Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 20 - Evidence

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-15A, to amend the Criminal Code and other acts, met this day at 3:37 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. This meeting is now in session. Today, we begin our consideration of Bill C-15A.

We have with us today, once again, Minister McLellan. She is accompanied by officials from the Department of Justice.

Welcome once again, Madam Minister. Please proceed.

The Honourable Anne McLellan, Minister of Justice and Attorney General of Canada: As you know, honourable senators, Bill C-15A is an omnibus bill that contains a number of important improvements to the criminal justice system. I shall begin by highlighting its various elements.

First, it contains measures that provide additional protection to children from sexual exploitation, including sexual exploitation involving the use of the Internet. It also contains proposed amendments to strengthen the law in the areas of criminal harassment, home invasions and disarming a police officer. Next, it contains amendments to the review process for allegations of miscarriage of justice, criminal procedure reform amendments and, finally, amendments to the National Capital Act and National Defence Act.

I shall turn first to the portion of the bill that is designed to provide additional protections for our children.

[Translation]

These provisions respond to the commitment made by the government in the Speech from the Throne to safeguard children from criminals on the Internet.

[English]

New technologies have created a new environment. We are all aware of the potential for misuse of technology. We know of stories of child exploitation and pornography through the Internet. While the Internet is used primarily for good, it can be used for evil as well.

This bill creates the offence of luring. It criminalizes communicating with a child through a computer system for the purpose of facilitating the commission of a sexual offence against a child under 18 years of age or the facilitation of the abduction of a child. Provincial premiers expressed support for this initiative at their forty-second annual conference last August.

We are all aware of luring in other contexts and by other means. We believe it is important to ensure that we are dealing with luring through the modality of the Internet, to which we all know that more and more of our children, at quite a young age, have access. They feel comfortable with the Internet. Even the most responsible parents cannot always know exactly what their children are accessing on the Internet, who they are communicating with in a chat room and what a person with whom they are communicating may be attempting to convince a child to do. Hence, we believe it is very important to ensure that Internet luring, as it has become known, is clearly criminalized for the purpose of the protection of our children.

Bill C-15A will further protect children by extending the scope of child pornography offences in order to ensure that those who deal with child pornography from its creation to its consumption do not escape criminal liability, regardless of the sophistication of the technology they use. This bill will create four new offences of child pornography and will extend the offence of possession for the purposes of sale or distribution to cover the new offences. It will create two offences that will cover cases that might not constitute distribution in a legal sense - an offence of transmitting child pornography, such as pornography sent by e-mail from one person to another, and an offence of making available, to cover those who post child pornography on a Web site without actively distributing it to others.

[Translation]

Bill C-15A also proposes to create an offence of exporting child pornography. This provision is designed to allow us to meet our obligations under international instruments. The Internet goes beyond borders and international cooperation is the only way we can combat child pornography on the Internet.

[English]

The bill will create an offence of accessing child pornography to capture those who intentionally view - the world "intentionally" being very important - child pornography on the Internet without legally possessing it because they do not have control over the material. The bill provides that a person would access child pornography when that person knowingly causes child pornography to be viewed by or transmitted to him or her. The definition ensures that inadvertent viewing would not be caught under this offence.

Concern about that was raised in the House of Commons and may be raised here. We are not dealing with inadvertent viewing of something that might be characterized as child pornography. We are talking about those who knowingly access this material and cause it to be viewed by or transmitted to themselves.

During second reading debate, a drafting error was identified, by Senator Nolin, I believe. The defences of artistic merit, education, scientific or medical purpose, and the defence of public good, which apply to all other child pornography offences, do not apply to the offence of accessing. This was the result of a drafting oversight. Sections 163.1(6) and (7), which provide for defences, should have been amended to include a reference to an offence under proposed subsection (4.1), which is the offence of accessing child pornography. We will therefore be proposing an amendment to ensure that defences currently available in relation to all other child pornography offences apply equally to the offence of accessing child pornography under proposed subsection (4.1).

I want to clarify the legal situation of the Internet service providers, or ISPs, as they are often called. As was the case for the existing child pornography offences, ISPs that have neither knowledge nor control over the child pornography that is transmitted via or stored on their servers will not be liable for transmitting or making available. The bill does not require ISPs to monitor the material that goes through their servers. Doing so would raise significant privacy issues in relation to Internet users and place an excessive burden upon the ISPs. I understand that they are already cooperating with the enforcement authorities, and I expect they will continue to do so.

I also want to clarify that the new offences will not allow the police to monitor what people are looking at on their computers. The police can only search a person's computer or intercept specified communications after obtaining a warrant from a judge where there are reasonable grounds to believe that child pornography will be found on the computer. That is the standard used in the criminal law generally when seeking the issuance of a search warrant.

The existence of new technologies also emphasizes the point that child pornography is a global problem. There is very little that one country can do on its own when images travel freely from one country to another and when residents of one country can easily store their material on a server in another country. Our efforts to fight child pornography must be made in cooperation with the international community. We are involved in several international initiatives. One of them is the drafting of the Council of Europe Convention on Cybercrime. One of the requirements of this convention is that the parties legislate under domestic law child pornography offences committed through a computer system. Canada signed the convention on November 23, 2001, the first day it was opened for signature, together with other 30 countries, including all of our G7 partners.

Last February, at the conference of G8 ministers of justice in Milan, ministers encouraged experts to explore the possibility of implementing a G8 database designed to assist in countering the sexual exploitation of children. Since then, Canadian experts have worked with experts from the G8 countries to explore the technical, legal and law enforcement implications of such a databases. A feasibility study will begin soon, and the first of a series of meetings of experts will be held in Ottawa in February 2002.

I want to say a few words about child sex tourism, a problem that has been identified by some who work with children. Senator Pearson is very aware of the challenges in relation to this, as well as more generally the sexual exploitation of children.

I want to remind colleagues as it relates to our international obligations that on November 10, 2001, as Senator Pearson knows, Canada signed the United Nations Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The optional protocol elaborates upon articles 34 and 35 of the U.N. Convention on the Rights of the Child. The optional protocol will create new higher standards for the protection of children against exploitation. As such, it will provide us with an important new tool to add to our arsenal for combating child sexual exploitation, including child pornography. I wanted to let honourable senators know that not only are we working domestically, we are very active with our colleagues around the world to ensure that we have in place multilaterally the kinds of agreements and systems necessary to protect our children.

Let me make plain that child sex tourism is unrelated to the Internet. However, it is an important area. In fact, my predecessor Allan Rock made changes to the Criminal Code to deal with child sex tourism some years ago. We are proposing an amendment to these provisions. The provisions enable Canadian courts to assume jurisdiction in relation to Canadians who have committed sexual offences against children while abroad. Currently, and except for child prostitution offences, Canadians can only be prosecuted in Canada upon receipt of a request to that effect from the foreign country in which the offence was committed and with the consent of the Attorney General.

Bill C-15A proposes to simplify this process by eliminating the procedural requirement of the formal request by a foreign country, thereby enabling Canadian prosecutions to be initiated more quickly.

The government recognizes the need for new measures to better protect our children against sexual exploitation. The government also embraces the opportunities that globalization and new technologies present. Bill C-15A reflects in a concrete way our commitment to achieve the former without unduly impairing the latter.

I should now like to turn to the issue of criminal harassment, an issue I know you in the Senate have considered in some detail because of Senator Oliver's private member's bill on this subject. Criminal harassment, which is often referred to as stalking, is a serious matter. Just last week we saw another example of how serious it can be.

The effect of criminal harassment upon victims can be both devastating and long term. We know that anyone can be a victim of criminal harassment. A popular portrayal of these victims is that of a celebrity or public figure. However, we know from Canadian statistics that women are overwhelmingly the victims of this crime, in 8 out of 10 cases, and that men are the offenders in 8 out of 10 cases. In many of these cases, there has been a prior relationship between the victim and the offender.

Bill C-15A proposes to increase the current maximum penalty for the offence of criminal harassment from 5 years to 10 years, so that the criminal law will more accurately reflect the serious nature of the offence. This proposal, which I am pleased to note is strongly supported by my provincial and territorial counterparts, is part of our twofold commitment to ensure that the criminal justice system recognizes criminal harassment for the serious offence that it is.

The other key component of our commitment is a handbook for police and Crown prosecutors on criminal harassment. This handbook provides a comprehensive and practical set of guidelines for police, prosecutors and other criminal justice personnel regarding all aspects of a criminal harassment case, including victim safety.

These guidelines, which were released in December 1999, were developed jointly with our provincial and territorial partners and have been widely distributed across the country. The development of the handbook responded to the results of a review of the implementation of the 1993 criminal harassment provisions conducted by the Department of Justice. That review was released in 1997.

I have copies of the handbook in English and in French, and I will file same with the committee. This handbook has proved very useful for Crown prosecutors across the country, as well as for the police, although I know you will hear from the CPA, for example, in a little while. They might comment on their views as to the utility of the handbook. It was developed in partnership with police and prosecutors.

In his speech at second reading on this bill, Senator Nolin talked about not only the definition but also the fact that the implementation of this Criminal Code provision is what appears to be key. That is why the handbook was put together. It was to facilitate the implementation of the provisions, to ensure that people understand the nature and the seriousness of the offence and that police and prosecutors, regardless of where they work across the country, are working from a common set of understandings and standards. This is an area that we continue to watch very carefully. There are some resource issues about which we are all very sensitive. Something that we will have to monitor, even with the changes that I am proposing with the handbook, is the whole question of implementation. In other words, how are these provisions being used? Are they being used, and how? If not, why not? I think it is an area in which we will need to continue to monitor the implementation of this law because criminal harassment or stalking continues to be a tragic problem with tragic consequences. It is an area that we all know is important and difficult. We will have to continue our work together.

I thank Senator Oliver for the work he has done on his private member's bill. It has helped to increase the attention and, I think, the general level of familiarity with harassment.

That is what we are proposing to do in relation to criminal harassment.

[Translation]

Honourable senators will certainly be aware that this bill deals with home invasions. The proposed amendment will specifically identify home invasion as an aggravating circumstance that the judge must take into consideration at the time of sentencing.

The proposed amendment will make it clear that the Government of Canada views home invasion as a serious crime that should be met with significant penalties.

[English]

In our view, the creation of an aggravating sentencing circumstance presents a balanced and reasonable approach to the issue of home invasions. This proposed amendment signals that home invasions are serious conduct that should be met with significant penalties. In our view, a separate offence is not needed. In fact, this offending behaviour is already covered by existing offences in the Criminal Code, such as break and enter, robbery and assault. Courts are already dealing with this type of conduct appropriately.

On this point, courts of appeal have certainly sent direction to lower courts in this country in relation to those factual circumstances we describe as a home invasion. In fact, courts of appeal are increasing sentences. The Quebec Court of Appeal increased a sentence from 10 years to 14. In Manitoba, a sentence was increased from five years to eight. A 15-year sentence was upheld on appeal in Nova Scotia. A 10-year sentence was upheld on appeal in Alberta. Courts of appeal are sending a very clear signal as to the aggravating nature of a home invasion. Indicating to lower courts through our proposed amendment that we see it as an aggravating circumstance is the appropriate approach as opposed to creating a new offence.

Let me briefly speak about disarming a peace officer. Bill C-15A creates for the first time in our Criminal Code a new distinct offence of disarming or attempting to disarm a peace officer who is acting in the course of his or her duties. I want to thank the Canadian Police Association for their strong support of this amendment. The new offence would apply to anyone who tries to take away an officer's weapon when the officer is acting in the course of his or her duties. The offence would carry a maximum penalty of five years. We believe this penalty reflects the seriousness of the offence and sends a clear message that taking a police officer's weapon will not be tolerated. I do not need to tell honourable senators that police officers are of course particularly susceptible to this when trying to arrest an individual. That person may try to take the officer's gun, an action that can lead to tragic consequences.

Bill C-15A also contains very important amendments to the post-appellate conviction review process in Canada. We call this the "690 process." The conviction review process is reserved for people who have already exhausted all judicial avenues of appeal concerning their conviction and who allege that they have suffered a wrongful conviction.

Applications of a post-appellate conviction review are made to the federal Minister of Justice, who determines on the basis of new information not available at the time of trial or appeal whether it is appropriate that the case be returned to the judicial system. This review process is the final safety net for those who are the victims of wrongful conviction. It allows appropriate cases to be returned to the judicial system.

After reviewing the submissions received and carefully studying the Criminal Cases Review Commission, which was created in Great Britain in 1997, I concluded that the most appropriate process for the Canadian system is that which is before you in Bill C-15A. I concluded that the ultimate decision-making authority in criminal conviction review should remain with the federal Minister of Justice, who is accountable to Parliament and to the people of Canada. This recognizes and maintains the traditional jurisdiction of the courts, while providing a fair and just remedy in those exceptional cases that have somehow fallen through the cracks of the conventional justice system.

There are many reasons why I concluded that a formal and separate body for conviction review was inappropriate in the Canadian context. Our experience with cases of wrongful conviction bears little resemblance to that of the United Kingdom. For example, the British Criminal Cases Review Commission was established because of a perceived conflict of interest for the Home Secretary, who was responsible for policing and prisons, as well as for the review of allegations of wrongful conviction. Many of these cases involved allegations of misconduct by the police. Hence, you can see why the allegation of conflict of interest would arise.

As Minister of Justice, I am not in the same perceived conflict position as was the case with the Home Secretary in Great Britain. In Canada, the Minister of Justice is not responsible for the police or the prison system. Furthermore, in Canada, the provincial attorneys general are largely responsible for prosecutions.

Since it began operations in 1997, the British Criminal Cases Review Commission has received approximately 1,000 applications a year. In fact, when it was first established, they were flooded with applications, most of which were deemed to be frivolous and vexatious. In Canada, as the minister responsible for the review of alleged cases of wrongful conviction, I receive approximately 70 requests per year for a conviction review.

However, having concluded that a separate body for conviction review was not needed in Canada, I must also say that the consultation process we undertook convinced me that maintaining the current state of conviction review was not a desirable option and that amendments to the current legislation were warranted. Bill C-15A seeks to improve the current procedure for reviewing alleged wrongful convictions in Canada by making it more efficient, open and accountable.

The British commission now receives funding, the equivalent of about $12.4 million Canadian a year. Even with a staff of 80 persons, it still has a backlog of about 460 cases, compared to about 69 in our criminal Conviction Review Group.

Section 690 of the Criminal Code does not currently state when an individual is eligible to apply for a conviction review. The amendments in Bill C-15A clarify when someone is eligible to apply for a review. The person must have exhausted all avenues of appeal. It will now be clear that the conviction review process is not an alternative to the judicial system. There should be no misunderstanding about the section 690 process.

There is a need to set out the procedural requirements for conviction reviews, as it is not clear how one applies for a review and what documents are required to file an application. The amendments allow for the enactment of regulations setting out the form, information and documents needed to apply for a conviction review. This will make the process more accessible.

Critics claim that the current process of conviction review is secretive, as applicants are unaware of the review process. The amendments provide that the stages of the review process will be set out in regulations. This will assist applicants by making the entire process of conviction review more understandable. As well, the factors that will be considered in determining when an applicant may be entitled to a remedy are now clearly set out in the amendments. Therefore, the Minister of Justice will be more accountable in the conviction review process.

Section 690 as presently constituted does not provide powers of investigation. The amendments to the conviction review process will provide investigative powers to those investigating cases on my behalf. This will allow, for the first time, investigators to compel witnesses to testify and documents to be produced. This will enhance the thoroughness, effectiveness and timeliness of the review process.

In order to make the conviction review process more open, Ministers of Justice will be required to provide an annual report to Parliament with respect to applications for a conviction review.

The Criminal Code currently limits conviction reviews to those who have been convicted of the more serious indictable offences. In recognition of the fact that any wrongful conviction is wrong and threatens public confidence in the justice system, Bill C-15A proposes that conviction reviews be expanded to allow for the review of any federal conviction. This means that the power to review alleged wrongful convictions will be expanded to include the review of summary conviction offences.

I also intend to make administrative changes to improve the conviction review unit, thereby making the process more open, accessible and accountable. The conviction review unit will be expanded to include investigators, and a Web site will be created to give applicants information on the process. A special adviser will be appointed from outside the Department of Justice to oversee the review of alleged wrongful convictions. Basically, this will be a new person in my department to head up the investigative unit within the Department of Justice that does these conviction review investigations. This person will be hired from outside the department and will report directly to me, thereby adding a further degree of independence from the department.

I am confident that these amendments are the most efficient and effective way to improve the post-appellate extrajudicial conviction review process in Canada.

Madam Chair, there are other changes. They are important in this legislation, but in light of the time, let me quickly say that in Bill C-15A we are implementing the third phase of our reform of criminal procedure. This has been undertaken in consultation with the provinces and territories. We have consulted widely with those in the bar, the criminal defence bar in particular. You may hear from them in relation to some of these proposals.

We are streamlining the process of preliminary inquiries. We are updating the Criminal Code to permit the use of technology so that, for example, people can testify via videoconference where appropriate. In this way, a person some distance away will not have to be physically present in the courtroom. These are important amendments to our criminal procedure.

Again, this is a third phase, and we will continue. There will be more phases as we modernize our criminal procedures to bring them into the 21st century, while continuing to respect the due process rights of the accused.

As well, Madam Chair, there are small amendments to both the National Capital Act and the National Defence Act. I will say nothing more about those. I would not describe them simply as consequential amendments. However, they are certainly important to the two ministers who asked me to include them in this omnibus legislation.

[Translation]

I would be happy to answer questions about this bill.

[English]

Senator Nolin: Thank you, Madam Minister, for accepting our invitation to appear before our committee again. Thank you for listening and reading my comments on second reading.

Ms McLellan: I read them last evening.

Senator Nolin: Yes. I believe there was a slight error in the drafting.

Ms McLellan: We agree that that needs to be amended.

Senator Nolin: Madam Chairman, various topics are covered by this bill. Do you want us to cover each area one by one, or collectively?

The Chairman: Ask your questions and we will have the minister answer each question.

Senator Nolin: So we will go back and forth from subject to subject.

As you noticed in my remarks, there was also the question of the service provider. I am sure you are not suggesting that without mens rea they -

Ms McLellan: Not at all.

Senator Nolin: The concern I have, which is I am sure shared by these ISPs, is this: How can we protect them and ensure the way we create the infraction does not include them en passant? Of course, they are responsible for distribution. Of course, they will be part of an infraction, if we are not meticulous in the way we share with these individuals who, in good faith, are part of the technical evolution of our country. In doing that, of course, some people both within Canada and outside Canada are committing serious offences by permitting child pornography to be available.

How can we ensure that service providers are protected?

Ms McLellan: As you know, at committee in the House, there was some lengthy discussion around this issue. There have been three possible proposals put forward by Internet service providers that might clarify their situation.

I will let Ms Lafontaine talk a bit about this because she has been working with the Internet service providers, and others. We believe that the law as it presently exists will not be interpreted or lead to the unintentional inclusion of ISPs in terms of the committal of any of the offences set out here as it relates to child pornography. However, I am certainly sensitive to the concerns of the ISPs. We want to work with them cooperatively. I must say that, to date, they have been very cooperative. We do not want to unwittingly place them in jeopardy.

With that, Ms Lafontaine will say more about this matter.

Ms Lisette Lafontaine, Senior Counsel, Criminal Law Policy Section, Department of Justice: The ISPs have expressed two concerns. One is in relation to their criminal liability. The other one is a technical concern.

[Translation]

As far as their liability is concerned, the problem foreseen by the companies resided in the fact that in the offence of accessing child pornography, we defined the term "to access" as being to "knowingly cause" child pornography to be viewed. And because we use the expression "knowingly" in the definition of the offence to access, service providers feared that we would be able to say that they were transmitting child pornography without knowing so. Obviously, all of these offences are mens rea offences and the legislation does not say that the infraction of accessing must be made knowingly. The bill states that the offence is simply an offence of accessing, just as the offence of transmitting is simply one of transmitting and not of knowingly transmitting. The problem resides solely in the inclusion of "knowingly" in the definition of the term "to access." I believe that the companies have been reassured by the statement that the Minister of Justice made before the Senate Committee on Legal and Constitutional Affairs and before the House of Commons committee, indicating clearly that the intent of Parliament was not to make them liable in cases where they were not aware of it.

Senator Nolin: Can that be done technically?

Ms Lafontaine: One of the problems raised by the companies was the issue of multiple copies made during automatic updates, when, every evening, the system copies its own content. Service providers said that they did not necessarily know how many copies they had or where they were located. They confessed that they needed to do some work in order to obtain this information.

This problem was not created by this bill: it already exists when the police advise service providers that their site contains child pornography. If they do nothing to resolve the problem, they are found to be in possession of child pornography which, in itself, is an offence. This is a problem that the companies are already experiencing and it has not been eliminated by Bill C-15A. However, Bill C-15A provides them with a process which enables them to resolve the problem under the most difficult circumstances, namely, when they do not know who put the pornography on the Internet.

The other issue raised by the service providers was that they cannot guarantee that the material they remove will not be posted again by somebody else. Indeed, they are compelled to withdraw the pornographic material as soon as the court requires them to do so. Since they are under no obligation to monitor what is going on on their system, they cannot be held liable for what occurred following the court order.

[English]

Senator Nolin: You will recall a few years ago that the CRTC said it was too complicated and they did not want to get involved. What has changed for you in the Department of Justice since the CRTC said that? You are now saying that you can move into this area of technology and try to reach the real offenders, not only in Canada but internationally. What kind of discussion have you had with colleagues from other jurisdictions outside Canada to make it effective, not only in Canada but abroad?

Ms McLellan: The reality is - and Ms Lafontaine can correct me if I am wrong because she is the expert on this - we are not really regulating the ISPs. We are targeting the people who would use the technology, the modality made available by ISPs. We are targeting those who would access, transmit and/or possess child porn, among other things.

There is no attempt here - beyond what we have said in terms of, for example, the court being able to order the deletion of that which is ultimately concluded to be child pornography from a site. There is no attempt to regulate the Internet in the way that the CRTC talked about it. That which ISPs do, they will continue to do. They voluntarily police themselves or regulate themselves. They are working with Industry Canada on that. I think we have all agreed that voluntary regulation, at least at this point, seems to be the best way to go. No one disagrees with that. I do not think the ISPs have any real disagreement with what we are attempting to achieve here. They do not want child porn on their sites. They want to ensure that they are not unwittingly charged with a crime when that was never the intention. They are as keen as anyone on cleaning up their sites. After looking at the material that has been brought to its attention and having a hearing, if the court determines that it is child porn then the ISP will delete it. If a determination is that it is not, then it will be returned to the site.

We are not regulating this area. The obligations for the ISPs are minimal. As I understand it, these are obligations they are willing to take up and see as important.

Internationally, you are right. We need to work multilaterally to ensure that, to the greatest extent possible, we are working with law enforcement agencies in other countries so that we are able to facilitate investigations as to who puts the material on the site. It may be put on a site in California by a Canadian. Again, on the law enforcement side, we need to ensure that our law enforcement agencies are working closely together. Sometimes these are complex investigations. Let's face it, sometimes the evidence disappears with the push of a key.

These are all issues, not only in the child porn context but in some others, on which we are working with the G8 and the Americans. It falls under the broad definition of cyber crime set out by the European Union. We have worked very closely with them on that.

Certainly, you are quite right, we need to have our domestic laws in order, and not only to deal with this matter here at home. If our domestic laws are in order, it will also help other countries that want to do investigations. As we have seen recently, the United Kingdom is undertaking major investigations of global child porn rings. I cannot comment on that; it is an RCMP investigation. Certainly, the papers indicated that Canadians were involved. Whether that is true or not is a matter for the RCMP. However, I think it speaks to the nature of the global multilateral investigations that take place today. We have to have our house in order. Other countries have to have their houses in order so that we can facilitate law enforcement. Whether it is mutual or reciprocal recognition of warrants and other things, these are difficult issues and they invoke sovereignty in some cases. Some of these things we are just working out now in terms of how we can facilitate effective police operations and then prosecutions.

Senator Pearson: As you know, I will be leaving at the end of next week for the congress in Yokohama against the sexual exploitation of children. On the whole, I am proud of what we will be able to tell them about what Canada has done in the last five years since Stockholm.

There are three questions that have been published in reports evaluating Canada's behaviour. Personally, to some extent, I think they are based on misunderstanding. It might be helpful if you could clarify them a bit so that it is easier for those of us who will be there to hold our own.

My first question is around the Sharpe case. As I understand it, to some extent this bill is in response to that case. The misunderstanding is that somehow the Supreme Court judgment in Sharpe had the effect of dismissing our pornography law. I think that is a real misunderstanding. It would be helpful to have your remarks on that.

Ms McLellan: In fact, the Supreme Court of Canada upheld our pornography law. We saw that as a significant victory, if you like, for children and for the police who investigate allegations of child pornography.

In light of Sharpe, we need to monitor this area very carefully. We have talked to our provincial and territorial colleagues about this. We must monitor this carefully and determine, flowing from Sharpe, whether there are any serious gaps in our existing legal structure, which includes the Criminal Code, supplemented by the provisions that you have here before you.

To date, there is no evidence that there are gaps flowing from Sharpe that are causing law enforcement authorities or prosecutors a problem. If those do arise, then clearly we will have to take a look at this and figure out how to plug those holes, if there are any.

To date, however, it is my understanding that the law as it is written was upheld in large part by the Supreme Court. What we are doing today supplements that in important ways. We will continue to monitor this.

It is a terrible misunderstanding if people suggest that somehow the Supreme Court of Canada struck down our pornography law. In fact, the Supreme Court of Canada upheld our child pornography law.

Ms Lafontaine: The exceptions that were created by the court are very narrow. We do not expect them to apply in many cases. We have still not heard of any person invoking these exceptions.

Ms McLellan: For example, one of them involved the whole product of one's imagination, that you then put in a drawer and share with nobody whatsoever. In fact, if it were shared even with a family member the individual would have committed a criminal offence.

Ms Lafontaine: The other exception has to do with an individual's own record of his or her lawful sexual activity. The Supreme Court wanted to cover the case of a 16- or 17-year-old who has lawful sex who should be able to record it if desired. These are very narrow exceptions.

Ms McLellan: For example, under our law, an individual over the age of 16 in most provinces can lawfully marry. The Supreme Court said that we would not want a situation where two people who were 17-year-olds could be lawfully married in most provincial jurisdictions but could be charged with child pornography because they had taken pictures of each other.

The exceptions identified by the Supreme Court were very limited. They have not caused law enforcement authorities problems to date. Certainly, we did undertake with the provinces and the territories and with police to monitor this.

If either of those two small exceptions or clarifications by the court creates a problem, we will look at that. However, the product of one's mind or imagination, if not shared with anyone whatsoever, can be a problem. I do not think we want more thought police. I think the court reflected that fairly.

Senator Pearson: That is helpful.

Ms McLellan: Senator Pearson, I do not know whether we have provided you with written clarification on that point, but if we have not, we will.

Senator Pearson: What you have placed on the record is helpful.

A second question concerns the fact that certain offences in the bill relate to the age of consent. You said that all offences related to sexual exploitation, if they are done without electronic media, are the same. Did I understand you correctly?

Ms McLellan: Yes.

Senator Pearson: This is not an issue for me, but it is out there with respect to how the age of consent relates to the provisions in this bill.

Ms McLellan: Age of consent is an important but separate issue because it deals with a broad range of issues and sections in the Criminal Code. It is quite true that there are different ages for different offences - 14, 16 and 18. In fact, the Department of Justice has undertaken a major consultation. The consultation paper is entitled, "Child Victims and the Criminal Justice System." That consultation has concluded. It was conducted across all provinces and territories, I believe. The results will be reported to my provincial and territorial colleagues, as well as to myself, by December 31, we hope. Some of that work has taken longer because following the events of September 11 some of the people in our Criminal Policy Branch were pulled off various files to deal with Bill C-36 and other matters. However, we are hoping that those consultations will be reported to me by the end of the year or, if not, very early in the New Year. It is in that context that we will return to this issue of age of consent.

Certainly, there are some who suggest that the age of consent for lawful sexual activity should be 16, with an exception for "near in age," which presently exists in the code. There are some - very few - who suggest it should go to 18, and some who suggest that it should stay at 14. In fact, even among the provinces, there are differences of nuance as to the complexity of changing the age. It is not a simple thing to say, "Let us change the age to 16; that will solve all of our problems." It might solve some problems, but if we do not do it right it will create a number of other problems.

We do not want to end up criminalizing consensual sex by young people. Whether we like it or not, this is the world we live in. I do not think the police want to be out and about tracking down 16-year-olds involved in consensual sex. We must be careful that we do not create a different set of problems. However, we are looking at age of consent as part of the larger consultation on the child as victim.

Senator Pearson: There are other issues related to the age of consent, such as adoption. Some age issues are provincial, of course. There are also cases of custody and access.

Ms McLellan: Most age issues are in the context of the criminal law. You are right in that most of the others are within the provincial jurisdiction, such as child welfare.

Senator Pearson: Except possibly the one in the Divorce Act.

Ms McLellan: Yes.

Senator Pearson: It is very helpful to have that on the record.

You referred to a recent case, but there was an older case. The recent case is under investigation, the one that came out a few weeks ago with a big break in the porn ring. The earlier case, which I think was called the Wonderland case, has also brought forth questions from people who are being very critical of Canada. You may not be able to say anything about that. Will some of the provisions in this bill help in that case?

Ms McLellan: Yes. Mr. Mosley is not here today, but he and I have talked recently about the various articles that have appeared in the paper. I cannot comment on those investigations, obviously. However, in our discussions, one of the things that I wanted to ensure was that what we are doing here will facilitate our police in getting at some of the things that obviously the Interpol investigation and the U.K. Home Secretary investigation have gotten at in those jurisdictions. We want to clarify and modernize our provisions in the area of child porn to ensure that people cannot slip through loopholes. We are closing a lot of loopholes related to child porn, such as the use of the Internet and technology as they relate to child porn.

It is possible that the police association or others from the law enforcement community might want to comment on that matter more directly in terms of the challenges they face in getting at those who are purveyors of or users of child pornography.

I attended the last G8 ministers' meeting in Milan. At the dinner before the official meeting, which was largely devoted to organized crime, a number of the European ministers talked about the growth of child pornography in their countries, its production and its accessibility. In their experience, they identified the fact that organized crime is starting to see the production of this stuff and making it available as another profit centre for them. That has not been our experience in Canada. As far as we can tell, organized crime has not been involved directly, in a large way, with child pornography. Those involved tend to be individuals who produce the stuff or access the stuff. Again, the police association might have views on whether that situation is changing.

I was struck by how everyone sees the growth of the child pornography industry globally as an emerging problem for all of us. The necessity, therefore, is for us to ensure that our laws are in order to deal with this problem.

I am reminded of the international data bank that is being created and that I mentioned in my comments. The first meeting is here in Ottawa in February. If and when that data bank is up and running, it should help with international law enforcement. Although the feasibility study is just being done, the idea is that we would be able to, among other things, access those convicted persons. I do not know whether fingerprints will be included.

Ms Lafontaine: I do not have the details. One of our officers is working with the other G8 experts on developing that data bank. I am not involved. They are trying to iron out the legal and technical problems, but there is a will at the international level to create this data bank.

[Translation]

Senator Rivest: As regards child pornography, I have a technical question to ask you about the definition. You talk about chats and e-mail. Is the video conference system that allows us to transmit documents technically covered by your definition of this term?

Ms Lafontaine: Yes, part of Internet can do this, if you are talking about a live show, yes, that is covered. We knew that this is one of the problems that we had to resolve.

[English]

Ms McLellan: It is interesting that you raise this question because it is something that I had not appreciated in terms of the sophistication of the production of this stuff and the purveyors of the stuff. You talked about something I had not heard of before. In fact, it is almost like a live broadcast. Someone can be sitting here in Canada watching the actual sexual abuse of a child happening somewhere.

Ms Lafontaine: In some cases, they are directing it. They can give directions. It is sick.

Senator Rivest: Is that covered by this, when a child is involved in the video?

Ms McLellan: Yes.

[Translation]

Senator Rivest: As regards clause 84 on electronic documents, we have a problem in the Quebec courts where tens if not hundreds of bikers are asking that evidence be produced. Will this clause deal with this situation?

All Canadian citizens are entitled to receive all of the documents and evidence in French or English. In some cases, we were told that there were crates of documents and hundreds of recordings. Translating all of that material is problematic. Has your department started thinking about how the evidence could be transmitted while at the same time respecting the constitutional right of every Canadian to have all these documents in both languages without this becoming too heavy a burden for the administration to accomplish this in both languages or in written format instead of doing it on diskette?

The provisions of clause 84 are not as broad. Does your department intend to resolve this problem?

[English]

Ms McLellan: The point you raise generally is a good one in terms of, for example, organized crime trials. It will be true also of complex terrorism trials and even some complex child porn trials where you are dealing with multiple parties and cross-jurisdictional matters.

There is no question that all of us have to work harder to bring our justice system into the 21st century as it relates to the use of technology, and resources are in issue here.

It would be nice, as opposed to having box after box of hard copy like this that one provides at the request of defence counsel, to have a disk with all the information. Of course, the information has to get from here onto the disk, but there is no question that one of the real challenges for our justice system is to figure out how one can use technology more effectively while obviously respecting due process rights. While it is largely a provincial responsibility under the administration of justice, figuring out the costs of this and then figuring out how we facilitate it and how we work together to make it happen will be important. Our courts and lawyers and police will drown under the weight of paper in some of these complex trials unless we start to use technology in a much more efficient and intelligent way than we have been able to so far.

Mr. Howard Bebbington, Counsel, Criminal Law Policy Section, Department of Justice:I cannot add much to what the minister gas already said except to emphasize and underline that many of the issues that you have raised are issues within the administration of justice in the province. They fall to the police, the Crown prosecutors and the local court administrators. We have attempted in Bill C-15A to facilitate the use of electronic documents. We have removed barriers that existed in the Criminal Code to the use of these electronic documents, allowing the provinces, through rules of court and other mechanisms, to develop their own systems to facilitate this and to help bring the system into the 21st century.

A particular problem, just to emphasize something the minister raised, is disclosure. It is a terrible problem in the type of large prosecutions you have referred to. The Department of Justice is working closely with the RCMP and provincial Crown attorneys to help facilitate disclosure through electronic means so that one CD-ROM can replace boxes and boxes of documents. We see this as a very worthwhile area to encourage and develop. Again, the responsibility for much of this is within the administration of justice. As the people responsible at the federal level for the Criminal Code, we see it as our role to facilitate this and put the appropriate tools in the hands of judges, court administrators, Crown attorneys and police in order to help develop and use these technological tools that can only assist and by the same token make the system more efficient and cost effective.

The Chairman: DNA testing is now legal. We had a great deal of fun investigating that when it was before the committee.

Ms McLellan: It may be back before you again.

The Chairman: Has there been an increase in claims of wrongful conviction?

Ms McLellan: I am not sure, and I will ask Ms McFadyen to deal with this directly. Certainly DNA should be a tool that we can use not only to find the guilty but also to determine who is not guilty. For example, probably the most famous case where DNA was absolutely key was that of David Milgaard. DNA will be an important tool for us and for the criminal justice system in terms of making sure that innocent people are not swept up and charged and found guilty of offences they did not commit. It will not be every case where DNA evidence is available to either inculcate or exculpate. We see DNA as an increasingly important tool not only to find the perpetrators but also to ensure that the innocent are protected.

Ms Mary McFadyen, Senior Counsel, Conviction Review Group, Department of Justice: That is correct. We have not seen a great increase in cases, but we certainly have had a few where applicants have come forward and claimed that if DNA testing had been done in their case they could have claimed that they were wrongly convicted. I can think of perhaps three or four in the five years that I have been with the Conviction Review Group.

The Chairman: It is not a great flood?

Ms McFadyen: No. Certainly, the Milgaard case is the most common one we hear about.

Ms McLellan: We anticipate that DNA may become more important in this area as it becomes a more important tool generally for police investigation.

The Chairman: Undoubtedly. The other question I had is on the sex trade. Will this proposed act allow for Canadians to be prosecuted when they have been engaging in some kind of sexual act overseas where that act may be legal? Let us take the example of child prostitution. The act occurred overseas in a country where it was legal. However, in Canada, it would be illegal.

Ms McLellan: Yes. Take for example a situation where a Canadian has gone to, say, Thailand or Costa Rica. For the purpose of this area of the law, we are applying our criminal law extraterritorially. That is a crime in this country and that person has left this country to commit an offence. Is that accurate?

Senator Nolin: Yes.

Ms McLellan: Dual criminality is not required. It is sufficient that it be a criminal act in either one country or the other, actually.

The Chairman: That is interesting.

Senator Nolin: I want to go back to child pornography. Is it only Sharpe that triggered this amendment to the code, or are you looking into the Internet as a tool to commit crime? I have in the back of my mind hate propaganda and the use of the Internet. Are you contemplating amendments to the code for that?

Ms McLellan: We made some amendments already in Bill C-36 as it relates to hate and the Internet. I will ensure that you get those. You are correct. We need to ensure that the modality by which one would commit a crime is not an opportunity for them to avoid prosecution. We want to leave no doubt in anyone's mind, but particularly the court's - regardless of modality, be it Internet, telephone - that a crime is a crime.

Senator Nolin: A crime is a crime, no matter the tool.

Ms McLellan: Exactly. I am so technologically backward that I even have to reach for the names. What are those things that a lot of people have today, palm pilots or the Blackberry? You must ensure that your laws are kept up to date so that as these things are developed they are not excluded and therefore do not become an opportunity for those who would abuse and break the laws to get away with it. Those things could be used in certain cases for any number of crimes that we could think of. We want to ensure they are all covered in our Criminal Code. Modality should not matter.

Senator Nolin: Yes. It is only a tool.

Ms McLellan: That is what we believe and that is the position we have always argued before the courts and elsewhere under our existing law. We want to ensure there is no doubt in the mind of the police, when they investigate, so that they have the confidence of knowing that this kind of thing is covered and that the courts are under no doubt as to that issue.

Senator Nolin: I want to change the topic and go to criminal harassment and stalking. I looked forward to reading the document you have provided to the committee. For how long has that document been in circulation?

Ms McLellan: I think we developed it in 1999.

Senator Nolin: We can triple the length of incarceration, but if we are not able to properly charge and effectively give the tools to the Crown prosecutor to achieve that, there is no use. It is a false protection or security. That was what we heard when we studied Senator Oliver's bill.

Does that book help? Have you seen a decrease in the unprosecuted complaints?

Ms McLellan: I will let Ms Morency address that. Representatives from the CPA are sitting behind me. They may have views. They are on the frontline; they are the ones who called to a residence where, for example, a woman believes that she is being stalked and harassed. They are the ones who must go back again and again. They may well have views as to whether, at the implementation level, things are going better. There are some resource issues there, however.

Senator Nolin: While studying Senator Oliver's bill, we heard testimony from a police officer from Calgary who decided to devote her effort towards that. She was begging for change. She asked us to help police officers to do their job.

Ms McLellan: What kind of change did she want?

Senator Nolin: The definition. The crime was too complex. Double mens rea or double state of mind to be evidenced properly was the main concern. I hope this amendment can help.

Ms Carole Morency, Coordinator, Children Law Policy Unit, Family, Children and Youth Section, Department of Justice: I recall that testimony. Statistics Canada released a "juristat" in the last year on the incidents of criminal harassment. If you look at the incidence of reporting, the numbers have increased since 1993. It is difficult to say whether the increase in reporting is a result of more incidents of stalking or criminal harassment or whether it is because more people are aware that it is a crime and are reporting it to police and police are acting on it. Since we developed the criminal harassment guidelines, they have been widely distributed across the country, to the judiciary, police and Crown attorneys. There has been a positive reception to the guidelines. They are being used in police training. This leads us to believe that there is a positive impact in facilitating implementation of the provisions as they exist now on the ground, explaining what the law is with the type of conduct that is covered, providing resources, providing police with names of experts who can be consulted on how to do a profile of a stalker, facilitating prosecution, and so on. A primary factor has been to facilitate victim safety.

We have had some informal feedback. A mail-out of those guidelines resulted in some positive feedback. Within the next year or so, if and when this bill is enacted, we hope to be able to do further evaluation of the guidelines as a tool and update it for law enforcement.

At this point, it is our information that the guidelines have been widely used by all players in the criminal justice system and have been widely distributed to victim organizations. When the provisions were implemented in 1993, they were new. They deal with a different kind of conduct than what police are more accustomed to dealing with, very rarely dealing with physical injury. There is some training required vis-à-vis the guidelines, and we have done some public legal education. We are moving in the right direction, I would suggest.

Senator Nolin: We will hear from those groups. Perhaps we should see if the police officer from Calgary has something to add, to see if there is a positive evolution in her testimony.

Ms McLellan: Part of this is evolutionary, as in so many issues around domestic violence. Incidents were not reported very often 20 years ago; they were viewed as private matters. Most police forces now work on the basis of zero tolerance. They charge whether the victim wants the charges laid or not.

Progress has been made in one sense. We need to see the same kind of evolution around harassment. Harassment is not simply mischief; it is not trivial. Honourable senators are all aware of the horrible examples that do arise. An article in The Vancouver Sun reported the incident of a man and woman who were beaten to death early Sunday morning in Langley, British Columbia. The accused, who was charged with second degree murder in that case, had pleaded guilty to stalking her one year earlier. This is serious stuff. This man pleaded guilty to harassment one year earlier.

I hope the increase in sentence sends a signal to the courts of how seriously harassment must be taken. If harassment is not dealt with appropriately it can lead to terrible consequences, as we saw on Sunday evening in Vancouver.

If any victims groups were presenting testimony to this committee, honourable senators would probably hear that they are fairly critical of the way the law operates and is implemented, as well as the way courts hand out sentences. You would hear that they are critical of all of us in terms of how these criminal harassment provisions have operated in the past. That is why we are doing what we are doing here, with the guidelines and other things: We are trying to ensure that we are sending the message to everyone that harassment is serious and should be dealt with by the justice system in a serious fashion.

Senator Nolin: On the subject of the miscarriage of justice, I know it involves the use of a prerogative. I appreciate the fact that you have that prerogative, contrary to your colleague in the U.K., who has different responsibilities. I appreciate the conflict of interest that we do not have here.

Nevertheless, section 7 of the Charter is the basis of my concern. Every time we hear about a miscarriage of justice, we ask ourselves how this could happen, with all the protections in place to ensure that we convict only those who really should be convicted. We will hear from a variety of groups on that subject.

Minister, how do section 7 of the Charter, the right to freedom, and the principles of fundamental justice play out in the scheme that you are changing with Bill C-15A?

Ms McLellan: What we are proposing in Bill C-15A is - if section 7 applied what you are seeing is a major step forward or accretion to the fundamental justice surrounding those who believe that they have been wrongfully convicted.

Keep in mind that these people have been convicted in an open court, through due process. By definition, they will have had to run their appeal process, including the Court of Appeal and Supreme Court of Canada. They will have been dealt with by the justice system and at various levels, trial and appeal, found guilty and convicted. t is only then that they can exercise their post-appellate review opportunities.

What we are doing with these proposed changes is creating a much more politically accountable, transparent and clearer system in terms of helping those who believe that they have been wrongfully accused understand how the process works, what the conditions precedent are in terms of accessing the procedure, how the minister and the investigative unit will go about their jobs, what they can expect in terms of the investigation that takes place and the role of the minister. All of this involves a much higher degree of transparency and accountability.

If section 7 applies, we are adding significantly to the degree of fundamental justice that someone who believes they are wrongfully accused has been denied.

Senator Nolin: My concern is that the same group of officials is dealing with the prerogative of clemency. For someone who was not properly convicted, and for good reason was there, but he or she is asking for your clemency, that same group of officials is also dealing with the miscarriage.

If you look at the David Milgaard situation, if you look at it from the situation today, he should never have been jailed, but he was there. For him, it is a question of freedom. That is why the systems must protect a right that he lost. How do we achieve that? A prima facie scrutiny system is needed.

Ms McLellan: For most of the section 690 reviews my investigative unit deal with, that is the first time they have been involved in those cases. Keep in mind that most often it is local police and provincial prosecutors that are involved. It is not my prosecutors who are prosecuting the Criminal Code.

In the territories, we do the federal prosecutions. We have had at least one wrongful conviction, of which I am aware. The investigation of that allegation of wrongful conviction that was proven correct I took out of the department. The matter began before I was in my present capacity, but the matter was dealt with outside the department. We did not want people within our federal department investigating that case. We went to a private lawyer, with no connection to the Department of Justice, because it was a federal prosecutor in the territory who had carried out that prosecution. In that context, perhaps one could say that we are investigating ourselves, so we send it out to a private lawyer, independent from the department, to undertake that particular review.

However, in the vast majority of cases, it is provincial prosecutors and local police who are involved. Generally we have no involvement whatsoever, until the person who believes he or she has been wrongfully convicted makes an application under section 690. At that point, my investigative unit gets involved. They come to this completely fresh and uninvolved in the prior prosecution and conviction.

This is not adversarial. The investigative unit takes this up in terms of analyzing and investigating whether there is substance to the allegation that someone has been wrongfully convicted. They are to present their findings to me. I will then make a decision on the basis of those findings. If the person wishes to make submissions directly to me, there is a possibility for that. This is not adversarial. It is about trying to get at the truth. It is an investigation to try to attempt to achieve that objective.

You are right that it a difficult area, and one where we want to strike the right balance and ensure that those who do believe they have been wrongfully convicted have the opportunity after they have exhausted other avenues. No one should think that this is a fourth level of appeal. It is not. We cannot go that way.

Senator Nolin: That is why it is not easy to answer that.

Ms McLellan: It is based upon the Royal Prerogative of mercy, which is an exceptional power.

Senator Nolin: The Royal Prerogative of mercy is usually connected with the period when we hanged people. The group of officers working with you deals with mercy and the miscarriage of justice.

Ms McLellan: They report to me, and it is only me who exercises my discretion. The prerogative rests in me on behalf of the Crown in this case. My investigators cannot exercise that prerogative. They investigate. I take that and review it, and I determine, on the basis of all the information before me, whether or not I will recommend the exercise of the Royal Prerogative of mercy. My investigators do not exercise that prerogative.

Senator Nolin: We will hear from people working in that area.

Ms McLellan: Yes, you will.

Senator Nolin: Finally, on the military question and the fact that they want to fingerprint, did we study all the new military defence laws a few years ago and forget to give that power to them? What is behind this amendment?

Mr. Bebbington: Honourable senators, we would be pleased to bring someone from DND if it would assist with respect to that. The amendment proposed in Bill C-15A is simply to put the military in the same position as civilians. There has been some controversy about whether the military could take fingerprints and use force to do so and whether the use of information obtained by the military could be used for this purpose. As you know, in the Privacy Act, there are certain walls and barriers to taking personal information and using it for other purposes. Under this proposed amendment, it will be clear that the military has the right to take fingerprints and other measurements, just as is done in the civilian system. Ironically, this has more to do with the civilian case than the military.

The type of case that prompted this amendment is a situation where someone has been convicted in a court martial, for example, of arson. They are then discharged and seek a job outside of the military as a janitor in a school. The police do not have access to the military record because it is not on CPIC. This amendment will make it clear that the military can take the fingerprints and that the fingerprints can find their way into the CPIC system and will be available to law enforcement officers.

There has been great care taken in crafting it so the types of offences under military law where fingerprints and other measurements can be taken are quite analogous to those powers that exist now under the Identification of Criminals Act.

The Chairman: I trust that the exchange will work the other way as well?

Mr. Bebbington: Are you asking if the military has access to CPIC?

The Chairman: Yes.

Mr. Bebbington: I cannot answer that. I can check into it and get back to you. For purposes of a military investigation, they would be investigating someone's conduct while in the military as opposed to investigating civilian conduct.

The Chairman: However, it may give them a prior record.

Thank you, Madam Minister, for appearing before us.

Our next panel is Melvyn Green and Ms Martin. Please proceed.

Mr. Melvyn Green, Board Member, Association in Defence of the Wrongly Convicted: I thank the committee for the opportunity to attend today on behalf of the Association in Defence of the Wrongly Convicted to address certain matters in Bill C-15A that are of concern for us. I thank Senator Nolin for asking questions that touched on areas that we will be addressing. I thank the Minister of Justice for her most spirited defence of the proposals that she has put before this committee.

You have submissions from the Association in Defence of the Wrongly Convicted before you. There are submissions in writing as well by Professor Martin who is with me on behalf of the Innocence Project. I hope you will find that our submissions are complementary and that we do not step too much on each other's toes.

The Association in Defence of the Wrongly Convicted is a narrowly focused public interest organization. It is dedicated to two goals: The first is the prevention of wrongful convictions; the second is the correction of those wrongful convictions that have already occurred.

The correction of wrongful convictions inevitably involves consideration of section 690 of the Criminal Code and the review process set out in those provisions. Under section 690, as I believe is clear to all members of this committee, the power of review of claims of wrongful conviction is reposed in the executive branch of government. Section 690 is the last hope, the last chance, as it is sometimes called, the final safety net, for those who are wrongly convicted.

It is our concern, on behalf of the Association in Defence of the Wrongly Convicted, that that power of review, that final determination of access to a court to determine a claim of factual innocence, ought to be in the hands not of the Minister of Justice but rather in the hands of an independent tribunal, board or commission.

The provisions before you propose the repeal of section 690 and its replacement with a new review process, which is, I believe, set out in section 696.1 through 696.6. The power of review - and this is the point on which Senator Nolin was focusing - despite the replacement by these new provisions is to remain with the Minister of Justice. That proposal is before you despite the fact that repeated and consistent recommendations of senior and eminent Canadian judges have suggested otherwise. That proposal is before you despite the fact that legal scholars in Canada have consistently recommended otherwise. That proposal is before you despite the extraordinarily powerful example of effective and efficient review of wrongful convictions presented by the CCRC, the Criminal Cases Review Commission in the United Kingdom. I will have a little more to say about that as I proceed.

Despite all these recommendations and illustrations, the Minister of Justice proposes to keep the final review process within her ministry and to say no to any concept of independent review. This is why I am here. This is why our association is here. This is, to a large degree, I am sure, why the Innocence Project is here.

The Association in Defence of the Wrongly Convicted has no interest in helping the rightly convicted but we are dedicated to remedying the plight of the wrongly convicted. Since its inception in 1993, AIDWYC has sought the replacement of section 690. In our experience with many cases over the past eight years, we have learned that section 690 is woefully flawed and inadequate as a mechanism for correcting wrongful convictions. What is required is an independent review process, as in the United Kingdom, and that is exactly what Bill C-15A does not deliver.

There are three hard realities that I would press upon you, if I might. They all bear on the issue before us. First, it may seem a very trite observation, but the conviction of innocent persons in this country not only occurs but it occurs with uncomfortable frequency, and it occurs with respect to the most serious offences in our Criminal Code, most notably murder. My association, frankly, spends all its time on murder cases. We do not have time to deal with anything else and we do not have time to deal with all of them.

For most Canadians, the notion of wrongful convictions, of course, is restricted to three persons whose names have become publicly associated with this terrible condition. They are Donald Marshall, David Milgaard, and Guy Paul Morin. In the legal profession, they are known as the "three Ms." Indeed, I believe there is at least one Court of Appeal judge who refers to them as that. The sad reality is that they represent just the tip of an iceberg.

Within the past month, to this day, three notorious cases of wrongful convictions have had their moment of sunlight, and only that, in newspapers across this country. Exactly a month ago today, the Sophonow inquiry report out of Winnipeg, Manitoba, was issued under the imprimatur of one of the most eminent jurists in this country, Justice Cory. It finally represented, I would hope, the complete exoneration of Thomas Sophonow for a murder that he never committed yet was convicted of not once but twice.

I believe there was reference earlier today to Romeo Phillion. Dianne Martin will speak of that because I know her Innocence Project at Osgoode Hall Law School has been working very hard on behalf of Mr. Phillion. In my respectful submission, some fresh evidence has raised serious doubts about the integrity of that conviction. He has spent some 28 or 29 years in penitentiary for a conviction he may well have never deserved.

Six days ago, the Association in Defence of the Wrongly Convicted filed an over 600-page brief with the Minister of Justice for a section 690 application on Steven Truscott's behalf. Steven Truscott, but for the commutation of the death penalty by cabinet when he was 15 years of age, may well have been convicted for a murder that is now becoming, I dare say, patently clear he never had anything to do with.

The work we did on behalf of Steven Truscott took more than six months and the time of two and a half lawyers. We did not have to do that. We should not have had to do that. An independent commission ought to have done that.

My point is, and the minister will concede this as any thinking person would, and I believe she has, that justice is a human process as a result of a fallible process. We have to acknowledge that the criminal justice system makes mistakes. The real question is this: What is the best method of correcting those mistakes? How do we best go about it?

There is a second hard reality. The appeal process itself is not adequate to catch all the wrongful convictions. Courts of appeal are focused almost exclusively on errors of law, on trial process concerns, on concerns about whether there is a fair trial. The problem is that you can have a perfectly fair trial and still convict somebody of murder. The guarantee of a fair trial is no vaccine against a wrongful conviction. The Supreme Court of Canada has said that this year in Burns and Rafay. Burns and Rafay, you may recall, is the case in which the Supreme Court of Canada refused to permit the extradition of two young men to the United States on murder charges unless the Minister of Justice first extracted a promise of no death penalty from, in that case, Washington State, I believe, if in fact they were found guilty. That had to be the pre-condition to their extradition.

The Supreme Court unanimously rested its judgment on two things. The first was the risk of wrongful convictions. The second, of course, was the fact that a death penalty is not exactly reversible.

The Supreme Court very helpfully reviewed a litany of wrongful convictions for homicide in Canada. Most important, they used the case of David Milgaard, about which there has been some reference today, as an example of a case where even a fair trial was no guarantee of a just result. Of course, the case of David Milgaard had gone all the way to the Supreme Court of Canada in 1971. The Supreme Court in 1971 said that David Milgaard had a fair trial. Indeed, he had a fair trial, but he was also an innocent man. He had nothing to do with the murder for which he pulled 24 years as a result of his fair trial.

The third hard reality is this: A section 690 review process within the office of the Minister of Justice simply does not work. It did not work for David Milgaard. The review of his section 690 application was repeatedly delayed and rebuffed. Indeed, it took the personal intervention of his mother, Joyce Milgaard, with the then Prime Minister of Canada to get it on the rails. He might still be in jail today but for that.

Let me share with you an illuminating story about that process. Joyce Milgaard says that someone approached the investigator appointed by the Minister of Justice at the time to express his belief under the 690 process that David Milgaard was, in fact, innocent. The response from the investigator appointed by the Justice Minister was that some people believe that Elvis is still alive. Well, Elvis is still dead, but David Milgaard was innocent then and he is still innocent today.

The anecdote speaks to what I say is the fundamental problem with the 690 process and with the replacement proposed in the bill before you.

In practice, irrespective of the words of the Minister of Justice 15 minutes ago, and I say this with due respect, a review conducted within the office of a Minister of Justice is, by nature, adversarial. It is a process that starts with the premise that the conviction was correct and that the conviction was sustained by courts of appeal. The initial bias going in is to find a means of sustaining the integrity of that conviction. That is the way ministries of justice - which is another way of saying Departments of the Attorney General at the provincial level and the federal level - respond. That is the side they sit on in the adversarial system that defines our criminal justice matters and how we approach them and how we determine them.

Let me be very clear. This has nothing to do with bad faith on the part of those who conduct the exercise for the minister. It has nothing to do with bad people doing this exercise. It has to do with the inevitable institutional bias that comes from having the review of criminal convictions conducted by the same department that is responsible for the creation, the maintenance and the prosecution of the criminal law. Keeping that review within the Department of Justice, I say with respect, does little to inspire public confidence in the administration of justice.

Contrary to the views expressed by the Minister of Justice in some written materials I have seen from her office, the exposure of wrongful convictions is no embarrassment to the administration of justice. What is an embarrassment to the administration of justice is the delay and failure to correct wrongful convictions. That is the embarrassment. In short, the Minister of Justice ought not to be and may be the last person in the world who should be determining access to the courts for a remedy for the wrongful conviction of an innocent person.

Senator Nolin, this is your point, and it is right on the money.

If someone is to control access to the courts for a final determination of the innocence of a wrongly convicted person, it ought to be an independent tribunal. It ought to be a tribunal whose approach is inquisitorial and investigatory, rather than adversarial, and it ought to be a tribunal that because of its independence has the confidence of both the truly wrongly convicted and the public at large.

The United Kingdom has a model that meets all of these criteria, the CCRC. Before 1997, England had the same situation. The only real difference was that the Home Secretary rather than the Minister of Justice had the prerogative or the discretion.

Frankly, the Home Secretary sat on cases for a very long time. There had been talk for a long time of creating an independent committee. As a result, hundreds of applications built up. That is why there was a backlog. The CCRC finely obtained its jurisdiction and began working through those applications.

More significantly, in the less than five years that the CCRC has been existence - and the figures I am about to give you go to October of this year - it has referred 141 convictions to the United Kingdom Court of Appeal. Of those, 56 were for homicides. The Court of Appeal has already adjudicated on 26 of those 56. Of those, it has set aside or overturned 21 convictions for murder in less than five years. Regrettably, two of those were posthumous. Unfortunately, the wrongly convicted had already been hanged. It is a remarkable record. In less than five years, 21 wrongful convictions for homicide have been corrected in the United Kingdom as a result of an independent review process.

The point is that the CCRC is effective, efficient and inexpensive. The minister is right. It costs under £5 million a year to run that system, in a country that has two and one half times our population and an enormous backlog of cases that it is still working through.

Here is my bottom line on behalf of AIDWYC: Wait. Three royal commissions have now spoken on this issue. Three justices sat on the Marshall inquiry in 1989, including the former Chief Justice of the Supreme Court of Ontario, Justice Evans, who is the Honorary Director of AIDWYC in Ontario. It recommended the creation of an independent review commission. The Morin inquiry under Justice Kaufman in 1998 spoke of the advisability of an independent review board. Justice Cory's report on the Sophonow inquiry was issued just one month ago. He recommended the establishment of an independent entity to effectively, efficiently and quickly review cases in which a wrongful conviction is alleged. The CCRC was referred to by Justice Cory as an excellent model.

These judges are among the most eminent that we have ever had the honour of having in Canada, and their cumulative wisdom is that we ought to have an independent review process. AIDWYC shares that view.

I would like to make one final point in this regard. The Milgaard inquiry will take place in Saskatchewan. It has been promised. It will focus on the section 690 process. We will have a fully informed, complete and judicially supervised review of this very issue with the best evidence possible. The reason I say wait is because the Senate committee knows far better than I that it has taken us a century to get to this point, and I do not want to wait another century to get the right reform on behalf of the wrongly convicted.

The Chairman: You may be interested to know that we did invite retired Justice Cory to appear before the committee, but he was unable to come.

Ms Dianne Martin, Professor, Osgoode Hall Law School, Innocence Project, York University: As you know, honourable senators, I am Director of the Innocence Project at Osgoode Hall Law School and was a founding director of AIDWYC. At the Innocence Project, the experience is somewhat different although comfortably aligned with that of AIDWYC in that I supervise law students. We have been in operation for five years. That means that some 40 law students have delved into and learned to understand the causes of and remedies for wrongful conviction. The students have examined a couple of hundred files at least by now. We have a heartbreaking backlog. Eight students a year, who get nine credit hours in a school year, cannot undertake that volume of casework.

The heartbreaking choice is to choose which out of those cases have the look, the risk and the scent of wrongful conviction about them. We have had to choose locally in Ontario. We are organizing a conference with other law schools in the spring to get law schools doing this across the country, but that is so wrong.

As an educator, I am happy and delighted with the opportunity to teach my students about the justice system and the way it works. As a Canadian, I do not feel at all comfortable with the burden on the shoulders of my students for uncovering and remedying the wrongful conviction of innocent persons, allied only with the wonderful lawyers who work with AIDWYC and who frequently mentor on the students' cases. That is a very frail reed upon which to rest such a phenomenally significant burden. Very few people have someone like Joyce Milgaard as their mother. Very few people have had members of the community who continued to go back to the RCMP until they finally found an RCMP officer in Nova Scotia who did a proper investigation - that is the Donald Marshall case. That involved people going back and back, going back many times, but finely an honest Mountie took it up. Without that police officer, Donald Marshall would still be in prison. Many years later, in the Sophonow case, a police officer came forward to say, "Something is wrong here."

The assumption that the convictions of murder cases are always sound, correct and remedied, when errors occur, at an appeal level is simply false.

The more troubling assumption that was offered with great sincerity by the minister today, namely, that her ministry catches the rest, is the worst fallacy. This has been studied more than once in Canada. I participated in a review of more that 100 cases on wrongful conviction and analyzed them for the Kaufman inquiry. We identified common causes and common errors that police officers make. We are the same as England. Noble cause, corruption, the ends justify the means, as we rush to judgment to resolve a terrible crime, which is a recipe for wrongful conviction, occur identically here, as they do in Great Britain.

Our system, under section 690, has also been studied. A graduate student that I am working with at Simon Fraser University has analyzed the section 690 record for the last 90 years. It is an appalling record because it is not catching the cases of true injustice. It is a record of trying to throw them out.

My students did some research and reviewed a number of rejections from the Minister of Justice over recent years. When you read those documents, you know you are reading an adversarial argument: "They did not raise something significant enough;" or "They did not raise something new enough." You do not read a measured, fair-minded and objective assessment of whether we have the right person.

My students start at neutral. We are not in the exercise - neither is AIDWYC - of playing defence lawyer. We are not in the business of trying to find an argument to get someone off. My students are looking for the truth. However, they understand that to find the truth one must start without preconception. That means that you start not convinced that this is a guilty person who has a fair trial and has had a good appeal, perhaps two, and you see if there is anything that someone missed; it means that you start at neutral, asking: "What happened here? Who died? Who was convicted and on what evidence? How sound is that evidence? Does it withstand that initial scrutiny?"

From that perspective, you would not at all be surprised that the kind of conclusions that royal commissions have come to in Canada, that commissions of inquiry have come to in the United Kingdom, that a variety of institutions in the United States have come to, and similar bodies in Australia have come to, is that we do not get it right all the time. It is not because of errors of law; it is because we do not get it right.

You cannot start in an adversarial stance. That is one of my three points of great disagreement with the proposition that by tinkering with the appearance of section 690, by making it available to offences with a maximum imprisonment of six months, by telling those poor souls sitting in prison without Joyce Milgaard as their mother or without my students struggling to work for them, they can check the Web site for the rules and the form. You do not fix this problem with window dressing and procedural technicalities such as "Now we make the form public."

You fix it by removing it from someone whose job it is to enforce the law. I want a Minister of Justice who stands up for our system of justice; it is a wonderful system - no better than the other countries where we get it wrong, but far better than many in the world. I want her to stand up for our system of justice, but I do not want her to pretend to be able to turn herself inside out and take the position of doing justice rather than mercy.

You heard the minister. She views the task of remedying the conviction of an innocent person as an act of mercy. It is surely not an act of mercy; it is an act and a need of fundamental justice. Justice must always be fair, objective and neutral. It must start at neutral.

Therefore, the standpoint is the fatal flaw. However, there are two minor ones that flow from that. I have pointed them out, and I have a show-and-tell for you that illustrates why that standpoint is so desperately dangerous.

The minister's model for uncovering and remedying wrongful conviction is to insist on fresh evidence. An individual must go out and find something new and substantial that was not dealt with at trial or he or she will not get past the starting post. There will be innocent people who do not have that new information. How does an individual go about finding new, substantial information that might get the minister to even look at your case?

I can tell you how you do not find it. You do not find it by asking under the Privacy Act for the disclosure of the material that convicted you. I provided it to you. Section 19.1 of the Privacy Act permits the exclusion from disclosure of information from a municipal or regional government pursuant to an act of the legislature. Section 19.1(d) therefore includes municipal police forces.

When a client of the Innocence Project who has been claiming his innocence for 29 years applied under the Privacy Act for disclosure of the police investigative file that convicted him, do you know what he received? He received this - which is a police investigative report. You see in big letters, 19.1(d). This document was read in its entirety. Someone - probably a police officer or an agent - concluded that this fell within the section 19.1(d) exemption. A piece of white paper was placed over the information and my client, Mr. Phillion, received this. On the other side, the same thing occurred. It is another crucial document, with a bit scratched out. The relevant information, which I assure you is particularly relevant, was whited out and a piece of paper was put over it. He received hundreds of pages like this, with section 19.1(d) written on it.

Hiding under that piece of paper, under the photocopy, was the following paragraph, which states: "It was also verified by the service station operator in Trenton that on August 9, 1967, Romeo Phillion had been in the service station between 12 and 1 p.m. and left his car radio because he could not pay for the service call, therefore making it impossible for him to return to Ottawa by 2:45 p.m. at the time the murder was committed. A letter will be sent to a variety of police services advising them that Romeo Phillion is not responsible for this murder." It goes on.

On the other side of the page is another analysis of the confirmation of that particular alibi, including that the officer in question seized the radio. This is not a mystical confirmation. This was confirmed with physical evidence, 30 years ago. The service station no longer exists. My students in this case have a file they called "Dead and missing witnesses." When 30 years go by, you do not find that service station any more. You do not find a lot of the things you need to come up with the substantial and significant fresh information that would justify a review. You get no disclosure; you have no rights. The amendments to section 690 do not cure that hideous problem.

My students have letters from police forces and Crown attorneys in every province in the country advising that they do not have a right to access to any of the investigative file - zero, none. As it happens, when we lean on our friends at AIDWYC - and some have enormously high profile - discretion is exercised at the highest levels. That is appalling. If you do not have the opportunity to have someone with clout lean on somebody at a high ministry level in a province, you get this type of response.

My final point is financial assistance. Osgoode Hall Law School is a fine law school. They pay my salary. We have a tiny budget. The students sell T-shirts and do a variety of things to gather together enough money to do this work. The Association in Defence of the Wrongly Convicted had a marvellous benefit concert last night to raise money to do this work. This is outrageous. The issue of justice in this country is resting on my students, our bake sales, the benefit concert I referred to and the goodwill of people who do this pro bono work out of a concern that we do not defile a fine justice system by maintaining convictions that should not and cannot withstand scrutiny and allowing guilty people to go free because we would rather have a bird in the hand than actually look an error in the face. That is not good enough; we are better than that.

I absolutely join Mr. Green and AIDWYC in saying that the one marvellous thing this body can do is to slow things down. Perhaps the learned justice who takes on the task of reviewing section 690 in the context of the David Milgaard situation will have the words to persuade the minister that others do not. Perhaps the next person will have the words. This bill is not a remedy to miscarriages of justice in Canada. No one should be left thinking it is. The bill should die here, in this place of sober second thought.

Senator Nolin: I remember watching a story on television recently. In that case, the man finally receiving the complete version of the police report probably saved his life or at least his freedom.

Obviously, we have a screening process in place. Could you explain that process briefly? The minister also has a screening process. How does that compare?

Ms Martin: I think our processes are similar. Our first screen is to ensure that all appeals have been exhausted. We do not become involved while there is the possibility of appeal. Our second screen is that it is a serious case. Almost inevitably that means murder, and that is troubling because there are some long sentences being served for crimes other than murder. The third screen is the most difficult and amorphous, but important, and that is this: Is there anything that suggests that there is a wrongful conviction? We have criteria in terms of what is the evidence upon which the conviction rested? What is the position of the applicant in terms of their innocence? What can they offer to support the claim that they are innocent?

Fortunately, there is much research on causes of wrongful conviction, and I did some of it so I am content with it, but it is not certainly just my own research.

There are hallmarks where you would be cautious about a conviction: A high-profile case, a marginalized outsider, suspect categories of evidence, eye-witness testimony, confession evidence, a variety of forensic evidence. Those categories turn up repeatedly in the area of wrongful convictions. They are now seen as indicia of risk. If one sees those things, one would conclude that there was a case not of adoption, but of investigation.

There are folks who are clearly making a frivolous application. We cannot and would not dream of wasting the resources of the project on the clearly frivolous.

What you would do if you had adequate resources is the same. I would screen out the clearly frivolous. I would do my investigation on the cases that had those indicia in the evidence. I would test the quality of the evidence, and then I would see what else is available. It is quite remarkable what you discover, once you look at cases with an open mind. That would be the experience.

Centurian Ministries is probably the longest standing voluntary organization to work on wrongful convictions in the world. They are located in New Jersey. They assisted David Milgaard.

Mr. Green: Our approach is similar. We have a review board or subcommittee of the association. As the cases come in, they are assigned to the review subcommittee. The pre-screening probably weeds out about 80 per cent of the frivolous cases quickly as cases of error but not cases that rise to the standard that we insist upon, which is a serious concern about factual innocence.

Our association only adopts those cases that involve claims of factual innocence and meet our standard. Once we adopt them, we try to move forward with them in a manner that would include, where possible and the funding is available, the use of private investigators, meeting witnesses who testified at trial, and in cases where it is available, pursuing fresh evidence.

In a case such as Clayton Johnson, for example, fresh evidence by way of fresh pathological evidence as to the cause of death led ultimately to an extensive application that the minister ultimately granted on behalf of Mr. Johnson. That matter is now before the Nova Scotia Court of Appeal.

On the other hand, in a case like that of Thomas Sophonow, whom we supported and have for many years, unfortunately, there was no "fresh evidence." Courage on the part of the local police and the Nova Scotia department of the Attorney General, perhaps borne out of the change in administration, lead to evidence that pointed clearly to another suspect and led ultimately to Sophonow's complete exoneration.

We insist upon candour. We insist upon a direction from the applicant to us that he waive solicitor-client privilege for the purposes of our pursuing the matter and that we are entitled to talk freely to his trial appellate counsel and that all materials, including all trial and appellate transcripts that are available, be sent to us so that we can do a thorough investigation.

Ultimately, we do what an independent review commission or tribunal ought to be doing. There is nothing in the world that we would want more than to be put out of business by the creation of such an independent review.

Ms Martin: The minister commented that not many people were applying. Prisoners are remarkably cynical about their applications to the minister. They only come forward when there is publicity about the AIDWYC project or the Innocence Project because they do not believe that they have any chance of success on their own and they are correct. I am concerned that that will not change under the new regime.

Senator Nolin: Most of the cases that you took went first through the official process, is that right?

Ms Martin: Yes, that is right

Senator Nolin: Do people go to you while their cases are being heard?

Ms Martin: No, we see them after.

Mr. Green: We insist on after.

Senator Nolin: You do insist on that?

Mr. Green: We insist on exhaustion of the ordinary appellate process.

Senator Nolin: What is your rate of success?

Mr. Green: Well, in the end, we are pretty selective. Certainly, we have not advanced a 690 application that has been turned back, but only about three, I believe, have matured to that point. The Steven Truscott case is now in the minister's hands.

Let me be candid. There are a few cases where we have, indeed, been concerned about the safety of the conviction and moved it along to the point - I am thinking of one case in particular here - where we agreed to a DNA test. Indeed, the DNA test ultimately proved inculpatory rather than exculpatory, at which point our attachment to that case dissolved.

Madam Chairman, you mentioned DNA earlier. It is important to point out, and the minister may have hinted at this, that DNA evidence is a useful tool both for inculpation and exculpation. It is only available in certain cases, only where some bodily fluid or some substance capable of containing genetic material is available not only for DNA analysis but has been saved and maintained integrity over the course of years. You are all familiar with this, I can tell.

Senator Nolin: Yes, we are quite expert on that.

Mr. Green: I have a bit of concern, to make clear, that most of the cases we get, unfortunately, do not have that golden key. They do not have the DNA. It takes time and work and perseverance. We have been in business now for about eight years. We probably have 30 cases we are actively considering at the moment. There are another two or three, each in a different province, where we are very close to creating the 690 application record. We would like to put it before an independent board.

Ms Martin: There is an issue about scope that I think is important to remember. Approximately 90 per cent of cases are resolved by guilty plea. Of that 90 per cent resolved by guilty plea, the vast majority involves sets of facts that will not be contested. The accused is found inside the drugstore with the drugs in his hand, but he has passed out. There may be some injustice with that, I do not know, but that is not my concern at the moment. Those cases are not the ones that generate the wrongful conviction problem in the way that we are currently worried about them.

It is a very small percentage of cases that involve "who done it" in a serious manner; we are not terribly accurate in those. If you look at the "who done it" cases of the last 20 years, we are starting to find error in a significant percentage of those cases. Of the most serious, the ones that trouble the community the most, there may be a greater risk of error than we have come to acknowledge. The statistics now coming out of the United Kingdom support that.

Senator Nolin: That was my final question. Tell me honestly; you are protected testifying here. If you look at the reason for the wrongful conviction or miscarriage of justice, what is the proportion of bad faith from whoever in the system compared to a real error that led to miscarriage? I want an open answer.

Ms Martin: I am mulling on "bad faith." Police misconduct is involved in literally all, but deliberate police misconduct, deliberate in the sense of, "I know I am breaking the rules"?

Senator Nolin: Knowingly. We are all lawyers.

Ms Martin: "I am breaking the rules, and I know I am breaking the rules, but I am doing it for a good reason. The technicalities are preventing the truth from being found and a guilty person from being convicted and thus my focus over here or my failure to pursue that is all justified." I would say a very low percentage is true bad faith. It exists, but the occasion of someone saying, "I am going to frame an innocent person. Who cares who we convict? Just give me anybody, and I will get him convicted," is very low. The occasion of turning a blind eye to something that you should not, the occasion of burying things in files or losing the exhibits, the occasion of putting pressure on a forensic scientist who is weak to improve their opinion, the occasions of saying to an eyewitness, "You're sure, aren't you? You don't want to look stupid in the witness stand, do you? The defence is going to ask you tough questions, so let's bolster you up," is remarkably common.

Mr. Green: If I may, I share that view. Ms Martin is speaking about what is called in the literature "noble cause corruption," and it is common. It is a different kind of bad faith. It is good faith-bad faith, or good ends bad faith, as opposed to fitting someone up or framing someone in the classic sense that you see on American television every night. Most of the causes of wrongful conviction have been covered by the mistaken eyewitnesses identification, material non-disclosure, recanting witnesses, jailhouse informants, junk science, that kind of thing.

When you couple those areas with prejudice, when you couple them with the particularly suspect nature of the accused in a case, in a case like Romeo Phillion, for example, who was obviously not a pillar of the community at the time, when you couple them, very often, with the absolutely horrific nature of the crime that preys on the community and the desire on the part of the community to bring this process to closure and this is the only guy we have in front of us, the guillotine comes down, and it comes down on the wrong neck.

Senator Andreychuk: This has been interesting. It has been a long time since I have thought about some of these things from the old days of practice. You talk about noble cause corruption and how we get into these cases where we can go through the appeals and still end up with an innocent being wrongly dealt with in the end, in other words, not receiving justice, but getting the full benefit of the system.

I do not know if you care to speculate; I have been giving this a lot of thought recently, as has this committee. Today, we passed Bill C-24, where we give powers to police to go outside the law if they are designated, and they will have some immunity. I apologize for coming late, but I have been at the Bill C-36 hearings. In that bill, we are now giving unusual investigative powers to police and prosecution without benefit, I think, of the light of the day. It will be done - as we found out - probably in camera. Therefore, we are extending for very noble causes, one to fight terrorism, one to fight the new globalized gangs and their activities. Have you thought that the kind of work that you are doing is even more important now? Have you discussed with the ministry that it is even more important that we have that as we embark on these new and contentious issues?

Mr. Green: I did give it some passing thought. Certainly, to the best of my knowledge, the Minister of Justice did not approach my association for its input or concerns with respect to this matter. Frankly, I had completely neglected to give any thought to Bill C-24. I did give some thought, as I think any thinking lawyer has, to the concerns that have arisen regarding Bill C-36.

As I looked through some of the provisions of that bill, and not having read it completely, I realized almost immediately that there would be a tremendous risk of fresh wrongful convictions as a result of the licence that will be granted on the one hand to the police and as a result of what appears to be a relaxation of the accountability both at the pre-charge, investigator stages and, most important, perhaps, at the judicial stage. At that stage, there will be relaxed standards with respect to the admissibility and the quality of the evidence. There will be relaxed standards with respect to the scope of privileges that have been expanded in those fields and with respect to the limitations on the review of decisions made by judges. As Ms Martin said, all of that is a recipe for the miscarriage of justice. Particularly, given our times, if I can simply put it that way, it will take courageous players in our criminal justice system, or our terrorist justice system as it will come to be characterized, to stand strong against the temptation to go with the tide and to protect the concerns on which this nation was founded, concerns that have given us a sense of who we are as a democratic people who live in a society with values that we cherish. I do not want to grow rhetorical here.

The simple answer is that I have not thought about it in depth but that, yes, I did think about it and I thought, "Oh, my God, more work for AIDWYC."

Ms Martin: I absolutely agree. You will remember that the great scandal of the wrongful convictions in the U.K. was the uncovering of the mistaken conviction of the IRA pub bombers. It was a climate of anti-terrorism that led to those flawed investigations, with judges turning a blind to those errors. Some 20 people were wrongly convicted in order to address the fear that terror engenders. That is a lesson that we seem to have forgotten as we rush to open, perhaps, the same door. It is not that we do not have enough history to guide us, but it is apparently not guiding us at the moment.

Senator Andreychuk: Thank you for the information on why you think there should be an independent commission of some sort as opposed to the process the minister has defined. Frankly, I had not thought of all the nuances that you have brought forward.

Many years ago, when someone was found not guilty by virtue of insanity, that individual would be at the pleasure of the lieutenant governor in council. I worked on those cases. I came to the conclusion that if the final decision, either given by an independent commission or someone else, rested with a political person - politicians are absolutely allergic to risk.

I recall being with a premier who said, "Give me a guarantee that if I release him nothing will happen." The reply was this: "You just got elected. You have five years to extricate yourself from that." The politician replied in this way: "It is amazing that on some things people have short memories but that on other things they have long memories."

If we are talking about prerogatives, is it not inevitable that we will come up against this situation if a decision rests with a political officer? It is just not in the their nature to take risks. It is not a question of the department not being able to give that kind of evidence, but a politician does not need to go there. No is easier than yes.

Mr. Green: If I may, that is a very astute insight, and I am grateful for it. Thank you very much. In fact, as you may know, Senator Andreychuk, it is those kinds of concerns that led the Supreme Court to a total reform in Canada of the review system for those who were found not guilty by reason of insanity. It is now called not criminally responsible because of a mental disorder. There is now a more independent review process to free it of that risk of political contamination.

The Chairman: I admire your work and this has been an interesting presentation. You want us to go slow. Basically, you want us to take out this part of the bill. My question is very simple: Is this better than the present system? This is not what you want, but is it better than the present system?

Mr. Green: It has one material improvement, if I might, and it is an important improvement. It gives the minister the power to compel the production of documents and the power to compel testimony through the subpoena process.

My point is this: It is not the power; it is who will use that power and to what end that is important. Let me be absolutely candid here. If this committee does the right thing and deletes that portion of the bill, and if the minister does not wait for the results of the Milgaard inquiry, then she will reintroduce the appropriate reforms, with that particular provision, of course, included as part of the package, but housed in an independent tribunal as opposed to within her own ministry. If that is not the case, then on behalf of all of those who are wrongly convicted, we are prepared to take the extra time and get it right.

Senator Nolin: Do you have any legal opinion to inform us on why there are two specific tracks and why we should not mix the two tracks together?

Ms Martin: I could get a student working on that quickly. It is a great point.

The Chairman: I will point out that it will have to be quick because we intend to do clause-by-clause consideration of this bill next Thursday.

Ms Martin: You would be surprised.

The Chairman: Thank you very much.

Honourable senators, Senator Kinsella discovered a typographical error in Bill C-40. It is on page 12 of the bill. Everyone has a copy of it. Clause 45 states:

45. The Act is amended by adding the following immediately after the heading "GENERAL" AFTERSECTION 15:

"After section 15" in the English version is capitalized where it should be in lower case. In the French version, it is "dispositions générales," and only those two words should be in capitals. The rest should be in lower case.

We had hoped to have Mr. Audcent here to tell us that this truly is a parchment error. Unfortunately, he is out of the country. I have made sure that you each have the paper before you that he prepared on parchment errors.

If you turn to page 6 of that report, paragraph 7 states that not all portions of a bill become enactments. He refers to subsection 2(1) of the Interpretation Act, which provides that:

..."enactment" means an Act or regulation or any portion of an Act or regulation;

Despite this definition, Mr. Audcent goes on to say that an enactment does not include the "look and feel" elements of an act. An enactment, for example, would not include things like formatting, white space, font choice and font size.

By that definition, this incident would be a parchment error. I believe that we are entitled to correct this without too much problem.

If the committee agrees, we will take the necessary steps to instruct the law clerk and the parliamentary counsel to correct the printing error on the parchment. I need a motion to that effect.

Senator Moore: I so move.

The Chairman: All in favour?

Hon. Senators: Agreed.

The Chairman: Carried.

Is it agreed that the committee now move to clause-by-clause consideration of Bill C-40?

Hon. Senators: Agreed.

The Chairman: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Shall clause 1 stand postponed?

Hon. Senators: Agreed.

The Chairman: Shall clauses 2 to 84 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 1 carry?

Hon. Senators: Agreed.

The Chairman: It is agreed. Shall the title carry?

Hon. Senators: Agreed.

The Chairman: Is it agreed that this bill be adopted?

Hon. Senators: Agreed.

The Chairman: Is it agreed that I report this bill without amendment but noting the parchment error at the next sitting of the Senate?

Hon. Senators: Agreed.

The Chairman: I shall do so. Thank you. We have completed the last part of our agenda today.

Senators, we have the next panel before us.

Please proceed.

[Translation]

Mr. Vince Westwick, Legal Advisor, Law Amendments Committee, Canadian Association of Chiefs of Police: Madam Chair, I am Co-Chair of the Law Amendments Committee of the Canadian Association of Chiefs of Police. I am accompanied by Mr. Michel Shard of the Ontario Provincial Police, who is also a member of the Canadian Association of Chiefs of Police and Ms Corinne Bourgon, of the Ottawa Police Department, who is working on this issue.

The Canadian Association of Chiefs of Police represents 950 chiefs, deputy chiefs and executive police members, and more than 130 police departments across Canada. The Asssociation is in the process of gradually modifying legislation pertaining to crome and issues that concern communmity safety.

[English]

It is an honour and a pleasure to be here today to speak to you about the omnibus bill, Bill C-15A. I would like to convey to the committee the best regards of the President of the CACP, Commissioner Boniface, who is unable to be here with us today.

With respect to Bill C-15A, even in its slimmed down version, this bill contains much of what is important to the police community. Given the time constraints, we will try to emphasize only those points that we feel are most important to the CACP and that need some explanation or expansion.

Mr. Mike Shard, Member, Canadian Association of Chiefs of Police: On October 3, we appeared before the House of Commons Committee on Legal and Constitutional Affairs to tell the members that Bill C-15A represents a number of important steps forward for the law enforcement community in Canada. The CACP thanks you for inviting us to present our comments on a bill that is very important to us. We will take advantage of this opportunity to focus on some of the highlights of Bill C-15A and explain to you the impact they will have on policing.

The first issue I would like to talk about are the provisions surrounding the sexual exploitation of children. These amendments are an attempt to keep pace with the ever-changing problems faced by our society and specifically the technology of the Internet. These provisions provide the police with some practical enforcement tools. We all bear a special responsibility when dealing with crimes against children. Many of you are aware that Chief Fantino of Toronto has been very involved in these issues for years. He expresses that any improvement in this area is a positive step but encourages the committee to keep a watchful eye on the impact of these sections. With ever-changing technology, it is critical that the community be given the tools to protect its children from exploitation.

An excellent example of such a tool we feel is the provision allowing court-ordered deletion of child pornography from Internet sites. We believe that this power is found in clause 13 as an important investigative and preventive tool. This ensures that there is a legal mechanism to focus on and remove the material and thereby prevent further victimization.

The provision against using a computer system in the luring of a child is similarly an important and worthy measure that will help protect our children in an area where they have proven vulnerable. We do, however, have some additional suggestions about this provision.

First, we are somewhat concerned by the hierarchy of ages found in the subsection. This may create practical investigative and prosecutorial problems. Second, we wonder whether the definitions are broad enough to capture intranet or internal e-mail and computer systems that are now common in both the public and private sectors. Finally, the provision fails to capture those adults who facilitate the commission of those offences targeted in the section. This occurs when one adult asks another to help lure a child for sexual purposes, for example, and would assist our undercover officers in their investigations.

I will speak next to the provision dealing with disarming a police officer. This important provision has been introduced as a result of the hard work of our colleagues at the Canadian Police Association. The Canadian Association of Chiefs of Police firmly supports the provision, and we feel that the section is fundamentally preventive in nature and is intended to reduce the number of attempts to disarm police officers. We believe that this important provision will thereby reduce the number of police officers and innocent bystanders injured or killed by such an offender.

Speaking to some of the criminal procedure issues, the Canadian Association of Chiefs of Police has for several years been making representations on changes to criminal procedure and feels that these are not merely technical amendments. We hear much frustration expressed in our communities about how the criminal justice system operates. While some of the criticism is based on misinformation, some of it is well-founded. In our view, some provisions of the Criminal Code are simply outdated and have been overtaken by new technology and approaches. Continuing to hang on to the old procedures is both expensive and time consuming and in no way advances the interests of justice.

Our submissions on these points address technical concerns but also, and more fundamentally, respect for and integrity of the criminal justice system. We ask, therefore, that you give careful consideration to our comments in this regard. Generally, what you will hear is that the steps being taken are important but regrettably do not go far enough.

With respect to remote appearances, daily in our courts persons in custody appear for adjournments and to be remanded, et cetera. Typically, these take less than a minute and in some cases only a few seconds. These are not trials or hearings but rather merely adjournments. Many jurisdictions are trying to implement video remands so that the exorbitant expense of transporting and securing prisoners for remands can be avoided. The problem is that under the current and the proposed law, it is still voluntary. Quite frankly, prisoners enjoy the opportunity to get out of their cells for a day and come to court. We need something to make this process work.

With respect to private prosecutions, this is a very important topic for police and public officials. Under criminal law, every person has the right to commence criminal proceedings against another person. Regrettably, these provisions are often misused. For example, there have been several high-profile cases in Ottawa where police officers and senior public officials have been subjected to months of expense and stress as a result of this kind of action. Again unfortunately, once the process has been commenced, other officials are loath to interrupt the process, and it is disturbing how far and to what extent these actions can go before they are terminated.

One executive member of the RCMP attributes a heart attack to the rigors of facing this kind of unfounded but stressful process. We are currently aware of ongoing cases in Toronto, Oshawa and Peel.

I personally am the commander of the OPP Professional Standards Bureau and am very familiar with the formal procedure for police complaints, which includes both civilian oversight and rights of appeal for the complainant. Increasingly, however, private prosecutions are used as an alternative to the proper complaints and appeal process.

Tens of thousands of dollars of public funds and extensive resources are wasted in these ill-conceived actions. As a result of our appearance at the House of Commons committee and letters sent to Ontario ministers of the Crown, we can report to you that the Province of Ontario is taking a very hard look at these provisions, especially in relation to police officers.

As a result, we share the concern that is reflected in this provision but believe that the proposed sections do not go far enough. We agree that applications for private prosecutions ought to go to a judge, but we go further and recommend the following: If the judge decides that the matter ought to proceed, then the Crown must take carriage of the prosecution so that the community can be assured that the prosecution is both a proper and professional approach and consistent with the law and standards set by Parliament and the provincial legislatures. We believe that this matter requires a consistent approach and that it should not be left to be addressed by provincial policy.

Finally, with respect to preliminary inquiries, a preliminary inquiry has historically been used in most serious cases to determine whether there is enough evidence for a trial and to ensure that disclosure to the accused has been made. This involves the Crown producing all its witnesses and putting its case before the preliminary hearing judge. The defence rarely calls evidence. The CACP has strong views on this topic and has been making submissions to the government for several years concerning the preliminary inquiry. We welcome the important steps taken in Bill C-15A in narrowing the scope of preliminary hearings but question why preliminary hearings are simply not abolished. The process is very expensive and time-consuming and in our opinion, in light of the Charter and/or extensive laws on disclosure, simply no longer justified.

In conclusion, the CACP and its members respect and are grateful for the opportunity to appear before this committee to make submissions on the future of Canadian criminal law.

Mr. David Griffin, Executive Agent, Canadian Police Association: Honourable senators, we sincerely appreciate the opportunity to appear today before the committee to speak in support of Bill C-15A. With me today is Sandy Brohman, President of the Peel Regional Police Association. Mr. Brohman will address the committee with respect to the proposed "disarm peace officer" provision of the bill, and I will then speak on the other aspects of Bill C-15A.

Mr. Sandy Brohman, President of Peel Regional Police Association, Canadian Police Association: Constable Scott Rossiter started his police career at 21 Division of Peel Regional Police. After marrying Penny, also an employee, and starting a family Scott and Penny decided to move to a smaller community in southwestern Ontario to make a better life. Scott then left Peel and joined the Ingersoll Police Service.

On September 19, 1991, Scott was working in evening shift and stopped to investigate a male cyclist in the municipal parking lot next to the police station. An altercation occurred and the cyclist managed to relieve Scott of his police revolver. Constable Rossiter was fatally wounded with a single gunshot wound to the head. He was 30 years old and the father of two small children.

We do not know how many police officers have been killed in Canada with their firearms. While we do not have statistics on the number of incidents involving the disarming or attempted disarming of police officers, we do know from talking with our members that this type of aggression is on the rise.

I would like to speak on behalf of the need for this new provision and tell you about several recent cases involving Peel police officers. As you may know, the Peel Regional Police provide police service to approximately 1 million citizens in the cities of Brampton and Mississauga, to the West the Toronto, as well as providing policing for Pearson International Airport.

On December 7, 1998, Constable Michael Seymour was working in uniform and intervened in a dispute among several men. When he tried to stop one of the aggressors, Constable Seymour was punched in the face, his patrol jacket pulled over his head and he was knocked to the ground. While one male got on top of the officer and began punching him, another began kicking him. His head was slammed against the ground while an attempt was made to relieve him of his duty firearm. If not for the intervention of a witness, who was actually passing by, the aggressors may have been successful, as two safety latches on the officer's safety holster had been released.

On June 11, 1999, Uniformed Patrol Constable Susan Dyet was attempting to arrest a male who had assaulted another officer. In the process, the suspect grabbed her firearm and tried to remove it from her holster. Again, witnesses assisted in preventing the man from obtaining her service revolver.

On August 15, 1999, Constable Kirk MacDonald was working in plain clothes and attempting to arrest a man for breach of his recognizance. He identified himself as a police officer and attempted to take custody of the male. At that time, the male responded violently, throwing the officer against a fence, kicking and kneeing him when he did so. He tried to relieve the officer's firearm while shouting at his girlfriend to shoot the officer. Fortunately, Constable MacDonald was able to protect the weapon and the individual fled the scene.

On May 14, 2000, Constable Peter McLaughlin was speaking on the telephone in the Mississauga General Hospital when a patient suddenly grabbed at the officer's weapon and was able to actually break the firearm free from his holster and gain possession. Fortunately, Constable McLaughlin, with the assistance of hospital personnel, was able to gain control of the firearm before the weapon was discharged.

On May 26, 2000, two Peel police officers responded to a call for suspicious male. When Constable Chris Lachappelle arrived, two males attacked him and attempted to dislodge his firearm. The officer maintained the security of his firearm during the attack. When a second officer, Sergeant Bond, arrived, one of the males attacked Sergeant Bond and was successful in removing the officer's gun from his holster. However, the gun fell to the ground in the skirmish. Sergeant Bond was able to prevent the attacker from reaching the weapon to grain control.

On March 28, 2001, police attempted to stop a vehicle for impaired driving as the vehicle pulled into the driveway of the driver's residence. During the arrest, the man yelled for the assistance of his family. The man's father and two women ran out of the house and surrounded the uniformed police officer, Inspector Bob Strain. The father attempted to pull the officer away from his son. At that time, a second officer, Constable Dave Manson, arrived and attempted to intervene. The father then attempted to remove Constable Manson's firearm, after punching the officer repeatedly in the face. Constable Manson managed to retain his firearm until other officers arrived at the scene.

On April 2, 2001, Constable Dana Nicholas was working at Clarkson Secondary School as a school liaison officer and was called to the front of the school to deal with a disturbance. A 19-year-old male, who had been a student at that school, charged the officer and struck her in the head and face and knocked her to the ground. He proceeded to kick Constable Nicholas in the head, face legs and back. The attacker attempted on three occasions to pull her gun from its holster without success and was finally subdued with the assistance of school personnel who joined in to assist the officer.

At 8:30 in the morning on July 13, 2001, police approached a man walking in rush-hour traffic down the middle of Steeles Avenue, a main road in the City of Brampton. The man lunged at Constable Smith when he approached him and screamed, "Now you're going to die," and grabbed the officer's weapon. A struggle ensued on the street and Constable Smith succeeded in protecting his firearm and gaining control of the accused.

These are just eight incidents that have come to our attention in my service alone. There were 10 police officers involved who may not have made it home that night from their shift had it not been for their presence of mind, the security of their equipment, the effectiveness of their training and indeed the swift intervention of nearby witnesses and other police officers.

While some of the officers were injured in these incidents, the results could have been far more tragic. The risk to officers increases dramatically when an attempt is made during an arrest altercation to disarm the officer of any piece of his protective equipment. Police officers during that time are no longer able to defend themselves properly as their focus shifts to preventing the offender from gaining control of their equipment. In all these incidents that I have outlined, that means their firearm.

We are certainly grateful to Minister McLellan for listening to our concerns and bringing this provision of Bill C-15A forward. It goes without saying that we strongly support the proposal as it is presented in its present form.

Mr. Griffin: I will now turn briefly to the other portions of Bill C-15A.

Children are the most vulnerable group in society and are in need of protection from those who prey on them. The growth of the Internet has significantly increased the availability of child pornography and facilitates attempts by paedophiles to find new victims. We support the proposed sexual exploitation provisions dealing with child pornography and Internet luring. We would, however, like the government to establish a national sex offender registry, as set out in our brief at tab A.

We have also proposed a number of other strategies in our recommendations, which include establishing a national photo image database, the creation of a national tip line and raising the age of consent to 16 for children to have sex with older persons.

We concur with the proposal to increase the maximum sentence for criminal harassment. We had the benefit of being here this afternoon while this issue was discussed with Minister McLellan. Indeed, a witness from the Canadian Police Association, Sergeant Lynn Cunningham, from Calgary, was here when Senator Oliver's bill was being discussed.

Criminal harassment is a serious predatory type of offence. We recommended and continue to recommend that the law be strengthened by including a significant minimum sentence for second and subsequent offences. One of the concerns that Sergeant Cunningham brought forward at that time was that in many cases repeat offenders were still being given non-custodial sentences, increasing the risk and concern for the victim. We have also proposed changes to include the offence of criminal harassment, within the long-term offender and dangerous offender provisions of the Criminal Code of Canada.

We concur with the proposed changes dealing with sexual exploitation of person with disabilities. We are somewhat ambivalent over the proposal concerning home invasions and would point out that the offences of break and enter and robbery already carry maximum sentences of life imprisonment. Unfortunately, maximum sentences do not seem to have any significant effect on sentencing practices of members of the judiciary.

The proposals to streamline criminal procedure appear to bring our archaic justice system one step closer towards 20th century efficiency, notably two years after the world moved into the 21st century. We would like to see the procedures amended to provide for mandatory electronic disclosure of documentary evidence and suggest that a serious contemporary evaluation concerning the effectiveness of our judicial system is long overdue.

With respect to the miscarriage of justice proposals, we would question whether the expansion of this process to include summary conviction offences is warranted given the costly levels of appeal already available. Second, we have cautioned that the minister may be leaving open too much latitude for judicial review of these determinations. Finally, we believe that victims should be notified at the time of application, consulted during the review process, provided a copy of the final investigative summary and afforded an opportunity to make submissions prior to a determination.

We would also like to speak in favour of the proposal submitted by the Canadian Association of Chiefs of Police dealing with private prosecutions. Certainly this is an issue that can affect front-line police officers as well.

In conclusion, we support Bill C-15A and have proposed a number of improvements within our brief for future changes within the existing law. We thank you for your consideration and attention and would welcome any questions.

Senator Pearson: It is always valuable for us to have an opportunity to hear from people who come from a practical experience background that is a distance from many of us.

I am interested on this question of child pornography. I am interested in knowing how many people that have been charged under even the existing offences are under 18.

Mr. Griffin: I can only offer that I regret that our president Grant Obst is not able to be here today. He is involved with a sex crime unit in Saskatoon, where he is a police officer. He has introduced a program to deal with street youth and, in particular, street prostitutes and the concern over the lowering age of young people that are involved in the sex trade in his community and others across Canada.

I would say from what I have heard from him and his discussions of the programs there that they are trying to shift the focus away from dealing with these young people as criminals and more as victims. I would say that in a high proportion of those situations he is dealing with people who have been introduced at a very young age.

Senator Pearson: I think one of the issues when you ask for a sex offender register is that we have heard that sexual offences against children are very frequently committed by children, if you are defining children as under the age of 18. A very large number of these offences take place between children. In that definition of course, they would not call themselves children. "Juveniles" is a better term. That is a concern when we look towards a less punitive approach to young people engaged in the sex trade. This is not for now but the long term. When we look at some of the issues around things like registers and so on, are we making adequate exceptions or being attentive enough to the fact that it is juveniles and adults?

Mr. Griffin: Just to clarify, when we speak about a sex offender registry, we are dealing specifically with older people who are preying on others, whether it be sex offenders adult to adult or adult to children. It is not our intention to be dealing with children in the sex trade but rather people who are preying on children or people who are paedophiles, people who are chronic sex offenders and using violence against others in sexual acts. We are certainly not talking about trying to register kids that have been drawn into the sex trade on the street.

Senator Pearson: One of the interesting pieces of information out of South Africa is that when they raised the age of sexual consent they ended up with a lot of young people on their sex offender register. That is something to think about as you are making your resolutions and so on. I am trying to ensure that we capture only the ones who really need to be captured.

Mr. Griffin: Again, we were trying to be careful to make it clear we are talking about older persons having sex with children - the situation where a 40-year-old is picking up a 15-year-old in the streets of Vancouver. The 15-year-old is consenting - in some cases now it is 11 or 12 - but should that 15-year-old really be in a position to consent in that situation? Certainly children within the same age group is a different situation. A 17-year-old with a 16- or 15-year-old is not what we are trying to capture.

Senator Pearson: That is why I am saying we have to find the right instrument and not just think we solved it with one instrument. That is not really a question but rather a comment. Your experience is valuable.

Mr. Westwick: You have raised a very interesting point. We would undertake to try to provide more detail to your question. My only question is whether we should direct our response to the chair or directly to you. I am in your hands.

The Chairman: If you are replying with something written for us, you can send it to the clerk or to me, and I will see that everyone gets a copy of it.

Senator Pearson: It would be useful for us all.

The Chairman: We will be dealing with this issue again, I am sure.

Mr. Westwick: We would be pleased to do that. It may take some time to canvass our member agencies, but we will see if we can develop some information that addresses the point. It is very important.

Senator Joyal: In the last part of your brief, page 10, paragraph 7, you propose that Bill C-15A be amended to require electronic disclosure of documentary evidence, restrict application of ministerial review provisions to indictable offences, eliminate the possibility of judicial review decisions determined by a ministerial review, and then provide victims with notification of applications made for ministerial review, a copy of the final investigative summary, and then an opportunity to make written submissions prior to a determination by the minister.

I know it has been a long afternoon, but we just had two witnesses who addressed that issue in a very extensive way. I think it would be fair for you to give us your view of how the system works presently and the recommendation that we would be better to leave things as is than to change them the way proposed in this bill.

Mr. Griffin: I will try to be brief, but this kind of opens the door to the whole host of issues. The first point under paragraph 7 is really separate and apart from the issue of wrongful conviction. Our concern there is that the police agencies and Crowns are trying to use technology, as was discussed by Minister McLellan this afternoon, to put documentary evidence onto a CD-ROM as opposed to boxes, and the problem of actually getting people to consent to that.

With respect to the wrongful conviction provisions, we certainly understand and support the need to have avenues to deal with cases. In particular, we seem to deal with historical cases where the evidentiary standards, the rules of disclosure and the ability to do forensic testing may not be the same standards that are applied today. We understand the need for some process to review that.

Our first concern is whether it is prudent or necessary to expand that into summary conviction offences. You heard from the witnesses this afternoon that they themselves, at the present time, restrict their focus to the most serious of cases, cases in which people have been incarcerated for a substantial period of time or they are still incarcerated.

Our second concern arose as a result of our reading the work that was done by the Library of Parliament. I refer to whether decisions made by the minister may create the unintended consequence of there being another layer of judicial review available to those decisions and whether that is intended. In addition to the appeal processes within the court system, as well as the process under section 690, our concern is that adding another, perhaps, unintended layer, if the applicant is not satisfied with the minister's decision, could cause that person to seek a judicial review of the minister's decision.

The final concern deals with the victims in these situations.Consistent with our position for victims in all other aspects of the justice system, we feel that these victims should be notified at all stages of a process of this nature and be provided with an opportunity to make submissions. Certainly, if the evidence that is being brought forward is trying to discredit or contest evidence from the victim of that particular crime, then that is something that should be weighed in the process as well.

The victim should not hear on the six o'clock news that this decision has been rendered to permit the application to go forward. The victim should be notified during the course of the process.

Senator Joyal: To put it in an adjudicative way, on one hand you have the person who has been found guilty and who is trying to fight back his case. On the other hand you offer, and I have no objection as such, the victim the possibility of making written submissions. You then put the minister in the position of adjudicating two potential conflicting views. I have been a minister of the Crown. The last place I want to be is in a position where I have to judge on the rights and freedoms of people. This is a very serious position to be in as a minister. This committee has had before it, and the chair will remember, Bill C-40, which was the extradition bill. The minister was left with the decision to decide to extradite a Canadian citizen, or another person, to a country where the death penalty is imposed. I would not have liked to be in the position where I had to decide whether to sign the extradition papers. My approach to this is that if you reserve the decision in an arbitrary way, I feel it is better to put it into the hands of an independent.

This issue is a very difficult one. As we all know, fortunately, we no longer have the death penalty in Canada. If it were still in place, you can understand how difficult it would be to put the decision for the freedom of one person who has been in jail for so many years into the hands of one person. We all know that these things happen. Therefore, we must ensure that if we have a system to address that situation that system must be the fairest possible one. I say that because it is important to protect the person who must take the decision.We do not want to imagine a case where a minister refuses the authorization, the investigation continues and another minister is appointed to replace the first. If that minister decides to go for a review and the person is found not guilty, I would not like to be the minister who said no.

This is a real thing. This is not a film. It is not Hollywood. This is the reality that we would face.

I receive your position on this. However, as I say, we must try to maintain the system that is most credible for citizens because it helps you in doing your job. It helps the system to function in a way of maintaining the trust of people in our democracy. The justice system is a large part of our democracy.

The Chairman: If you provide victims with notification of applications made for ministerial review, and I assume there will be many more applications than our minister ever decides to hear, are you not putting the victims through another hoop, another round of hurt?

Mr. Griffin: I think there may be others better qualified to answer that than us. Certainly, our organization sponsors the Canadian Resource Centre for Victims of Crime. Their experience is in dealing with victims and advising them about our corrections and parole system. The most common frustration we hear is about the lack of information. They respect our process. They respect that individuals have the right to different applications and hearings and what have you. Invariably, however, that notification is not received officially; it is received informally or through the media.

Our primary one is ensuring that they are notified through the formal channels. Perhaps we have not weighed senators' comments appropriately. However, we are certainly not suggesting that we turn this into a situation where everyone will be called upon to have another day in court so to speak. Often, in these murder cases, it would not be the victim but a family member survivor. Invariably, we want to ensure that they feel that they at least have some voice in the process.

I am not sure if we have thought through the unintended consequence of that. It is to ensure that they at least feel they are not complete spectators or outside the process.

The Chairman: Or completely excluded from it?

Mr. Griffin: That is right.

The Chairman: Thank you very much for waiting so patiently.

Mr. Brohman: I wish Senator Pearson were still here. I wish to respond to her comment on the sex offender registry. I have another example from Peel. About 12 years ago, a young boy by the name of Christopher was kidnapped from a shopping plaza in Brampton. I was on duty that night. Part of my duties was to check every parked car within eight blocks of that plaza. We found out afterwards that young Christopher was alive for several days after he was kidnapped and before he was murdered. If we had found out that that offender was living in our area and where he was, we could have saved that young child.

The Chairman: Which was not very far from where they picked him up outside the store.

Mr. Brohman: It was about three blocks.

The Chairman: Thank you very much.

The committee adjourned.