreasonable impact relative to the protection it would afford society, and that it would be to the offender's disadvantage. Based on certain statistics available, the recidivism rate is lower for sexual offenders than for other types of criminals. The rate is below 20%.
Of course, some types of sex offenders present a real risk of re-offending, and we are in favour of having a registry for such persons. However, it is impossible to differentiate between these two groups based solely on the nature of the offence. This is why I believe that dangerousness is the key element in determining registration orders.
Once again, I must state that cases before the courts must be subject to regular review. We must avoid generalities, and there is a real danger of these since the Crown is responsible for deciding whether to demand that an offender be required to register. In its current form, the bill would impose a binding obligation on approximately 80% of offenders who do not pose a real threat to society, thereby shedding doubt on the constitutionality of these provisions.
The bill must be such that it avoids excessive measures. This registry must not, therefore, be used to witch hunt; it must not be used by individuals bent on exacting revenge on sex offenders.
The Bloc Quebecois insists, therefore, on the confidentiality of the database. We also insist on very limited disclosure to a very specific clientele, namely the police. One of the conditions for access to this registry must be a police investigation of a sexual offence.
There are, therefore, three conditions on obtaining information in the registry. First, does the request come from a police force? Second, is the request being made in relation to an investigation? Third, is it a sex offence investigation?
We must insist on these conditions for obtaining information because not doing so could be used against us. The bill's objective is not to create panic in neighbourhoods nor to incite bounty hunters, far from it. In fact, the sole goal of this registry is to facilitate criminal investigations in a specific area. Protecting privacy is essential and is even the subject of specific legislation. However, this legislation applies to all members of our society.
Applying this legislation to sex offenders too will, of course, prevent such offenders from going underground, and disappearing from our radar screens and those of the police.
The underlying goal of any legal decision is to encourage rehabilitation, not punishment. This is yet another reason why privacy protection is so important. To rehabilitate such offenders, all of society must be protected. We will all be safe if we can avoid forcing offenders into hiding.
The fact that the police force knows exactly where these offenders are located is reassuring enough. That is what we need to look for, not revenge. We must prevent all forms of vigilantism.
The rehabilitation of sex offenders must be part of the measures designed to protect society. There are several organizations that specialize in reintegrating and rehabilitating offenders. These organizations promote community involvement combined with public participation. This cooperation has helped define solutions for problems that affect everyone.
By taking part in the decision making process, the public contributes to the social development of a group, like sex offenders, that has been labelled antisocial. Community groups have established a number of projects to reintegrate sex offenders, such as halfway houses and community service work programs, but we must not stop there. The purpose of these programs is to make offenders responsible.
It would be good to point out that this is similar to how young offenders were treated in Quebec, under the Young Offenders Act. This act, incidentally, was subject to drastic changes by this very same government. We must be very careful if we want to avoid making this type of mistake again. It is somewhat ironic that the current government is advocating a preventative approach for offenders who have been found guilty, when they are taking the opposite approach with young offenders.
As I was saying, public participation is important to prevent uncontrolled and uncontrollable witch hunts. We need to find solutions that are fair, and that satisfy victims, offenders and society.
The Bloc Quebecois is of the opinion that registration contributes to this goal, on the condition, obviously, that directives to protect privacy are respected, and that only police forces will have access to the data.
On April 30, 2001, the Government of Quebec released the recommendations from the report on the decision making process and the whole integrated release system for offenders. This report, know as the Corbo report, entitled “Pour rendre plus sécuritaire un risque nécessaire”, discusses how to reduce the risks involved in releasing offenders, once rehabilitated. The authors of the report believe that involving community resources in the rehabilitation of offenders, and in their reintegration, is absolutely essential.
They go on to say, “On the one hand, it is first and foremost via these volunteer bodies from within itself that civil society can fulfill its necessary role in the rehabilitation and social reintegration of all its members who are not in compliance with the common standards and have developed behaviours that represent a threat to public safety”.
The report includes the following among its recommendations: “being allowed at large before the end of the sentence, or even once the sentence has been served, represents some degree of risk. The recidivism rate requires some clear thinking to be done about this, but it is a necessary risk. Quebec society really has no other choice but to seek the rehabilitation and community reintegration of offenders. If that objective were abandoned, society would enter into a policy of ongoing repression of offenders. Such a policy would have heavy economic and social costs and would lead to an impasse with no way out except to pile repression on repression.
Temporary absences or parole are necessary if the goal of rehabilitation and resocialization is to be achieved, but there is an associated element of risk. Ongoing efforts can be made to reduce this, but we must realize it will never be reduced to zero. Thus the core concern in this report is to identify the means most likely to reduce this risk and increase safety”.
The report goes on to state that “our society rightly takes pride in respecting the privacy of its members and protecting their personal information. While this is justified, our society feels equally strongly that its members must be properly protected against those likely to harm their physical or psychological integrity, including in the privacy of the conjugal home.
It is therefore appropriate to define an administrative and legal framework that is suitable to all and strikes a balance with the principles of fundamental justice and our rights and freedoms. The Corbo report states that access to such assessments or other information requires Quebec society and the legislator to design and implement measures which achieve a more finely tuned balance between the protection of privacy and the protection of public safety. Demanding the absolute supremacy of one or the other of these values is liable to compromise the other. That is why the concept of balance is important.
I am still puzzled when I read clause 20 of the bill, which adds section 490.02 to the Criminal Code. Paragraph ( a ) refers to sexual offences while paragraph ( b ) does not. We are concerned when a bill with the worthwhile goal of protecting against sexual predators is used to add a general and imprecise provision.
It is of particular concern to me to see that property offences such as breaking and entering a dwelling house are included in this section. I fail to see how that protects against a sexual predator. It would be good to know what the lawmaker's intent really is when it comes to including offences with no connection to sexual offences. After all, the title of this bill does say “respecting the registration of information relating to sex offenders”. The scope of this section goes far beyond that. That an offender could have to be registered for such an offence is cause for concern.
I repeat that this bill has a worthwhile goal of protecting, but only with regard to strict enforcement criteria concerning privacy, the promotion of reintegration into society and the community as well as accessibility of data only to police and only for investigations on crimes of a sexual nature.
We have another concern about Bill C-23, which could become a major one given the bill's constitutional nature. While the registration requirement is within the prosecution's jurisdiction, it does not in any way guarantee its constitutional validity.
In fact, the Supreme Court recently concluded that the lawmaker giving the prosecution discretion to act does not resolve a potential constitutional problem. In the references Lavallee, Rackel & Heintz v. Canada; White, Ottenheimer & Baker v. Canada, and R. v. Finn, in a recent and unpublished judgment, Madam Justice Arbour stated, “Nor can the provision be infused with reasonableness in a constitutional sense on the basis of an assumption that the prosecution will behave honourably—”
She went on to say that, “'The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.' Even more so, I would add that the constitutionality of a statutory provision cannot rest on an expectation that the Crown will refrain from doing what it is permitted to do”.
At first glance, we might think that the prosecution will act carefully. But we must not forget that we are dealing with a very controversial and hot issue.
I agree that appropriate steps must be taken to deal with sexual predators in order to protect children and any other vulnerable person from abuse. However, we should not go overboard and require all sex offenders to register.
Again, I insist on the notion of gravity in the assessment made by the prosecutor, in his analysis of the need to invoke these provisions. The notion of gravity must be at the core of the decision making process regarding the provision that authorizes the registration of sex offenders.
Another reservation regarding Bill C-23 has to do with the implementation costs of this system. This is a very serious concern. The Solicitor General is talking about investing $2 million to launch this system and then $400,000 per year to manage it.
It would be interesting to see the studies that have led to these numbers. It would be perfectly appropriate and relevant to know all the figures that have led to these amounts, particularly after the fiasco in the management of the firearms program, which the government must absolutely avoid repeating. Therefore, I am asking the Solicitor General to provide us with the documents relating to the funding of this registry.
This blatant lack of information raises some questions, namely: who will absorb the excess costs? Quebec and the provinces? Since Quebec and the provinces are responsible for the operation of this system, they should have all the information that is relevant to this program.
It is Quebec that is responsible for getting the orders and presenting the challenges, reviews and appeals. It is also Quebec that must review and register offenders and check the information. Then there are the arrests made when there is a refusal to act. All these proceedings will undoubtedly result in significant costs.
Let us not forget, also, the costs that could result from constitutional challenges. Some measures will have to be adopted to protect and maintain the database. We should also include a gravity assessment procedure. This procedure will of course be costly, because of the complexity of such assessments, and because they rely on expert opinions.
The Bloc Quebecois supports the principle of protecting society against dangerous sexual predators. However, we must first look at what these provisions entail.
So, the constitutional validity of this system and the significant costs that it will generate must be taken into consideration. We must remain cautious and ensure that the measures taken are not disproportionate and that parliamentarians have all the relevant information on the implementation of this system.
In short, we need more information about the costs, as per the economic feasibility studies. In this way, we hope to avoid repeating the firearm registry fiasco.
We must also insist on the guarantee of proportionality in accordance with section 7 of the Canadian Charter of Rights and Freedoms. This is a fundamental right that could cause problems, not just in terms of enforcement, but also credibility, if the issue is not properly addressed. The bill must therefore provide the protections stipulated in the charter.
In closing, the Bloc Quebecois supports the principle of this bill, which is to protect the public from sexual predators. However, we remain cautious in terms of the constitutional validity of some of the bill's provisions, and this is why we want to know more about the costs that will be incurred.
In closing, I would like to reiterate the Bloc Quebecois' support for the principle of this bill. However, we believe that it is reasonable and justifiable to want the full details in terms of provisions affecting how the bill will be enforced, in addition to the effects these provisions will have. These details are what will really testify to the quality of work that we, in this House, will have done.
Therefore, it will be in committee that we will really be able to assess the scope of this bill and make any necessary changes for Canadians and Quebeckers, so they can feel assured that they are protected against the threat of sexual predators.
It is in committee, I believe, that we will be able to fully understand the scope of this bill, particularly with respect to the notion of recidivism and the gravity of the offence, but also with respect to the breadth of the scope of the bill and the impact it will have.
It is also in committee that we will be able to see all of the information necessary to determine the costs related to implementing the registry. As I said before, the goal is praiseworthy, but is this the right approach? This remains to be seen.
The Bloc Quebecois supports this bill in principle, but caution requires that we study it more closely and make the necessary changes. We need to look at the costs involved in order to avoid a fiasco and we must also ensure that the registry is truly confidential, that the information is given only to police forces, and that none of the information is used in any witch hunts, but that it is used under the conditions that I laid out earlier in my comments.
