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.
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.
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
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.
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.
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
personal characteristic that is either unchangeable or changeable only at an unacceptable personal
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
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
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
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
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
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
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
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
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
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
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
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
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
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