Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 74 - Evidence - Morning Sitting
OTTAWA, Wednesday, June 14, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-69, to amend the Criminal Records Act and to amend another Act in consequence, met this day at 10:45 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we are considering Bill C-69, to amend the Criminal Records Act and amend another act in consequence.
We have before us the Honourable Lawrence MacAulay, Solicitor General for Canada. Thank you for returning to appear before us this week. With him are Richard Zubrycki and Mary Campbell.
Mr. MacAulay, the table is yours.
Hon. Lawrence MacAulay, Solicitor General of Canada: Honourable senators, I am pleased to join you today to discuss the benefits of Bill C-69.
Our honourable Chair has recognized my officials. We also have departmental officials here, people from the National Parole Board, and the RCMP, who are available to respond to questions.
This bill is about public safety. It is about improving the safety of our children and other vulnerable persons.
As honourable senators are aware, this bill was supported unanimously by all parties at committee stage and third reading in the other place.
I should mention the contribution of Reform MP Eric Lowther, whose private member's bill shared the same objective.
All ministers of justice and solicitors general of federal, provincial and territorial jurisdictions have endorsed the principal features of this proposed legislation.
As the CRA stands at present, an agency serving children and other vulnerable groups can request applicants for volunteer or paid positions to provide proof of a background check of criminal records through the RCMP's Canadian Police Information Centre, CPIC. However, pardoned records will not show up during a routine search of CPIC records by local police.
One of the proposed amendments will ensure that the criminal records of pardoned sex offenders seeking positions of trust will be available for screening purposes. By placing a "flag" on the records of sex offenders, police can be alerted that a sealed, pardoned record exists and they can then request the Solicitor General's authorization to unseal it.
By way of background, I should point out that the vast majority of pardon recipients remain law-abiding. During the past 28 years, nearly 250,000 pardons have been granted, of which slightly more than 6,000 have been revoked, usually due to a new offence. This is a success rate of over 97 per cent.
However, we believe the Criminal Records Act can be improved through specific, targeted changes. These changes will ensure that the criminal records of pardoned sex offenders seeking positions of trust are available for screening purposes. Thus Bill C-69 builds on a public safety structure already firmly in place. In 1993, my department conducted extensive consultations with child-caring organizations, school and child welfare officials, voluntary organizations, police, and victims' organizations in every region of this country.
From these consultations, the National Screening System was launched in 1994. It allows organizations serving children and vulnerable sectors to require job applicants to obtain a criminal record check from police. Bill C-69 further strengthens the system by closing a gap that has been identified in its use.
As I explained earlier, pardoned records do not now show up during the search of CPIC records and that is as intended by the Criminal Records Act. For most purposes, these records should be invisible. However, when a person is applying for a position of trust and their record suggests that there would be an increased level of risk to a specific category of vulnerable person, an exemption is warranted. There was unanimous agreement on this point among federal, provincial and territorial ministers of Justice and solicitors general when they met in October last year, and among all political parties in the other place.
Bill C-69 will help to ensure the protection of our children by placing a special notation or "flag" on the CPIC system so that a police agency doing a screening search would be aware that a pardoned sex offence record exists.
A request to unseal that record can then be submitted to CPIC headquarters. What this means is that the child care organization looking to hire a new volunteer or paid employee will now have a system in place that will better identify a candidate who has received a pardon for a previous sex offence.
If the existence of a pardoned record is confirmed, usually by fingerprints, the Solicitor General will be asked to decide whether unsealing the record is warranted. If unsealing is authorized, the record will be provided to the applicant or, with his or her consent, directly to the requesting organization.
The new scheme will be retroactive so that pardoned files already in the system can also be flagged.
I wish to stress to this committee that Bill C-69 also provides important safeguards for the pardon holder's rights. Access to the offender's information will be limited to authorized police officers and law enforcement personnel, and the applicant in question must sign a consent form before a check to see whether a flag exists is even made.
The flag will only become visible when a code is entered on the computer terminal. If the applicant does give consent, the authority of the Solicitor General is still needed before the record can be unsealed. Again, consent would have to be given before disclosing that information to the requesting organization.
Before concluding, I should mention that flagging pardoned records on CPIC is not the only provision in Bill C-69. The bill also strengthens the pardon system in other ways. For example, it provides that pardons be automatically revoked upon conviction for a so-called "hybrid" offence; that is, one that can be prosecuted by indictment or as a summary offence.
In addition, there will be a waiting period of at least one year before an applicant whose request for a pardon has been denied can reapply. Appeals to the board in cases of denial or revocation of a pardon will now normally be in writing only. The proposed legislation will specify more clearly that the effect of a pardon is to seal the record, not to erase the fact that there was a conviction.
Regulations pursuant to the proposed legislation will also list the sex offences that will be flagged on the CPIC system and the wording that must be used on the consent form that applicants sign. Regulations will also set out the factors to be considered by the Solicitor General in making a decision on whether or not to unseal a record.
These changes are consistent with a concern we all share -- to do everything possible to protect our children and vulnerable adults from sexual offenders.
Honourable senators, I seek your support for this bill.
Senator Nolin: Thank you for appearing this morning on Bill C-69.
My first question is on clause 7 of your bill. It relates, in part, to section 7.2 of the act. In French, we refer to this as the "caducité of a pardon."
Why have you excluded those infractions from paragraph 1 of section 255 of the Criminal Code? What was the reason for not including those infractions as a reason to revoke the pardon?
Mr. Richard Zubrycki, Director General, Corrections Directorate, Policy Branch, Department of the Solicitor General of Canada: This is the section referring to the automatic revocation of pardons for certain offences. One of the offences excluded from that provision is impaired driving. The purpose is, as many of you will know, in cases of a second or subsequent impaired driving offence, the penalty before the court is an automatic sentence of imprisonment. Therefore, the consequences of revocation for an impaired driving offence provide evidence to the court for an automatic, more severe penalty.
The constitutional opinion we received indicated that this could be seen as an unfair provision, and therefore we excluded that section. The authority of the minister is still required to unseal that record. The record could still be unsealed and brought before the court as evidence, but it would require the authorization of the Solicitor General.
Senator Nolin: Minister, when your officials say "unfair," are you making political or policy reference to the Charter?
Mr. MacAulay: We want to be cautious in most of the existing regulations because we do not want to provoke a Charter challenge. That would be one of the reasons.
Senator Nolin: I think jurisprudence under the Charter also says that an act must be precise whenever possible. Clause 8 of the bill proposes a new section 9.1 of the act, through which you are seeking a rather broad regulation-making authority.
Let us look at the proposed subsections one by one. In (a), you are seeking the authority to list, by regulation, the offences that would be covered by Bill C-69. Why? We could have dealt with that this morning.
Mr. MacAulay: Why is it not in the bill itself?
Senator Nolin: Yes, why is the list of offences not included? The code already refers to a list of infractions that are covered by a specific section of the code. Why wait for the regulations to list the offences?
Mr. MacAulay: There are a number of offences in the regulations that do not appear in the bill. This was put together by my office, the Solicitor General, and attorneys general from across Canada. There could be some offences added or deleted as time goes on. We did not want to go through this process in order to make the changes, whereas regulations can be changed down the road. Perhaps some already in place might have to be revoked and new ones added. We do not want to go through this process to do it, so it was agreed by our counterparts across the country and myself that this was the appropriate place and manner in which to put this proposed legislation together.
Senator Nolin: Do you not think that it would be appropriate for Parliament to look at the offences that should be included?
Mr. Zubrycki: There is the normal scrutiny of regulatory changes, including prepublication and gazetting, in that regard. There is a process of scrutiny, although I grant that it is not a full parliamentary review.
As the minister said, it can take years to make minor adjustments to legislation through the parliamentary process if it is not a free-standing bill. We are engaged in an ongoing process of consultation with the provinces and territories and they may recommend, as time goes by, that some offences are inappropriate for inclusion and others have been overlooked. Furthermore, as other laws change, if there are no consequential amendments made to our bill, through oversight or other reasons, we have the capacity to make those changes quickly.
Mr. MacAulay: It is fair to say that we are not trying to avoid anything. It was done this way to make it work efficiently.
[Translation]
Senator Nolin: This would not be the first time that a comprehensive list of offences has been included by means of a Criminal Code amendment. Since this Parliament was convened, we have seen this happen on at least two occasions.
Last fall, we considered draft legislation to amend the Criminal Code and much of the bill consisted of a list of the offences included in the proposed measure.
In my opinion, Parliament did not feel it was inefficient to opt for the parliamentary process rather than the regulatory route. I would appreciate hearing your views on the subject.
[English]
Mr. MacAulay: Parliament has agreed unanimously with this type of legislation. It was done this way in order to accommodate changes that could take place. The base of the whole thing is to ensure that we provide protection for volunteer organizations or people who might hire individuals to work with vulnerable groups or young people. Possibly, when the bill is passed, the regulations will be reviewed by us, the people in the other place, and people across the country. There could be suggestions for changes to the regulations. The only reason that this is done, senator, is that we would not have to go through a procedure that could take a year or more. That was suggested by myself, my officials, and people across the country.
I understand what you are saying, and your point, but that is my answer.
Senator Nolin: Is that the same reason why you do not want to define the word "children," in French; "enfant," or "vulnerable person," in French; "personne vulnèrable"?
Mr. Zubrycki: If you mean why we do not define them in the act itself, that is correct.
Senator Nolin: Do you mean that the definition of "children" could change over time?
Mr. Zubrycki: The definition of "children" is straightforward. It is purely a function of age, and we have set that age at 18 years, as many other pieces of legislation do, however, "vulnerable people" is a less known definition. For that reason we had to look at a variety of definitions existing in legislation, publications of voluntary organizations, and that sort of thing. We integrated those together into a definition that seems to suit most purposes, but which could change over time. We felt that having those two definitions together in one place would make it easier for a reader to find them rather than looking in one place for one definition and in another for the other. It is not as problematic to define "children" as it is to define "vulnerable people."
Senator Nolin: Could you have included a definition for "children" but not for "vulnerable people"?
Mr. Zubrycki: Again, the definition of children would be less susceptible to change as time goes by.
Senator Bryden: It has been my experience that in any piece of legislation like this one, where one deals with a moving target, there is the situation of developing definitions. For example; who is a vulnerable person? Is a vulnerable person someone who is in a coma? Someone who is senile?
When listing the offences for the purposes of the section, Parliament must be informed of what they are doing so they know that what they vote on is what the law will be. Also, to be able to effect change in a timely fashion. You can effect change by regulation.
It has been my experience that you need to have a balance. I certainly would support that everything be laid down in legislation, since as soon as that bill receives Royal Assent it is already out of date because something has been missed or needs to be added. Nothing in the regulations should contradict or infringe on the general principles of the Pardon Bill and of the act that deals with the records.
If that sounds like a leading question, it is. I am trying to find a balance. Sometimes you succeed, sometimes you do not.
I take it Senator Nolin is indicating that there are situations where the definitions could have been included in the act. Is that fair?
Senator Nolin: You want me to answer that question?
Mr. MacAulay: He has already answered that question, and fairly too. We are here to be questioned. The truth is, you are correct. It is something that can change, but the spirit of the bill would not change.
In the regulations, it is possible that something might have to be introduced in order to protect society, in particular, the vulnerable groups. This is not the first piece of proposed legislation with regulations that could change. Again, it would not change the intent of the bill, which is to ensure that we can address public safety.
As I mentioned previously, it is not just the Solicitor General's office and Justice officials in the federal government who have proposed this process. It is also solicitors general and Justice ministers across the country.
A meeting in 1997 in Alberta contributed significantly to drawing this together. We had a lot of cooperation from people right across the country in coming to this conclusion.
Senator Bryden: There is one small point that I think is important. In drafting the regulations, will there be consultations with the comparable people, that is, the provincial solicitors general and ministers of Justice?
Mr. MacAulay: There has already been quite a bit of consultation on what will be involved in the regulations. In fact, I suspect we would have to have consultation whether we wanted it or not if there were some changes needed. That is why it is done this way and why it is a good process.
We want to provide the best piece of legislation possible in order to protect children and vulnerable groups in our society. This bill, with the regulations, allows things to change without having to alter the intent of the bill.
As you say, perhaps something we have not thought about at all will need to be addressed in the future. The way this is done leaves us that option.
Senator Nolin: What do you have in mind now?
The Chairman: I believe Senator Fraser has some comment on the same point.
Senator Fraser: As the bill's sponsor, I was given a copy of draft regulations, which I believe was made available to members of the other place. I do not know if it has been circulated to members of this committee.
The Chairman: It has not. I was just handed a copy. The draft criminal record regulations were made available to the committee in the other place. Do we have them in both languages?
Senator Fraser: I only have them in English.
Mr. MacAulay: We have them in French too. I thought you already had them.
Senator Fraser: If Senator Nolin is agreeable, I could read the English definitions.
The Chairman: We have copies here that we could give to you, Senator Nolin.
[Translation]
Senator Nolin: Mr. Chairman, in Quebec civil law, incapacity is dealt with under provincial legislation. The word is defined in a rather lengthy chapter in Quebec's Civil Code, which also specifies how persons who fall into this category are to be protected from themselves and from others.
As a lawyer, I know that this is a very complex area of civil law, one that has been studied at great length by students as well as law professors.
This whole area of personal protection is clearly covered in the Quebec Civil Code. If, pursuant to Quebec's laws, it is possible to include in the Civil Code a generic description of a vulnerable person, then I do not see why the same cannot be done in the case of federal legislation. Would you care to comment?
[English]
Mr. MacAulay: Are you talking about disabled persons, vulnerable persons? I am trying to use the same words.
The Chairman: We will get copies made of the draft regulations that came before the committee in the other place so that we are all looking at the same piece of paper.
Senator Nolin: Minister, I am reading,
Mr. MacAulay: I apologize that you are just reading them for the first time. That is not the way it was supposed to be.
Senator Nolin: It is your bill, it could happen in other one. One day we will have to say, "no more." We have a Parliament. Do we respect Parliament or not? This morning, it happens to be you.
Your officials are stretching the rubber band too far in defining what are children and vulnerable persons. If I look at the definition you have here, I will read it in English:
"vulnerable person" means persons who, because of their age or their disability, handicap or other circumstances, whether temporary or permanent,
(i) are in a position of dependence on others, or
(ii) would otherwise be at a greater risk of being harmed than the general population by a person if that person were in a position of authority or trust relative to them.
We could have dealt with that in the bill. That is my point.
Of course, if that is not some part of your legislation, it will be easier for you and your officials to change it and amend the regulation than to return to Parliament. There should be the proper checks and balances and the scrutiny we put in analyzing the Supreme Court decisions when the Supreme Court questions a legislation that we have passed.
It is a question of policy. That is why I asked the questions when we had debate at second reading. Is it a policy of your government to include as much as possible in the regulatory power or to do the honourable thing and come in front of Parliament and be questioned by Parliament on the reason and everything?
Mr. MacAulay: First, I am well aware that your comments are not personal. I understand what you are saying. It is not my understanding that the intent of government to put out policy in the regulations. However, in this particular instance, as I indicated before, it was because of the way this was put together.
There were many people involved including the justice ministers and solicitors general from across the country. This is how they wanted it done. This is why it was done this way. It was not the intent to change the direction of government in any way. It was just felt that this was the most appropriate way to handle this type of legislation and to leave some flexibility in order to ensure that we did achieve what the bill was intended to achieve. That is why it was done this way.
Senator Nolin: Is that the same situation for 9.1(c)? Do you want the regulation to proscribe the factors that will govern your discretion?
Mr. Zubrycki: Senator, those particular provisions and regulations were provided for the purpose of greater transparency. In fact, those factors have existed in policy for 20 years or more. As you may know, at issue was the question of the Solicitor General's authority to unseal records. We did not want to signal in the bill that there was any change to the minister's authority. That was meant to remain exactly as it has been prescribed over many years.
On the other hand, for the sake of transparency and to better communicate what factors the minister considers, we placed those in regulations, but with no implication that the minister's authority is any more limited than it was in the past.
Again, because those factors are drawn from policy, they may shift over time. However, since they have not changed for more than 20 years, I do not imagine they will change much in the future. It is more of a communications effort.
Ms Mary Campbell, Director, Corrections Policy, Department of the Solicitor General: This scheme is consistent with how we have approached other corrections legislation. Rightly or wrongly, there is consistency. For example, the factors that the minister considers in approving or disapproving transfers under the Transfer of Offenders Act are also in the regulations.
In terms of the list of offences, for the purposes of the Corrections and Conditional Release Act, that list is also amended by Order in Council process. It is always a judgment call as to where you draw the line between law and regulations. Sometimes the more operational details are put together in regulations. However, as I say, these features are quite consistent with how we have developed other correctional legislation in the past.
Senator Nolin: I take exception to that. We have quite properly dealt with the definition of "children" and "vulnerable persons." However, because I support the principle of your bill, but do not at all support grabbing such extensive power that should belong to Parliament, I will reflect on my decision.
Mr. MacAulay: I can assure you that there was no attempt to grab power.
Senator Nolin: I do not take it personally.
Senator Bryden: In your statement, you say that the act will specify more clearly that the effect of a pardon is to seal the record, not to erase the fact that there was a conviction.
Will that apply to all convictions?
Mr. MacAulay: That is right. If you are convicted of a criminal offence, it will always be on record.
Senator Bryden: This is not confined to sexual offences or offences against children or vulnerable persons?
Mr. MacAulay: When police conduct a search, the flag is a warning that the person was convicted of a sexual offence. They can then proceed further, should they obtain consent.
Senator Bryden: Only sexual offences are flagged?
Mr. MacAulay: That is right. The pardoning system works very well. Nothing is perfect, but about 97 per cent of people who receive pardons become law-abiding citizens. As lawmakers, we must be careful to protect the law, and pardoning sex offenders could cause great problems.
Senator Nolin: On that point, you are referring to sexual infractions, but this bill is not limited to those. It includes any infraction listed in the regulations.
Mr. MacAulay: The only offences that would be flagged are sexual offences.
Senator Nolin: The list in the regulation could include murder. It is not on the list, but it could be included.
Mr. Zubrycki: The bill specifically refers to sexual offences, and then the regulations further elaborate.
Senator Moore: Is it correct that you cannot expand the offences in the regulations beyond sexual offences?
Mr. MacAulay: We cannot go beyond the intent of the bill.
Senator Nolin: Where does it say that it is limited to sexual offences?
The Chairman: I do not believe it is in the bill.
Senator Nolin: I think it is wide open. Everyone has spoken of sexual infractions, but I believe that it could be any infraction.
Mr. Zubrycki: That is the intent of the bill.
Senator Nolin: We do not want to call the House of Commons back for an amendment, but that may be necessary.
Mr. Zubrycki: I am sorry if I misled honourable senators. If the specific language is not there, it is certainly the intent of the bill. In fact, that is central to the bill being able to withstand Charter challenges. It is carefully targeted.
The minister currently has the authority to unseal any record for any offence. That authority is not confined to sexual offences. This bill allows the RCMP to flag those pardoned records that pertain to a sexual offence. In that sense, it is not a major expansion of the minister's authority and it is clearly the intent to limit it to sexual offences.
There may be some offences that, at face value, are not of a clearly sexual nature, such as abduction of a child. If, in the view of the federal, provincial and territorial partners who are compiling the list, that offence typically involves a sexual connotation, we will include it on the list.
Senator Andreychuk: This will give someone in administration the right to define a sexual offence. If there were some innuendo or implication of a sexual offence, you could flag it. It becomes discretionary to the person who is doing the flagging.
Mr. MacAulay: It has to be a conviction.
Senator Andreychuk: Yes, but it could be a conviction for anything in the Criminal Code. It could be flagged if there was some implication of sexuality or child vulnerability.
Mr. MacAulay: That is certainly not the intent of the bill.
Senator Andreychuk: That is the outcome.
Mr. Zubrycki: It would have to be an offence on the schedule, and that authority does not lie with administrators but with the Governor in Council.
Senator Andreychuk: It allows you to continue expanding the list without coming back to Parliament.
Mr. Zubrycki: If we did that, we would run afoul of the Charter by going beyond a reasonable expectation of a threat to children. The idea is that in cases where people who have previously engaged in this kind of behaviour seek a position of trust, then that combination of elements gives rise to the authority to flag those files.
Senator Bryden: I have not followed this bill very closely. You cannot follow everything, as we all know. The principal discussion on this bill has revolved around the fact that certain offences would be flagged and there would be the ability, in certain circumstances, to make that information available if it relates to sexual offences against children and vulnerable persons.
From what I have read, there is nothing restricting that flagging process. In fact, you could flag the records of someone who has been convicted of theft and then pardoned, for whatever reason. You can flag it and retrieve it if it is listed in the regulations.
Mr. Zubrycki: You could not flag it.
Mr. MacAulay: It must be in the regulations.
Senator Bryden: It could be listed.
Mr. MacAulay: This has been left open in response to requests from provincial and territorial solicitors general and ministers of Justice. The intent of the bill is to provide the ability to flag sex offenders. It is left open so that we can make changes if something should be required by, for example, a provincial minister of Justice. It is left open so that we do not have to go through the whole process again.
Senator Bryden: You make reference to the fact that during the past 28 years, nearly a quarter of a million pardons have been granted with a 97 per cent success rate. That is good. Is there any indication that people who commit the kinds of offences that would be flagged under this bill have a different rate?
Mr. MacAulay: That is a good question. No offence is acceptable. I understand that it is around the same rate, namely, 97 per cent.
The Chairman: That is most reassuring. I thought the recidivism rate was much higher for this type of offence.
Mr. MacAulay: We are only talking about the ones who receive pardons.
Mr. Zubrycki: Of the quarter of a million pardons that have been granted in 28 years, some 4,225 were for sex offences. Of those, some 114 would have reoffended. There were higher numbers given in the press previously due to an early estimate based on a very small sample. We now have a good sample of over 1,100 cases.
The figure of 114 is an estimate. Thus, that is the about the same success or failure rate, however you look at it, as the overall pardon group.
Senator Bryden: When a police officer runs the name of a person he has apprehended through his computer, does the flag come up?
Mr. MacAulay: No, he has to put in a special code. If a person is applying for a job with a group taking care of children, for example, and they ask for a check on that person's record, then the person has to give written consent. That is then taken to the police and they have to enter a certain code into the computer to retrieve the information.
Senator Bryden: Does every policeman know what the code is?
Mr. Zubrycki: Yes.
Senator Bryden: Is there any possibility of abuse here?
Mr. MacAulay: There is the possibility of abuse concerning any law. There is also a penalty for such abuse in this proposed legislation.
We are trying to protect society. Your question is well taken, senator, but you have to allow the police the ability to assess the situation. If that were not possible, the bill would be no use.
Senator Bryden: I raise that question because there have been abuses in the past. It used to be, for example, that the police in certain provinces had what was called a "blanket" warrant under the provisions of liquor control legislation. It allowed the police to break down doors, look in freezers, and all kinds of other things because they were administering this act. It was misused. It was misused to the point where people who could not be caught for speeding were having their houses searched on Christmas Eve. Ultimately, every province removed such provisions. I raise this because I am concerned that there could be the possibility of abuse.
Mr. MacAulay: Senator, it is against the law for a police officer to use it inappropriately. A police officer cannot stop you and beat you up either.
Senator Fraser: Although I understand that the intent of all involved is to deal with sexual offenders, it seems to me quite likely that as time goes on, you might want, for the protection of the vulnerable, to expand the list. I am thinking particularly of the elderly. There are people who have made a career out of preying on the elderly. They try to obtain money from them under false pretences. I actually came across such a person once. He had insinuated himself into old people's homes and had a history of this type of offence.
I think it would be useful to bear in mind that there are many ways in which vulnerable people can be harmed. It may not be an entirely bad thing that the bill does not explicitly say, "only sexual offences." Kidnapping is another offence that is not always sexual in nature.
Mr. MacAulay: What you say is very important, senator, and of course we all want to protect the elderly. However, that is not the intent of this bill.
Senator Fraser: I understand that. However, as you go forward, you may find yourselves doing just that.
My question has to do with another of the delicate balances that must be struck. We have talked about the balance between legislation and regulation. We also have the balance between protection of the public and the rights of the individual who has received the pardon.
The essential protection for the rights of the individual in this bill is that the he has to consent in writing to the check being made.
Mr. MacAulay: Twice.
Senator Fraser: If verification becomes widespread, almost standard, in many occupations, is it possible that the courts might hold that this is some form of barrier to employment? Let us say I want to work at a children's hospital, and I cannot get a job there unless I consent to having my criminal record searched. Is there any jurisprudence at all to go on in that situation?
Mr. MacAulay: It is my understanding that, yes, that could follow. If it is considered that a person could be in a position that they could abuse, then it very well could apply.
Senator Fraser: I am asking whether a person who 20 years ago committed a minor offence on the list, and who, having spent $50,000 learning to be a child physical therapist, cannot get a job in any children's hospital, could go to the courts and say, "I am facing unfair discrimination here."
Mr. MacAulay: When it is flagged, it is referred to the Solicitor General, who must evaluate a number of things, including the nature of the offence, how long ago it took place, and so on. It does not automatically mean that it will be unsealed. It is certainly not meant to harass people. It is meant for protection.
Senator Fraser: I understand the intent, but that was my question.
Mr. MacAulay: It leaves the situation as it is today. It is presently my decision as to whether a record is opened or not. There are points that you use to evaluate whether it should or should not be.
Ms Campbell: I would add that of course there are provincial and territorial human rights codes across the country that govern these matters. You raise a very interesting and complex question and those laws would continue to apply. Most, if not all, of those codes have exceptions for bona fide occupational requirements, so that may be a factor in any of the situations to which you allude.
As the minister said, there is no intent to harass people. There are a number of quite important decision points and discretionary factors in this process.
Ultimately, if the record is disclosed to the hiring or voluntary organization with the ex-offender's consent, it is not, one would hope, an automatic barrier to employment or volunteer work, but just one more factor to be discussed and reviewed.
I appreciate your point that it is a factor that may weigh rather more heavily on one side than the other, but certainly we appreciate that there are people whose offences occurred many years ago and that much may have happened since. After all, this person did receive a pardon. Nonetheless, by setting up a system with a number of checks and balances, one would hope to facilitate the right decision, taking all those factors into account.
Senator Fraser: You believe this would withstand Charter challenges? That is my fundamental question.
Ms Campbell: It has been reviewed, and the opinion we received is that, because of the number of checks and balances and the discretionary points, it should be able to withstand such a challenge. Nothing is 100 per cent certain, but that was the assessment.
Mr. Zubrycki: British Columbia has a piece of provincial legislation, the Criminal Records Review Act. Under that act, they have reviewed the criminal records of over 300,000 employees of the province, primarily doctors, nurses, and school teachers. They have not had that many hits, but they have moved some people out of certain positions because of the records that were discovered. To my knowledge, there is no jurisprudence on that yet. Out of all those searches, there were no notable cases where the process was found to be unacceptable.
Senator Fraser: Under this bill, a search could only be done at the time someone was applying for a position. This bill would not extend to a mass screening of people who have already been hired, as in British Columbia?
Mr. Zubrycki: This refers specifically to applicants.
Senator Fraser: This is only when you are applying. Once you are in, you are clear. This only applies at the point of hiring, is that right?
Mr. Zubrycki: There would always be the question of movement within an organization. If someone was moving from one position to another, I would think that would qualify as well. The bill specifically refers to applicants.
Mr. MacAulay: It is important to note that it is not just a free-for-all for officers out on the street. Any officer who punched in the code to retrieve a record would be questioned as to why. Just because a patrol car pulls you over, in my opinion, that does not give them absolute authority to punch in this code. That is not what it is meant for.
Ms Campbell: It is also important to bear in mind that this is just one aspect of good screening. Volunteer Canada, which has been one of the leaders in this area, has a 10-point screening program, of which a records check is one part. It is important to keep that bigger picture in mind. This is not the answer to everything. It is an effort, a tool, in one direction, but as we know, there are people out there who have perhaps committed offences but who have not been detected. As I say, Volunteer Canada has shown a lot of leadership in helping organizations identify all the steps they might undertake to ensure that new applicants or current employees are subject to appropriate scrutiny for the safety of kids and others.
Senator Moore: Minister, I would like to further pursue the issue raised by Senator Fraser. At the top of page 3 of your brief, you state that "The new flagging scheme will be retroactive so that pardoned files already in the system can also be flagged."
The files are one thing, but would the clause apply to incumbents of relevant positions of trust as well as to applicants?
Mr. MacAulay: This is addressing applicants when they seek a position. If the proposed legislation came into play today, and someone received a pardon five years ago, that record will be flagged and accessible to the code when the police officer enters it into the computer. The bill speaks of persons who are applying for positions. Again, as Mr. Zubrycki indicated, if they are moving from one position to another, it would apply. The intent of the bill is protection, but it addresses the case of someone seeking a position. If they are changing from one position to another within the same organization, then of course you might ask for a check because they might be working with vulnerable people, perhaps children. You might want to check as to whether they have had any problems along this line, and yes, you could do so. In fact, if the pardon was received five years ago, that information would be available too. It does not mean that only pardons from today on are accessible.
Senator Moore: The incumbent would still be subject to the new law under its retroactivity provision?
The Chairman: If they change positions or apply for a new position within the same organization.
Mr. MacAulay: If they change within the system.
Senator Moore: What is to prevent an employer from doing such a check?
The Chairman: The fact that they have to have the applicant's consent.
Mr. MacAulay: Yes. Of course, if he does not consent, it indicates there is a problem. Why do you not give consent? Then it is up to the group to pursue it.
Ms Campbell: I would mention that this does not obviate the minister's current authority under the Criminal Records Act to unseal records. I suppose that if the organization had the consent of the current employee and requested fingerprints, it could still qualify for an unsealing application under the normal rules. I do not want to leave the impression that current employees are completely excluded from a records check.
Senator Moore: Senator Fraser asked about possible human rights code violations. On the other hand, could there be any civil liability issues for any organization that did not make use of pardoned record information available under the new clause?
Mr. MacAulay: That is up to the people involved. Quite simply, this is currently available to people who have experienced difficulties in the past. I expect that would require civil action.
Senator Moore: If they did not avail themselves of the information?
Mr. MacAulay: It will be available to Canadian society, should this become law. It would be up to you as an individual to decide, should something happen. I would expect this to be a valuable tool in those circumstances.
Senator Andreychuk: I wish to follow up on Senator Fraser's questions on the human rights aspects of this proposed legislation.
Am I correct that under the current Criminal Records Act, if you apply for employment, the potential employer can ask, "Do you have a criminal record?" However, they cannot ask, "Have you ever been convicted of an offence?" I recall being involved in this debate 10 years ago.
Senator Moore: What is the difference?
Senator Andreychuk: Under the Criminal Records Act, you cannot ask someone about the record if it is now sealed and no longer available. However, under the bill, if a person were asked, "Have you ever been convicted?" he would be obliged to say "yes," even though the record is sealed. That would be discriminatory. Is that still the case, or has it changed?
Mr. MacAulay: With this situation, there would be no violation because they would just be asking for the record.
Senator Andreychuk: No, I am trying to set the stage. I want to know the practice now in that area.
Mr. MacAulay: If they ask for it?
Senator Andreychuk: What can the potential employer ask when you are applying for employment?
Mr. Zubrycki: It is not so much a question of the Criminal Records Act but of the Canadian Human Rights Act, which prohibits discrimination on the basis of a pardoned record.
First, it is worth recognizing that the Canadian Human Rights Act applies primarily to federal departments and agencies. Of course, many provincial governments subscribe to the same test and possibly incorporate it in their own legislation. In the case of a federal agency, you can be asked: Have you ever been convicted of an offence for which you have not received a pardon? That is the only way in which you can ask the question. However, provincial governments, private agencies, and so on, can ask: Have you ever been convicted or arrested or charged? They can ask that question in various ways.
It is not entirely comprehensive and foolproof, but to a large extent, that is the practice. I have been told by organizations that are clearly not covered by that act that, "We can only ask the question in this one way." This is becoming common practice.
The Chairman: This might be a good question for the human rights people when they appear this afternoon.
Senator Andreychuk: I wish to return to the point that the bill is basically concerned with sexual offences. We want to ensure that children are not put in a position of risk. However, let us go back to what Senator Fraser has said; namely, that with all our good intentions, we will want to continue expanding the categories, and under this bill, that can now be done through regulation. There will be no further parliamentary scrutiny to determine what "vulnerable persons" really means.
I fear that -- even though it will not happen this year or next year -- as we forget about this act while it continues to operate, people will tend to want to expand the categories. What assurance do we have that we will not, for whatever valid and valuable reason, continue to expand this category under the regulations?
Mr. MacAulay: My understanding is that you cannot go beyond the intent of the bill, which is quite clear. As Senator Fraser indicated, there could be issues such as telephone fraud, and other things, but they does not fall under the jurisdiction of this proposed legislation.
Senator Andreychuk: I keep rereading the bill, but I do not see where the intent is spelled out. It is spelled out where you state that "this act applies in clause 6.3." However, when you get to what the intent might be, it switches over, so that that will be defined in the regulations.
Do we have your assurance today that it is your understanding that the government will not expand this definition beyond what you have said is the intent?
Mr. MacAulay: That is exactly right, yes.
Senator Andreychuk: Have you given any consideration to what Senator Bryden has said? In this field, I know that sometimes what we initially intend is not always the case in practice. That is to say, people may begin to use this flagging system for whatever they believe is valuable to them in their work.
Will there be any extraordinary scrutiny of these people? I fully understand that if they abuse the regulations, they can be charged, but that is not, in itself, sufficient to make me feel comfortable. Have you considered some sort of additional scrutiny, beyond the normal practice within police forces and the Solicitor General's department, to look at how it is being administered? For example, did you consider an ombudsman, a privacy commissioner, or a special capacity for someone to have the responsibility to report directly to you on a yearly basis?
Mr. MacAulay: No. However, if a police officer used the code in order to access the flagged information, that is reported. If that is done inappropriately, that is incorrect and is not the intent of this proposed legislation. If you activate the flag, it must be for the reasons that we have indicated. It is not just to enable someone to find out if a person has received a pardon for a sexual offence. This bill is not intended for that. Does that answer the question?
Senator Andreychuk: It answers it for the present, but do you not have the same sort of uneasiness that we do; namely, that in time the definition will continue to expand? Police will then have this tool and there will be not be an extraordinary scrutiny of it. It will be merely routine scrutiny by people in the system who will obviously have the same mind set and the same inclinations.
Now that we have pointed out that it is somewhat flawed through having the definitions in the regulations, would you consider having some regular scrutiny that is somewhat independent of that within police departments? That is to say, someone who could report to you that they are not going beyond the intent that you have spelled out today?
Mr. MacAulay: If anyone goes beyond the intent of the regulation, as reported to me or anyone else, it is then a legal matter that will be handled by the police. I should like Mr. Zubrycki to further explain to you that they do not have those options.
Mr. Zubrycki: There are two kinds of controls here. We have talked about expanding the list of offences. If we were to move away from the targeting of sexual offences, we would very likely find that the scheme would be thrown out by the courts because it would encourage Charter challenges. That is one check.
The second control involves the terms of operation. What will make this work are the CPIC policies that are followed by all police forces. CPIC is a service available to all police forces.
It is governed by an advisory committee of senior officers and police chiefs from all the regions of the country that establishes CPIC policy, by which everyone must abide. They audit the implementation of that policy on a regular basis.
We are talking about hundreds of police forces across the country with many different demands on their resources. Certainly, there could be some strain from that, but there is an audit that will look at whether the provisions are being used properly and only for the purpose prescribed, what the volumes are, and that sort of thing. There is a common monitoring and auditing on a routine basis throughout all those police forces.
Mr. MacAulay: I would also add that the information and testimony given here by me and the officials would also be evaluated if things were to go beyond the intended scope of the bill. I have been quite clear with you as to what exactly the intent of the proposed legislation is.
Senator Andreychuk: We are relying very heavily on CPIC, which has come under some question on the grounds that it is outdated technology; that there are insufficient resources to allow it to function well. Are you satisfied that CPIC is state of the art and can handle all of this?
Mr. MacAulay: Senator, I so pleased that you asked that question. I might have had some difficulty in answering it about a month ago, but as you are aware, we have now allotted $115 million to totally update CPIC. Yours is indeed a legitimate question. Yes, we have moved to make CPIC faster and more efficient and to ensure that we are dealing with top-notch technology.
Senator Andreychuk: I understand that the $115 million is not what was requested. Is that correct?
Mr. MacAulay: Senator, I would never want to indicate that a person from the upper chamber could would be wrong because I have appeared here a few times and have gained an immense respect for this institution. A number of figures have appeared in the newspaper. The $115 million is for the updating of the CPIC. The commissioner, and other people within the RCMP, have also indicated quite clearly that these are the dollars that are needed in order to update the system itself.
You are right; there were a number of other figures mentioned, but those involve ongoing costs associated with CPIC on a yearly basis, figures that are in the budgets of the RCMP, and which are also subject to ongoing discussions.
Senator Andreychuk: Then shall we agree to disagree? I know you are referring to the hardware, but CPIC cannot work unless people are properly trained and all the other, additional resources that the police need are available. Do we have any assurance that you are not adding another capacity to CPIC before it is up to speed and before we have the additional personnel to handle it?
Mr. MacAulay: To my knowledge, senator, there is no indication that they are not totally capable of handling the new technology that will be acquired. The problem that was quite clearly relayed to me was that they needed the updated technology, and that is what they received.
Senator Andreychuk: That is what they asked for as a priority?
Mr. MacAulay: That was the priority.
Senator Andreychuk: Will this proposed legislation come into force before the updating of CPIC takes place?
Mr. MacAulay: Yes, but that is up to you, too.
Senator Fraser: Regarding unauthorized or inappropriate use of codes, would it be possible, minister, when you hand over the cheque for $115 million, to simultaneously hand over some instructions about the programming of the system? Would it not be very simple, for example, to have another little box on the automatic form where one would enter not only the code for access to the system, but an identifying number specifying the precise request and the grounds on which it is made?
Mr. MacAulay: You are right on target with your question. The answer is yes. If someone does access the system and brings up the flag, there must be a signed request.
Senator Fraser: Does it all have to be included there? Can the operators just say they are authorized to make the request, or are they only authorized in each specific instance?
Mr. MacAulay: You must request it. The consent form must be signed on the dotted line by the offender.
Senator Fraser: I understand that, but I am talking about access to the computer. There is a theory that a patrol officer could stop a suspicious person, and even if he is not supposed to do so, can routinely check to see whether the guy has been flagged in the system. He could not do that if the system required, in addition to the request, the inclusion of specific information stating the circumstances and identifying the grounds for which it is being made.
Mr. MacAulay: You are right, senator. If a police officer did enter the code and the flag came up, but the officer had no authorization, as Richard indicated, we would be aware of the situation. The operator must have written consent.
Senator Fraser: I understand that.
Mr. MacAulay: It is against the law to do it without that consent.
Senator Fraser: Is the computer programmed to request the file number of this search?
Mr. MacAulay: That question is beyond me. I would have to ask someone else.
Mr. Zubrycki: Basically, when the person enters a code, the code says that this screening search is being done for this purpose. That must be backed up with the corresponding consent form. The form would state the purpose of the search and the organization for which it is being done. I do not believe that all that information would go into the computer at that point, but that match must be made.
When an audit is done, one can look at a list of the cases and the officers who entered the code, and one can look at the list of submitted consent forms. There should be a match. If there is not, that would be a basis for concern.
Senator Fraser: I am wondering if it would be possible to do the match up front.
Mr. Zubrycki: I am not quite sure how that could be done, but it is an operational matter that we can discuss with CPIC. They could consider developing some kind of system that would alert them to a problem.
Of course, there is no point in only alerting the requester. It must also alert someone in the police force administration.
Senator Fraser: Perhaps I can write you a note on that subject.
Mr. MacAulay: If the operator were to proceed in that manner, he would certainly be operating totally outside of the intent here.
Senator Fraser: We all understand that.
Mr. MacAulay: In my opinion, that would be against the proposed legislation and would have to be dealt with appropriately.
Senator Bryden: Use of this proposed legislation is really governed by subsection (2) of section 6.3. It can only be accessed by an organization and relates only to children and vulnerable persons. You define that. We are back to that issue. Nevertheless, I was concerned that it is much broader there.
Then under subsection (3), if a police officer enters his identifier code and makes a request without having the back-up documentation, he has immediately committed an offence.
Mr. MacAulay: That is correct.
Senator Fraser: There will be a subsequent audit. My earlier question was just concerned with speeding up that match. I am in agreement with the bill. I think the system is fundamentally okay, but if there are concerns about it, there are some practical matters of computer administration that could alleviate those.
Senator Nolin: Mr. Minister, your officials are giving us many answers on the operation of this bill, and that is excellent. However, proposed subsection 9.1 states:
9.1 The Governor in Council may make regulations
(b) respecting the making of notations in respect of records of conviction, and verification of such records, for the purpose of section 6.3;
Everything you have explained in the last half-hour in answering the questions of my three colleagues relates to this proposed subsection. Do you have the regulations under this?
Mr. Zubrycki: Unfortunately, the regulations were not circulated in advance. We meant that they should be, so I apologize for that.
The regulations relate to what should be included in the consent, what information should be given to the applicant, and how those consent forms should be submitted and used to back up the queries.
There will be other rules and regulations that are not "regulations" in the sense of regulations to an act. They will be contained in CPIC policy and operating manuals. Those operating policies are still being developed, but they have been, to a large extent, developed and approved by the CPIC advisory committee. All jurisdictions have agreed to follow those policies and they will be used by every police force that implements the system.
I asked a colleague what information will be entered into the system when a query is made. I have a draft of an outline that CPIC officials are working on that will provide, in a "remarks" field, the name and initials of the person making the query, the file number, and the reason for the query. Those are the types of operational and administrative policies that will be further developed as we get into the implementation phase.
Senator Nolin: Minister, do we have your word, and the word of your government, that all of those regulations will come before the Joint Committee for the Scrutiny of Regulations?
Mr. Zubrycki: Not the CPIC operational policy.
Senator Nolin: That is the area where we have concerns.
[Translation]
Do we not run the risk of someone accessing this extensive data bank for unlawful purposes? That is why we want to look at the regulation-making authority you hold. It is not a matter of calling into question the extent of your authority in this area as such. You say that you have no plans to pursue this further. You can understand why were are, to put it politely, a little perturbed by this. What is going on?
[English]
Mr. Zubrycki: Generally speaking, operational policies do not come before Parliament, but there is nothing secret about them. We are happy to table that information wherever appropriate. However, these are operational policies that exist among police forces that do not come under the federal government's direct authority. Given that we have a good cooperative arrangement, we are quite certain that the act that may result from this process, and the regulations to that act, will then be implemented in a consistent manner. If it is contrary to the proposed legislation, it will be an offence.
Senator Nolin: You are asking us to give you the power to make regulations respecting the making of notations in respect of records of conviction and the verification of such records. Will the regulations pursuant to proposed section 9.1(b) be scrutinized by the joint committee of both houses on regulations, yes or no? That is a simple question. I think the answer must be yes.
Mr. MacAulay: Yes.
Senator Moore: I am attempting to invoke a little of the Senate's corporate memory here, with the help of my friends.
The Criminal Records Act received Royal Assent on June 11, 1970. At that time, the stated intent was to provide for the relief of persons who had been convicted of offences and had subsequently rehabilitated themselves.
On pages 1083-84 of the Debates of the Senate for May 2, 1970, Senator Hastings, in commenting on the bill, stated:
The new concept is that we try to accept that a man, even though he is confined, is still a man. We do not take from him all his self-respect; we do not degrade him into a category in which he is ostracized and treated with motives of punishment. We now say: You have committed an offence. We want you back, and we are willing to take whatever steps are necessary to bring you back into society so that you do not have to carry on the present life you are living.
He went on to say, in regard to the sponsor of the bill:
Finally, I share with Senator Fournier (De Lanaudière) a concern that the provinces should now take remedial action along the lines of this bill. But more importantly, I should like to appeal to industry and to commerce to follow the example that has been shown in this bill. I would suggest that as quickly as possible, wherever appropriate, application forms be amended so that the simple question be asked, "Have you ever been convicted of an offence for which a pardon has not been granted?", to which every pardoned person could answer truthfully without fear of losing his job opportunities. In that way the pardoned persons could move into areas of employment which are so important with respect to their rehabilitation.
That was the original intent.
Looking at the bill before us today, let us assume a person has been working in a position of trust or has applied for such a position of trust. He received a pardon 15 years ago and thinks he has a clean slate. If he was asked the question, he would quite honestly say, "Sure, I do not have anything to hide here. I can answer in the positive." The response might be, "Would you mind us checking?," to which he would reply, "No, go right ahead." They may say, "Do you want to sign a consent?," to which he would say, "Sure, I will sign the form." It is done. Then, lo and behold, because of the retroactivity provision of this bill, there will be a flag on his file. I am trying to balance that with the intended spirit of the statute when we started out in 1970.
Mr. MacAulay: Quite simply, if authorities ask for the search and consent is given, should they enter the code, a flag is raised. The police will be aware that this man or woman has been convicted of a sexual offence.
Then it has to come to me. I have certain authorities and guidelines to use in evaluating whether it should be opened or not. Should I do that, the applicant will have to agree or disagree as to whether the information on the pardon is given to a third party. All this is done for the safety of children and vulnerable persons.
Senator Moore: I understand that. However, if I were standing in the shoes of the employer and received that response, and I then went through the check system and found that there was a conviction in the past, would I then think that person had lied to me? The employee would not know, probably. You will not be sending out letters to people with pardons saying, "By the way, we have a new system."
Mr. MacAulay: You are right.
Senator Moore: I am wondering about the fairness of that.
Mr. MacAulay: Your evaluation is correct.
Senator Moore: I am also wondering about the retroactivity. You seem to enjoy a very good rate of success, 97 per cent, and I calculate 97 per cent in the other areas. In Ontario that is very good. Is there any point in considering limiting the retroactivity, or does that open things up to possible abuse? Did you think about that when you were doing the research for this bill?
Mr. MacAulay: Quite simply, this was done for the protection of children and vulnerable persons. I can understand where you are coming from, but the intent of this proposed legislation is to ensure that if you have been convicted of a sexual offence and are in a position of authority or responsibility with children or other vulnerable groups in society, the employer should know, if he so desires.
Senator Fraser: The draft regulations, Madam Chair, do include a passage stating "I understand that this information can be made public." There is a draft consent form in the draft regulations. So while retroactivity may not be pleasant, it will not be a surprise to the applicant.
Mr. MacAulay: It passes into private hands and anything can happen. Mr. Zubrycki, is there some protection in the requirements?
Mr. Zubrycki: The protection comes from everyone being able to handle that information responsibly. However, there is a certain degree of protection reduction in a very small number of circumstances for a small number of individuals. After extensive consultation with the provinces and debate in the House of Commons committee, it was recognized that some people believe that sex offenders have a very high rate of recidivism. In fact, this is not the case. It is important to recognize the limited threat they pose and the limited circumstances in which they might reoffend. Nevertheless, someone with a record of that nature, and who is seeking a position of trust, poses a risk that the recruiting organization should be entitled to assess. That process should neither be automatic nor "all or nothing," and it should not be based only on the extension of a record. However, that is information that should not be denied.
The Chairman: How far back do the records go?
Mr. Zubrycki: Just about forever.
The Chairman: Are there records on anyone who is now alive and has been pardoned at some time for a sexual offence?
Mr. Zubrycki: The pardon records would go back to the inception of the act.
The Chairman: In 1972?
Senator Moore: In 1970. What about records before that year?
Mr. Zubrycki: I believe the CPIC system was established in 1962.
Senator Moore: Therefore you could go back that far?
Mr. Zubrycki: Yes, for the flagging and the searching.
The Chairman: I do not know what the outcome of this bill will be. However, I wish to emphasize to you, Mr. Minister, and your officials, that in drafting these bills in the future, it might be a good idea to include definitions, and an indication, at least somewhere in the bill, of the fact that, in this case, it is targeted for sexual offences.The purpose and intent of this bill are clearly stated on the records of the House of Commons and this committee; however, it is not indicated in the bill. This committee has had previous experience of situations such as this, and of amending a bill so that the regulations must return to this committee at a certain specified time in the future. I am warning you, for future reference, that bills should not come before us in this form.
Mr. MacAulay: Thank you, senator. I have never been to this table without a reprimand and I will sharpen up a little. I do agree that if anything is to be put into legislation, the intent should be very clear. Your point is well taken.
The Chairman: Thank you very much, Mr. Minister. This meeting is now adjourned.
The committee adjourned.