Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 74 - Evidence - Afternoon Sitting
OTTAWA, Tuesday, 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 1 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I see a quorum, honourable senators. This session of the Standing Senate Committee on Legal and Constitutional Affairs will now further consider Bill C-69, An Act to amend the Criminal Records Act and to amend another Act in consequence.
Before us this afternoon we have Mr. Netelenbos, who is Vice-President of the Canadian Police Association and Chair of its justice committee.
Sergeant Jon Netelenbos, Vice-President, Canadian Police Association: Honourable senators, it goes without saying that the Canadian Police Association supports Bill C-69. The key in terms of amendments to the Criminal Records Act is the ability to disclose pardoned Criminal Code convictions during the screening process for positions of trust with children or other vulnerable persons.
Keeping in mind this group of potential victims, it is our belief that the capacity -- no matter how small -- for pardoned criminals to reoffend makes Bill C-69 desirable. More important, it is our belief that the capacity for pardoned sex offenders, particularly pedophiles, to reoffend makes Bill C-69 necessary.
It is not my intention today to enter into a lengthy debate on recidivism. Police officers such as myself are frequently accused of bias and of adopting a cynical attitude toward the rehabilitation of criminals. That is not always true. Some of the very young teenagers I arrested for housebreaking or car theft 20 years ago have gone on to make valuable contributions to their community and to society, and I know this happens.
However, the recidivism rates of child molesters and other types of pedophiles are not promising. Indeed, they are abysmal. The federal Solicitor General conducted a study in 1996, which I understand you have seen. It is entitled, "Child Molester Recidivism."
That report indicates that 42 per cent of child molesters were re-convicted of a sexual offence during a 15-year follow-up period. There are many other statistics available, and I am sure that you have been presented with some of those. Most are not very encouraging when it comes to sex offenders.
I have interviewed a number of pedophiles in my career and none stands out more than the 40-year-old man whom I had suspected of fondling a young boy in a mobile home park playground. Although he vehemently denied touching the victim, he made little effort to disguise his predilection for young boys -- not too young, not too old. Paradoxically, while telling me these things, he continually emphasized that he would never touch them. He would never harm them.
Within these sprinklings of truths and lies, I asked him where he found young boys. With his narrow lips slowly parting and avoiding eye contact with me, he replied that he went where he had to go.
I do not recall the precise details of the conversation thereafter, but I knew what he meant.
Senator Bryden: May I ask a question for clarification? What does "his narrow lips slowly parting" have to do with this?
Mr. Netelenbos: It is an image that I will never forget.
Senator Bryden: You are not implying that people with narrow lips that slowly part are pedophiles, are you?
Mr. Netelenbos: No, I just noted that. Those theories went out in the 18th century.
I am saying that Bill C-69 will not prevent pedophiles from frequenting the places I just mentioned. However, by virtue of the efforts of victims organizations and law enforcement education programs, our playground supervisors, teachers, sports coaches, campground associates, and lifeguards are better trained to keep a vigilant eye out for the sexual predator standing on the outside looking in, watching potential victims.
What if that predator is not standing on the outside looking in? What if that person is on the inside? What if that person is the playground supervisor, the teacher, the camp counsellor, the soccer coach or the lifeguard? Remember what the man in my example said -- he goes where he has to go.
Allow me to play devil's advocate by asking questions that opponents of Bill C-69 may ask. Where will the disclosure of pardoned criminal offenders stop? Will we disclose pardoned impaired driving convictions to transportation companies; pardoned theft convictions to retail industry; or pardoned fraud convictions to the bank industry?
You can follow that idea. Senator Andreychuk asked those questions, more or less.
I do not believe that this will occur and neither do my colleagues. It may seem a paradox to Canadians who continue to hold preconceived notions about police officers, but the men and women of 20th century policing recognize the fundamental rights afforded to all Canadians. As a police officer, I remain optimistic about much of human nature.
If I were an employer in the retail industry, would I arbitrarily reject a prospective employee with a pardoned theft conviction? Maybe, maybe not. However, as an employer for a child day-care facility, would I hire someone with a pardoned child sex conviction? No, I would not. I think all of us here today know why.
If a pardoned convicted child molester is truly seeking to rehabilitate himself, truly seeking to show the world that there is hope -- and I am not suggesting there is not -- then that individual would certainly undertake to do the right things. That stands to reason.
One must ask why that individual would apply for employment in a position of trust with children? It makes no sense at all. Remember the words of our child molester -- he goes where he has to go.
In a nutshell, the Canadian Police Association strongly supports Bill C-69.
Senator Beaudoin: I must confess that unfortunately, I was not here this morning. However, as a policeman, can you tell me why proposed section 9.1 was included? I would like to know why that decision was taken. Government by regulations is always a major topic of debate, especially in regard to the Criminal Code.
If there is one area in the domain of law that should be very precise and very clear, it is criminal law. Is there a particular reason why they gave such power to the Governor in Council? Criminal law is, of course, defence law. It is very important.
Mr. Netelenbos: That is a fair question. I am certainly not professing to be a legislative practitioner, but I recognize that it may be an issue of putting the cart before the horse.
Senator Beaudoin: I ask you as a policeman.
Mr. Netelenbos: That is a fair question because the listing of offences has not been completely identified. Certain things that deal with sexual offences involving infirm or elderly people and children are being assumed. Perhaps I, and this committee, are making giant leaps in assumption. However, if the mechanics allow this bill to be passed, I would like that to be addressed or remedied so that we would still, in the end, have the essence of Bill C-69.
Senator Beaudoin: The attitude that you have taken so far with respect to sexual offences is rather severe. I do not say too severe, and I am generally inclined to agree with what you have said. However, if you take that attitude in respect of sexual offences, is that not a very strong argument against giving that power to the Governor in Council instead of Parliament?
Mr. Netelenbos: I do not wish to be brought into the political debate. However, I am not skirting the matter. I do work with legislative issues and there are certain things that have to be asked.
Again, I say it would be wonderful if we could work around this. The input of all parties shows that government can work together with all interested groups and that is very positive. My colleagues have recognized that this bill is the result of input from many people, which is excellent.
Senator Beaudoin: Is it absolutely necessary for policing work?
Mr. Netelenbos: How do you mean?
Senator Beaudoin: A bill in criminal law is at the very heart of major crimes, especially sexual offences. Unless you can tell me that in the day-to-day work of the police it is absolutely necessary, I do not understand why it is there.
Mr. Netelenbos: Just to clarify that, senator, are you speaking specifically about proposed section 9.1?
Senator Beaudoin: Yes. What do the police think about that?
Mr. Netelenbos: There are many acts with attendant regulations, as you can well appreciate. It is a necessary component.
Senator Beaudoin: That is a major issue in the 20th century.
Mr. Netelenbos: Exactly.
Senator Beaudoin: I have no problem with that. However, in criminal law it is something else.
Mr. Netelenbos: Are you suggesting that because it is not yet specific, it could mean a number of offences?
Senator Beaudoin: It may mean that the Governor in Council may change his mind, according to circumstances. If you say that we cannot do otherwise, that we must have that legislative flexibility, I want to be convinced of that. However, if that is the reason, I am quite ready to hear the rationale behind it. I do not see many things more important than making a list of offences in the field of criminal law. I do not understand why that is left to the Governor in Council.
If it is a question of application or administration, I can understand that. I agree with regulatory power and that we cannot put everything in the law. Modern society is too complex. I understand that in many fields, this may be the rule. However, in the field of criminal law, I think it should be a very rare exception.
The Chairman: This may be a question to ask of the officials, Senator Beaudoin, when they appear again this afternoon. It may be an unfair question to ask the sergeant.
Senator Beaudoin: I asked this witness because I thought perhaps there was a reason in practice for doing that. It is not clear-cut in my mind.
Senator Fraser: Mr. Netelenbos, you cited some very high recidivism rates at the beginning of your statement. Would you mind repeating them?
Mr. Netelenbos: This 1996 federal Solicitor General study on recidivism in child molesters indicates that 42 per cent of child molesters were reconvicted of a sexual or violent crime during a 15- to 30-year follow-up period.
Senator Fraser: When I asked the departmental officials about recidivism rates, they told me that the rate for sex offences in general is 13.4 per cent, that for child molesters it is 13 per cent, and for pedophiles who prey on boys it is 21 per cent, that being the highest. I am confused.
Mr. Netelenbos: I may be being presumptuous in trying to interpret those statistics, but they may be for a shorter period of time. These are for those reconvicted between 10 and 31 years after being released.
Senator Fraser: I was not given any time limit at all. You are saying that after the first conviction, 42 per cent are re-convicted within 15 to 30 years?
Mr. Netelenbos: Yes.
Senator Fraser: Perhaps we should check that with the officials as well.
Mr. Netelenbos: I will leave this document with the clerk.
The Chairman: We will have it copied and distributed to members. The figure we were given this morning was that of 4,200 sex offenders who have been pardoned, only 114 have reoffended, which is a rate of approximately 2.5 per cent.
Mr. Netelenbos: I did not say "pardoned."
Senator Fraser: I was not talking about pardons either.
That group may be a little self-selecting, in that they do not receive pardons unless they have been good.
The Chairman: Or unless they pretend to have been good.
Thank you very much for appearing before us today, Mr. Netelenbos.
Senators, our next witnesses are Mr. Robert Hallett from Scouts Canada and Ms Paddy Bowan from Volunteer Canada.
Mr. Robert Hallett, Executive Director, Operations Division, Scouts Canada: Honourable senators, thank you for the opportunity to speak to Bill C-69 on behalf of Scouts Canada. This afternoon I will share with you who we are and what we do, and discuss with you the impact this bill will have on Scouts Canada as it pertains to the adult recruitment process and, most importantly, the safety of the youth we serve.
Scouts Canada is a member of the world organization of the Scout movement, which boasts a membership in excess of 16 million and is active in some 150 countries. On a yearly basis, Scouts Canada provides youth and young adult programming to 150,000 people ranging in age from 5 to 26. To achieve our mission, we require the services of some 50,000 adult volunteers each year.
Our mission is to contribute to the development of young people in achieving their full physical, intellectual, social, and spiritual potential as individuals, as responsible citizens, and as members of their local, national, and international communities through the application of our principles and practices. Our principles are duty to God, duty to others, and duty to self.
Let me expand on duty to others, which includes participation in the development of society, with recognition and respect for the dignity of one's fellow beings and the integrity of the natural world.
Our practices and methods can be summarized as follows: Learn by doing; membership in small groups; progressive, stimulating and challenging programs; respecting and caring for others; and extensive use of outdoor activities as a key learning resource.
The very nature of our programs requires adults to be in close contact with our youth members and, in some situations, for extended periods of time, such as camping trips and jamborees.
I believe that it is most important to have a profile of the adult volunteer required to achieve the mission of Scouts Canada and to ensure a safe environment for our youth members. Scouts Canada has always worked hard to ensure that a safe environment exists and programs and activities are always checked to minimize risk. If we cannot minimize the risk through the use of safety devices or program changes, we eliminate the program or activity. Today we call this practice "risk management" and thus we have very defined processes for evaluating and managing risks to Scouts Canada members.
To be successful in risk evaluation, one must have all the information pertaining to a particular activity so that a proper decision on the risk potential can be made. Only then can risk be effectively managed.
Little did we realize, a few years ago, that a major risk to the safety of our youth could exist in our adult leaders. I must add that this was not unique to Scouts Canada, but to all situations where youth activities were delivered or supervised by adults.
Scouts Canada evaluated its adult recruitment process and recognized that it did not minimize the risk of accepting adults who were potential child abusers. We must also remember that child abuse is not just sexual, but also physical, emotional and neglectful.
With assistance from Volunteer Canada, as well as other youth-serving agencies and our own adult volunteers, Scouts Canada put in place a comprehensive adult recruitment and screening process through which all new recruits must go before working with youth. We also conduct police record checks on all our current leaders.
The screening process has some eight sections. However, the information needed to make informed decisions is gathered in three ways -- namely, personal interviews; business, volunteer, personal and police reference checks; and, if the Child Abuse Registry is available, it should be accessed as well. The accuracy and completeness of this information determines to what degree our youth are put at risk if an adult is accepted as a leader.
Society, and in particular the parents of the youth we serve, demand that Scouts Canada, as well as all other youth-serving agencies, take whatever steps are necessary to ensure the safety of our youth and their children.
We are up to the challenge. However, we need the help of the screening process. We need the information necessary to make that informed decision. If information is withheld for whatever reason, the risk to our youth is increased.
We respect the rights of individuals and would not seek information from any source without the individual's permission. The information we receive through police record checks or any other source does not have to be detailed. However, criminal record information, pardoned or otherwise, that could put our youth at risk must be disclosed.
The screening process for Scouts Canada has been costly and difficult to administer. However, if it prevents just one youth member from being abused, we are convinced it is worth it.
Bill C-69 has the potential to further minimize the risk of child abuse.
Ms Paddy Bowan, Executive Director, Volunteer Canada: Honourable senators, Volunteer Canada is a national association that promotes excellence in volunteerism in this country. We work with 200 local volunteer centres across the country.
Volunteer Canada, with primary support from the federal Department of the Solicitor General, as well as the Department of Justice and the Department of Health, is the national organization speaking on the issue of screening. We run the national education campaign on screening, which has recently been augmented by a major grant from Ontario.
The basic message of that campaign is that organizations must properly screen volunteers or paid staff who work in positions of trust with children or other vulnerable people.
The first and most important of what we call our "10 safe steps" is to determine the risk involved in a particular position. Clearly, there is less risk in the position of a T-ball coach out on a field where there are 20 other adults, lots of parents, and hordes of kids, than in the one-on-one kind of relationship that a Big Brother might have with a child, or even in the kind of intense relationship that can develop over time between a Scout leader and the children in his care.
The proper screening procedures based on that risk are then determined. Carrying out a police record check is one possible step in the 10 safe steps of screening, again based on risk. It is not something that we universally recommend.
The most important thing that I can say today is that, in our view and based on research, screening is not the same as doing a police record check. In fact, there is a limited utility to police record checks because the vast majority of people who perpetrate abuse against a child or another person have never been convicted of a crime. Thus, they are not on the police records system.
Volunteer Canada's sole contribution to your consideration of Bill C-69 is the suggestion that it needs to be put into context. The decisions on highlighting, changing or modifying the way in which police records are handled must be put into the context of their relative unimportance as a way of protecting children.
That is what I really need to say as the Executive Director of Volunteer Canada. In my submission before the House committee, wearing two other hats, I also made two other comments. As a civil libertarian and someone who has worked in the voluntary sector in Canada for 20 years, including with perpetrators, I have a concern about the effect of this bill on the integrity of the pardon system. I think that needs to be taken into consideration. As a parent, I question why society would ever pardon an individual who has sex with children.
In light of those two perspectives, we come back to the question of how we protect children and other vulnerable people. I think that Bill C-69 has some limited benefit in that regard. It has been structured in a way that does the best it can to protect both the pardon system and children. However, I hope that we will never depend on either Bill C-69 or police record checks as the sole way to ensure that we do not have abusers working with children.
Senator Beaudoin: You say that you do not understand why we would pardon sex offenders whose victims are children. Is that because you think that the crime is too serious?
Ms Bowan: I am not a sexual abuse specialist. However, I understand, from my reading in this area, that this is not what you would call a "run-of-the-mill" crime. The Canadian criminal justice system as currently structured is unable to fix or even to mediate the effects of sex abuse against children.
At a deeply emotional level, you would have to wonder why the system, in its wisdom, would ever pardon a person who, all the research says, will likely reoffend, and who does so in private space with victims who are usually helpless, made silent by their age or disability. Thus, it is harder to avoid the crime, which is likely to be recommitted. Why should a pardon be granted? Why should that individual not bear the stigma of his conviction for his lifetime?
Senator Beaudoin: You say that the chances are that they will do the same thing again. What are the statistics in that regard?
Ms Bowan: I do not know, but I know that the reoffence rate is very high. There are many people who know more about this than I.
From Volunteer Canada's point of view, the more serious concern is that most people who have abused children have never been caught. That raises the need for a full screening.
You need to have other steps in place that will catch and discourage potential abusers. Given the nature of these crimes, the chances are that they have never been convicted.
Senator Pearson: I would be interested to know what the steps are.
Ms Bowan: The first is to assess the risk and then properly design the position. An organization can design a volunteer or a paid position in such a way as to mediate risk by, for example, setting it up so that the successful applicant is never alone with kids. There must be a proper application process. Do not ever post an ad that says, "Help! We desperately need volunteers to work with our children." That is simply creating danger.
There should be a proper interview reference check and follow-up process. That is to say, there should be a proper hiring process. There should be a police record check when it is called for.
After all those steps have been taken, there should be proper training and orientation. The most important step is to follow up with the kids or the clients. Ask them. It is amazing how often organizations that work with children do not ever ask the kids, "How is it going? How are your leaders?"
We have a whole series of materials on this subject and have worked closely with the Solicitor General on the development of this national program.
We recently launched a public awareness program because we want parents and caregivers to start asking groups if they are screening.
Senator Pearson: In the case of the Boy Scouts screening process, can you tell us, either in percentage or numbers, how many people you actually detected as problematic? Do you have any idea?
Mr. Hallett: I do not have exact numbers now, because as you can appreciate, screening some 50,000 adults would be a monumental task.
Our initial feedback is that it is minimal. We have not had a lot of rejections. We have had some we have questioned, but to date I would have to report it that has been minimal.
Senator Pearson: You talked about the screening process being costly and difficult. I agree that if you save one child it is worth it, but there may sometimes be a temptation to take shortcuts.
Ms Bowan: Scouts Canada has told Volunteer Canada that their insurance premiums have dropped by $200,000 since they instituted the national screening process.
Mr. Hallett: That is correct.
Ms Bowan: That provides an incentive. The insurance industry looks favourably on this. There is a moral imperative, but there is also a financial one.
Mr. Hallett: The important thing is that the police record checks are just one component. Our experience is that the complete screening process is critical. We use approximately an eight-step process, of which the police record check is just one component. I can tell you that all those who have caused problems for Scouts Canada were first-time offenders, so a police record check would not have had an impact. It is one component in the screening process.
Senator Pearson: Is a police check expensive?
Mr. Hallett: It ranges from no cost to $80. These people are volunteers, and there is a membership fee in addition to the fee for the police record check, so it has become not only costly to Scouts Canada, but also to the individual.
Senator Pearson: Does the individual pay for the check?
Mr. Hallett: Yes, at least in the case of Scouts Canada.
Ms Bowan: Yes. It depends on the organization. The cost is rising as the demand on the police system is increasing.
Senator Pearson: That might become a real deterrent for organizations like Big Brothers because a lot of the volunteers are young students.
Ms Bowan: Absolutely, and we need to educate people to be aware that it is a step that may or not be necessary, depending on the level of risk. You would do much better to put your resources into the risk-assessment exercise and then do the police record check for fewer positions, than to spend all your resources to do police record checks and still not catch people.
The Province of British Columbia instituted mandatory police record checks for all people who worked with children. In their first year, they did 297,000 police record checks and came up with four indicators of risk. In those four cases, the system already knew who those four people were. There is a huge emphasis on doing police record checks. Our concern is that we know that, out of the rest of that approximately 297,000, someone is abusing a child. That is the problem with putting the emphasis on the police record system rather than the other steps that can find the potential abuser.
Senator Bryden: I must say I am pleased to hear you both say that the answer to a problem does not lie solely in the legal system. This is a private beef that everyone around this table has heard me voice before. Whenever there is a problem, it seems to be automatic that we amend legislation or create new legislation or provide for things like the right to do police checks, when the solution usually lies in education or, as you say, defining a risk.
I am encouraged to hear what you have to say and I wish you could meet with a bunch of other people who should be doing the same thing.
Ms Bowan: Anytime.
Senator Bryden: I could not agree more. As you say, if you put your emphasis on the screening process, you are more apt to uncover the people who would really put these young people at risk. It used to be almost an automatic excuse to say, "But we did a police check." So what? Most of these people do not reoffend.
I have a specific question for Mr. Hallett. Most of the evidence we heard this morning indicated that the flagging of those offences and the loss of parole related to sexual offences only. In your testimony, you indicated that your organization must be concerned not just about sexual abuse, but physical and emotional abuse.
Mr. Hallett: That is correct, yes.
Senator Bryden: Is it your understanding that these items would be covered under Bill C-69?
Mr. Hallett: Based on my knowledge of this bill, that does not seem to be the case. It seems the focus is strictly on sexual matters, but I wanted to make the point that child abuse is more than just sexual abuse.
Senator Bryden: In reading the proposed legislation, it is impossible to tell that this is restricted to sexual abuse, to which there is no reference. I am supposed to be a professional in this area, but I had concluded that you could add physical or emotional abuse and neglect to the list of offences.
Senator Andreychuk: Or under "vulnerable persons."
Senator Bryden: Or under vulnerable persons. Madam Chair, this is becoming more and more of a fundamental problem with this piece of proposed legislation, certainly for me.
Mr. Hallett, you said you had 50,000 adult volunteers. You also gave a number with regard to the youth involved in Scouts Canada. Was it 150,000?
Mr. Hallett: This year it is 150,000, yes.
Senator Bryden: Was that before the formation of the splinter group?
Mr. Hallett: No comment.
Senator Bryden: Scouts Canada now includes both Boy Scouts and Girl Scouts?
Mr. Hallett: Boy Scouts of Canada includes a female component, but we are still different from Girl Guides of Canada, which is an all-female organization. We are a coed organization.
Senator Bryden: Females can belong to Scouts Canada.Thank you. It is nice to hear from someone who is attacking the real problem and not looking only to legislation.
The Chairman: I wish to follow up on something you said, Ms Bowan. You stated that, in your experience, running police checks alone is not an adequate method of screening. Therefore, this bill would not really add a great deal to the process. It would still not be an adequate method. You really should go through either the Scouts Canada eight-step procedure, or your recommended 10-step procedure, which is where you actually do catch people who are likely to offend in this manner.
Have you any statistics that you can give us as to how many you do catch with your 10-step screening procedure? As you say, most of these people have not been caught.
Ms Bowan: There are no statistics, partly because of the sheer size of the voluntary sector, especially the part that works with children and other vulnerable people. We have done some work in the area of palliative care, with the very old, where the abuses may be less around sexual offences and more around theft of medication or proselytizing or physical abuse perpetrated out of frustration against, say, a very demented individual. It is not only against children.
There are, for example, in Canada, 700,000 children involved in hockey, 800,000 in soccer, and 200,000 in swimming. The list goes on and on. There are coaches, managers and helpers in each of these areas. There is no one central place to gather information about the tree that makes the sound in the forest when we are not there. It is impossible to know about what we do not detect.
I want to affirm what you are saying and state my concern. To date, the federal foray into this area has been limited. A number of provinces are interested in making a great deal of hay out of the issue of registries or using police record checks. Along with the announcement of Bill C-69, I expected an announcement that the police records system is now more effective at catching those people who will abuse children. Usually, the balancing of information about how limited the impact will be is not made in those announcements. People do not usually make announcements about registries and then say, "But they will not catch most people." It creates a false sense of security that the government is doing something about these issues, whereas the emphasis should be on education and vigilance over time.
The Chairman: Thank you for your testimony.
Senator Pearson: The second item that Ms Bowan addressed involved concern over the integrity of the person. Would you elaborate on that? I share some of those concerns.
Mr. Bowan: I have great faith in the various layers of the criminal justice system, the parole system and the pardon system. I believe that wise individuals are making these decisions. Therefore, when a pardon is given, I imagine that it is done after extensive consideration for all factors. If we then turn around and say, "We are giving you a pardon but we are flagging your file," it is no longer a pardon. What does it say to the person who genuinely receives a pardon? Will it be robbers next? Is it the thin edge of the wedge? If we have a pardon system and we believe that it works, then only people who we believe will not reoffend, who have been rehabilitated and who are active and healthy members of society, should be given a pardon.
That goes back to my point to Senator Beaudoin, namely, can we believe that about the majority of people whose inclination is to have sex with children? That offends me in the deepest possible way. I would like to believe that a pardon would not be granted to a person when there is even the smallest chance that they will one day encounter a child and reoffend.
Mr. Alwyn Child, Director, Policy and Liaison Branch, Canadian Human Rights Commission: I wish to thank you for asking the commission to appear before you. I do not have a statement. I am simply making myself available to answer any questions that you may have.
Senator Beaudoin: I am tempted to ask you the same question that I asked the previous witness. She gave a good answer. Do you agree with it?
Mr. Child: I am not sure to which question you are referring.
Senator Beaudoin: I am referring to the philosophy behind the pardon. We use the pardon for those who have been found guilty of one offence, and presumably we have good reason for granting it. I was impressed by her answer, and I would like to know what you think.
Mr. Child: My answer would be essentially the same. If someone has paid his debt and is rehabilitated into society, then that person should be able to continue in society without any concern that information regarding the pardon will be released in the future.
The Canadian Human Rights Act creates an exception where there is a bona fide requirement that this information be made public -- that is, if it is required to make a decision -- and if it is required for the position that the person is seeking. Therefore, our position is essentially the same as that articulated by the previous witness.
Senator Bryden: As a supplementary to that, what is the test for determining whether the condition of employment is a bona fide occupational requirement?
Mr. Child: It would be whether or not it can be shown to be a necessary qualification for performance of the job or receipt of a service. In the provinces, it would also include accommodation.
Senator Bryden: Can you give me an example?
Mr. Child: For example, if someone sought employment as a police officer, the application would be accepted by the RCMP and dealt with in the provincial sphere. However, that person was convicted for smuggling drugs. If that person is to be placed in a position in the drug unit, for example, there is a bona fide occupational requirement that he be free from involvement in drug smuggling in the past. That would remove that person from the operation of the law under that provision. Another example is a banker who had been convicted of embezzling. The same situation would arise there.
There is also the situation where -- and I do not wish to get too close to the issue -- someone is seeking employment as a guardian of children but has been convicted of child molestation. I am not so much concerned with the issue of whether this becomes public, because the bill deals with that, but that would be a bona fide occupational requirement in the sense that you would want to ensure that that person is free from such a conviction.
The Chairman: This has been an interesting afternoon. Some of the witnesses whom we had expected to be strongly in favour of this proposed legislation have said that they do not think it is terribly effective, while those whom we had expected to be concerned about the bill have said that this is a bona fide removal from human rights considerations.
Senator Andreychuk: How do you judge bona fides in the case of an act that allows someone's record to be flagged? How have you been judging it up to this point? Have you been judging it, for example, by saying that when you are granted a pardon, that reinstates you to a status like any other citizen, or do you go back and look at the record?
Mr. Child: There are two parts to that. First, we would not be so concerned about the disclosure of information. We would receive complaints if someone were refused employment because he or she had a criminal record. That would attract the application of the law. We would then look to see whether or not, having refused employment, the employer could justify the refusal on the basis of the crime that the person had committed.
Senator Andreychuk: Let us say that I am the potential employee and I have been convicted and have received a pardon. We were told that 97 per cent of people who have been pardoned do not reoffend, and that includes the sexual offences. Do you have a different test from the pardon, or is it the same type of test?
Mr. Child: Let me go back to ensure there is clarity.
Senator Andreychuk: Are you simply saying that human rights legislation would not protect me at all because once I have committed the offence it is there as a blot on my record forever?
Mr. Child: That would not attract our attention in the least. The Canadian Human Rights Act provides protection in three main areas. In the area of employment, if you are seeking employment and are refused because you have a criminal record, that would attract the application of the law.
In the provision of a service, if someone were to refuse to provide you with a service because you had a criminal conviction for which you had received a pardon, that would again attract us. There is a very small area in the provision of accommodation, although that is largely within the provincial sphere. Therefore, it is only after a refusal has been made on the basis of a pardoned conviction that we would enter the picture.
The test that the employer must meet for refusing to hire or for terminating employment, for refusing the service or whatever the case may be, is that it is a requirement that that person not have had a criminal conviction for that offence.
To make it clearer, suppose someone applied for a position as a bus driver and that person had committed a drug offence through smoking marijuana. That is probably too convoluted, so let us leave that one. Suppose a person had been convicted of shoplifting and had received a pardon. That would not be a bona fide occupational requirement for a bus driver. The drug one might be. It should not matter that you shoplifted when you were 18 years old and you are now a 45-year-old man applying for a job as a bus driver with OC Transpo. You would not be able, in that case, to establish that it is a bone fide occupational requirement to be free from that conviction.
Senator Andreychuk: Perhaps I am not making myself clear. Do you and the Human Rights Commission use the pardon and the Criminal Records Act in weighing your decision? Do you go back and look at the job and the offence and determine it on a case-by-case basis? I would have thought that if someone had, in your example, done something 20 or 30 years ago and had received a pardon, that is a good indication that that person is no longer is a threat.
Mr. Child: That may be. To file the complaint, the person must be able to say, "I was denied something," whether it be employment, service or whatever, because of a pardoned conviction. There must have been a conviction for which a pardon was received. That would attract the application of the act.
The only justification that the employer can then use for refusing to hire or provide a service or whatever the case is based on, is that it is a bona fide requirement that the person not have committed the crime that he in fact committed in the past.
Senator Andreychuk: I guess it comes down to what test for bona fide you use.
Mr. Child: We would use a test that would relate the performance of the duties to the crime that that person had committed in the past, and for which he or she has been pardoned.
If, in the example I gave, you shoplifted 20 years ago and are applying to be a bus driver, I do not think the employer would be able to meet the test that it is a requirement that you be free from having shoplifted in the past. If we use drugs as the example, that brings it closer, but it is not a dead-on point. If, however, you were convicted of smuggling drugs and you applied to work in the drug unit of the RCMP, then I would think that that would be a bona fide occupational requirement.
Senator Andreychuk: You are looking at the job and whether it is bona fide. You are not assessing that person's character at all. You are looking at the job, not the person who applies.
Mr. Child: Only to the extent that character is an essential part of the requirements that one would need to bring to the job.
Senator Andreychuk: Therefore, you are not making an analysis of that person.
Mr. Child: No.
Senator Andreychuk: I had hoped that the Human Rights Commission would not be in a position of saying that the person, just because of that record, would not be rehabilitated, which is where the questions were leading, I think.
Mr. Child: We say that in the case of disability, and for all the prohibited grounds, you are not stamped for life.
Senator Moore: Mr. Child, it was recently said, I forget in which forum, that the Human Rights Act does not apply to the Indian Act.
Mr. Child: That is taking me way beyond any of this.
Senator Moore: Is that correct?
Mr. Child: No, although it does not apply in certain areas. It gets quite complicated, but I will try to explain my understanding of it. The basic assumption is that the act does not discriminate. Therefore, the Canadian Human Rights Act says that it would not apply if something is done pursuant to the Indian Act. In that sense, it does not apply. However, things are very often done that are claimed to be pursuant to the Indian Act but are not. They are done outside of it. To the extent that it is not done within the ambit of the legislation, the Human Rights Act would then apply.
Senator Moore: If, in the bill before us, the offender were a native person, would your commission look at it?
Mr. Child: Yes, most certainly.
Senator Moore: In that case, the human rights legislation would apply to native people under the Indian Act.
Mr. Child: I should just say that in terms of the magnitude of the situation, there are very few employers, if I understand this bill correctly, who would be seeking the type of information that this bill purports to provide and who would fall under federal jurisdiction. Most of the child-care and elderly care establishments are provincially regulated, and provincial human rights codes are not uniform. There is protection in some but not in others. The application would be greater there.
Federally, we receive two or three complaints a year where the complainant alleges that he or she has been discriminated against because of a pardoned conviction. Therefore, the application will not be very significant for us.
Having said that, it may be a situation where a number of people screen themselves out. The RCMP and the Canadian Armed Forces are the larger areas that fall under our jurisdiction. The potential there for people being screened out because of a criminal record is probably very high. However, we do not get any complaints about those two organizations, or only rarely, where it is because of a pardoned conviction.
Senator Fraser: On those rare occasions when someone comes to you to say, "I have been denied employment because of a pardoned conviction," what weight would it have in your deliberations to know that the person had originally signed a disclosure consent form?
Mr. Child: It makes no difference at all. The only thing that makes the difference is whether or not it is directly related to the performance of the job, the bona fide occupational requirement.
The Chairman: Thank you for appearing before us today, Mr. Child.
Honourable senators, we have Mr. Zubrycki and Ms Campbell before us once again.
Mr. Richard Zubrycki, Director General, Corrections Directorate, Policy Branch, Department of the Solicitor General of Canada: We do not have any opening remarks to make but I know you are interested in some of the statistical questions that have been raised.
I have seen the numbers that were provided here earlier. I believe they are extracted from a report that has actually been published in several formats. I am not quite sure which one this is, but it is one version of that report. It is a report on long-term follow-up of child molesters, risk predictors, and treatment outcomes published by our department.
It is very difficult to summarize statistically a very large and complex social phenomenon. The term "sex offenders" includes violent rapists, incest offenders, and pedophiles. There are many different types of sex offenders and they pose different levels of risk. Depending on the sample examined, that is, whether the offenders are high or low risk, you will get a different result. It is never really legitimate to generalize that across the whole population.
I spoke earlier about pardoned sex offenders. This is, generally speaking, a low-risk category because, as some senators have noted, ex-offenders screen themselves out. If they feel they have no chance of receiving a pardon, they will not apply. When they see what they must provide to police, including fingerprints and information about every place they have lived over the last five years, those who have something to hide or who know they will not qualify are deterred.
Offenders who come before the parole board to apply for a pardon have already completed their sentence and have waited at least another three years, and probably another five or more. They have been crime-free for a considerable period of time before they come before the board. Of course, the results reflect that. The very low failure rate bears out the fact that those who receive pardons form a good-risk sample.
The study from which these figures were drawn is based on 197 offenders who were released, I believe, from Millbrook, a maximum security provincial facility in Ontario. Therefore we are talking about offenders who were judged to be a high enough risk that they deserved to be lodged in one of the most secure institutions in the province. Those offenders were eventually released over a 15-year period and were then followed up over a further 15-year period. That very lengthy follow-up is rather unusual in the literature.
That sample of 197 was broken out into six risk groups, from the lowest risk to the highest. Of the 197, the highest-risk group had a recidivism rate of 77 per cent. That number has been used. Within that 77 per cent failure rate, there were 13 cases, of whom 11 reoffended.
By comparison, there were 21 cases in the lowest-risk sample and their recidivism rate was 24 per cent. Overall, 42 per cent of the 197 reoffended over the next 15 years.
From one point of view, that is a high failure rate, but it is based on a high-risk sample and used for comparison purposes with other kinds of samples. By itself, that failure rate does not say all that much about the total population of sex offenders. Furthermore, when we talk about pardoned sex offenders, we are talking about, both theoretically and in reality, a fairly low-risk group.
The research summary produced on that basis states that the notion that non-sexual criminals have higher recidivism rates than child molesters runs contrary to the common assumption that child molesters are a particularly high-risk group of offenders.
When it comes to child molesters, one offence is too many. The consequences are severe and we must do everything we can to deal with that.I am not trying to minimize or trivialize the problem, but I want to put it in some kind of context. When we talk about crime, dealing with criminals, and providing some kind of effective and realistic controls, we must view it in that comparative context.
Generally speaking, sex offenders are at low risk to reoffend compared with other offenders, but they do reoffend over a much longer period of time. Whereas the bulk of offenders who reoffend do so in the first six years, sex offenders will tend to reoffend over a 20-year period or longer, although at about half the rate of others.
Obviously we must take this seriously. Sex offenders may never be free of the urges that lead them to offend, but there is good evidence to suggest that they can learn to control them. Many of them do, while others do not even try, and of course will reoffend at a high rate.
Senator Andreychuk: Having heard all the witnesses and read and reread the bill, it appears we are balancing the right of citizens to receive a pardon after some period of time during which they have sufficiently paid their debt to society, against the intent of this proposed legislation, which is to keep these people away from young children, either in a work capacity or otherwise. The bill has a laudable goal, but I wonder whether it will work in practice.
You heard the other witnesses -- and I am inclined to agree with them -- say that we will put an undue reliance on the checks. If we do a check through the criminal records and this little flag comes up, fine, but if it does not come up, we will assume these individuals are okay. You heard that most of the people who might pose a risk will probably not be subject to this whole process. The real offenders are somewhere else.
Would it not be better to leave the Criminal Records Act intact and simply rethink the process of granting pardons to convicted sex offenders? Where do we want to have the balance -- with the person who has been accused, convicted, and then goes free, or with the protection of children?
It seems to me that this bill will not provide assurance to those who have received a pardon that they can act in a certain way, and it certainly does not give me any comfort about the safety of children. Would it not have been better to bring in an bill that would eliminate pardons for sex offenders and establish a new process for which they would be singled out? Once they go through that litmus test and apply for a job, they would have to go through screenings like anyone else.
We are saying that this test gives us some assurance. Tampering with the Criminal Records Act while getting virtually nothing in return does not seem to be good public policy.
Mr. Zubrycki: You have raised some good points. It is a difficult to strike the right balance between not interfering unduly with the rights of people who have demonstrated an ability to lead a law-abiding lifestyle, and not allowing the pardon system to become a mechanism that masks the background of individuals who may pose a risk to children or other vulnerable people. This is a tough question, and that is why the research is so important.
We looked closely at the numbers. We began this process when we received demands for a sex offender registry. There was a significant amount of concern about that. I do not want to get into that debate, but we concluded that it would be a costly and ineffective process.
We consulted widely with the volunteer sector, police, victims, and provincial governments. We came to the conclusion that what was really needed was as good a screening process as possible.
A couple of things grew out of those consultations. One was the National Screening System that has been in place since 1994. It allows volunteer sector organizations and others to screen applicants, leaving aside pardons. Anyone who applies can be asked to undergo a criminal records check as part of the screening process.
We also entered into a partnership with Volunteer Canada. They have been instrumental in promoting screening and expanding the screening process in this country by hundreds of percentage points. It has proven to be very valuable, spreading the message that screening should not rely solely on a criminal records check. People who do are falsely reassured.
On the other hand, it is an important part of the screening process. There was concern that using the National Screening System would lead to people with pardons being missed, which might be misinterpreted as a certificate of good conduct.
We have accepted that this is a practical problem. Our estimates show 114 new offences by pardoned sex offenders. In terms of the scale of the problem, that is not such a large number, but it warrants diverting resources from other important areas. With the cooperation of the police community, our department, the provinces, and the volunteer sector, we can do something.
The federal government agreed with all jurisdictions at a ministers of Justice conference that we would introduce a flagging system along these lines. This was the consensus among all those ministers. It was a compromise. It does not go all the way in any single direction, but it is considered to be a well-balanced and achievable proposition.
Ms Campbell: Denying eligibility for a pardon to certain categories of offences or offenders is a complex proposition, as you note. If we say that a certain type of offender shall never be eligible for a pardon, that means that in every aspect of their lives, whether it is obtaining a passport, a visa, or crossing into the United States, they will be forever at some disadvantage.
The choice reflected in Bill C-69 is that a sex offender in receipt of a pardon who wants to obtain a visa, or any of these other things, should be able to go about his business with the pardon intact. However, within certain narrow circumstances, such as if they choose to work with children or vulnerable people, they will come under some additional scrutiny.
Senator Andreychuk: I think that is what troubles me. You say that the pardon will be there for other purposes, such as obtaining a passport, et cetera. I am concerned about the likelihood of reoffending, since regardless of whether an individual reoffends in Canada, the United States or Chile, we are bound by the International Covenant on Children's Rights. If he is not rehabilitated, he is a risk, and that risk exists wherever he is for whatever purpose. The issue is not just reoffending in the workplace, but that he does reoffend. On the other hand, I do not think that saying he will never be eligible for a pardon would be correct either. However, setting up a process that looks at reoffending differently from other crimes, as we are now beginning to do with sexual recidivism, seems to me a less bureaucratic way of dealing with this issue. That would hone in on 114 cases. I believe that was the number quoted. Those are the 114 cases that we are balancing.We are looking at the likelihood of a child being molested and having to carry that memory for life, as well as at an offender having to carry a criminal record for the rest of his life.
Mr. Zubrycki: Bill C-69 does not deal so directly with reoffending. It deals with situations where you could reasonably expect a heightened risk because an individual with a record is seeking a position of trust with a particularly vulnerable group. As you can see, there is a difference between when those individuals seek a position of trust and when they apply for a passport or some unrelated sort of employment. In those cases, the pardon system would recognize the fact that they have returned to a law-abiding style of life. There is always some risk involved; however, it is not the focus of Bill C-69 to ferret out risky individuals, but to deal with the heightened risk in those narrow circumstances.
When it was first announced that Bill C-69 was coming forward, the first phone call we received was from an individual who said that he was a high school principal and that 35 years earlier he had committed some sexual indiscretion. He did not say what he did, but it was on his record. He wondered whether this would dredge all that up again, and the answer was yes.If he applies for a similar position, or a change of employment within the school board, it is possible. That is the price we pay on the one hand. On the other hand, there is still something this individual can do. He does not have to give his consent to a record search. Ultimately, it would be the Solicitor General who would decide whether this is really the kind of case where disclosure is warranted. However, to say to that individual that though 35 years had passed since the offence was committed, he could never expect to receive a pardon, would be going too far in our opinion. That was proposed by some of our consultants, but the consensus was that it would be going too far.
Senator Moore: Mr. Zubrycki, your words reminded me of something else. You said that some ex-offenders screen themselves out. They think that they have no chance, so they do not apply for a pardon. You talked about a success rate of 97 per cent. During the past 28 years, nearly a quarter of a million pardons have been granted, and slightly more than 6,000 have been revoked, usually due to a new offence.So you have had 250,000, plus 6,000 revoked applicants?
Mr. Zubrycki: There are denials as well.
Senator Moore: The 6,000 that were revoked.
Mr. Zubrycki: There were 6,000 that were revoked, plus a certain number that were denied, although there is a very high acceptance rate.
Senator Moore: What was the number in the past 28 years? I was thinking about Senator Andreychuk's comment here and trying to relate that to the balancing act that we were discussing. What is the number of convictions in that period of time? We have convicted individuals who have not sought a pardon, those who have been convicted but granted a pardon, and those who sought one but were denied.What is the total that we are dealing with?
Mr. Zubrycki: Are we talking about pardon applicants or all offenders?
Senator Moore: I am talking about sex offenders. I want to know how many in that 28-year period. Do you know specifically how many were pardoned? What is the total number of pardons that we are talking about here?
Mr. Zubrycki: I do not have that number right now. However, I can tell you that there are 2.5 million records of all kinds on the CPIC system. I do not know what proportion of those are sexual offences; it might be approximately 10 per cent. We could get that number, but I do not have it right now.
Senator Moore: It might be interesting to know that, senator.
Senator Andreychuk: Do you want them by person or by crime?
Mr. Zubrycki: Also, there has been a shift in reporting behaviour during that time. Sexual offences are now reported at a higher rate than they once were. In addition, we are also seeing some historical offences that are 30 or 40 years old being reported now. That reporting pattern distorts the assessment of how many there are.
Senator Moore: However, you are using that calculation to justify your support for this bill.
Mr. Zubrycki: Yes I am.
Senator Moore: What is the other side of it?
Mr. Zubrycki: How many would be eligible to apply but do not? I do not have that figure, but as I say, we could obtain it.
Senator Fraser: Not just how many would be eligible, which suggests they would receive the pardon if they asked for it, but how many were convicted, and then for the same period, how many pardons were actually granted. We know about the pardons.
Senator Andreychuk: I think we need to know how many people were convicted and how many separate criminal charges led to convictions, because it could be the same person reoffending. I do not know which body of knowledge you want. Do you want to know how many offences have been committed in Canada that have led to a conviction, or how many people?
Senator Moore: I would presume that, given the comment in the minister's presentation, it would be on the basis of people, because you do not pardon offences, you pardon individuals. When an individual receives a pardon, can it be for a number of offences?
Mr. Zubrycki: Yes, the total record is pardoned.
Ms Campbell: We can obtain for you the number of convictions for sexual offences over the past 20 or 28 years from the Canadian Centre for Justice Statistics.
Senator Moore:You should use the same phrase.
Ms Campbell: I am uncertain as to whether it would be persons or offences.
Senator Andreychuk: I do not think they keep statistics on the basis of convictions but on people.
Ms Campbell: We can give you what we have.
Senator Moore: Whatever was the basis for the calculation and determination of this figure should be used to answer our queries.
Mr. Zubrycki: Keep in mind that it is easier to calculate our figures because we have a limited number of actual cases.
Senator Beaudoin: I know that for many years we have developed a tendency to govern by regulation. I do not have a problem with that most of the time -- except in criminal law. I do have a problem when you define children and vulnerable persons for purposes of criminal law.
I do not see, prima facie, why it is left to the Governor in Council. It should be in the statute itself. Is there a reason that you need that flexibility legislatively?
Mr. Zubrycki: It was our judgment that the flexibility would be required, particularly around the offences. We developed that list of offences in collaboration with our provincial and territorial colleagues. We dealt with the ministry of the attorney general in all the jurisdictions, to decide what would be the appropriate list of offences that normally include sexual offences, particularly against children or vulnerability groups.
On the surface, some of the offences on the list would not necessarily signal that there is a sexual component. Some would not necessarily signal that they are offences against children. Therefore, we had to look at a number of criteria regarding offences that are normally sexual in nature or offences that normally target children or other vulnerable groups. To a certain extent, we depended on the expertise of the jurisdictional officials to define the character of these sorts of offences.
To some extent that list was negotiated. At one point, a request was made that we should include in the list a basket clause that would basically say "and any other offence the parole board chose to put a flag on" -- something like that.
For reasons related to civil liberties and Charter considerations, we were advised that that would be far too broad and that we would have problems with it. On the other hand, we recognize that the list will probably have to change over time, either because the law changes or, with experience, we recognize that we are missing some or have overdone others.
Senator Moore: We should be coming back for that change.
Senator Beaudoin: I understand that. However, why do you not put that in the statute?
Mr. Zubrycki: It is a matter of practicality. We know that it can take a considerable period of time to make some of these changes. In this case, we may be faced with situations that others regard as urgent and we might not be in a position to move quickly enough. That was a consideration. I recognize that this is a judgment call, but that was the consideration that went into this.
Senator Beaudoin: I would not object if it were an administrative statute. In fact, most of the time I would not object. However, criminal law is fundamental. A crime is a crime. You are leaving this to the executive instead of leaving it to the legislative branch of the state.
Mr. Zubrycki: The regulatory changes would go through the normal scrutiny process. They would come before committee and would be dealt with that way. There would be a process of consultation.
Senator Beaudoin: It is too late, it is after the fact.
In your opinion, this is necessary; is that correct?
Mr. Zubrycki: I think it is important that we have this flexibility. Certainly at this early stage, I think that is very important.
Ms Campbell has mentioned that we have taken a similar approach with schedules to the Corrections and Conditional Release Act, where those schedules are amended by order in council. It is for similar reasons.
Senator Beaudoin: Does the word "children" change often?
Mr. Zubrycki: The word does not, but the definition could.
Senator Beaudoin: A child is a child.
Mr. Zubrycki: There are different definitions of "child." We chose one, and it is there.
Senator Pearson: We agreed to one with the Convention on the Rights of the Child.
Mr. Zubrycki: Nevertheless, there are different definitions for different purposes in the law.
Senator Beaudoin: A minute ago you said that we could not say "or other offences of the same nature." It is not precise enough to follow the test of the Charter. We leave that to the executive branch.
Senator Fraser: I would make the observation that this is in fact administrative legislation. The only new offence created in this bill is that of unauthorized access to the registry. This bill does not create any crimes. It says that the minister may list certain numbers of crimes in regulations for the purposes of an essentially administrative proceeding. Even though it does come under the Criminal Code, it is a largely administrative element of the Criminal Code. This is quite different from leaving the minister free to determine what does and does not constitute murder. That is not what we are doing here.
The Chairman: Good point.
Senator Bryden: Once again, I am concerned about the fact that, in reading the bill itself, there is nothing that circumscribes the offences that can be listed. Most of the ones listed in the regulations are sexual offences, or relate directly or indirectly to a sexual offence. For example, an earlier witness said that young people are subjected to abuse, not just sexual abuse, but physical abuse, emotional abuse, and neglect. Clearly, the same thing would apply to vulnerable persons, who are often persons who, as the expression now is, have lost their autonomy because of Alzheimer's or whatever.
The logical way to follow this bill is to go to 6.3(2), which says:
At the request of any person or organization responsible for the well-being of one or more children or vulnerable persons...shall verify whether the applicant is the subject of a notation made in accordance with subsection (1) if
(a) the position is one of authority or trust...
(b) the applicant has consented in writing...
That goes back to 6.3(1) which says that:
The Commissioner shall make, in the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police, a notation enabling a member of a police force or other authorized body to determine whether there is a record of an individual's conviction for an offence listed in the regulations...
After that, you must say that 9.1 lists the regulations.
There is nothing in the empowering section, empowering the making of regulations, that says that the offences shall be sexual offences or sexual-related offences.
Normally, the regulatory empowering section is clear enough such that the Governor in Council cannot go outside the intent of the act. There is nothing here that indicates that the intent of the proposed act is to restrict it to sexual offences.
That is what many of us find very difficult to accept. I cannot even read it in there. I do not think a judge could read it in there. That is the problem.
I do not expect you to answer. However, as you probably can sense, we have a bit of a problem here as to whether this can proceed.
Mr. Zubrycki: I would like to make a comment. You are quite right in your observation. I am sure that we could devise wording in the proposed legislation that would somehow contain this.
When you look at that list of offences, although you will see that the concentration is on sexual offences -- and certainly that was our focus and intent -- there are a number that are not necessarily, in and of themselves, sexual in nature. Therefore, to some extent, we are going on experience that they are frequently committed for a sexual purpose, even though that is not immediately apparent.
To capture that properly in a definition would not easily be done. I am certainly not saying that it would be impossible, but it would not be that easily done. Since we have had no experience in applying this scheme, we might well limit ourselves in a way that we would regret later.
It was that thinking that went into this formulation. Certainly, it is up to you to agree or disagree with it.
Senator Bryden: I appreciate that. When I first read this, I did not think that it was restricted to sexual offences but that it could apply as well to the case of a child having been kidnapped. I think we need to address that issue.
Are there convictions for which there are no pardons?
Mr. Zubrycki: Yes, murder and anything with a life sentence or indefinite sentence. Because the sentence is never completed, the person is never in a position to apply for a pardon under the Criminal Records Act. Of course, there is always the Royal Prerogative of mercy, which is seldom used.
Senator Bryden: Is the fact that a pardon is not available for a convicted murderer because of the offence or because of the penalty that is attached to the offence?
Mr. Zubrycki: It is because of the penalty.
Senator Bryden: That is because it is a life sentence.
Mr. Zubrycki: That is right. There are no offences that, by the nature of the offence, are excluded from being considered for a pardon.
Senator Bryden: There are a number of crimes besides murder for which the maximum penalty is life.
Mr. Zubrycki: That is right.
Senator Bryden: Are those pardonable?
Mr. Zubrycki: Yes, unless they receive the maximum penalty.
Senator Moore: Mr. Zubrycki, we heard comments this morning about the intent of this bill. It is intended that it cover sexual offence crimes. The front page of the bill says that it is "An Act to amend the Criminal Records Act and to amend another Act in consequence." I will repeat what I said this morning with respect to the Criminal Records Act, where the intent is clearly stated as providing relief for persons who have been convicted of offences and who have subsequently rehabilitated themselves.
As a matter of policy, does your department still hold to that intent, or has the intent of the law as originally passed in 1970 changed, or is it changing?
Mr. Zubrycki: It is certainly not changing in any general sense. To the extent that you would regard Bill C-69 as inconsistent with that intent, I suppose it has changed that much. Again, this is seen as a very narrow exception.
Senator Moore: I see it as quite a change, which is what Senator Andreychuk was alluding to earlier. It is a pardon but it is not. I do not know how that feathers with the stated intent of the law when it was enacted back in 1970. Can you tell us a bit about the department's policy direction on that point?
Mr. Zubrycki: I would have to say that this is an exception. It is still the policy, which is the policy supported by the department and by every minister with whom I have been associated since the act has been around. This is a narrow exception to that policy. However, it is certainly not a change in the fundamental policy or its direction.
Senator Moore: It is narrow in that it applies only to sex offences, something that is not stated in the bill.
Mr. Zubrycki: It is stated insofar as there is a list of those offences.
The Chairman: Only in the draft regulations.
The evidence we heard this afternoon was very interesting. Ms Bowan said that running police checks on volunteers or anyone else is a fairly ineffective way of screening out future problems. She did not seem to feel that this bill would improve that situation to any great extent. She felt that a multiple-step screening process is a more effective way of solving the problem that this bill attempts to solve.
The representative from the Canadian Human Rights Commission said that a bona fide exception, that is, a convicted sexual offender being put in a position of working with children, was acceptable.
Nowhere in this bill does it say anything about sexual offenders or someone who has committed a sexual offence and been found guilty. Personally, I have a lot of problems with the bill because it does not say that and because it leaves much to the regulatory process. Nowhere in the bill does it say that it should come back before the House of Commons or the Senate for scrutiny of these regulations that may or may not be drawn up in the future.
We have only a list of draft regulations that we received halfway through the morning, which I still have not had time to read properly. Normally, as Chair, I do not take a great part in the discussion; I leave that to the senators around the table. I will leave you with the premise that I do see problems in this bill. I see it taking away from the supremacy of Parliament.
Mr. Zubrycki: To respond to Senator Moore, the information I have right now is that about 15 per cent of existing records include a sex offence on the record. To put it another way, that is about 1 per cent of convictions on an annual basis. Each record could contain a number of convictions.
The Chairman: At this point, I should like to thank you very much for appearing before us. I believe that we should move now to discuss future business of the committee in camera.
The committee continued in camera.