Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 3 - Evidence for March 11, 2004


OTTAWA, Thursday, March 11, 2004

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, 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, to amend the Criminal Code (hate propaganda), met this day at 10:50 a.m. to give consideration to the bills.

Senator George J. Furey (Chairman) in the Chair.

[English]

The Chairman: Today, as we continue our study of Bill C-16 regarding a national sex offender registry, to assist the committee in its deliberations, I would ask you to welcome the Honourable Anne McLellan, Minister of Public Safety and Emergency Preparedness. Ms. Campbell and Mr. Hoover, both of who were recent witnesses before this committee, join her. Thank you for being with us.

Please proceed.

Honourable Anne McLellan, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Honourable senators, it is a pleasure for me to be before the Standing Senate Committee on Legal and Constitutional Affairs. I was reminiscing with some of you, that when I was Minister of Justice and Attorney General, I spent a great deal of time before this committee and always enjoyed being here because the rigour of the discussion was enjoyable and informative. Working together, we often came up better policy approaches and better legislation for the people of Canada.

I sincerely welcome the opportunity to be back before this committee. Mr. Chairman, I congratulate you on your assumption of the chairmanship of this committee. I know that in the weeks and months ahead, you will be busy.

As you are aware, Bill C-16 will create a new act, the sex offender information registration act. In addition, it will make key amendments to the Criminal Code of Canada.

[Translation]

The provisions under C-16 will bring into existence a national sex offender registry for use by police and every province and territory. The bill will provide police with an important new tool to investigate crimes of a sexual nature — particularly those that victimize children.

[English]

Mr. Chairman, Bill C-16 responds to a unanimous request by all provincial and territorial governments for federal action to create a national system of sex offender registration for their use. In February 2002, the Government of Canada indicated that it would agree to create this sex offender registry if the provinces and territories could agree on a model that would be administratively and charter viable.

Mr. Chairman, unanimous agreement was reached on a specific model, following extensive, federal, provincial and territorial collaboration. That consensus remains strong. All provinces and territories now formally support this bill, and are urgently pressing for enactment as soon as possible. This bill is an example of all jurisdictions compromising to achieve a shared purpose.

Bill C-16 creates an important new tool to assist police in the investigation of sexual offences committed by unknown persons. It will allow police to streamline investigations by quickly consulting the registry, to search its contents using established criteria to identify possible suspects in the vicinity of the crime and — this is also important — to eliminate suspects.

In addition to evidence that may be gathered at the crime scene, the investigating officer will make use of the data available in the Canadian Police Information Centre, otherwise known as CPIC. As we know, CPIC provides extensive information on all persons convicted of criminal offences and is available as a database to all police officers in Canada.

However, CPIC does not currently contain updated addresses for each offender. It will be quicker and more effective if the investigating officer can search a specific sex offender database for the most recent address of sex offenders living in the area of the crime. Mr. Chairman, this is the thinking behind the registration system of Bill C-16. It is precisely what the proposed new sex offender database, created by the RCMP, will add to the CPIC system for use by local police. The proposed sex offender information registration act would allow police to move rapidly to determine whether convicted sex offenders reside in the vicinity of the offence and to quickly decide if further investigation is warranted or if they can be eliminated as suspects.

While the registry will be an important tool for police, it will also be important to ensure that this tool is used appropriately. The potential for unintended negative consequences and for misuse must be avoided.

Mr. Chairman, the government understands that Bill C-16 will have an intrusive effect on the lives of those who will be registered in the sex offender information registry, in some cases for life. However, by designing legislation that respects charter and constitutional limitations, this legislative package provides adequate safeguards for the rights of Canadians while providing police with an effective investigative tool.

These safeguards have been crafted in collaboration with our provincial and territorial colleagues and in consideration of the rights guaranteed to all Canadians under the Charter of Rights and Freedoms. Mr. Chairman, the safeguards will provide a system that is fair and equitable as well as effective and efficient. Police will have access to personal information about past sex offenders for at least 10 years, and in many cases, during the course of their natural life.

At the same time, controlled use of the data will prevent ostracism of those offenders who have returned to a law- abiding way of life.

[Translation]

For these reasons, access to registry data — except by authorized persons for authorized purposes — is strictly prohibited in this bill, and criminal penalties are provided for misuse of the data. While public protection will be enhanced by quickly providing police with a list of sex offenders who are registered and living in a given area, access and use of the information will be strictly limited to police.

[English]

In other jurisdictions that operate sex offender registries, public access has often led to misuse and misunderstanding that mistakenly alarms the public, sometime even resulting in vigilante acts. Mr. Chairman, we examined how other jurisdictions, most notably in the United States, have set up their registries. Their systems have extensive Internet access and data cross-referencing, but we saw no benefits to this kind of scheme. Consequently, there is no provision in Bill C-16 for public access to the registry.

Persons whose conviction would normally lead to registration will have an opportunity to argue that they should not be subject to such an order, where the Crown chooses to exercise its discretion to apply for a registration order. On hearing the application, the judge has discretion in determining the issue based on the test in section 490.012(4) of the Criminal Code — whether the impact on the individual would be grossly disproportionate to the public interest. That is an important test and I do not want that to be lost. To repeat: The judge has the discretion to determine the issue on the basis of whether the impact on the individual would be grossly disproportionate to the public interest.

Mr. Chairman, you may recognize that test as similar to the one that applies for DNA databank orders under section 487.051(2) of the Criminal Code. While the two provisions are similar, I should note that they are not identical because we felt the need to tailor section 490.012 to this proposed legislation. However, as is the case in the DNA order, we placed the onus on the offender to satisfy the judge hearing the Crown's application that in making the order the impact on the offender would be grossly disproportionate to the purposes of the bill.

I realize that some senators have expressed concerns that this is a reverse onus on the offender and, as such, are wondering if it is constitutional. In response, I would suggest that the important distinction is that this is not a finding of guilt. At trial, the full burden is on the Crown to meet the elements of the charge beyond a reasonable doubt. That disposition has already been made. This particular application occurs after the finding of guilt and after the sentence has been imposed. Strictly speaking, it is not part of the sentence at all. By design, it is an administrative consequence of the conviction and is proportional to the objectives of the legislation. As such, we are confident that this is constitutional. Certainly, our experience in the courts to date, in respect of constitutional challenges to section 487.051(2) of the Criminal Code in relation to DNA use, confirms this view.

I also wish to note, Mr. Chairman, that the courts have consistently upheld this section of the Criminal Code in the face of repeated Charter challenges. I understand that we have provided the committee with a list of the relevant cases.

Bill C-16 also provides in respect of section 490.015 of the Criminal Code that offenders, subject to a registration order, can apply to the courts for reconsideration of their status after five, 10 or 20 years of registration have elapsed, depending on the severity or number of their original convictions. Also, offenders will have the entitlement to apply for a termination order after receiving a pardon under the Criminal Code.

Mr. Chairman, as many of my honourable colleagues are aware, Bill C-16 was formulated after extensive consultation with the provinces and the territories. The features of the bill represent the policy choices considered acceptable and affordable at the most senior levels of all jurisdictions.

Since the bill was introduced on December 11, 2002, officials from every jurisdiction have again reviewed the legislation and recommended a number of important proposals to improve the bill. A government amendment was made in the other place to include all sex offenders under active sentence but convicted prior to the start-up of the federal registry. That last point is important.

After extensive consultation, the provinces were able to agree that any previously convicted offender who was, at the coming into force, still under sentence — which is key — should be included. The provinces also agreed that any offender registered under an existing provincial registry, such as Ontario's, at the coming into force of the federal regime should be included. Constitutional experts in the Department of Justice determined that, as long as specific provisions were included to protect the rights of these offenders, they could be included.

I emphasize that the retrospective provisions in the bill are not punishment. They are designed in a minimally intrusive manner and they are fully proportional to the purposes of the legislation. In addition, we insisted on a number of specific procedural and substantive provisions designed solely to safeguard the Charter rights of the offenders.

Regarding the group of offenders that will be included as a result of their current disability under a provincial registry but who are no longer under active sentence, I note the concerns expressed at this committee about a possible discrepancy between the treatment of offenders in Ontario and those in any other jurisdiction who have been convicted of similar offences. I submit that this is not the case. Before this legislation was even contemplated, convicted Ontario offenders were subject to the requirement to register. They were already under the obligation. Other provinces chose not to enact similar legislation. Our registry does not change that fact.

With respect to charter issues, Mr. Chairman, we have recognized that a charter risk could result from any effort to apply this proposed legislation retrospectively. However, consistent with the procedural safeguards already contained in Bill C-16, we have introduced a number of additional provisions to ensure that the Charter rights of affected offenders are fully protected. Those include the requirement for personal service of notice of not only the obligation to comply but also of notice of the date the obligation begins; how to comply and what steps have to be taken should offenders wish to exercise their constitutional rights to due process; the ability of any affected offender to exercise his or her right to due process in a court of law to challenge the requirement to register; imposing a strict timetable to serve the statutory notice on retrospective offenders, thereby ensuring that offenders do not have this hanging over their heads indefinitely.

If the province fails to serve within the timetable, the opportunity is permanently lost, requiring that provincial Crowns have the initial burden of proving in court that a conviction was entered for an enumerated sexual offence. This is more important than it may seem at first blush because it means that judges will be required to rule in favour of the offender if the Crown neither needs the burden nor chooses to argue the case, for whatever reason.

Also, the additional provisions to ensure that the Charter rights of affected offenders are fully protected include providing provisions for the right of every offender to have his or her case re-examined before a court after five, ten or 20 years after the date of the original order, depending on the severity and the number of previous offences; ensuring that offenders who believe that that they no longer fit the purposes of the scheme are able to make a case before a judge; providing extremely tight controls on access to and dissemination of registry data, including rigorous privacy controls on the access and use of the registry to ensure that this highly confidential information is only used for its intended purpose — the protection of society; and providing serious penalties, as you know, for misuse of this information.

I would also note that there would be a review of all the provisions of this bill in two years' time by Parliament.

In conclusion, the development of Bill C-16 was a cooperative effort between federal and provincial governments. This is important because the legislation should anticipate the role of the provinces in administration and enforcement of the system. Mr. Chairman, this will be a national, seamless registration system, unlike the United States, which suffers the confusion of many different state-level registration regimes. We have heard of some in the pages of our papers and in the news.

Bill C-16 sets out a common national approach, both through federal enabling legislation and the nationally available CPIC system. At the same time, it respects the provincial role in the administration of the system and the need to tailor its implementation to their diverse needs and characteristics. It respects both the needs of police and the civil liberties of Canadians.

Last, allow me to explain why we are targeting sex offenders. Of course, CPIC is, and will continue to be, a registry of sorts for all offenders. However, sexual abuse of children and other vulnerable groups carries with it particular harm, and often deeply personal and devastating consequences.

The trauma that children suffer as a result of sexual abuse may be immediately reflected in their emotional health. Mr. Chairman, we are all aware of tragic incidents involving adolescent victims of sexual abuse who run away from home and end up on our streets. Indeed, the plight of adult survivors of sexual violence is not much better. They often suffer from depression, poor self-esteem and substance abuse.

In conclusion, Mr. Chairman, it is a priority for the Government of Canada, as well as for all provinces and territories, to provide as many tools as we can to those investigating these crimes to protect the citizens of this country. Every jurisdiction across the country is extremely supportive of our efforts. I ask for your support today and I look forward to your questions.

Senator Andreychuk: Thank you, minister, for outlining the bill. I agree with you that this proposed legislation passes many of the tests that we were concerned about in previous attempts on the sexual offender registry.

It strikes the balance between the protection that we want for society and children and the rights of the offender. I have only two questions on the areas of concern to me in this bill.

You say that the registry is not a sentence — we heard yesterday that it is an administrative tool — but, in effect, it is part of the sentence process. An individual would not be subject to the registry had he or she not had a conviction. Therefore, sentencing — it may not be punishment, but it still follows all of the ideas. It is the consequence of the conviction that leads to there, so it seems to me that it is part of the process of sentencing in broad terms.

I have some concerns about trying to characterize it only as an administrative tool and not part of the sentence. I think it is. However, I believe there are sufficient protections in the proposed legislation that perhaps we can overcome that as a legitimate part of the sentencing; I leave that to the courts. However, I should like your comment on that.

My other question concerns the fact that, while there was an Ontario sex offender registry, it has a provincial base. We are now putting in a national base. It seems to me that the retroactivity — by using the Ontario base, and not using any other retroactive means in the other provinces — is somewhat inherently unfair and risks a challenge that we otherwise would not have. All of us would have liked the registry 20 years ago, so we would have the data bank and the people.

We know that there will be people left off. The risk of doing one portion retroactively, differently, and catching them seems to be inherently unfair and more of a charter challenge. It seems to me it risks the entire balance that you have struck throughout the rest of the bill.

Ms. McLellan: First of all, in relation to the point involving the order, if it is made upon application by the Crown, I take your point that the order, if made, is part of a process involving the criminal law, writ large. However, the courts have been clear that this kind of order, in their opinion, does not constitute part of the sentence or the disposition in the case. They have made that very plain in the context of DNA orders. While it may seem like a technical point, it is actually quite important for the purposes of the functioning of the criminal law to make these distinctions between what is part of the sentence and what is not.

That is because there may be different standards, as we know there are, that would be expected in relation to whatever part of the criminal process you might be dealing with. Courts have been pretty emphatic around the fact that this kind of order is not part of the sentence, or the disposition of the actual case before them. They see this as something discrete and they have been clear about that, in my opinion.

The reality is that no other province but Ontario has had a registry. If, in fact, other provinces had chosen registries, we would be dealing with them in exactly the same way upon their request. The individuals in the registry are there — they are in the registry; orders have been issued against them. As I understand it, what we are doing is transferring those individuals already with orders issued against them to our federal registry.

The Ontario registry will continue to exist. That is a decision of the Ontario government. They may review that decision. If they see the federal registry in operation and are satisfied with its operation, the Ontario government may choose to discontinue the Ontario registry. That is entirely up to the provincial government of Ontario.

However, the name of individuals will be transferred — Ontario has requested it. All jurisdictions have agreed that we transfer the names of those against whom an order has already been made under their system into our federal regime.

As far as we have been able to determine — but I will let Mr. Hoover or Ms. Campbell say something more about this — this, in fact, will not create a charter vulnerability that would lead to any successful challenge in relation to the legislation. It is important to keep in mind that the individuals in question already have orders made against them, and we are transferring that information from one system to another.

Mr. Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice Canada: I would point out that we went to great pains to make it seamless, from the perspective of the offender in Ontario. It is also important to note that, in Ontario, if an individual is under sentence at coming into force, he or she would be brought in not under the Ontario-specific provisions but under the general provision of 490.019. If you are no longer under sentence but still under the disability of the Ontario registry, in a lawful sense, you would be brought into the federal registry as well. However, there is no further disability imposed on the Ontario offender.

In addition, if, for any reason, the offender is taken off the Ontario registry, he is no longer on the federal registry. Again, we went to great pains to ensure that there is no further disability as a result. As the minister pointed out, it was the unanimous request of all jurisdictions to include not just retrospective offenders, but all registered Ontario offenders.

Senator Andreychuk: I think I made my point. I do not see it as seamless as you do, and I think there is a possibility of charter challenge.

Ms. McLellan: It is really just a transfer of information.

Senator Andreychuk: But it now becomes national — and something will be happening nationally, to put it in layman's language, to an Ontario person that would not be happening to Saskatchewan, Alberta, British Columbia, et cetera.

Ms. McLellan: Well, no. If, in fact, there are sex offenders, and an order is made against them, they will all be treated exactly the same; that is why this is seamless. In fact, some provinces have chosen not to create their own registries at this point. That is a sovereign decision of the province. However, my own view is that it would be a horrible gap in this legislation not to ensure that those already in the Ontario sex offender registry system are included in this national system. If you look at it the other way, you potentially create a gap in the seamless nature of the regime and the information that could be most unfortunate.

Senator Andreychuk: It is certainly not the forward part of it; I think you are right on that, that you can blend the systems. What I am talking about is that period up to the time the federal clicks in and there is a retroactivity. There is not a seamless part from the person's point of view, if you are sitting in Ontario or Saskatchewan; that is the point I am making. I hope that it does not disrupt the system, because I think, otherwise, it is very good and I would hope that it would not be bogged down with charter challenges on this particular point.

The Chairman: Senator Andreychuk, if I could add a supplementary to Mr. Hoover's comment. Was there any thought given to sex offenders from other countries? I am assuming it would be difficult for anyone to take up residence, or even visit Canada, with such a record.

Mr. Hoover: We had a close look at that, and I think ministers themselves reviewed the alternatives in terms of policy. Strictly speaking, from the constitutional law and conflicts of laws views, it would be difficult. Jurisdiction that has attempted to do so ran into a lot of problems, especially in terms of resources. It is a huge amount of resources to set up something that is viable internally, constitutionally and in terms of international law. That does not say it cannot be done, but it goes well beyond the original scope of the provinces. The ministers rejected that at this time.

Ms. Mary Campbell, Acting Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness: There are other tools to deal with those kinds of situations, for example, section 810.1 orders under the Criminal Code. If you have a concern about someone in relation to sex offending, it is always available to bring that kind of application as well. There are other tools that might address that situation well.

Senator Pearson: I am aware of the Interpol section on crimes against children. I know that in Europe a lot of exchange of information takes place with respect to that. I am not asking that we do that, but I want to put on the record that a lot of information does get shared through the Interpol system. It may need to be enhanced at some time but it is an important thing.

As you said at the beginning, minister, this bill is an exciting example of the collaboration between provinces at various levels and various jurisdictions. My experience, since I have been here, is that, in fact, in the area of criminal justice, cooperation is more the practice than the exception, in the areas that you said I am most acquainted with, particularly sex crimes and sexual exploitation and so on.

I would be important for you to remind us that, in the support that has been given to us by the provinces and territories, there is also the support for them to assume the expenses, insofar as the registration is going to be expensive or keeping track will be expensive. Could you clarify that? I think it is important to talk about costs of the registration.

Ms. McLellan: First of all, the registry will be maintained by the Royal Canadian Mounted Police, and my predecessor in this job had provided additional resources, I think some $2 million or thereabouts, for the creation of the registry. Then, I think there is an ongoing, smaller amount of some $400,000 on an annual basis for the ongoing operating and maintenance costs. That will be the federal contribution to the costs of the registry. The provinces and territories — because this is a truly shared collaboration — have agreed that they will pick up any additional costs that go with the registry, and there will be costs. In some cases, those costs could be substantial, although one is not dealing with a large number of people here in any given jurisdiction.

However, there will be additional incremental costs for the provinces in relation to the administration of the criminal justice system, which is their constitutional responsibility and they have expressed willingness to assume those costs. They see this as a shared endeavour to protect Canadians, especially children, against sexual offenders. They see this as a cost that they are willing to bear in terms of the administration of the criminal justice system.

Senator Pearson: In addition to that, I am hoping that, because you mentioned that it would be reviewed again in two years, someone within your department will be keeping a close eye, in conjunction with this. There is an ongoing committee, federal-provincial-territorial, I presume, to keep a close eye on how this is going. You will be able to come back in two years and tell us what has been done and how — I know, my successor here — because I will be gone in two years but —

Senator Joyal: You can come as a witness.

Ms. McLellan: A sad day, Senator Pearson.

Senator Pearson: I think it is important that one person be assigned responsibility to keep a close eye on what is going on.

Ms. McLellan: This will surprise no one, but because of the high-profile nature of this particular issue — and as I briefly outlined, the nature of sexual offences, in terms of effect on the victims, society generally, and communities — this area and the creation of this registry has been the subject of a great deal of attention, both on the part of elected officials at all levels and officials, and that will continue to be the case. This will be watched carefully, both by us, in terms of its effectiveness, and its efficiency. The RCMP will be watching this carefully in terms of its operation and maintenance. Police forces around the country will be watching in terms of what they perceive to be the general effectiveness of this tool, so that I can reassure you that, within my department — and I think across the country, in provincial and territorial departments of justice — this initiative will be watched very carefully.

Senator St. Germain: In meetings with one of the major city police chiefs, it was brought out that there were two concerns. I do not know if they have been addressed, Minister. I do not sit on this committee permanently, but I am a former police officer, which is why, I presume, I was approached. Vancouver Police Chief Jamie Graham and, as well, apparently, the chief from the Toronto police force, are very concerned that, as drafted, the proposed legislation is unenforceable, from their position. I believe they will appear before us.

My question, quite simply, is this: If they can prove that the proposed legislation is unenforceable by virtue of their intervention, if you can still remain within the constitutional parameters would your department be prepared to accept amendments from our committee here, back to the other place? Second, the question of not being able to track military people and register them within the military was raised. Could you comment on those two things?

Ms. McLellan: In relation to the concern raised by the Vancouver chief of police, in my respectful opinion, that view is one that I disagree with. Interestingly, it is one that all provincial attorneys general and solicitors general, as well as territorial solicitors general, disagree with as well. I suppose there will always be duelling legal opinions in the world in which we live, but I come back to the fact that the test we have in the legislation has been agreed to by those of us politically responsible for this registry.

We believe it is a fair test, and we believe it is one that strikes the right balance between the interests of society and the civil liberties of people who are accused and convicted.

It would require us to go back to our provincial and territorial colleagues who have already had their lawyers and their officials assess this and work with their police forces to develop this test. Consequently, with respect, I understand the views around the test, but I do not share the concerns expressed by the chief of police of Vancouver and, perhaps, the chief of police in Toronto.

In relation to the second point that you raised regarding DND —

Senator Nolin: The military.

Ms. McLellan: As you know, the bill does not include them at this moment, but we are working with the Minister of National Defence. My officials can say more about this.

There is no disagreement that they should be included. It is around the technicalities, some of which I gather are fairly substantial in relation to making the necessary legislative changes. That will happen, and we will be back before the other place and here in relation to changes required to include those convicted sex offenders in the military justice system.

There is absolutely no disagreement between my colleague and me that they must be included. It is simply a case of doing the work to get them included.

Senator St. Germain: I understand that some RCMP people have concerns about the way the legislation is written. As someone who has worked on the streets and on the practical side of law, there is nothing worse than laws that are unenforceable. The expectation is there and it puts great pressure on enforcement officers.

When we have police chiefs from two of Canada's largest cities questioning it, I would hope — and I know you are working in the best interests of everyone on this issue, and these are not easy issues — that you would, once again, take a look at their representation, for the sake of the well-being of all and for the well-being of this legislation, which all Canadians and I support. It is a good legislative initiative.

I should like your comment on something raised here. The Canadian Professional Police Association was here yesterday. In their presentation, they pointed out that there is much greater severity for failing to register a gun under the former Bill C-68 than there is for failing to register under this legislation. I should like your comment as to why something of this nature would exist within our system? Failing to register a gun logically has its consequences but this would be much more dangerous to society.

Ms. McLellan: There are two different regimes. I do not think it is possible to equate the two. Personally, I do not see that as a useful exercise.

There are different consequences, be they administrative or criminal, in relation to certain kinds of acts. There are a wide variety of different consequences when one violates a prohibition. It is up to the legislators to decide what those appropriate consequences should be in relation to that prohibited act.

In this context, our provincial and territorial colleagues and we have agreed in relation to the consequences that should flow from not obeying the strictures or the provisions set out in this particular legislation.

You could go through prohibition by prohibition in terms of the various kinds regimes that we have in place to deal with various kinds of conduct. I cannot comment on that, because I do not think it is that useful to compare what the consequence is here with the consequence in relation to a completely separate mandated act. I would leave it at that.

The Canadian Police Association supports this legislation very strongly. As I understand it, they do not have the same concerns as Chief Fantino or the chief in Vancouver. It is my understanding that the chiefs of police support this legislation.

Quite honestly, an individual chief might like to see different language in terms of the test as it is found in clause 2(c)(i). I am certainly respectful of the opinion, but one must go with what provincial, territorial and federal minister have agreed will be meet the challenge here. I would also go back to what the Canadian Police Association has said.

Senator St. Germain: I certainly do not want to argue with you; I just want to put forward their case.

Ms. McLellan: I understand.

Senator St. Germain: I would hope the flexibility exists within your department that, if the practical side cannot enforce the law, logic would prevail. I am sure it will.

Senator Joyal: Welcome, minister. We have had the pleasure in the past to exchange views with you. We were happy to see you back in your new capacity. We would hope that the second part of the anti-terrorist bill would be referred to us so that we have the lasting pleasure of exchanging views with you on this. I do not know how the Senate chamber will dispose of it, but I would certainly be happy to have an opportunity to study that bill with you.

Ms. McLellan: That decision is up to others, as you know.

Senator Joyal: I know, but I think you get our message, Madam Minister.

Can you tell us if the Canadian Bar Association, the Law Reform Commission or any of the other groups of legal minds who normally bring their contribution to the making of our legislation have been involved and made comments on the proposed legislation?

Ms. McLellan: Mr. Hoover, do you want to answer that question?

Mr. Hoover: The Canadian Bar Association did provide a witness in the other place to the committee studying the bill. They have also had a few meetings with us, two over the past year, I believe. They expressed certain concerns not unlike the concerns expressed in this committee.

The response was that this is a balanced approach, that they saw this as similar to DNA. In the same way that the courts have constitutionally cited that it is charter viable, they have not seen that as being the issue. They are more focused on ensuring that confusion at the front end in the courts and by police on how to process these individuals as they come through does not occur. We have agreed with them on that. I cannot speak for the minister's department but certainly Justice Canada will take steps to ensure that court and judicial education at the front end is provided so that we avoid some of the initial mistakes made with similar pieces of legislation.

Senator Joyal: Perhaps we will have an opportunity to hear from them later.

I should like to come back to the substance of the bill and talk about a concern that I have expressed before. Perhaps the minister and Mr. Hoover have had an opportunity to review that.

My concern is in respect of section 6 of the Charter, under the heading, Mobility Rights. It states: "Every citizen of Canada has the right to enter, remain in and leave Canada." On page four of the bill, clause 4(4) states: "A sex offender shall not leave Canada before they report under this section." That illustrates quite well the preoccupation I have with the Charter in respect of your interpretation of it as an administrative tool. It might be quoted as an administrative measure, but the impact on the Charter is direct — no question about that. The right to leave Canada is a right, and when an individual has served his or her sentence, he or she can leave Canada.

I have some problems with this because it directly affects the right of mobility. You said that it is not part of the sentence, but it is difficult not to equate the proposal to part of the sentence. The fact that the guilt has been reversed, that the onus has been placed on the offender to prove, if the offender is unsuccessful in the attempt to prove then it becomes part of the sentence.

I understand the effort that the department has put out on this section, but when the court applies the hope test to what is reasonable in a free and democratic society, it goes beyond the words to try to look at the reality of what happened in more practical terms. The minister knows well the three elements of the hope test. When I reflect on the elements of the hope test in respect of this system — not the registry, per se, but the way in which we compile the registry — I still have trouble reconciling the fact that the onus is reversed, in that it is not a sentence.

Ms. McLellan: You raise a number of interesting points. I will first address the mobility rights within Canada and the relevant restrictions. This has been crafted in such a way as to limit restrictions upon mobility. For example, as you move from province-to-province, you are required to obtain a new driver's licence, for example, and provide information to the appropriate authorities in terms of legal status in that province. I suppose you could construe that as a limitation or a barrier to mobility but it is one that we all accept. Certainly, our lawyers have looked at the requirement and do not think that the requirement to change an address is a significant or constitutionally difficult barrier to one's mobility within the country.

We have attempted to ensure that people are able to move within the country. People do not have to register until 15 days after release or moving. In relation to mobility, any kind of barrier or limitation is no greater than those that we are all currently familiar with in relation to our civil society.

Second, there is no prohibition on leaving the country. As I understand, one does not have to report absence from Canada until 15 days after returning, and temporary absences do not have to be reported unless they extend beyond 15 days, and that may be done by mail. An administrative process may have to be pursued to be in compliance with this proposed law. Any kind of barrier or limitation is minimal. Mr. Hoover may want to add to that.

Mr. Hoover: First, you hit on an obvious point. Clause 4(4) states that a sex offender shall not leave Canada. On its face, it appears rather restrictive. However, in reality, when we looked closely at this we have determined that the individual is simply required to register. It is not a disability for him to do so prior to getting on a plane or driving across the border. In our view, it is a proportional response. In other words, it addresses the administrative requirements of the bill and is not overly onerous. We are not asking the offender to delay his travel in any way to go through a punitive process. Again, it is a relatively quick process, required only for the first time after the order has been put. After that, there is no further requirement to report before leaving the country. It is quite the opposite in reality.

A number of jurisdictions thought that was the way to go. I think the legal opinion was that it was not truly required to be overly onerous regarding that registration requirement. For the purposes of ensuring that, in Canada, police are able to investigate these offences, as long as the offender reports when back in Canada and reports when they move for lengthy periods of time, that would satisfy the purposes of the bill.

We went to great lengths to ensure — not only for charter purposes but also to take recognition of the fact that experience in other jurisdictions has shown that if it is too difficult to comply with the legislation offenders will tend not to comply and will tend to go underground. All jurisdictions were made aware of that and went the extra mile to ensure that not only in the statutes do we provide for ease of registration but also in the regulation by the provinces. For example, an isolated community with a sex offender would have difficulty maintaining annual registration. That province may pass a law to provide for other methods of registration, should it see fit.

Ms. Campbell: We were urged by some to make the 15-day period much less — 48 hours, for example. None of these things was lightly chosen, and they reflect much discussion. That initial obligation is the first reporting that they are not to leave Canada. However, as Mr. Hoover has said, on all subsequent reporting obligations, whether it is annual or they move within Canada, they do have to report within the 15-day window after they return to Canada.

Senator Joyal: What is the relationship between that clause and Bill C-7 on the data banks that the airlines will keep in respect of departing passengers? Could it be on the order of a court to register or to not register?

Ms. Campbell: The whole issue of data matching has been controversial. There was much concern that there not be inappropriate matching with other data banks, such as welfare rolls. The bill speaks to a fairly restricted framework. We have heard from both sides of the fence on this argument. The bill represents what people believed to be the most workable compromise.

Senator Joyal: Would the minister comment on that?

Ms. McLellan: I will certainly have an opportunity to comment when I come back to the Senate in respect of Bill C- 7. As Ms. Campbell has indicated, the whole situation entails the matching of data. In Bill C-7, although I do not have the exact provision in front of me, the use of that collective information is key. While I do not have at hand the specific list of offences for which information collected under Bill C-7 could be used, they are serious criminal offences. They are offences largely of violence, but not exclusively of violence.

Senator Joyal: Yes, Bill C-7 would cover some of the sex offences, especially those for more than five years.

Ms. McLellan: Certainly rape, by anyone's definition, is one of the most serious violent offences possible.

Senator Joyal: Yes, it is a personal aggression. Those would be covered by the data banks of bill C-7 and shared with other countries. One of the key issues of Bill C-7 is the scope under which that information becomes a available.

Ms. McLellan: Indeed, that is one of the key issues.

I will leave my comments in relation to those issue until I appear on Bill C-7.

Senator Joyal: I agree with that but, as you understand, Madam minister, that is important.

Ms. McLellan: It is an important question, absolutely.

Senator Joyal: When Parliament is asked to study two pieces of legislation that deal with issues and storage of data at the same time, it is important that we have a general view of what we are doing so that we measure the impact on the whole. As Senator St. Germain has said, when we legislate, we limit freedom of people sometimes. Those two pieces of legislation are a clear case of certain impact on the freedom of mobility rights of the people.

Ms. McLellan: Obviously, everyone shares the goal to ensure to the greatest extent possible the safety and security of all Canadians. One must do that always mindful of the Charter of Rights and Freedoms and basic Canadian values.

We think we have done that here. We think that we have done that in Bill C-7, but that is a discussion, Mr. Chair, that can take place another day.

The Chairman: Thank you, Senator Joyal. I will have to interject. The minister must leave in less than 10 minutes. Senator Nolin will have the last question.

To follow up on that point, Senator Joyal, in Bill C-7, it is the outstanding arrest warrant that will trigger the CPIC investigation. Is that not correct?

Ms. McLellan: Yes.

Senator Nolin: It is good to see you, minister.

Ms. McLellan: Good to see you, senator.

Senator Nolin: It was a long journey back to your involvement in national health.

Thank you for the answer on the military. It reminds me of Bill C-3 when we were studying the military data bank.

I will restrict my question to the second list of offences. I want to understand the political thinking behind that. Why do you have two lists of offences?

I will tell you exactly where I have some concerns. The threshold for the Crown is important for the prosecution of the accused because the intent needs to be proven for that second tier of offences to kick in. Do you understand my point?

Ms. McLellan: Do you mean the offences under 490.11(1)(b) — "an offence under any of the following 35 provisions?"

Senator Nolin: Yes. However, look at the intent the Crown has under section 490.012(2). The burden of the Crown is to prove beyond a reasonable doubt that the person had the intent to commit the offence within paragraphs (a) and (b). For any infraction in (b), the Crown will have to prove beyond a reasonable doubt that the accused had the intent by committing such an offence to commit an offence in list (a). Why not prosecute the accused under list (a) first? Do you understand my question? I want to understand why that is written like that?

Ms. McLellan: As I understand it, the offences in (b), unlike those in (a), are offences that on the face of it do not necessarily by definition have a sexual purpose, right? For example, manslaughter might not be or breaking and entering a dwelling house with an intent to commit an indictable offence might not be. On its face, there is no sexual purpose but there may be, in the actual crime that is committed, a sexual offence or act committed. However, you might still choose to charge under (b). That is prosecutorial discretion, as you know.

Senator Nolin: The burden will be as important, because they will have to prove beyond a reasonable doubt.

Ms. McLellan: On that one aspect, yes.

Senator Nolin: The intent.

Ms. McLellan: On that one aspect, yes.

Senator Nolin: That is an important aspect.

Ms. McLellan: It is about sexual offenders. If you break and enter, the Crown may decide to go with B&E. In that crime, there may also be a sexual offence, but they may still choose to go under B&E and not something else.

Ms. Campbell: The concern that was raised by provincial prosecutors was explained by the example of trespassing at night. It may be simply that you are on someone's property that you should not be on. You are taking a shortcut, but it may also be a peeping Tom offence. Provincial prosecutors are concerned that there are offices such as that with a sexual nature.

Senator Nolin: They want to be able to tackle the job?

Ms. Campbell: That is right.

Senator Nolin: It seems to be a bit awkward because there are three offences that are pure summary conviction offences without specific sanctions. There is one under (a) and two under (b). That means they will trigger section 787 of the code. That means a sentence of six months or $2,000 or both. If an individual is found guilty of such an offence, the maximum penalty is six months in prison. If it is one of the offences in the bill, the individual will have his or her name in the registry for at least 10 years.

Ms. McLellan: Keep in mind that the issuing of the order is not automatic simply upon conviction and sentence.

Senator Nolin: The judge will have to decide.

Ms. McLellan: That is right. That is the opportunity where the offender can come forward and say: "There is a disproportionate impact here. You should take into account all the facts of this situation and what actually happened here. Therefore, I do not think the order should be granted in this case, because it would be a disproportionate impact upon me and my life or me and my family."

There will be that opportunity to make the case. Mr. Hoover is telling me that if you were to be included you can make the case around disproportionate impact before a court that can weigh all the circumstances hearing from the prosecutor and the individual. However, if you were to have such an order made against you, after five years you can appear before the court and ask to have it removed.

Senator Nolin: Yes.

Ms. McLellan: There are important protections there to ensure that people are not being disproportionately affected or hurt by such an order.

The Chairman: Minister, thank you very much.

Ms. McLellan: It is my pleasure. It is always a pleasure to be here. We will see you soon.

The Chairman: Thank you as well to your officials.

We will proceed now with our deliberations on Bill C-250.

Senator Tkachuk: I have a point of order.

The Chairman: Before we call the next panel of witnesses, Senator Tkachuk has a point of order to raise.

Senator Tkachuk: I am not sure if this is a point of order or a point of personal privilege. Yesterday, we heard testimony from Mr. Robinson about Bill C-250, and there were a couple of points that he made. One, he said — and we talked about that — that homosexuality previous to — I think 1969, it could be 1971 — was illegal. If you remember, I questioned his exact definition, because we are dealing with the term "sexual orientation," which is the term that is bothering many of the people who write us letters and who have concerns about this bill. I think we should ask the library to give us a summary of exactly what took place with those amendments.

One, I do not believe that homosexuality was illegal. I think the acts were illegal. There may have been some community standards that may have been offended from time to time. In other words, a judge may have said that, if a man kissed a man or a woman kissed a woman, in some communities that would have been considered offensive, but in others, not so.

The claim that he made yesterday was not correct. I think we should just, for the record, ensure that we all agree on exactly what he was talking about.

The second statement he made, to which I took particular offence, was that religious leaders were not opposed to this bill, except for the Evangelical Fellowship of Canada. That is simply not true. The Canadian Conference of Catholic Bishops certainly can be described as religious leaders in this country, and they have sent letters to the Commons committee on this. They are opposed to Bill C-250, and I consider them religious leaders.

If we are going to deal with this properly, we have to be careful about what is being said here. We are parliamentarians, and I am offended — this member of Parliament should know better than to say that to us when it is not true. I am offended by that.

I have no idea if it is a point of order or a point of personal privilege, but it is a point and I am making it.

The Chairman: Senator Tkachuk, in the interest of efficiency for today, may I suggest to you that the chair obtain a copy of the transcript — which, unfortunately, I do not have in front of me — and that I ask our library researcher to prepare a history, to be distributed to committee members before the next meeting. I would then suggest that, once we have had a chance to familiarize ourselves with the transcript, we invite Mr. Robinson back at our next meeting to answer your points that were raised today. Are you satisfied with that?

Senator Tkachuk: Well —

The Chairman: It is difficult to proceed without the transcript, in other words.

Senator Cools: With deference to Senator Tkachuk, I believe that what Mr. Robinson said was none of the major religions, not none of the religions, but obviously —

Senator Tkachuk: The Catholic council.

Senator Cools: The Canadian Conference of Catholic Bishops would be a major church. The best time to get the record right is immediately. What I heard and understood Mr. Robinson to say was that the major ones did not. However, a look at the record will clarify it — but I heard slightly different from you. However, clearly, you are still correct because —

Senator Tkachuk: All I said was that I was not sure precisely, but that was the inference. I know that he clarified it a little bit when he said that the Evangelical Fellowship — which, as far as I am concerned, is pretty major in this country — was opposed to it, but also the Conference of Catholic Bishops is opposed to it. So I would like to find out —

The Chairman: Colleagues, the fact that we have now engaged in debate on what was said points directly to the need to have a transcript.

Senator Tkachuk: I am with you on that.

The Chairman: We have other witnesses who we invited here this morning and our time is running short. Senator St. Germain, unless it is a question and not a point of debate —

Senator St. Germain: It is a question. If we are going to get the library to determine whether homosexual behaviour, I think he said, is illegal or not —

The Chairman: No, the point Senator Tkachuk raised was that he wondered if our library researcher could present us with a history, and a clarification, not any determination.

Senator St. Germain: If we are going to ask them to do that, if that is the will of the committee, I would ask that the term "sexual orientation" be researched as well, so that a clear definition on that could be established.

The Chairman: That is a point well taken. I do not think the committee would have any objection to that.

Hon. Senators: Agreed.

The Chairman: I would invite our panel of guests to come forward.

Please proceed.

Mr. Dave Jones, Director, Crime Prevention Services, Downtown Vancouver Business Improvement Association: Honourable senators, to clarify who I represent in appearing here, I was a former district commander for the downtown peninsula. That includes the downtown business district, west-end areas and a rather large gay population that live and work in that area. I appear today with the blessings of the chief constable of the Vancouver Police Department to follow up a presentation I did before the Justice and Human Rights Committee in the House of Commons. I am here representing the views of the Vancouver Police Department.

You have in front of you a detailed brief. I will try to hit the high points of that brief, and will try to speak a little more slowly.

The Chairman: I should, tell you, Mr. Jones, that I will try to limit you to five minutes. The brief is rather lengthy, so please hit on the points that will be of the most interest to —

Mr. Jones: I have excised the points I want to cover, and I hope I can do it quickly. Vancouver police conducted an analysis of hate-bias-type crimes in 2001 and 2002 as a result of an attack and murder on a gay male in Stanley Park. That murder has now resulted in five people being charged. One youth has currently pled guilty and has been sentenced. In that sentencing, the judge said the attack and beating of Mr. Aaron Webster was in fact a hate crime as set out in section 718 of the Criminal Code. One of the youth has also pled guilty and two adults were arrested in the case and are currently before the courts.

This death triggered an amazing response from the public in Vancouver that led to a resolution going forward through the Vancouver Police Department to the Canadian Association of Police Boards who endorsed a resolution calling for the addition of sexual orientation into section 318(4) of the Criminal Code. That subsequently led to the resolution that the Canadian Association of Chiefs of Police passed last year, and I have a copy of that resolution, which I will tender to this committee. They resolved that the Canadian Association of Chiefs of Police urge the Government of Canada through the Minister of Justice and the Attorney General to amend the Criminal Code of Canada to add sexual orientation to the list of identifiable groups in section 318(4).

The study in Vancouver produced a fascinating result. We looked at 12 groups defined under section 718 that were protected under that section, where additional sentencing could be applied if the offence was committed and the basis for it was hate, prejudice or bias towards one of the 12 groups. Among those groups were race, religion, colour, ethnic origin, national origin, physical disability, sexual orientation, language, age, sex and mental disability. Four of those groups, race, religion, ethnic origin and colour, enjoy additional protections under section 318(4) as identifiable groups against whom hatred can be presented. It turned out there are only five groups in Vancouver reporting incidents. The fifth group was sexual orientation.

Sexual orientation represented, out of the five groups, 38 per cent of the incidents of hate and bias that were occurring. More significantly, in the area of assaults and robberies, sexual orientation formed the basis for 62 per cent of the acts of personal violence toward individuals, four of whom were protected under section 318(4), and one of whom was protected additionally under section 718.

The Supreme Court of Canada has made a number of decisions relative to sexual orientation that we consider as guiding principles for the lesbian, gay, transgendered and bisexual communities. The argument to add sexual orientation to section 318(4) is important to place in the context of some of the remarks of the Supreme Court of Canada.

Two separate cases came to mind. Egan was a federal case involving federal benefits:

In Egan, it was held, on the basis of "historical, social, political and economic disadvantage suffered by homosexuals" and at the emerging consensus among legislatures, as well as previous judicial decisions, that sexual orientation is a ground analogous to those listed in s. 15(1) of the charter. Sexual orientation is "a deeply personal characteristic that is either unchangeable or changeable only at an unacceptable personal costs."

It is analogous to the other groups protected.

The Supreme Court of Canada's remarks in Vriend v. Alberta, the judge said:

Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetuates the view that gays and lesbians are less worthy of protection as individuals in Canada's society.

There is also a risk to persons on the basis of sexual orientation that extends to other people. In British Columbia, in a case known as Jubran, a young man who was not gay was subjected to homophobic pejoratives of such extreme nature that, in Mr. Justice Stewart's words, the young man was subjected to "a living hell." Internalized homophobia is engendered in youth by the failure of society to recognize sexual orientation as deserving of protection.

The exclusion of sexual orientation from section 318(4) exacerbates this belief and is not resolved by the conclusion in section 718.2 because this section speaks to sentencing and does not acknowledge the reality of publicly expressed hatred towards this group. The research provides ample evidence that the only people experiencing the types of behaviour condemned under section 319 who are not included under section 318(4) are those distinguished by sexual orientation.

The flip side is that the absence of sexual orientation from section 318(4) serves to maintain or support homophobic ideas or beliefs by heterosexuals. Police are concerned that the risk to youth is particularly acute resulting from bullying, violence and suicide.

I will leave that section to you to read — the number of incidents of deaths in British Columbia of young men subjected to exceptional homophobic abuse and exceptional language relating to sexual orientation.

Historical events established that intolerance and hatred based on sexual orientation are comparable to the stories of other included groups of race, colour, ethnic origin and religion. The history of intolerance based on sexual orientation is comparable to the stories of the fight for civil rights of those groups. Police believe the protection for this group and significant changes to the attitudes of Canadians are unlikely to occur without the inclusion of sexual orientation in section 318(4).

In 1986, the government responded to the 1985 parliamentary committee on equal rights, which released a report entitled "Equality For All." That committee said they were shocked at the high level of discriminatory treatment of homosexuals in Canada.

Police are concerned that opposition to Bill C-250 on the basis of the need to protect religious views may leave homosexuals at risk. I think there is adequate protection, as well as in the amendment to Bill C-250 that protects religious arguments done in good faith and those religious texts that they rely on.

In conclusion, the history of hate and bias towards homosexuals and the need to fight for basic rights is disturbing. From a police perspective, the lesbian, gay, transgendered and bisexual community is in need of the additional protection that could be afforded by section 318(4). This protection will not likely take the form of persons being arrested and placed before the courts; rather, it is the more subtle effect of the Government of Canada recognizing through articulation in section 318(4) the need to protect homosexuals in the same way that people of colour, ethnic origin, race and religion are protected. This powerful acknowledgment will, I hope, effect the same transition of behaviour that has made harmful behaviour towards protected groups socially and criminally unacceptable.

The Vancouver Police Department supports Bill C-250. All of the Attorneys General of the provinces of Canada have indicated their support. The Canadian Association of Police Boards supports this bill. The law amendments group of the Canadian Association of Chiefs of Police wrote a letter last year and followed it up with the resolution that I have tendered here today.

I want to conclude by saying this: Some children in Canada are turning to the streets. They are living in fear of discovery. In extreme cases, they are taking their lives. This legislation is long overdue and it is urgent that it get passed before this particular government calls for a new election. It has taken far too long to get as far as we are today. It is urgent to give children an opportunity to live a full life with acceptance and respect. There are current and past generations who have had to struggle to live normal lives like other Canadians do. Some have not survived that struggle.

The Chairman: Thank you, Mr. Jones. Ms. Homes, please proceed.

Ms. Hilary Homes, Campaigner, Amnesty International (Canadian Section): I am a campaigner on identity-based violations and anti-impunity work with Amnesty International.

We do have a brief available, and I apologize that it was not available prior to my bringing it into the room this morning. I shall highlight a few points and bring an international dimension to this.

In 1948, the Universal Declaration of Human Rights set out a non-discrimination framework in which everyone is free and equal in dignity and rights, but we have spent the past five decades clarifying whom "everyone" refers to, and we are still on this path.

On the international level, I am happy to say that Canada has been outspoken when it comes to protecting people from persecution because of their sexual orientation. In our brief, there is a list of a few of those situations. However, it is notable that, right now, before the Commission on Human Rights, Canada is co-sponsoring a resolution with a number of other countries about sexual orientation and non-discrimination.

Inherent in this idea of non-discrimination is the need to undertake measures to prevent people from being harmed and abused because of their real or perceived identity. It is not just about violations after the fact; it is about preventative measures. In a number of refugee claims, Canada has, for years, recognized that persecution based on sexual orientation is grounds for asylum.

From our perspective, it is vital that this commitment be mirrored on the domestic level, and the bill currently before us is an important addition to the existing protections.

For Canada to meet its international obligations to prevent torture and ill-treatment, two things need to be recognized. When we refer to torture and ill-treatment, it is not just about physical integrity, but also mental integrity. In other words, it is not just about physical attacks; it is also about the impact of repeated expression of hatred.

Similarly, these obligations do not refer just to actions of state agents but the need to exercise due diligence to address and prevent the harmful actions of individuals. I say this, of course, because Amnesty's work is grounded in international standards.

When it comes to the expression of hatred, Amnesty's research tells us — as you heard from Mr. Jones, and as you will hear from my colleagues at Egale — that we are clearly dealing with a targeted group here. We are also dealing with the reality that the expression takes several forms and several levels of organization. Whether it is bullying in a schoolyard or local neighbourhood because of someone's real sexual orientation — or the perceived sexual orientation — that factor makes it clear that we are dealing with a targeted group. It is a significant element.

Whether it is at that level or at the level of the actions of public figures — and here I will give you an international example that was worrisome to us. The home affairs minister in Namibia who was speaking to a group of newly graduated police recruits said, quite literally, that they should eliminate gay men and lesbians from the face of Namibia. That was only a couple of years ago — I am not going very far back in history to find this commentary. We have numerous reports detailing the abuses that take place in that kind of context, where that kind of language is being used. I brought one of them with me from a recent campaign against torture.

The obligation to prevent violence detailed in this report and other places means we have to look at the climate in which that violence takes place and seek to change that climate. Part of doing that is a clear articulation that a vulnerable group should not, and cannot, be singled out. That is a very important measure.

I think it is important to look across borders. We know that both civil society and governments look to the legislation in other countries, look to what is supported through international mechanisms and regional mechanisms and see what is happening. For me, one of the more poignant examples is when South Africa was looking to create a new constitution in the mid-1990s, and to deal with a legacy of hatred on a tremendous number of levels in that country to see what was the tremendous violence that resulted from expression, they included sexual orientation in the list of equality and protection provisions. When they wrote their national plan of action, based on their constitution, it is also in there with a long list of protected groups. That is a reflection of what they had to deal with in terms of propagation of hate in that society, and wanting to mark a change and articulate that change.

That brings me to my final point about the interconnectedness of identities, and the list of what is identifiable groups in the legislation. I know every time you see a list, people have concerns — what is on the list, what is not on the list, how is the list evolving, will we have a list of 20 things — this kind of thing.

However, it is important to note that our understanding of what identity is is not static. No doubt that list will evolve over time, and this is an important change. We have seen the evolution in international law. As I said before, we started out saying everyone is equal in dignity and rights. Then we had to say who. We had to develop a convention on the elimination of racial discrimination, discrimination against women and so on. We needed to understand the intersection of identities, and how that translated into vulnerabilities, and what the violations were and how that related to protection and prevention.

Hate needs to be addressed. It is a very fertile ground in which human rights violations take place, and we need to confront it.

The Chairman: Thank you, Ms. Homes. Mr. Arron or Mr. Fenton, did one of you wish to make a presentation?

Mr. Laurie Arron, Director of Advocacy, Egale: We will be speaking as a tag team, I guess.

The Chairman: That does not give you double time, though.

Mr. Arron: We will do a brief overview of our submission, which you have all received.

I am the director of advocacy of Egale Canada. For those of you who do not know, Egale is Canada's national group advocating for equality and justice for lesbian, gay, bisexual and trans-identified people and their families.

The issue before us today is really very simple. The question is not whether we should add sexual orientation; the question is how can we not add it. There is no good answer, but there has been a lot of misinformation, in particular about the reach of the Criminal Code.

I should like to turn to my colleague, Mr. Trevor Fenton, to address this. He has extensively researched the legal implications of Bill C-250.

Mr. Trevor Fenton, Member, Egale: As Mr. Robinson told you yesterday, section 319 of the Criminal Code already provides robust protection for freedom of religion. This is most obvious in reading subsection 319(3)(b), which unequivocally tells the courts that the Bible and other scriptures are not hate literature and are off-limits to prosecutors. Still, some would argue that the Bible is at stake, and as proof they refer to the decision in Owens v. Saskatchewan (Human Rights Commission).

With respect, I submit that this case is simply not relevant to the bill in front of you. Using a human rights case like Owens to discredit a Criminal Code provision betrays a considerable misunderstanding of our legal system. I commend to honourable senators the table found at page 7 of Egale's brief, which I will discuss in more detail.

First, to violate a Human Rights Act provision against hate propaganda, one must merely expose an identifiable group to hatred or ridicule. On the other hand, under the Criminal Code, the accused must promote hatred. According to the Supreme Court of Canada in R. v. Keegstra, this means direct and active stimulation, nor mere encouragement or advancement of hatred.

Second, a violation of the Human Rights Act does not require a mental element. On the other hand, the Criminal Code promotion of hatred must be wilful, which means both intentional and purposeful. This wilfulness, like every other element of the offence in section 319, must be proved beyond a reasonable doubt by the Crown.

Third, under the Human Rights Code, good faith is irrelevant. On the other hand, the Criminal Code provides a truth defence and three distinct good faith defences, including a full defence for expressing religious beliefs and beliefs based on a religious text. In summary, section 319 is designed to make it extraordinarily difficult to obtain a conviction.

Let me be clear about this. This is exactly as it should be. It reserves the power of the criminal law for only the most extreme cases of promoting hatred, while explicitly exempting religious expression from its reach.

Mr. Arron: I should like to add that, in addition to the provisions that Mr. Fenton mentioned, the Attorney General's consent is required, so cases will not be brought that do not have merit.

Egale supports religious freedom and freedom of expression, and we oppose censorship. We do not believe that people who say that homosexuality is against God's wishes are wilfully promoting hatred. Hatred is not the end they seek. It is hate-mongers who violate the Criminal Code's hate propaganda provisions — people who seek to dehumanize whole groups of people on the basis of a single characteristic like race, religion or sexual orientation. Egale believes that most Canadians want to live in a society that promotes mutual respect, equality and tolerance. We do not want to live in a society where unpopular minorities are demonized or dehumanized.

Hate propaganda hurts us all. Of course the ones it hurts most are members of the targeted group, not just particular individuals but the whole group. The Supreme Court has recognized this, as my friend Mr. Jones stated. It has said that hate propaganda hurts people's sense of safety and causes them to hide their identity. For gays and lesbians, the harm that comes from hiding who we are is well documented. It lowers our self-esteem and leads to feelings of shame, guilt and self-hatred. This is particularly difficult for young people.

Through Bill C-16 discussions, we see how vulnerable young people are, and how they are in need of protection. Gay and lesbian youth are no different. They need protection. Studies show that gay and lesbian youth are anywhere from 3 to 16 times more likely to attempt suicide than their heterosexual counterparts. This is a tragic loss of life. This bill, honourable senators, will allow you to help protect them.

Yesterday, there were questions about the link between hate crimes and hate propaganda. The link is clear: Hate propaganda plants the seeds for hate crimes. Before there can be a hate crime there must be hatred. Take away the hatred and you prevent the hate crime.

Gay, lesbian and bisexual people are one of the biggest victims of hate. Unfortunately, the RCMP currently collects no national statistics. They should be. However, statistics from Vancouver, Toronto, Calgary, New Brunswick and Nova Scotia all say the same thing — that shockingly high proportions of lesbian, gay and bisexual people are the victims of hate times.

Time constraints do not permit me to tell you about the actual hate propaganda that is out there and that is directed towards gay and lesbians, but I am sure you can imagine the things that are said.

Where are we? We have a list of groups protected by hate propaganda, and this list leaves out one of the most targeted groups. Bill C-250 will fix that problem. The problem is not only one we hope you want to fix, but it is one our Charter of Rights and Freedoms says you have to fix. The Supreme Court sets this out in Vriend, where it ruled that it is unjustified discrimination for the government to deny lesbian, gay and bisexual people the protection that it affords to other disadvantaged groups, when our need for protection is clear. The court went on to say that the exclusion sends a message that it is permissible, and perhaps acceptable, to do to gays and lesbians what is not permitted to be done to the protected minorities.

In this case, the message says that Parliament believes that it is inappropriate to promote hatred against people on the bases of their race or religion but that people persecuted because of their sexual orientation are not sufficiently worthy of protection. Instead, they are fair game for hate-mongers. If you reject this bill, that is the clear message you will be sending.

Even after Bill C-250 becomes law, there are other groups that will still not be protected, such as disabled people, women and transgendered and transsexual people. They are in desperate need of protection both in hate propaganda laws and in human rights generally. The solution is to add the terms "gender identity" and "gender expression" to these laws.

Today, however, you are not being asked which groups to protect. You are only being asked whether or not to protect lesbian, gay and bisexual people. We call on you to pass Bill C-250 in the same form as it was passed by the House of Commons, and without delay.

I cannot express enough that delay means death for this legislation. Let us fix this glaring omission and put this issue behind us.

Senator Tkachuk: I have a number of questions. I will try to make them general. We have heard three very good submissions. On the Vancouver police submission, we have information about the city of Vancouver. I have a couple of questions on that information. First, how did it compare to national averages?

Mr. Jones: The only things that I have to reference are some hate crimes statistics across Canada in 1997 that indicates that 18.4 per cent of hate motivated crimes were on the basis of sexual orientation.

I refer to the Canadian Centre for Justice statistics. Through its pilot survey of 26,000 victims of crime in 1999, it found that 4 per cent of the incidents are hate crimes — half of which are likely to involve multiple offenders. Race and ethnicity were found to be the most common, at 43 per cent, with the "other" category, including sexual orientation, being the next most common, at 37 per cent.

Vancouver statistics are quite different. In some respects, they show 38 per cent of all hate bias-type incidents that are reported are on the basis of sexual orientation. These are hard-researched statistics. Approximately 62 per cent of the five groups that reported hate-bias incidents in Vancouver, in terms of physical violence, are on the basis of sexual orientation. It is unequivocal evidence that this group is a targeted group, that this group suffers a disproportionate harm to all Canadians and a disproportionate harm even within the groups protected in 718 and those who are not currently protected explicitly in 318(4).

Senator Tkachuk: Is the figure of 38 per cent, so that I am clear, higher than the national average?

Mr. Jones: Yes, it is.

Senator Tkachuk: How much higher?

Mr. Jones: The national average would appear to be somewhere between 18 per cent and 37 per cent.

Senator Tkachuk: Is it 18 per cent, or is it 37 per cent?

Mr. Jones: The 1997 study shows 18.4 per cent. The 1999 lumps a number of groups together. I cannot extract the figure, so I cannot tell you if it is 37 per cent or a lesser percentage.

However, I can tell you that the number for Vancouver is absolutely and unequivocally 37 per cent.

Senator Tkachuk: When you develop your statistics and when you are talking about Vancouver, are you talking about the city proper of Vancouver or the Lower Mainland, Burnaby to Austin?

Mr. Jones: We are talking specifically of the city of Vancouver.

Senator Tkachuk: First, when you say "crimes of violence," what do you mean? Do you mean assaults, murderers, physical assaults or robbery? What are they exactly?

Mr. Jones: I can give you that exactly. They are assaults and robberies, with the majority being assaults, and one murder.

Senator Tkachuk: One murder. How many assaults would there be in total that are hate crime assaults?

Mr. Jones: There are 83 assaults, robberies and murder.

Senator Tkachuk: Out of how many hate crime assaults are the 83?

Mr. Jones: We had more than 200 incidents to research. We took out the multiple letter writers, and we extracted one fellow who was in a mental institution and wrote about 30 letters because he basically hated everyone. We are dealing with about 187 total incidents.

Senator Tkachuk: So, 83 were acts of violence?

Mr. Jones: All of them were all acts of violence; all hate crimes. There were 187 hate crimes, in five categories.

Senator Tkachuk: If we have 187 hate crimes, of which 83 were physical assaults, what is the total number of assaults?

Mr. Jones: In the city of Vancouver?

Senator Tkachuk: Yes.

Mr. Jones: It is probably a couple of thousand.

Senator Tkachuk: A couple of thousand, 3,000, or 4,000. How many?

Mr. Jones: I would have to look at the CCJS or the Vancouver stats for that information.

Senator Tkachuk: Are we talking about 2,000, of which 87 were classified as hate crime assaults, or 187 of which 83 were against gay and lesbians?

Mr. Jones: That is correct. I think the way to actually look at it —

Senator Tkachuk: Were they homosexual men or women?

Mr. Jones: Both. When you are looking at the groups to whom hate is expressed, the statistic has relevance.

If you look at, for instance, race, ethnicity and nationality, there were 24 incidents of violence against that group of people. In the grand scale of assaults in Vancouver, they represent a small proportion. They are significant because of the people they represent and the basis for which the crime was committed — which was hatred and bias. It was not incidental to a profit motive or a sudden rash of anger. It was specific to hatred, prejudice and bias.

That is what makes it so serious an event. To say that the 15 people, for example, that were attacked on the basis of their religious beliefs and assaulted — that pales in comparison to the 2,000-plus people who were assaulted overall in the city of Vancouver. This is to deny the people the recognition they achieve through 318(4).

Senator Tkachuk: I am trying to get at the numbers.

Mr. Jones: The numbers are about 187 overall, with 83 assaults.

Senator Tkachuk: So it has nothing to do with motive or anything like that? When we use statistics — I am just trying to find out what these statistics really say.

In 10 years, I have never met a police group that has not agreed with having tougher laws. I have been here 10 years, and every time there has been a law in the Criminal Code that is tougher than the one before, the police always support it. That is just natural.

I am just trying to get at exactly what we are dealing with here. I have read some interesting statistics on gender, that most homosexual hate crimes that were defined as hate crimes were against men, and not against women. My question is this: Of those 83, how many were against men and how many were against women?

Mr. Jones: Most are against men.

Senator Tkachuk: Is it half?

Mr. Jones: I cannot break that out for you because I did not bring that data.

Senator Tkachuk: Well, that is important.

Mr. Jones: I can provide that data to the committee. I am happy to bring the two inches of data and present it for you.

These are small numbers of events in the grand scheme of things. The disproportionate harm or the risk that the average Canadian has on the streets of Vancouver of being assaulted is low. An individual has an elevated risk, though, if he or she belongs to one of these five groups — religion, sexual orientation, race, ethnic nationality or multi-biased type events. You have an elevated risk of being physically assaulted.

If you are a person who is identified on the basis of sexual orientation, then your risk to those groups already protected is disproportionate even within that group.

Senator Tkachuk: I have an elevated risk being in downtown Vancouver, on the east side, rather than being in Saskatoon in my community.

Mr. Jones: I disagree. I have been there.

Senator Tkachuk: I am telling you, if you are using statistics. Was location used, as to where these crimes took place?

Mr. Jones: Yes.

The Chairman: Senator Tkachuk, please prioritize your next question. The rest will have to be saved for a second round, if we have time. I have a long list of senators who want to ask questions.

Senator Tkachuk: Are you giving me one more?

The Chairman: Yes. However, I should like to add, as a supplementary to your question regarding robbery, my understanding is that robbery is a crime that always involves violence or threats of violence and/or the use of a weapon. Is that not correct, Mr. Jones?

Mr. Jones: It is essentially a theft with violence.

Senator Tkachuk: Earlier, we were talking about discrimination and the extra protection that is needed. I asked this question of Mr. Robinson, yesterday: Are there groups now that are propagating hate against the homosexual community?

Mr. Arron: Yes, there are. We do not know much about these groups. I have here what we at Egale like to call our file of rude things.

Senator Tkachuk: We get them, by the way.

Mr. Arron: I am sure you do. Mr. Robinson referred to Fred Phelps, the preacher from Kansas, who has a Web site — www.godhatesfags.com — that says some pretty outrageous things. Looking through our file, we have one from a group that calls itself the Anti-gay and Lesbian Coalition of North America. It says: "We are proud to have Fred Phelps as our founder and inspiration for our movement. We are called `AGCONA' or the Anti-gay Coalition of North America. Our slogan is `God hates fags and dykes. AGCONA will set it right.' AGCONA is for the cleansing of America and the world of all gays, lesbians and deviants like yourself." That was sent to EGALE.

There are other groups, as well. There is one called Liberty Net, which is actually a neo-Nazi hate line. The message on their hate line says that queers should be trampled into peat bogs like the ancient Celts used to do.

Egale has received threatening phone calls from a group that calls itself the Army of God.

Senator Tkachuk: Most of these groups hate everyone, though. They hate Jews and Catholics.

Mr. Arron: Certainly, their messages are directed at us. I am not saying not to protect the Catholics or the other folks who are targets; I am just saying that we are in need of protection.

Senator Tkachuk: When we talk about the question of discrimination — we income discrimination, job discrimination, school discrimination, education discrimination. Is there any place in society where people who are gays and lesbians are not successful because they are discriminated against?

Mr. Arron: The kids who kill themselves are not successful. The people who —

Senator Tkachuk: We do not know the reason for that. We are jumping to conclusions.

Mr. Arron: In many cases we know the reasons. In many cases, they leave notes. Study after study has been done using sound sociological methods. You cannot argue with the fact that gay and lesbian youth kill themselves at much higher rates than their heterosexual peers.

Senator Cools: Mr. Jones, you have indicated to us that you want this amendment to sections 318 and 319. If Bill C- 250 were to become law, could you tell me how many times in the next year you would charge under that, based on all the data that you have just given to us? How many times do you think you would invoke these new provisions to lay an information before a justice of the peace?

My second question is difficult to get at. You cited the Vriend case, about historical disadvantage. My reading of the data tells me that homosexual people are higher earners on average and better educated than average, but that is not just my question. My question is this: In these court cases, what is the nature of the evidence that has been put before the courts in respect of discrimination and disadvantage of homosexual persons? You know where I am going on that. Many of these decisions have been made by a claim being made and a claim being conceded.

My final question relates to the creation of the penal code, of criminal law. The criminal law is a weighty tool. I was raised to believe that, as a common law thinker, you should go to the criminal law but rarely. There are many reasons to create criminal law, but social recognition is not one of them.

I have heard you saying that we should make this Criminal Code amendment based on social recognition. I speak with some experience in this. I also speak as a person who ran in a community in Toronto with great support from homosexual people. As a matter of fact, I used to come under fire because I was too friendly with too many homosexual people.

Could you answer those three questions, because you have a lot of experience under your belt?

Mr. Jones: I can answer the first one quickly. The police will lay the same number of charges that they currently lay in terms of those types of offences against the other four groups, which is just about zero. The power of this legislation is in the message it sends to Canadians about those things that we hold most dear — and that is the protection of those disadvantaged or minority groups or marginalized groups.

The second question I will actually refer to my friends from Egale here, but I will answer the third one.

Senator Cools: Yes, it was to you because you made the statement.

Mr. Jones: The Criminal Code — for the same reason. We set legislation to establish the values and what we are about as Canadian citizens and what we believe in and who we believe that we must protect. We have identified who we need to protect in section 718, but we have not included them in section 314(4). We need to do that because, in the schools today, based on the Jubran decision in North Vancouver, the most hateful, harmful pejorative that can be applied to any person is to extract a homophobic remark out of the air and apply it to a person in a very public way, and invite condemnation, persecution and contempt for that individual. The effects of that stretch into society.

Had Mr. Jubran been black in the school in North Vancouver, I have no difficulty in believing that that problem would have been solved by noon of the same day, and four students would have been at four different schools the following morning.

Canadian society reacts to those things that the Canadian government says are things we value. Over the last 29 years of policing, I have seen the incidence of racial intolerance and religious intolerance decrease. It is no longer acceptable in any environment to invoke those pejoratives that used to be applied routinely to those groups of people protected in 314(8).

I expect that there will be a five-year progression, but in five years from now, if this legislation goes through, school administrators will have no difficulty when students are attacked and abused on the basis of perceived or real sexual orientation. Those students will grow up to be healthy young people who will have productive lives, feeling they are part of Canadian society.

Senator Cools: I have no problem with that.

Mr. Fenton: We respect to your third question, Senator Cools, we agree that the criminal law is a big hammer. In fact, the point of section 319 is not to go around and suppress distasteful speech. The Supreme Court made that clear in Keegstra, that what we are talking about here is not merely distasteful speech. It would be wrong for a court to judge speech on that basis. It must be hateful, and they have defined very clearly what that is. It is a big hammer and we do not think it should be used very often. It is to be reserved only for the most extreme expression of hatred, and that is what we are talking about here.

The important thing to observe is that the section that we are talking about, section 319, already exists. Bill C-250 is not about creating a hate propaganda law. The scheme already exists; it has existed since 1970. In that time, under section 319(2), there have been, from my research, five reported cases that have gone to trial, in the entire country. Three of those have come since Keegstra. Hence, in 14 years since Keegstra, there have only been three additional trials.

There has not been a single case involving a prosecution under 319(1), which is for breach of the peace. As far as genocide goes, I am not sure — I think there might be one.

At any rate, certainly, under 319(2), we are looking at a very limited scope of prosecutions. The reason for that is that it is reserved for only the most extreme and vile targeted, hateful, destructive attacks.

Senator St. Germain: My question is to Mr. Jones, who is representing the police.

In the case of the most recent murder in Vancouver, had this legislation been in place, can you honestly sit here and say that that murder would have been prevented?

Mr. Jones: If this legislation had been in place 10 years ago, those kids would not have come through a school system believing it was okay to express hatred toward this group of people. They would not have gone actively hunting this particular individual, and he might not be dead. I cannot tell you for sure, but that is what I think.

Senator St. Germain: Are you inferring that there has been a breakdown in the school system? The fact remains that we all went through the school system, and I cannot remember anything of this nature taking place, or organizing within the schools. For you to say that, I find that very surprising.

Unless there is something in those Vancouver schools that is different — when I was a Vancouver city policeman, to my knowledge, it did not happen at that time in the school system.

Mr. Jones: It certainly happens today. We have the evidence of it happening. We have the Jubran decision. We have the young man who threw himself off the Patullo Bridge. We have the young man in Prince George who killed himself.

Senator Cools: I would challenge this. This very homicidal behaviour is particularly deviant and wicked.

The Chairman: Senator Cools, would you allow the witness the time to answer the question, please. Mr. Jones, could you finish your answer.

Mr. Jones: Thank you. I was referencing the young Aboriginal man in Prince George who killed himself, leaving notes about the terrible experiences he had in the Prince George school system — a well-documented case. The young man who threw himself from the Patullo Bridge is a well-documented case of homophobic pejoratives being applied in a particularly abusive way.

I hear school-aged children walking around — again, words, but nonetheless, they speak to a more sinister element within the values. When they say that something is "really gay," it means it is bad, awful, not acceptable. To call someone that is a pejorative. That is a minor example, but those remarks are very common in school. They are the most hurtful and harmful things they can pull out of the air, and that is what people are called today.

Senator St. Germain: Briefly, my concern about this legislation — what scares me is that we added 319(3)(b). The fact that we had to add that scares the living daylights out of me.

My concern is that we can write in legislation of this nature, but this has been an evolutionary process. I thought we were becoming more civilized. From what this officer tells me, we are totally uncivilized in British Columbia. We are leading groups against our homosexual communities.

I was a policeman on the street, just as Mr. Jones was, in the 1960s. There were incidences and there were individuals. Senator Tkachuk asked about identifiable groups they are working against. I do not think there are any, to tell you the truth; but if there are, they should be dealt with.

What concerns me is that this entire nation was built on freedom and the freedom of religion. I feel, like a lot of the leading clergy in this country, that this is an incursion on the freedom of expression and the freedom of religion. Our veterans did not give up their lives for peace. Peace was part of it, but freedom was the greatest part of it.

The next thing is that we want to go one step further. Where does this stop? The fact is in the restriction of expression. I do not agree with the wackos down in the United States. They should be wiped off the face of the earth, as far as I am concerned.

What we are protecting, and what we have to protect as legislators, is freedom. When we get into the area of jeopardizing freedom, police departments and everyone has to take a responsible role.

Your very police departments are the ones that supported Bill C-68, in some cases, not all. What have we got in Toronto today? We have a horror story, of crime, violence and death with guns. We told you people this at the time. Some of the Canadian Police Association officials were totally split on the issue.

I do not know whether you want to comment on this, but I have great concerns because my ancestors and many people sitting here today, and possibly your ancestors, Mr. Jones, gave up their lives in the fight for freedom. If there were a problem, we should address it, but we should not sacrifice one of the greatest things we have. Our ancestors came here, in many cases, because they lacked freedom in Europe, in Africa and in other countries around the world. Let us not put what we have in jeopardy.

The Chairman: I do not know if any of the panellists would care to respond to that?

Mr. Arron: I respect your concerns, Senator St.Germain. I, too, am hesitant to put any limits on free speech. However, in this case, we are talking about the tip of the iceberg — the most extreme forms of promoting hatred against identifiable groups. When we talk about freedom, we have to ask whose freedom we are talking about. Are we talking about the freedom of hate-mongers or the freedom of decent, hard-working citizens who happen to be gay, lesbian or bisexual? When you invoke the Second World War, I want to remind you that gays and lesbians fought for freedom in that war like everyone else fought. We deserve to benefit from that freedom like everyone else benefits.

The Chairman: Thank you.

Senator Pearson: Thank you to all for your presentations. I have no problem with this bill, but it was interesting to hear from Ms. Homes about our international position on these matters. You strengthened the ideas embedded in this with your document, which is pretty descriptive. Having been at some of these meetings you described, I know how the government has fought to incorporate some of this language in international declarations. I should like to reinforce the idea that we should do nationally what we say we are doing internationally. Would you care to comment on that?

Ms. Homes: There is tremendous value in putting this into international context, as well as looking at how things play out domestically in particular cities. The reality of our world is that ideas cross borders, and, sadly, hatred crosses borders as well. The coalition around the United Nations Commission on Human Rights resolution is currently quite broad. It is notable that the resolution originally came from Brazil and now involves Canada and many European countries, and there are discussions with South Africa.

We talk about the Canadian context, and the level of hate here, which is a valid discussion. I should like to add that we have seen that where there were no protections codified in law in other countries, where a breadth of society had the licence to put forward those extreme views — again, Amnesty defends freedom of expression. We are only talking about the extreme views, which, within the international human rights framework, have been recognized as limited, such as incitement to genocide. That has been the result of allowing massive human rights violations.

I was referring to a non-derogatable right, like the right not to be tortured. It is important that Canada set the framework for other countries to look at. We know that language on that level can lead to extreme violence and promote extreme violence. It is not about a special body of rights, but it is about recognizing a non-discrimination framework as applying to everyone, about recognizing vulnerability and about protecting from vulnerability.

Senator Joyal: I have two quick questions. The first one is about the statistics. I personally do not think that we should give an absolute value to the statistics because there are many cases, to my knowledge, of people who are victims of assault but do not report for it, for many reasons. For one, they do not want to be double-victimized by the system. To simply report the assault is an act of denunciation of one's self. In some milieu, it is perceived as an additional burden on victim of the crime.

The statistics have a very relative value, because, by definition, society, in some circumstances, ostracizes people on the basis of their sexual orientation, and that adds additional burden to those victims to remain anonymous. It is only in an extreme case, such as death, that there would be an investigation by the police to determine the circumstances surrounding that death.

I should like Mr. Jones and Mr. Aaron to comment quickly on this.

Mr. Jones: I agree with you. The statistics are only relevant in relationship to the other groups reporting. People have a level of tolerance that interrupts the reporting. There are also issues around trust of the police and whether they will be believed or whether the police will have attitudes around the issue. There is simply the concern about being identified and having to say who you are. That truly speaks to the whole issue. The fact that people are afraid to say who they are tells me that we have a major problem that needs to be addressed.

Mr. Arron: I am probably one of the most "out" people that I know, as Director of Advocacy at Egale. Coming out is not something that you do once, but rather you do it every day of your life — each time you make a decision to tell people; each time you are with your partner and you hold hands. Just last week, I was at the airport to greet my partner when he returned from a flight. The thought flashed through my mind, should I kiss him? Am I at risk if I do? This occurred at the Toronto's international airport. These thoughts go through my mind all the time. The idea that everybody is out — they are not all out.

There is a great deal of variation across the country in terms of the climate for doing that. In downtown Toronto, it is different from many parts of the country — even a few minutes drive in any direction from Toronto.

Certainly, there is much under-reporting and fear, which I think is legitimate. It is important that this proposed legislation be passed so that people know that that kind of hate-mongering will not be tolerated and that gays and lesbians deserve to be protected.

Senator Cools: I want some information from these witnesses. All the witnesses have testified to the adequacy of the current provisions of the Criminal Code to deal with any offences. Very clearly, from there on in, the need for this bill is a matter of opinion.

Mr. Jones has essentially given us a conjecture, such that, had Bill C-250 been in law, then perhaps Aaron Webster might have been spared. What I want from Mr. Jones, and from the witnesses, if possible, is some evidence to support their hypothesis about homicidal intention and homicidal behaviour.

I was a member of the Parole Board, and I have read reports on thousands of cases and many post-mortems. Homicidal intention and homicidal behaviour is in a field of its own.

I should like some tangible proof from Mr. Jones to support what he said, that school systems allow or contribute somehow to the development of homicidal intention and homicidal motivation and that this bill could serve in some way as a prevention of homicidal intention.

The Chairman: Thank you, senator.

Senator Cools: You know exactly what I am speaking about, Mr. Jones. You know about homicidal intention and you know what a wicked thing it is.

The Chairman: Mr. Jones, perhaps you could provide the Clerk of the Committee with any information that you have in respect of Senator Cools' inquiry. The clerk will ensure that members of the committee receive copies of it.

I thank all our witnesses for taking the time to be with us today to help with our deliberations on this proposed legislation.

The committee adjourned.