Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for March 10, 2004
OTTAWA, Wednesday, March 10, 2004
The Standing Senate Committee on Legal and Constitutional Affairs is meeting today at 4:10 p.m. to study Bills C- 16, An Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts, and Bill C-250, An Act to amend the Criminal Code (hate propaganda).
Senator George G. Furey (Chairman) in the Chair.
[Translation]
The Chairman: Today, we will study Bills C-16 and C-250.
[English]
Honourable senators, we began our study of Bill C-16 by hearing from officials from the Department of Justice and the Department of Public Safety and Emergency Preparedness. We continue our study today with witnesses from the Canadian Professional Police Association.
We will then move on to Bill C-250, the hate propaganda bill. We will begin our study today by hearing from the sponsor, Mr. Svend Robinson.
Please join me in welcoming our first two witnesses from the Canadian Professional Police Association, Mr. Cannavino and Mr. Griffin.
Please proceed, Mr. Cannavino.
[Translation]
Mr. Tony Cannavino, president, Canadian Professional Police Association: The Canadian Professional Police Association welcomes the opportunity to appear before the Senate Standing Committee on Legal and Constitutional Affairs. The CPPA is the national voice for 54,000 police personnel across Canada. Through our 225 affiliates, membership includes police personnel serving in police services from Canada's smallest towns and villages, as well as those working in our largest municipal and provincial police services, the RCMP Members' Associations, and first nations police officers.
The Canadian Professional Police Association is acknowledged as a national voice for police personnel in the reform of the Canadian criminal justice system. We are motivated by a strong desire to: enhance the safety and quality of life of the citizens in our communities; share the valuable experiences of those who are working on the front lines; and promote public policies that reflect the needs and expectations of law-abiding Canadians.
Children are the most vulnerable group in society and are in need of protection from those who would prey on them. At the 2003 annual general meeting of the Canadian Professional Police Association, our national delegates unanimously adopted five priorities for our association, one of which is the creation of an effective National Sex Offender Registry.
We need a national sex offender registry to track all convicted sex offenders released into the community. We also need laws that protect our children from exploitation by older persons, and we need to make greater use of technology to address crimes against children.
Sex offenders should be registered. Research establishes that pedophilia is incurable and offenders remain at risk to reoffend for years after their sentences expire. The U.S. experience has shown that registries assist police in identifying suspects and solving child sex offences sooner.
The 1993 inquest into the death of 11-year-old Christopher Stephenson recommended that the federal government create a national registry for convicted, dangerous, high-risk sexual offenders and require that each such offender register with police in the jurisdiction where the offender will reside or is residing.
The 1993 "Liberal Perspective on Crime and Justice Issues" supported the establishment of a national registry of convicted child abusers, stating that:
Sex offenders represent almost 20 per cent of the incarcerated population and 10 per cent of the conditionally released population. These numbers are not an accurate representation as they include only those sentenced to two years or more in prison. Actual figures are much higher. Over the past five years there has been a 20.4 per cent increase in the rate of admission of sex offenders. Evidently more and more sex offenders will be reintegrating into Canadian communities.
Repeat sex offenders are more than twice as likely to commit further sex offences, much more likely to violate conditional release conditions and more likely than any other offenders to reoffend with a non-sexual offence. However, treatment programs for sexual offenders are sorely lacking. It is the norm, when it should be the exception, that convicted sexual offenders return to communities without any counselling or rehabilitation therapy.
The Canadian Police Information Centre, that is, the CPIC, does not currently provide police agencies with adequate information and notification concerning the release or arrival of sex offenders into their communities.
On December 11, 2002, Bill C-23 was introduced in the House of Commons at first reading.
While we were pleased to see that the federal government was finally moving forward to introduce a sex offender registry, we were concerned that the legislative proposal was insufficient to protect the public and provide effective investigative support.
We recommended several key amendments to Bill C-23.
We submit that the registry can, and should employ the most up-to-date technologies to achieve the highest possible degree of efficiency and effectiveness. As an example, the Ontario Sex Offender Registry has 93 different search fields. We submit that the National Sex Offender Registry should be capable of: provincial, jurisdictional, radius and postal code search; updated multiple digital photography entry and cross-reference; extensive personal descriptor entry and cross-reference; and geomapping and geographic profiling.
[English]
Point two: offenders. The original proposed legislation only applied to those offenders convicted after the bill would be proclaimed as law. It excluded those offenders currently serving sentences for previous convictions, as well as those convicted while the bill was debated by Parliament.
Nova Scotia justice minister Michael Baker observed that "we need to protect people not only from those people who will be convicted in the future but from those people who have been convicted in the past, particularly those who are in custody at present."
Among the notorious examples of individuals, who, if released into the community, would not be required to register under that system, are Clifford Olson, Paul Bernardo, or Karla Homolka, or whatever their names would be upon release. We find this to be preposterous.
We contended that the registration of all convicted sex offenders has a valid, non-punitive, regulatory purpose and is, therefore, not a violation of an offender's rights when one considers the overarching legitimate public safety concerns. This is consistent with the experience and jurisprudence in the United States, including a U.S. Supreme Court decision upholding sex offender registries that go far beyond the Canadian proposal and the Ontario example.
While some may wish to debate the costs of the registry, it is important to consider the benefits and savings that can be realized. A comprehensive registry presents an investigative aid that can reduce costs of an investigation and assist in focusing police resources. Conversely, a registry that is essentially a hollow shell or work in progress that will take years if not generations to become effective will prove to be an expensive and ineffective tool.
We submitted that the registry must apply to all convicted sex offenders released into the community, including temporary absences, work releases, day parole, parole, statutory release — all forms of conditional release.
We were therefore very pleased that, following consultations with the provincial and territorial counterparts, former Solicitor General Wayne Easter agreed to amend the original bill to expand the scope to enable registration of all offenders who are currently serving sentences for sex offences, whether in custody or completing their sentences in the community. Anything short of this, quite frankly, would be empty, meaningless and a gross misrepresentation.
Our third point related to the subject of judicial discretion. Bill C-16 sets out an extensive process by which a judge will determine if an offender is to be included in the registry, with appeal processes. We submit that this is totally inappropriate and unnecessary, and suggest that there should be no judicial discretion in determining application of the law. We contend that all convicted sex offenders should be included in the registry.
Our fourth point relates to offences. Failure to register signals to police that an offender has consciously chosen to ignore the law and is a serious warning sign. We submit that the consequences of failing to register under Bill C-16 are modest; the consequences must have more teeth, to promote a high degree of compliance. It should clearly be more advantageous for the offender to register than to choose to ignore the law and accept the consequences if apprehended.
In conclusion, we believe that Bill C-16, as amended, goes a long way toward addressing the concerns raised by the CPPA and our colleagues in law enforcement. For the family of Christopher Stephenson, their efforts to protect other children from sexual predators have been rife with delays and resistance. We hope that this committee and your honourable colleagues in the Senate will see fit to pass this bill as expeditiously as possible, to avoid any further unnecessary delays.
The Chairman: In your experience and research, how many times have registries in other jurisdictions that use them been used successfully? Do you have any information or statistics related to that?
Mr. David Griffin, Executive Officer, Canadian Professional Police Association: Honourable senators, we do not have any specific examples. I know that the officials have indicated that they have done some analysis of the various jurisdictions.
One thing we would like to point out is that success can mean two things. Success can mean identifying suspects or eliminating suspects. There is a value in perhaps not getting ahead but at least being able to eliminate a pool of suspects from the investigation.
Senator St. Germain: I was in contact with the chief of police from the City of Vancouver. I am not familiar with the legislation to the point where I can interpret it fully, so I am asking you whether your amendments are consistent with their concerns.
The chief of police from Toronto also had a concern that the law, as written and forwarded to the Senate, is unenforceable. They have studied this at great length. I asked the chairman earlier today in the Senate as to whether these gentlemen were appearing, and I understand that possibly one of them will appear and the other will send a representative. Have you been in contact with them?
The Chairman: Just a point of clarification, Senator St. Germain. The Vancouver police force individual who is appearing as a witness — I was mistaken — is appearing on the other bill tomorrow, not on this particular one.
Senator St. Germain: We have nobody at this time appearing from Vancouver on this bill, is that correct?
The Chairman: That is correct.
Senator St. Germain: What about Toronto?
The Chairman: They were supposed to come today but told us yesterday, I believe, that they could not make it.
Senator St. Germain: Sorry for the interruption, gentlemen, please proceed.
Mr. Cannavino: We did have discussions with representatives of the Canadian Association of Chiefs of Police, and we did agree that retroactivity was very important for us.
Senator St. Germain: In your discussions with them, did they cite any wording within the legislation that required amending to make it enforceable?
Mr. Cannavino: No.
Senator St. Germain: The other thing that was raised was that the individuals who are serving time in the military penal institutions for these types of crimes are not included in this legislation. Can you comment on that? There is a concern that where there is a major military establishment, if you are to register, you must register everybody.
Mr. Cannavino: It should be everybody that is sentenced.
Senator St. Germain: I hear you, but my question is this: Does it cover the military court system and the military penal system?
Mr. Cannavino: We would have to check in the legislation. I cannot answer in regard to this bill. I do not know if it is in this proposed legislation before you right now, but our point is that it should include everyone.
The Chairman: If I may clarify, my understanding is that if it is a Criminal Code offence it is covered by this proposed legislation.
Senator St. Germain: That is possible, but that concern was brought up to me, because I met with the chief of police explicitly at his request on this in his office. He raised two issues. I just want to ensure that they are on the record. If we are going to go over this legislation, we would hope that it would be fully enforceable, and I am sure that is consistent with everybody's thoughts on the committee.
Senator Pearson: It was brought to our attention that, generally speaking, this was a useful tool, that it is basically an investigative tool to help you in your investigations. They can help you identify but also eliminate.
My question is somewhat the same as the chairperson's. I am looking at some of the practical implications of how this would work out. If we are establishing a registry, we want to know why you think it will really help.
Mr. Cannavino: We are sure it will help. First, in those kinds of crimes, time is very important. If there are any sex offenders or criminals in the area with those kinds of crimes in their past, we can identify them, check them out, eliminate them, or not, rapidly — very quickly, yes or no — and then move on and focus very quickly on somebody else, if it has to be.
The comparison would be like the DNA tests. It has been proven that DNA tests have helped more people that were not involved — eliminate people that were suspects, that were under a cloud of suspicion — than to identify the real criminal. Time is very precious for us, especially in those cases.
Senator Pearson: The moment, for example, you are called in on a case or situation, you will be able to immediately go to CPIC; correct?
Mr. Cannavino: Exactly.
Senator Pearson: I understand that.
Mr. Cannavino: It is connected to CPIC.
Senator Pearson: Let me take this opportunity to comment about the issue of whether or not sex offenders have higher recidivism rates than other offenders. Apparently, the statistics say they do not. Sex offenders reoffend for a new sex offence at the rate of 18 per cent after five years versus more than 40 per cent of all offenders who commit new offences of all types. This is not to say that we know, but one of the important issues we are struggling with, when balancing the rights of the victims with the rights of the accused, is being very careful that we do not make an automatic assumption that they must be —
Mr. Cannavino: That is why we insist on that. This is not punitive but rather to help investigators quickly identify the case, and possibly some suspects, and to eliminate the ones that are not involved in that kind of crime.
Keep in mind that it is not police officers who say that sex offenders are incurable; it is psychiatrists and physicians who say it. Sex offenders can go through therapy, but they are "predators" — and the medical community uses that word to describe the condition.
Senator Pearson: Apparently, there is evidence on the other side of this that we will not explore but I wanted to make sure that both sides are heard in a public hearing.
Mr. Cannavino: I would add that this information is for police officers only.
Senator Pearson: I understand that.
The Chairman: I wish to return to Senator St. Germain's valid point. There is some jurisdictional confusion about the National Defence Act and double jeopardy issues, which will be addressed. The minister will appear before the committee tomorrow, and we will put that question for clarification.
Senator Joyal: We know, of course, that in Ontario there is a registry of sex offenders for a certain period of time. To your knowledge, has there been a study of the efficiency of the various aspects of the use of the registry?
Mr. Cannavino: There has not been a specific study that we know of.
Mr. Griffin: I am not in a position to quote numbers, but I did meet with the head of the sex offender registry in Ontario when we were looking at this issue several years ago. Certainly, they were able to provide concrete examples of how the registry had helped them. It may be helpful to the committee to hear from them directly, as witnesses. In any event, they were having considerable success with the registry and felt that, as a tool, it was a cost-benefit to the police as well.
Senator Joyal: You suggest that we hear from them. Is that correct?
Mr. Cannavino: That is correct.
Senator Joyal: I should also like you to expand on the lack of therapy. You made a global assertion that there is a systematic lack of therapy. Society cannot have it both ways — that is, provide no therapy but provide mechanisms to run after sex offenders. We have to deal with both. We want to prevent these actions, and prevention in this case is the key to the elimination of the risk.
Mr. Cannavino: We agree.
Senator Joyal: The elimination of the risk is not the sex registry; rather, the elimination of the risk is in the therapy.
Mr. Cannavino: Absolutely.
Senator Joyal: Are we not putting the cart before the horse when we put that much money into establishing a national registry while not matching the amount to address issues of therapy? In your own opinion, therapy is essential to the effective elimination of the risk that a sex offender represents.
Mr. Griffin: As Senator Pearson pointed out, there are varying views on the issue of therapy, success, treatment and the ability to "cure" certain sexual deviancies. I believe it is not a case of eliminating the risk but rather of trying to manage the risk. I do not profess to have any medical background but, similar to dealing with people that have substance-abuse problems, there must be a willingness to engage the person in that treatment. We are not suggesting for a moment that we want to offer this up as an alternative to proper programs to support people through therapy and treatment but, certainly, in managing the risk.
From a police perspective, unfortunately we have these kinds of investigations occurring. For example, there is the case of Christopher Stephenson, who was shopping with his mother and his sister at a Brampton mall 11 or 12 years ago when he was 14 years old. His mother walked into a sewing store about one quarter the size of this room, and when she came out of the store her son was gone. He was apprehended by an offender who had been released into the community. The police did not have knowledge of the fact that the offender was living in their community. The offender took the boy back to his apartment, the address of which was known, I believe, to his parole officer. He committed many kinds of atrocities on the child for two days before the child was eventually murdered, his body thereupon being disposed of in the neighbourhood. The offender had been convicted of numerous sex offences in the past. Had the police had access to that information, they would have been able to identify him as a suspect and, perhaps, have prevented that boy's death. Not every case is that extreme but it demonstrates the value of the information.
As well, the bill would place controls on how the police could use the information, how it could be accessed and the restrictions on the use of the information, which some police officers would argue are arduous. Certainly, the bill would ensure that information is not posed in some public domain or other inappropriate place. We see this as a reasonable compromise.
Mr. Cannavino: The information on the sex offender would include the modus operandi, which is extremely important for our work because there is usually a pattern to the offender's actions. A registry containing those details would make it easier for an investigator to determine whether the same modus operandi applies and where the offender is located and what he normally does. That would help us enormously.
The way Bill C-16 stands now is different from what we saw in the United States, where you can access lists of sex offenders, with photos, on the Internet. We do not want such a system, but we do want a tool that will help to save children and adults from becoming victims of sexual predators. It is the tool that we need. We appreciate having the tool of DNA testing; it is unbelievable how much it helps. We are now able to resolve cases that three, four or five years ago we could not resolve. Having another tool to help us in sex offence cases would be terrific. As far as the disclosure matter is concerned, police officers will have access to the information.
As we discussed, this is connected to CPIC. There may be concerns or worries that someone could ask for that information and gain access to it, but that would not happen. When you interrogate CPIC, you need a password. As soon as someone uses a password, it is easy to connect with the person who has that information. The disclosure of the information is safe.
Senator Andreychuk: CPIC has had problems. You have to input properly and have the manpower to take it off in a timely way in your police investigations. I understand the value of the sex offenders' registry. However, when you speak about repeat offenders and predators, you are speaking about people who have already been convicted. They are more that just suspects.
Mr. Cannavino: That is correct.
Senator Andreychuk: Why could the repeat offenders legislation under the Criminal Code not be of assistance in tracking these people to keep them out of harm's way? If they were repeat sexual offenders, then that would eventually translate, at some time, into a protection for society by invoking the repeat offenders legislation.
Mr. Griffin: I would submit that many people will not be captured by the net but still present a risk. This goes beyond the period of any sentence, as you know from the law, in some cases five years, others 10 or 20 years, or maybe even life. It places the onus on that individual to register their address. Currently, once an offender has served his or her sentence, there is no onus on the individual to provide that information. As police officers, we do not always have access to information on what offenders are in the community. It goes beyond the criminal regime and provides an administrative framework to allow that information to be used only for the purposes defined in this bill.
Senator Joyal: I want to return to the issue of therapy. As I understand the way the system works, a person is found guilty, and that person could be ordered, as part of the sentence, to have therapy. When you say that the therapy is insufficient, are you referring to the fact that the court generally does not order therapy often enough; or are you telling us that the therapy does not work, is not well implemented, is not well managed; or are you pronouncing generally on the result of the therapy, that even though there is therapy, the therapy does not work? I am trying to understand what you meant when you said that the program of therapy is insufficient. It is a very important statement in the context of what we are trying to achieve here, and I want to know more about where the problem is within the system.
Mr. Cannavino: Our introduction refers to a citation from the Liberal Red Book of 1993. Their platform indicated a lack of therapy. We also think it is very important, because from what we hear from doctors and psychiatrists, offenders need support, therapy and counselling. Even after offenders are released, they have to continue therapy, because it is incurable. Offenders are required to attend some treatment programs, but once they are released they do what they feel like doing. If they want to continue with therapy, that is great, but nothing compels them to stick to therapy. We agree that therapy and counselling is very important; however, if offenders do not continue with therapy or counselling, we need the tool.
For example, if an offender commits another crime, a sex offence, we need that tool to ensure that we get to him right away, as soon as possible, or that we eliminate him so he is not a suspect for weeks and months. There are two prongs here. We agree with the counselling and therapy, but we also need that, because once it is done, it is done.
[Translation]
Senator Nolin: I would like to come back to the objective of retroactivity you mentioned from the very start. I respect this objective, but please understand that it would be difficult for us to uphold your objective under the Canadian Charter of Rights and Freedoms.
Mr. Cannavino: Absolutely.
Senator Nolin: As far as the committee is concerned, the bill does apply retroactively. I will come back to Ontario and the other provinces in a few moments. But first, let's be clear. You understand as well as we do that there is an element of retroactivity, because the day the registry will come into force, all offenders who have been sentenced — in your presentation, you listed a series of secondary sentencing options, which is included in the bill.
Mr. Cannavino: All offenders who have been found guilty and who are presently serving a sentence, those who are on parole, those who are on day parole and trying to re-enter the job market or society, should be covered.
Senator Nolin: Are they covered?
Mr. Cannavino: Yes, they are covered under the bill. That is why huge progress was made when the original bill was amended.
Senator Nolin: In other words, you agree with retroactivity?
Mr. Cannavino: We feel the bill meets our expectations because, from now on, it will cover offenders who are serving sentences, who are currently in custody and who will be registered. The last change we will ask for is that it should not be up to the judge to decide whether a person found guilty of a sex crime should be registered or not. That should happen automatically; once a person is found guilty of this type of crime, that person should automatically be registered. We also think that the consequences of not registering should be such that an offender realizes that not registering will have serious consequences, such as jail time. Otherwise, if the consequences of not registering are not serious enough, the offender may avoid coming forward. That is the last item on our list.
Senator Nolin: You raise a point which is not covered by the bill. We could discuss the matter at length. I think that crown prosecutors will have to do their homework. I presume they will provide judges with the scientific evidence proving that some types of behaviour are incurable. That issue is not before us right now, and I do not want to begin a debate. I think that if this issue was covered by the bill, we would be debating it at much greater lengths.
I am trying to understand the retroactivity aspect. The idea of serving a sentence covers a very long period. It includes those who are serving time but also those on parole whose sentence is not completed. In other words, a Damocles sword is hanging over their head. I want to get this straight. If someone is serving a ten-year sentence that has been reduced for all sorts of statutory reasons and has two years left to serve, that person will have to report automatically the day the bill comes in to force and the register is created.
Mr. Cannavino: For a very simple reason because we do not believe that the register is a form of punishment. We do not think that the register adds to the sentence. The register is a tool for police officers. That is the distinction. Who do we want to target? We do not want to target those who have been charged — I realize that there is a world of difference between being charged and being found guilty — but we want to include anyone found guilty. If you are on parole or anything like that, you have still been convicted, so you have committed a sexual crime. As a result, you would be registered in this national registry. That is the important thing. We do not see this as punitive, as something in addition to the sentence. It would be different if that was the objective. We see this strictly as an administrative tool that will enable us to speed-up and focus our investigations so that we can more quickly catch those that commit sexual assaults.
Senator Nolin: We have no problem with that objective. We agree with you. Two police chiefs express doubts about whether this legislation could be enforced or implemented. We want to know. There is no point in having laws that are unenforceable or that will be challenged in courts.
We will end up with a saga that lasts five years and then we will have to redo all the work that could have been done properly at the outset.
Mr. Cannavino: I do not know these police chiefs who made those comments.
We represent 54,000 police officers across Canada and 225 affiliates. A number of those affiliates do investigations into sexual crimes. At our general meetings and executive meetings, we talk about this legislation as being a tool and we compare it with certain new pieces of legislation that have been successful. Our objectives are primarily to eliminate suspects who are not involved and arrest those who are guilty.
If the objective were to punish or to add to the sentence, I would understand your comment about this being discriminatory. But we see this data bank as being merely an administrative tool.
Senator Nolin: Ma last question is a greater concern. Last week, senator Andreychuk made a point when the departmental officials were here that I would like to hear you comment on.
Let us take the case of two individuals, one living in Ontario and the other in Saskatchewan, who have committed the same offence on the same date and have received the same sentence. The individual who is registered in Ontario will be included in the federal registry, whereas the person living in Saskatchewan, who is no longer serving a sentence, will not be in the registry. How can you justify this lack of equal treatment?
Mr. Cannavino: To begin with, there may well be a lack of data in terms of work tools.
Senator Nolin: Let us assume that you have all the data. These two cases are subject to the same law of general application.
Mr. Cannavino: We do not feel that this is punitive. What we are trying to do is to build a database as quickly as possible. The fact that Ontario already has a register is obviously something that we can take advantage of. However, in British Columbia, Quebec and elsewhere, where there is no registry, I would hope that it would be possible to collect the information quickly. If the intention was punitive, there would indeed be discrimination. The objective is to have a tool we can use. So we feel that there is no discrimination.
This is strictly a tool for eliminating suspects as quickly as possible. If we can analyze the modus operandi at the scene of the crime by comparing it with data already in the registry, we will be able to make an arrest more quickly.
In our opinion, there is no discriminatory aspect since this is only an administrative tool.
[English]
Senator Bryden: I am always concerned about the abuse of tools. I have some knowledge of tools being abused. I am getting old now. I remember blanket warrants for liquor charges that were used to investigate every crime except for liquor-related ones. They went to the bootleggers and found out where the stolen goods were and who was dealing and so on. If there is a tool that is effective, it often leads to misuse or abuse.
You indicated the tool could be used to eliminate a pool of suspects from the investigation. That is one of the things you do. How do you do that? How do you use this to eliminate a group of suspects? Let us assume in the city that I used to live in, which is a city of 200,000 people, you had registered in that city a reasonable number of sex offenders that would be in the registry. Let us say it is 50. If a sex offence is committed, do you go to each of those 50 people and find out what they were doing at that particular time to eliminate the ones that could not possibly be guilty?
Mr. Cannavino: First, the investigators go to the crime scene. They look at what happened, the MO. They look for physical evidence.
They can then go to look at the information, if there is a registry, to see if there are any sex offenders in the area. They will check the details of each of the sex offenders as to the MO. That would be a first step.
Then, it would be easy to talk to them, just as you would with any other suspects. You talk to neighbours and family members. In those types of crimes, we look everywhere. We have to talk to people. It would be done quickly because we are able to eliminate the ones who we think are not guilty. We can then continue the investigation.
That is the way the tool would work for us. We have to be careful with tools. When you were talking about the blanket warrants from years ago, I remember as a young police officer having those blanket warrants. Our boss would tell us, "If you use this and you do not use it for the proper thing, then you are in deep trouble. You will be accused." Things have changed over the years.
Senator Bryden: Have they changed for the better?
Mr. Cannavino: Look at the impact of the legislation on organized crime. At the beginning, everyone was afraid to give too much power to police officers. In the province of Quebec, there are few Hells Angels left because most of them are in jail, and they are there for 20 and 25 years for crimes they have committed.
We need some tools to resolve crimes and to help Canadian citizens. I do not know why it is always scary to give power to police officers.
Senator Bryden: Because there are some scary police officers.
Mr. Cannavino: And we take care of them.
Senator Bryden: We had some in Toronto who are on the take and busy in drugs. We have only really scratched the surface.
Mr. Cannavino: I have been a police officer for 31 years. I can tell you once someone has done something wrong he pays for it.
Senator Bryden: If he gets caught.
Mr. Cannavino: I would not like to have 54,000 cops trying to catch me.
Senator Bryden: Or covering my back.
Mr. Cannavino: I am sorry, senator, with the 31 years I have been a police officer I could tell you that the few who have done something wrong have paid for it. We do not like to work with crooked cops.
Mr. Griffin: CPIC has been in existence for at least 30 years now. There are still strict rules in place with respect to unauthorized disclosure of CPIC information. The consequences are swift and severe. Whether it is a police officer or a civilian member of a police force who discloses that information inappropriately, in most cases those people are dismissed from the police service. I think as a police officer coming into policing, it is quite well enforced, or emphasized, that that information must be treated properly, because if it is not used properly, you could lose your job or most likely will lose your job.
Mr. Cannavino: That information is not for everyone. If you are investigating a sex crime scene, then you have access to it, but it is not available to someone who decides that he wants to check his neighbourhood to see how many sex offenders there are. He cannot do that.
Senator Bryden: I understand that. I am guessing, because I do not know the number of sex offenders that would be on a registry in any typical city with a population of 50,000 or 100,000. Maybe you know how many would be. Would it be 20?
Mr. Cannavino: It depends. If a crime were to take place in, let us say, Central Ontario, the investigators will not be seeking information on how many sex offenders there are in Ontario. They will go with the area and a radius of so much.
Senator Bryden: I understand that. I am trying to ask what a normal radius would be.
Mr. Cannavino: In the province of Ontario, there are between 6,000 and 7,000 sex offenders.
Senator Bryden: Would those be principally in metropolitan areas?
Mr. Cannavino: The only information we have in the Ontario registry is that there are between 6,000 and 7,000.
Senator Bryden: I do not think this applies, but you made the reference to how effective DNA is as a tool, once again emphasizing its ability to eliminate suspects. In certain countries — and maybe here, I do not know — it is possible to voluntarily give samples of DNA to be matched for the purpose of eliminating the donor as a suspect in a violent crime or murder. Do we have that here?
Mr. Cannavino: If someone is a suspect, he could say to the investigator that he is willing to give a DNA sample. He could voluntarily say to the investigator, "I am not the person who committed the crime, and if you want to make sure, I am willing to give it." That could be done.
Senator Bryden: Depending on the size of the community, if 50 to 70 per cent of the people have been convinced to voluntarily give their DNA, you will gradually work down to a point where anyone who — as they have a right to do — refuses to give DNA will probably have his rights violated. He will be a suspect because of the fact he was not prepared to prove that he could not have been there or could not have done that. I know that has happened in certain communities in other countries. When you say that there is no additional sentence by having this registry, is it not the case that, once the person's name is on the registry, let us say for life, the individual would be subject to being questioned by the police at any time that a sex offence occurs in that particular area?
Mr. Cannavino: Not necessarily. The first thing is to investigate the crime scene. There are things that will show. In our language, we say the crime scene talks. If we have access to that registry, it will give us some answers on possibilities.
I was talking about modus operandi. That is a lot. The description of the individual is very important. If it does not match the description of the person who witnessed it, he will not even get a call. It automatically eliminates some people. Those are the first steps that the investigators will go through. If there appears to be a match, the investigators will go and see the individual. If we can eliminate a person quickly, that is good; it enables us to concentrate elsewhere. However, there are many steps before visiting an individual.
Senator St. Germain: As someone who served as a police officer for five years in two different police forces, there is a delicate balance with regard to power given to the police. However, as the witness stated, there is no one who will go after policemen more viciously than policemen themselves, if they have done anything wrong. As a police officer, I have been part and parcel of going after those who violated the trust that the public had put in them. I can assure you, if you think that they will go after a criminal aggressively, you have no idea how they will go after one of their own.
In the case of children, there is not a more empty feeling in the world than when you go to a murder scene or a scene where a child has been abused. There have been many developments over the last 30 or 40 years since I have been a policeman, but I can tell you, there is a feeling of emptiness because, as a human being, you want to get something done quickly. In the Brampton case, had a registry been in place, if the kid had been held for two days the investigators would have had a chance.
I would ask senators to really dig deep and think of the children. They are the greatest victims of these types of crimes.
Senator Cools: I should like to welcome the witnesses and to say it is nice to see you, as always. You have opened vast areas.
Frankly, Mr. Chairman, the committee has not heard any testimony on some of these issues. Perhaps we should hear witnesses on some of these issues. In particular, the questions I am very interested in involve what you would have to call the susceptibility of sex offenders to treatment.
Not every sex offender is capable of being treated. Some are. If we could begin at the beginning, of the 6,000 to 7,000 sex offenders — let us keep the language clear — in Ontario, how many are random or isolated sex offenders but are not sexual deviants? There is a difference. There are many cases of sexual assault that are one-time events, such as a date or something gone very wrong, but it is not a habit of the individual; there is not a deviance then.
Of these sex offenders, do we know what percentage of them is sexual deviants, if we are still using that language, and of that percentage of deviants, do we know what percentage of them is susceptible to therapy?
There are many conditions simply not susceptible to therapy, and there are many offenders that you cannot get to take therapy anyway.
Perhaps we should have a witness come before us and talk to us about the phenomenon of these sex offences. I have a feeling we are using a very wide brush.
As an investigating officer, you know exactly what I am talking about.
I was on the parole board. You kind of knew the bad ones.
Mr. Cannavino: Yes, we would not be able to give you the percentage of who is deviant. Our police officers have been to so many of those crime scenes that it is unbelievable. Some doctors or psychiatrists call them predators, because when you see the victims you are led to believe that only a ferocious animal could do a thing like that. That is why many psychiatrists talk about predators.
As I said, we could not give you the percentage of who is deviant or who is inclined to leave the therapy.
Senator Cools: You would not know that.
Mr. Cannavino: No.
Senator Cools: Mr. Chairman, it is a field of expertise that is not widespread. As we are hearing so much about it, perhaps we could get some of the psychiatrists who work in the institutions. Most of the penitentiaries have psychiatric departments. We should have some forensic clinicians as witnesses.
To support what these gentlemen are saying, for years many people thought that a rapist was just an oversexed individual — which is not the case. You read the reports of some of those cases. Those victims seem to have been bitten by wild animals; some of the most terrible things have been done to them.
It would be good if we could get some insights into the class of people about which we are passing a law. I cannot help but feel that we really are operating in the dark. I know what you are talking about.
The Chairman: Mr. Cannavino and Mr. Griffin, I want to thank you for taking the time to be with us today and for sharing your comments and expertise. We wish you all the best in your work.
Honourable senators, we will proceed to the second part of our agenda. We do have some time constraints with the room.
Our next witness is well known to committee members. We welcome our fellow parliamentarian, Mr. Svend Robinson, who is here to familiarize us with the provisions of Bill C-250. As you all know, Mr. Robinson was the sponsor of this private member's bill in the House of Commons.
Please proceed, Mr. Robinson.
Mr. Svend J. Robinson, M.P., Burnaby—Douglas: Honourable senators, it is a privilege and an honour to be able to appear before the Standing Senate Committee on Legal and Constitutional Affairs in support of Bill C-250.
While it is correct that I was the sponsor of this bill in the House of Commons, it is important to underline the fact that the bill was passed in the House of Commons with the significant support of a plurality of over 30 members of the House.
My time is brief, and I will welcome an opportunity to answer questions from honourable senators. I initially do wish to take this opportunity to thank the sponsor of this bill in the Senate, Senator Joyal, who is also a member of this committee.
I cannot speak nearly as eloquently as Senator Joyal as to the purpose and the importance of this legislation. I had the opportunity to review the transcripts of all of the speeches that were made in the Senate on this bill. Senator Joyal spoke eloquently and powerfully as to the importance of this legislation.
I also wish to note the role of the Senate historically in protecting minorities. This is one of the critically important roles of this house. Certainly, that role is one that was evidenced in the debate on this proposed legislation, on both sides of the Senate. I wish to underscore the comments, for example, of Senator Kinsella in supporting the legislation as well as members of both the Conservative and Liberal sides of the Senate on this bill.
One can have a vigorous debate about the need for hate propaganda legislation at all. I note, for example, in her comments to the Senate, that Senator Cools gave a comprehensive and thorough review of the history of this legislation. It originated in 1970, after the report of Maxwell Cohen's committee. Yes, there were people who said that we do not need hate propaganda legislation in Canada at all, but in its wisdom, in 1970, Parliament passed this amendment to the Criminal Code.
At that time, the notion that the amendment might include sexual orientation would have frankly been unthinkable. It was the same year, 1970, in which homosexuality was decriminalized. Prime Minister Trudeau and Justice Minister Turner decriminalized homosexuality. Hence, any notion that one might include sexual orientation in hate propaganda legislation at that time would have been out of the question.
Having adopted hate propaganda legislation, the argument that I would make, honourable senators, is that one must listen to the evidence of those on the frontlines in dealing with the issue of hate crimes, and ask, "Who is targeted by hate crime in Canada today?"
You will hear compelling evidence from the representatives of the Canadian Association of Chiefs of Police, I believe tomorrow, Inspector Dave Jones, who was the head of the hate crimes unit of the Vancouver Police Department, that the group that is targeted more frequently than any other group in Canada for violent hate crimes is the group that is not currently included in the hate propaganda sections of the Criminal Code.
The police evidence will be that existing grounds of race, colour or ethnic origin are clearly important. All of us wish to ensure that hate or violence directed at groups whether on the basis of anti-Semitism, racial slurs or any other slurs, must be vigorously condemned.
My bill is a short, but profoundly important bill. It says that the same level of protection should be extended to gay and lesbian people — no more and no less.
The bill has strong support across the country. It has the support of every attorney general in Canada. I remind members of this house that that includes attorneys general of all political persuasions, including the Attorney General of Alberta, Dave Hancock, who has spoken strongly in support of the legislation. The bill has the support of the former Minister of Justice, Martin Cauchon, as well as the current Minister of Justice, Irwin Cotler. It has the support of the Canadian Association of Chiefs of Police. It has the support of the Canadian Association of Police Boards, which are citizens across the country who study this issue.
Certainly, one can argue that perhaps in the future other grounds should be included in hate propaganda legislation. I strongly support the inclusion, for example, of gender, gender identity and gender expression. I know that Senator St. Germain has spoken about the possibility of national origin. There are a number of other suggestions, but that is not before this committee today. Before the committee today is a bill that has been passed by the House to include sexual orientation.
There have been two key issues that were raised, honourable senators, in the debate in the Senate and in the House of Commons. One issue is the definition of sexual orientation. Some members of the Senate have said, "My goodness, if we include sexual orientation in the Criminal Code hate propaganda sections, it would open up the door to inclusion of concepts such as bestiality and pedophilia. We cannot have that."
To that I would say two things. First, the words "sexual orientation" are not new to Canadian jurisprudence. They have been in Canadian law since 1977.
[Translation]
It was in Quebec, in 1977, that an amendment was passed. Quebec was the first province.
Senator Nolin: In the Charter.
Mr. Robinson: In the Quebec Charter of Rights and Freedoms.
[English]
Since 1977, every province has included sexual orientation; every territory has included sexual orientation. The Criminal Code, in the provisions with regard to the aggravation of sentencing, includes sexual orientation. Never, not once, has it been interpreted to include any illegal conduct, pedophilia, bestiality, not in Canada nor anywhere else in the world. Those are illegal acts and they have no place in this particular definition of sexual orientation.
The second issue raised is the issue of the protection of religious freedom and freedom of speech. That is an issue I take seriously. I fought for my entire political life in support of freedom of religion and freedom of speech. I know that some have said that this bill could infringe on that. Honourable senators, that is not the case. The Supreme Court of Canada in Keegstra upheld existing hate propaganda provisions by a narrow margin of 4-3. In upholding those provisions, the Supreme Court of Canada set a very high threshold for prosecution under the hate propaganda sections of the code. In fact, Senator Cools herself noted that high threshold. She pointed out, in her words, that hate crimes are very rare. The Supreme Court of Canada has set a high threshold. I would be glad, in response to questions, to quote directly from Chief Justice Dickson on that threshold and what is required for prosecution.
Since 1970, honourable senators, there have been only five prosecutions under the hate propaganda sections of the Criminal Code — none for genocide, not a single one, and none for inciting hatred. They have all been under the hate propaganda section.
The signal that is sent out by the exclusion of gay and lesbian people from the equal protection of the hate propaganda sections is that our lives, the lives of gay and lesbian people, are less valuable, that our safety is less important. The signal that is sent to young people is very destructive. We heard such evidence. I was in the Senate when Senator Carstairs spoke eloquently about young people. Senator Joyal, Senator LaPierre and others around this table spoke about the power of words.
I certainly recall the power of words of a 14-year-old boy named Hamed Nostoh. I will never forget sitting down with his parents in his living room in Surrey, British Columbia, next door to the community that I represent. Hamed Nostoh had walked home from school, filled his backpack with rocks, left a suicide note and walked to the Pattullo Bridge and threw himself off that bridge. He did that because he could not face the anguish and the pain of the words that were directed at him: faggot, queer. He was not gay, but those words were powerful and they killed him.
This bill is largely symbolic; I would be the first person to concede that. There will not be a lot of prosecutions under this legislation. Yet the symbolism is enormously important because it says to gay and lesbian people that our lives and our safety and our security are just as important.
It will give an additional resource to the police who need that. A gentleman named Fred Phelps wanted to come to Canada to spread hatred. Some of the members around this table may know that Mr. Phelps has a Web site called www.godhatesfags.com, with a picture of Matthew Shepherd burning in hell. Mr. Phelps promotes violence, beating and hatred. He wanted to come to Canada to spread his hatred. Pat Callaghan, the head of the hate crimes unit in the Ottawa police department said that if this hatred were directed at any other minority, a racial minority, a religious minority, we would be able to tell him that we do not want his hatred in this country.
If this was done against a Catholic, a Jew or a black person, charges could be laid. If we had that legislation, we wouldn't have to put up with his nonsense on Monday. We could have told him, "If you show up and start spreading this hate, we'll arrest you."
That is the kind of Canada that I want to see and that I want to live in, Mr. Chairman. I would appeal to honourable senators to support this legislation. Can the provisions in the code itself ultimately be made better? Absolutely. Should they be? Indeed, they should. However, I first tabled this bill almost 15 years ago. There has been a growing level of support for the legislation. It has been adopted by a significant majority in the House of Commons. I am concerned about time on this bill. Certainly, I welcome any questions on the bill. I know there have been issues raised around the question of genocide. Senator Grafstein spoke eloquently to this issue as well during the debate when he pointed out that homosexuals were also targeted during the Holocaust. The pink triangle and the yellow star were those that marked people who were different and who were targeted by the Nazis.
Honourable senators, I thank you for the opportunity to appear before you as a witness on the bill. I welcome any questions. I would point out that this is an issue that continues to be of great concern in terms of violence.
Just last week, the mayor of Hamilton said that an attack against one of us is an attack against us all. He said: "If I am attacked because I am a person of colour, because I am gay, lesbian, bisexual or transgendered or from a certain religion, it is inappropriate. It is not to be tolerated. It is to be challenged with the greatest vigour one can muster."
This bill does that, Mr. Chairman, and I would hope that it would receive the strongest support of this committee and of the Senate.
Senator St. Germain: Mr. Robinson, it is nice to see you. My biggest question arises from the fact that, in the 27 years that I have been here, I have never received so much mail on an issue.
You are a great social democrat and you have always been a defender of free speech. I am not a great expert on the Bible, but I have looked up in the Bible the portions that are contentious. More important are the views of the leading members of the clergy, people who cannot be taken for granted in our society as unlearned people; they are learned people. They are very concerned about their ability to continue to practice their faith and to speak on issues that are in the Bible. This bill would inhibit them, they feel, from the freedom of practicing their religion in the traditional way. They feel this bill is an incursion on free speech and the exercise of freedom of religion.
I know you have spoken to that. You know my background, Mr. Robinson. I have been a policeman; I have worked the streets. I am not naive. I think every time we pass a piece of legislation in this place we all lose a little bit of freedom.
I will not deny that, in my own experience, sure, horrible things have happened in regards to the gay community on the streets of Vancouver when I was on the force there and in Winnipeg when I was on that force. Based on the information that has been given to me and from the people who have spoken to me, this bill really is an incursion into the area of freedom of speech and freedom of expression, as far as religion is concerned. Would you like me to elaborate on that?
Mr. Robinson: Senator St. Germain, I am glad to do that because, clearly, that objection has been the central focus of the opposition to this bill. You are absolutely right. You are right as well about the mail. You can imagine the mail that I am getting on this. There has been an extensive lobbying campaign. Full-page advertisements in both The Globe and Mail and the National Post suggested that, if this legislation were passed, the Bible would become a banned document. Nothing could be further from the truth.
In clarifying that, I want to make two points. First, under the existing provisions of the hate propaganda sections of the Criminal Code, there is a specific exemption for expression of an opinion based on a religious subject. Section 319(3)(b) states:
No person shall be convicted of an offence under subsection (2)...
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
That is in the existing code.
Senator St. Germain: May I interject? You know this subject really well. However, would it not put an individual in the position of having to defend himself if the legislation were passed, whereas now an individual can freely practice his religion without having to put up a defence?
Mr. Robinson: Absolutely not. We are talking about a criminal offence. The onus in criminal law is on the Crown to prove beyond a reasonable doubt that the offence has been committed. You will recall that as a police officer. This is in the Criminal Code. This is not human rights legislation; this is in the Criminal Code.
The first point is that the existing code included that protection. However, because of the concern raised across the country on this issue, I worked closely with members on all sides of the House and I agreed to an amendment. That amendment was actually adopted during the debate in the House. After my bill was passed without amendment in the committee, in response to some of the concerns that were raised, I accepted an amendment that was passed unanimously in the House. That amendment expanded the reference to an argument that is an opinion based on a religious subject. Clause 2 of the bill states, in part, that section 319(3)(b) of the Criminal Code is replaced by the following: "...or an opinion based on a belief in a religious text."
Those words specifically were meant to address the concern that you raised, and it is one that was raised. That exemption, Senator St. Germain, specifically refers to religious text. Not only the Bible but also the Koran and any other religious text is covered by that amendment. In light of that, I would point out that there has been no major religious leader in the country who has voiced opposition to this bill in light of that amendment that has been passed.
Senator St. Germain: Repeat that, please?
Mr. Robinson: No leader of a major religion in Canada that I am aware of has voiced opposition to this proposed legislation. I speak here, for example, about the United Church, the Anglican Church, the Catholic Church, the Jewish community, the Muslim community, the Buddhist community. However, I am not suggesting there are not some religious leaders who are opposed. The Evangelical Fellowship of Canada, for example, continues to oppose the legislation. That is certainly the case. Overall, however, that opposition does not exist.
The last point I want to make is this: In order to get a prosecution on this, it is not just a question of quoting from the Bible that homosexuals should be put to death — I know most of the verses by heart, such as Romans and Leviticus. I know them well. I have had them quoted to me many times over the years. It is not a question of those verses or biblical passages being quoted in any way. It goes far beyond that. In order to achieve a prosecution — and this is from Chief Justice Dickson in Keegstra:
In "promotes" we thus have a word that indicates more than simple encouragement or advancement. The hate- monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group.
In other words, Senator St. Germain, they have to intend the promotion of hatred against a group. What is "hatred" according to Chief Justice Dickson? Here is what he said. In Keegstra, Chief Justice Dickson said this:
Hatred is predicated upon destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.
That is a very rigorous test.
Senator St. Germain: I agree. We have had a comment from someone who supported you. I do not want to name this person, because there has been an apology. However, there was a statement in our province's newspaper, to this effect: "God, you people are sick. God should strike you dead."
Senator Cools: Oh, dear! Do not do that.
Senator St. Germain: This was from a proponent of the legislation when he was being questioned as to the propriety of proceeding with sexual orientation in the hate crimes.
When you think of the Keegstra case — I agree with you that, in all likelihood, for this to be utilized there will have to be an extreme case. In the same breath, however, if there was ever the possibility of abuse I think the freedom far exceeds the necessity. I can see us evolving as a society on gay issues and sexual orientation to the point that I think we have become the most tolerant of tolerant where this is really not a necessity. That is my view. Possibly it is driven — I will be honest with you — from my Christian background.
To me, for instance, premarital sex is not an acceptable way of life. I know that society has totally different standards by and large. I do not want to put down what you are trying to accomplish, but I want you to understand as well the constituency that I come from and the way that I see the world. You say that major religious organizations are not criticizing, but I have still been approached by significant people in the Christian movement who are leaders who do not want this legislation as it is.
There is obviously an emotional reaction driven by belief. I only put my case to you, sir, in a sincere, moderate tone, because I have known you for about 20 years. We have travelled together, we have talked together, and we have worked together. I respect you. However, I must say to you, sir, with all due respect, that I will have to vote against this. I do not know whether it will come to a vote or what will happen, but I wanted you to know exactly the way I thought. Hopefully, you will be as understanding as I am of your efforts in doing what you are trying to do.
Mr. Robinson: Briefly, I fully respect your position. I understand that it is a free vote on this issue. I trust there will be a vote on the issue, in the not too distant future, I would hope.
You mentioned a number of religious groups that had spoken out against this. I want to remind members around the table that these same groups — and here, for example, I speak of the Evangelical Fellowship of Canada, the Focus on the Family, REAL Women, and a number of other groups — have spoken out against each and every bill that has come before Parliament that would extend any measure of equality and respect for gay and lesbian people. I know that because I have attended each and every committee hearing on that issue. One can have a debate, but these groups do not support equal human rights in human rights legislation. They spoke against it. They said that if we amend the Canadian Human Rights Act it would open the door wide open to pedophiles and bestiality. That was over a decade ago and that has not happened.
One must look with a measure of caution and care at the position they are taking on my bill when one looks back at the position they took with respect to basic human rights protection not that long ago.
The Chairman: Before we go to Senators Nolin and Smith, I want to point to clause 319(6), when Senator St. Germain spoke about communicating statements other than in private conversations. No proceeding for an offence under that section can be undertaken without the consent of the Attorney General. I wanted to clarify that.
Senator Nolin: That was my point. It is another threshold.
Senator Cools: Could I have a supplementary question, too, just on the same point?
Senator Smith: My question is directed to Senator St. Germain. Do you feel the same about the other categories — colour, race, religion, ethnic origin — or is the only category you are uncomfortable dealing with that of sexual orientation? How do you feel about the others under "freedom of speech?"
Senator St. Germain: I am not sure that in a civilized society we really require this type of legislation. I think we are speaking to a specific item right now. I think I would be prepared to get into a discussion with you at a later date. I have a view on this as well, and it is not necessarily consistent with what is contained in the legislation.
The Chairman: Senator St. Germain, I do not want to cut you off but we have a witness here.
Mr. Robinson: That is an excellent question.
The Chairman: We do not have a lot of time. I will go to Senator Cools, followed by Senator Jaffer.
Senator Cools: I have a supplementary on the same point.
Mr. Robinson, you cited Chief Justice Dickson in Keegstra. Perhaps you could complete the record and cite the dissenting opinion, for example, Madam Justice McLachlin or someone like that. The record should be balanced.
Mr. Robinson: On that, of course —
Senator Cools: I am sure you have it there.
Mr. Robinson: The honourable senator will know that the legal direction in Canada comes not from minority dissenting judgments but in fact from majority judgments, and it is the majority judgment of Chief Justice Dickson —
Senator Cools: I was not asking you to tell me what I know; I was asking you to cite the other members of the court as well because I thought what they had to say was instructive and insightful.
Mr. Robinson: It may have been, but it has absolutely no legal direction that would help this committee.
Senator Cools: That means you do not want to cite it.
Mr. Robinson: That is correct.
Senator Cools: He will defend the right of everyone to say it, but he will not repeat it for us.
Senator Nolin: I am sure we can circulate the dissenting decision for all members of the committee to read — and of course it is available.
Senator Jaffer: Mr. Robinson, I admire your persistence over all the years you have worked on this bill. I want to tell you, from someone that comes from the same region as you, Vancouver, and the pain of that Irani family, and the Webster family, and the Vancouver community, including the police, at the time of Mr. Webster's death in Stanley Park, just your coming here is honouring those people, so I welcome you here.
It is very interesting when my colleagues talk about freedom of speech. Would you, who are very well versed in this process of the bill, like to tell us whether those same arguments, which were made when Senator Smith touched on the inclusion of colour, race, religion and ethnic origin in hate propaganda, included freedom of speech at that time as well?
Mr. Robinson: Very much so. Again, I commend honourable Senator Cools' historical overview of the passage of the legislation — not necessarily her conclusion in her speech, but certainly she pointed out there was a vigorous debate. It was the Maxwell Cohen committee, a group of very distinguished Canadians, including Prime Minister Trudeau, as Senator Joyal in his speech pointed out, and a number of others. They did have a vigorous debate and they recognized the importance of protecting freedom of speech, as did the Supreme Court of Canada. One of the reasons it was such a tightly argued decision and a very close decision is precisely because of that concern about the fragility and fundamental importance of freedom of speech.
However, at the same time, it was recognized that as a country we want to send out a signal that the promotion of hatred and violence directed at minorities is not acceptable. This is one such thing that makes Canada a great country. We are prepared to send that statement out. I was very moved as I read through the evidence in the Senate and to hear from senators from many different personal perspectives speaking on this issue.
Senator Kroft, for example, spoke of the importance of not only fighting against anti-Semitism, as a member of the Jewish community, but also he spoke of the importance of fighting against discrimination based on sexual orientation. Senator Oliver talked about the sting and the pain of racism and why it was important that we not only deal with racism but that we deal with homophobia as well. Senator LaPierre spoke from the perspective of a gay man after having been the victim himself of hate crimes, over the years. I wish more Canadians had the opportunity to hear some of those very moving speeches that were made in the Senate about the importance of this legislation.
If — and indeed Senator Smith made the point earlier — we agree that the legislation that is now before us should be inclusive of the groups that are targeted, surely we should include one of the groups that is targeted in a very significant way according to the people on the front lines, the police themselves.
Senator Tkachuk: Mr. Robinson, I have a few questions, one just to clarify. You mentioned at the beginning of your statement that, 30 or 35 years ago, around 1970, homosexuality was no longer illegal. Was homosexuality every illegal?
Mr. Robinson: Yes, until —
Senator Cools: No. It was the sexual acts between homosexual people.
Senator Tkachuk: Homosexuality was never illegal; the act of sodomy was illegal and that was lifted.
Mr. Robinson: In fact, until 1970, any homosexual conduct in Canada was illegal. It was a criminal offence.
Senator Tkachuk: How was homosexual conduct defined?
Mr. Robinson: It was not defined. It was all grossly indecent. Gross indecency was the offence.
Senator Cools: Homosexuality was not illegal. Homosexual sexual acts were illegal. The debate was huge, and there is a definitive case that was studied by Privy Council, when it did the research that changed the law. It was Mr. Justice Cartwright that was very insightful on the law of dangerous sexual offenders, saying that it was never intended to be used for sexual offenders that were not dangerous — in other words, consenting adults. So, it was a huge debate and a huge issue and perhaps we should look a little at it because the whole phenomenon came through based on the Wolfenden report from England. It is not so simple.
Senator Tkachuk: I asked that question because I am not a member of this committee. However, I am a member for today. This is the Standing Senate Committee on Legal and Constitutional Affairs and so I wanted to ensure that what we were talking about was correct. I am still not sure, so it obviously means we should clarify.
Mr. Robinson: To be very clear, any form of sexual conduct between two people of the same gender was a criminal offence in Canada.
Senator Cools: That is absolutely correct.
Senator Tkachuk: When we talk about the need for the changes to the Criminal Code, which is what your Bill C-250 does, we have had a number of discussions in the Senate and a number of debates there on this issue. In the Library of Parliament provisions, they talk about, in 1970, when white supremacist and neo-Nazi groups, largely based in the United States, were active in Canada, and these groups and individuals engaged in anti-Semitic and anti-black propaganda and therefore the hate propaganda provisions of the code targeted these activities. What groups in Canada are involved in anti-homosexual hate propaganda?
Mr. Robinson: In fact, I do not believe that the police have identified any particular organized groups or gangs that are targeting gay people in Canada. However — and you will hear the evidence, Senator Tkachuk, if you are here tomorrow, from inspector Dave Jones, the former head of the hate crimes unit and one of the most respected police officers in this field in the country. He is speaking on behalf of the chiefs of police — that a significant percentage of hate crimes in Canada are motivated on the basis of a particular hatred of a particular group. A significant percentage of those target gay, lesbian, bisexual or transgender people. Not only that, they target people who may not even be gay or lesbian but happen to be in the wrong place at the wrong time. They are assumed to be gay or lesbian, or perhaps they fit the stereotype of — if I may finish, Senator Cools.
Senator Cools: He is now using the words "hate crime" in a different way than the legislation talks of hate crimes.
Senator Smith: Let him give his evidence.
Senator Cools: I am asking him to clarify.
Senator Tkachuk: I am not in control of the meeting.
Mr. Robinson: Nor am I, senator.
The Chairman: Senator Cools, did you have an interjection?
Senator Cools: Yes, I will do it as a point of order if you like. The question is, he said in his own testimony a few minutes ago — and I think it is an important point — that the cases like Keegstra and prosecutions under the sections 318 and 319 provisions are very rare. He said there were five in total. Now he is talking about other hate crimes, and he is talking about a majority of them, so obviously it is a different set of crimes. In my view, they are hateful crimes, but they are not hate crimes under those provisions, and I wish he would clarify that.
Mr. Robinson: If I might.
The Chairman: Mr. Robinson, do you understand the distinction?
Mr. Robinson: I do understand what the senator is getting at. I do not agree with the distinction, but I understand the point she is making.
Of course, it is true to say that there is a distinction between bashing someone because they are gay, and promoting hatred against gay persons. However, we have heard powerful evidence that there is a link — if society believes that it is okay to promote hatred and violence, then that, in turn, can lead to hate crimes. That can, in fact, lead to people being beaten. What is important is that this can lead to gay people feeling less safe and less secure.
I mentioned before the House of Commons committee — I could have given many examples, but I gave one. I have a storefront office on a major thoroughfare in my community on Hastings Street in North Burnaby. I was working late in my office on a Saturday night at my desk, and suddenly I heard a terrible crack on the window. A truck was going by and the people in the truck were yelling out, "Faggot, hey faggot," at the top of their lungs. In that particular instance, an egg had been thrown at the window. It could have been a rock, or a bullet. I have had bullets through my window as well. Fortunately, I was not there at the time.
As long as people prepared to target gay and lesbian people — simply because of who we are, simply because we happen to be gay or lesbian — and to promote hatred and violence, it will lead to hate crimes and to deaths like in the case of Aaron Webster, and others.
That is why it is so important, honourable senators, that this bill be adopted. By passing this bill, you will be sending out a signal that this kind of violence, and the words and the hatred that leads to this violence, is not acceptable in Canada.
Senator Tkachuk: I want to be a little more precise here. I agree with you. People who commit acts of violence should be punished. We have laws in the Criminal Code to protect us, not only from crimes of punishment but also crimes of incitement to punish. I asked you whether there were groups that you could identify that were engaged in propagandizing hate against homosexuality in Canada, to further buttress your need for this kind of legislation. You told me, just so I have this clearly, that you could not name any.
If you could not name any groups that propagated hatred against the homosexual community, how can you then say that there are groups who are propagating hatred against the homosexual community? I mean there are bad people out there, Mr. Robinson, who do bad things.
Mr. Robinson: There are bad people who do bad things, but let us take another example. Let us take anti-Semitism. Are there groups in Canada today that are promoting anti-Semitism and promoting hatred and violence directed at Jews in Canada? Are there groups in this country? I cannot identify a particular group to that effect, but does that mean that we should not be protecting Jews?
Senator Tkachuk: The need for the legislation was because there were groups that were identified as anti-Semitic and were promoting anti-Semitic propaganda. That is why the legislation came about. I am just trying to find out the need for the legislation.
Mr. Robinson: Again, with respect, we can have the debate about whether hate propaganda legislation is needed at all. However, I am not aware, for example, of groups that are promoting violence or hatred directed at racial minorities in Canada today — organized groups in Canada that are promoting that.
Senator St. Germain: Skinheads, for example, are organized groups.
Mr. Robinson: There are certainly individuals. In fact, there is a prosecution right now of an individual in Saskatchewan. Senator Tkachuk, you are from Saskatchewan and you will know the case to which I am referring. There is a prosecution of Ahenakew, who is an individual, not part of a group. The hate propaganda provision states — and this is the purpose of the Criminal Code — that you cannot promote hatred or violence — and the particular grounds are listed. It does not say if you are a group you cannot promote hatred or violence; it says you cannot promote it, period. I think that is the signal we want to send out — that any form of promotion, whether it is a group or an individual, is not acceptable.
The Chairman: I am going to have to go to other senators because we have less than five minutes left. Senator Cools wanted a chance to ask a first round of questions, although she has had some interventions.
Senator Cools: I have several questions, and I do not know how to go at them in the time that we have. The fact is that at the time that these sections, 318 and 319, were put into the Criminal Code, the major or most famous civil libertarians in the country, like Frank Scott, the late Senator Daniel Lang, of Lang Michener, opposed the creation of these sections.
I understand the concerns, but the other parts of the code speak about colour, ethnicity, race and so on. Sexual orientation, as far as I know, is not an immutable characteristic. Honourable senators, my skin is black. That is immutable. There is no evidence that has been put before us — never mind as to whether or not the immutability of sexual orientation. We have not even been told what sexual orientation is. This is where my concerns come. I am not a prude or anything like that, but my concerns come because no one will tell us what the words "sexual orientation" mean. Back in 1996 when that bill was before us, there were many of us who pleaded to use the words discrimination against homosexual persons, and not any word as vague and wide open as sexual orientation.
The Chairman: Give Mr. Robinson a chance to answer.
Mr. Robinson: If I could respond to those two points.
Senator Cools: I can give a third one very quickly. Contrary to what is being put before us, there is vast literature and a vast movement afoot for the viewing of pedophilia as a sexual orientation. The literature is out there — here is one journal I can give.
The Chairman: We do not have time to get into that right now. Mr. Robinson, you may respond.
Senator Cools: I wonder whether Mr. Robinson is aware of that because the term "homosexual" would have been much clearer in all of the legislation rather than the term "sexual orientation." I have argued that many times. Could you comment on the body of opinion that pedophilia is an orientation?
Mr. Robinson: Senator, you have asked three questions and I will respond briefly to each of them.
First, you suggested that your race is an "immutable characteristic" — I believe those were your words — that sexual orientation is not necessarily an immutable characteristic and that you could have had in your life a relationship with a woman as well as a man, for example — in your words, that it is fluid.
Senator Cools: Not me, but some could.
Mr. Robinson: To that I would respond, basically, so what? Religion is not an immutable characteristic. One can change one's religion so I do not think, with respect, that argument takes us anywhere.
With respect to the second point concerning the definition, the two other points are linked. You are basically saying that we should not have used the words "sexual orientation" but rather "homosexual" or "heterosexual" because it could include pedophilia. I have to come back to the point that the concept of sexual orientation, and those words, are not new to Canadian jurisprudence. They have been in Canadian law since 1977. You made the argument, I know, during the debate on the Canadian Human Rights Act that if we were to include the words "sexual orientation," it could be interpreted to include pedophilia. Not once — never — in any jurisdiction anywhere in the world, including anywhere in Canada, in any court at any tribunal, anywhere, has that happened. It will not happen. Pedophilia is a crime; it is a reprehensible crime in Canada, and bestiality is a crime. We are not seeking to protect criminal conduct, Senator Cools. We are seeking to protect lawful conduct of gay and lesbian people.
Senator Cools: I know that.
The Chairman: We will have to end this meeting, but we will continue tomorrow morning.
Mr. Robinson: I am certainly prepared to appear before the committee again if there are other questions.
The Chairman: Thank you, Mr. Robinson. If you could return tomorrow morning, we could probably follow up with Senator Cools.
The committee adjourned.