Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 24 - Evidence, October 26, 2005
OTTAWA, Wednesday, October 26, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-39, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, met this day at 4:10 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. Mr. Trudell is our witness today. I know that you have to take a six o'clock flight.
William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Thank you, and on behalf of the Canadian Council of Criminal Defence Lawyers, I hope I will be able to help on this bill.
I was notified today that you will have some people come back tomorrow, or people who may not have been here before. Frankly, we have some concerns with the bill and I will highlight them.
The first issue of concern to us is why this bill was introduced in the Senate and not the House. I know there has been some discussion about that. If you see this as just a technical bill to tie up loose ends and bring the National Defence Act into conjunction with the Criminal Code that is one thing. Our respectful submission is that there are substantive issues in this bill that are of some concern. Perhaps in the normal course those would have been looked at by the lower House committee.
I do not know why — maybe the honourable senators know — and maybe it is not an issue. I note that there is another two-year review and we are one year into it. There will be a review, in any event, in a year.
I want to say to you that it is not just a technical bill because there are a couple of provisions in it that are of some concern. As a defence counsel, and on behalf of the Canadian Council of Criminal Defence Lawyers, I would respectfully submit that we have to be careful when there is no effective civilian oversight — and there is none really — in relation to the military.
Second, judges who sit in these cases have a five-year tenure and go back into the military, as I understand it, if they are not renewed. It is a unique system. There are unique rules. Therefore, it may call for other unique protections, or certainly careful second thought.
There are provisions in this bill that are, in our respectful submission, quite new. I do not know whether you have the bill before you, but for the record, it is proposed section 490.0311.
The Chairman: Do you have a page?
Mr. Trudell: It is page 33. This is a proposed new offence in the Criminal Code, and I quote:
490.0311 Every person who knowingly provides false or misleading information under section 5(1) or 6(1) of the Sex Offender Information Registration Act is guilty of an offence...
As we read it, it looks like a new offence. That is not a technical tie-in; that is a new criminal offence that has been introduced here. This is one of the problems of the sex offender registry. It is not like the DNA bank. A DNA sample is reliable and it is in there. I think we have to be careful that the sexual offence registry is not overused, as someone could give misleading information. I suppose that is why this proposed section was introduced here.
On page 3 of the bill, under Division 7.1, designated offences are defined. I quote part of proposed section 203:
(c) an offence under
(i) paragraph 77(f) (offence against the property or person of inhabitant or resident of country where serving),
(ii) section 84 (striking or offering violence to a superior officer),
(iii) section 93 (cruel or disgraceful conduct),
(iv) section 95 (abuse of subordinates),...
These are all particularly in reference to the military only. We are concerned about a bifurcated hearing here. In other words, it is not a specific offence to use cruel or disgraceful conduct in relation to a sexual offence or to strike or offer violence to a superior officer further to or as part of a sexual offence. It is separate. You have the hearing on this and then, in effect, it is a sentencing hearing, where the prosecutor has to prove beyond a reasonable doubt that it was for a sexual purpose. This creates real problems in the normal criminal world in terms of what do you do? Do you call evidence on the first one and then wait for the second? I would respectfully submit — and perhaps if it is of any concern to you, you might raise it with the people who are coming here tomorrow — it puts a significant amount of pressure on the person in the military standing before the tribunal in terms of dealing with these. The notice has to come, I understand, at the sentencing.
If the notice comes at the front end, you know what you are dealing with. It ends up being a powerful bargaining tool for a prosecutor, if you know what I mean. It is a bifurcated proceeding. These offences listed in (c) are all particular to the military.
The sex offender registry is new, but we already have a case called Have, which is a decision of the Ontario Court of Justice and Mr. Justice Duncan. Mr. Justice Duncan dealt with the grossly disproportionate test in someone having to sign on to the registry. He held that in the case of possession of child pornography, because it did not fit in with the spirit of, if I can use the term, the more tangible sexual offences, he felt that the test was met.
I would offer this as perhaps something you may want to discuss with persons more familiar with the military. Especially for these offences under (c), once people have left the military, there is not much likelihood that they would commit another offence of being disgraceful or striking or offering violence to a superior officer for a sexual purpose. These are insubordination offences, but the onus then falls on the officer, the accused in the normal world, to show that it is grossly disproportionate.
I think the seeds of it are already there, especially in relation to someone who commits an offence that is particular to the military. It is hardly likely that the police will want to have this person's name in the data bank for future investigation purposes. I would respectfully submit that we must be careful to protect the officer or the military personnel here.
On the other side of the coin, if you read Have and look at the grossly disproportionate test, I would not think that any judge would order a person involved in a situational military offence such as in paragraph (c) to be on the registry. Is it different because you have a military judge? I am not suggesting that the military does not have a wonderful system of justice, and I am not suggesting that we do not need a separate system. However, I see real problems with (c).
I read the transcript of your proceedings when the honourable minister was here, and I know that this was touched on somewhat. The drafting is not clear, but why were these put in here? As a man, if I strike a superior officer who is a woman and it is for a sexual purpose, then spell it out in the front end: It is a sexual assault.
I see seeds of problems in 203 (c). The drafters who had their eye on the military put that in there for a reason. The Canadian council is concerned about whether it has been thought out properly — I should not say that. Of course it has been thought out properly — whether they have looked at the bigger issues. The sex offender registry — I will not be arguing here that it is punishment, even though I would like to, and it is certainly interference with liberty — is an investigative tool. If a person is charged with sexual assault in Afghanistan in a particular situation, how is that relevant as an investigative tool for the police later on?
You see that Mr. Justice Duncan in Have looked at the particular offence. They look at other offences if they are historical. Nothing has happened for many years, so it is grossly disproportionate. I would make the argument on behalf of someone in the military that (b) and (c) are particular military offences. It is hardly proportionate that they have to sign on to the registry.
The other issue here is that it seems to make sense in protecting the officers that there be a provision in the bill to allow the signing up on the register — I am not using the proper word — to be suspended if the person is in the field on operations. However, you do not know what the operations are. They will be set by regulations. We have no idea what those operations are. Is that not something that you might want to have clarified? Insofar as this protects members of the forces, then I think it is important. If it protects national security, it is also important. However, this is not the Second World War. You can have somebody dispatched home very quickly. I am sure there are reasons for this, and if you are satisfied that they have been fleshed out, I understand that. I would say, quite frankly, in terms of especially (c), that you do not need the registry. Not only would I suggest that it not be suspended until the operation is over, but I would respectfully submit it will not be used that much.
How does a person in the military measure what is grossly disproportionate when he is back in society? His liberty may be interfered with a great deal when he is home with his family as opposed to on an operation. There are peculiar and unique aspects of serving in the military that we are concerned with here. I raise that for your consideration.
The bifurcated hearing is something that defence counsel will be arguing about often. You may have already heard this discussed, perhaps here. This is a powerful bargaining tool for a prosecutor, especially under (c), or any other section. ``You know what? If you do not plead guilty to this, we will go to (b), and it will shift to you to show that it is grossly disproportionate.'' This is a powerful, in my respectful submission, complex and time-consuming second aspect. Signing up on the sex offender registry has serious implications, in my respectful submission. You just do not drop your name off and the police can refer to it every now and then when they are investigating sexual offenders. The label is sexual offender, not insubordination, and (c) is insubordination, in my respectful submission.
I wish to raise with you a few other practical issues that may or may not arise. Let us say that I am now out of the military, having served, I am on the sex offender registry and I want to bring an application for termination. Will I have difficulty getting the information that was in the military's hands during the court martial? Will there be security issues? We know that security forces and RCMP have concerns that keep certain information confidential.
We have seen that happen in Mr. Justice O'Connor's inquiry in Arar. For example, if, five or ten years after I am put on the registry I leave the military and want my name taken off, is anything in place to address the issue of the lack of disclosure for security purposes? We were talking around the table about that practical issue yesterday but I do not know whether it has been addressed. If, upon leaving the military one cannot obtain the information that was before the military tribunal, then that will present cause for application and a Charter challenge.
When I referred to the regulations as being important, I was referring specifically to page 19, where it states:
203.2 The Governor in Council may make regulations
(b) designating classes of operations in respect of which a determination may be made under subsection 203.16(1);
I suppose we are not concerned about making regulations here; however, this is unique. Someone else will decide which operations may suspend the normal working of the registry. I am sure that those much cleverer than us, involved in the military, will address the issue of the disclosure provisions in Bill S-39. Concerning disclosure of information under 203.18, it is difficult to understand some of the drafting, but perhaps we should be careful about it.
At page 13 of the bill, it says that if a member is still subject to the code of service discipline, the application for termination is made there. 203.12(6) states:
In any other case, the application shall be made to a court under section 490.026 of the Criminal Code.
I do not see it, although I may have missed it — and I probably did — but will the applicant have access to the full file and criminal court martial record to put before a judge under the Criminal Code procedure? That may not be an issue, but it falls under the powers of disclosure in the bill.
Under ``Exception'' at page 5 it states:
203.01(5) The court martial is not required to make an order under this section...
It does not say ``shall not'' but ``is not required.'' The proposed section continues:
...if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
Senators were particularly concerned, and reminded people in previous transcripts, that this is only an investigative aid. If it is an investigative aid, then particular protection must be given to members of our Armed Forces. I wonder about the phrase, ``The court martial is not required to make an order.'' Should it not say ``The court martial shall not make an order?'' If the onus is shifted to the applicant who has established that it is grossly disproportionate, does that create a problem when there is no civilian oversight of the military judge, who is subject to tenure issues?
The preamble to the bill states:
The enactment creates a new offence under the National Defence Act for failure to comply with an order or obligation to provide information to a designated registration centre.
At page 2 it states:
119.1(2) For greater certainty, a lawful command that prevents a person from complying with an order or obligation is a reasonable excuse.
The preamble says that that is a new offence but it does not mention section 490. I do not know what this means because I am not in the military. I suppose that if a lawful command prevents a person from complying with the order, it provides an excuse; but what does that mean? If the person was in the military and the judge were to decide that was grossly disproportionate, then that would be the end of it. However, if the judge were to decide that the person should, but has suspended it, would that be the meaning of ``lawful command?'' Or would it be something peculiar to the registry? For example, if the person were going off to register, he could be told not to go — not to leave the base.
If you agree, the council urges you to shed some light on what is meant by some of these provisions and to ensure that military personnel have all the rights and protections and are not subject to pressure or interpretations that may not be the case in the civilian world.
I commend to you the decision of Have for your consideration. You know that the Ontario Sex Offender Registry, Christopher's law, has been struck down, although it may be appealed, for failing to include some of the provisions that the National Sex Offender Registry has — the application of a person to prove that it is grossly disproportionate.
Why the rush on this? Certainly, it is entirely up to you, so I apologize for even asking that. This will all be looked at in one year. I would respectfully submit that unless you are satisfied that nothing is missing in the bill it can wait to be looked at in December 2006.
That is our reaction. I noted that one distinguished member of the subcommittee questioned why the military chose to do it this way. The honourable minister said they were just trying to bring it into line. That is not what I read; it is unique. The case law is in flux in terms of the sex offender registry. We all know why it is there, and it is probably a good thing. However, it is more than an investigative tool, in my respectful submission.
The Chairman: We have many of the same questions.
That is why we are asking people from the Department of National Defence to return, so we can ask them further questions.
Some of the clauses that you see in this bill are copied from the Criminal Code, with the same wording. We will be hearing from the people from the Department of National Defence tomorrow morning, so we can ask questions that we have and that you also have.
Senator Milne: Mr. Trudell has reinforced some of the concerns that we voiced around this table last week. The good thing about introducing this bill in the Senate is that we can amend it here and not really delay its eventual passage, because it will go from here to the House of Commons and surely they will pass it there. If it goes the other way, then it always has to go back to them again. If we amend it here, it will go down there in a much improved form.
I am interested in your statement that proposed section 29 on page 33 creates a new offence. I wish you would elaborate on that somewhat.
Mr. Trudell: In trying to match up the Criminal Code with this bill, we did not see a provision in the sex offender registry law, which was Bill C-16, I believe, making it an offence for someone to provide false or misleading information. I am sorry if we missed it, but this 490.311 is an amendment to the Criminal Code and does not specifically refer to the National Defence Act as we read it. I apologize if I am wrong. That is a new offence, as we see it. That catches the problem that a sex offender registry that was overused and contained false information would just be terrible. It will be incredibly difficult to use, anyway. It will be overused until we find out that it does not need to be, because the sex offender label causes great concerns in society, some real and some imagined, but we have to deal with it.
It seems to us from reading it that we could not find the provision in the original bill that was passed that made it an offence to go to the sex registry and say, ``My name is John Smith,'' when it is really Bill Trudell. That is not just in relation to officers, I think — I hope.
The Chairman: On page 33, Mr. Trudell, I beg to differ. This is not new. Section 17 of the Sex Offender Information Registration Act has the same thing, under offences.
Mr. Trudell: Thank you. I apologize. We thought it was.
The Chairman: That is okay. It is new to the Criminal Code but not here. It is already in the Sex Offender Information Registration Act.
Senator Eyton: I confess, in this case anyway, in a slightly embarrassed way, that I am a lawyer. I have great difficulty understanding the interplay of the military code and our Criminal Code, but I am heartened that you as a senior member of the criminal bar, representing the bar before us today are having the same difficulty. That makes me pause and worry even more about a complicated act in itself, made more complicated because of the interaction with the Criminal Code, and you do not need to comment on that.
My first question is a broad one. I have had difficulty understanding why, in all of the circumstances at play, the military requires a separate code and judicial tribunals. I understand it perfectly where there is a war theatre or if they are on foreign assignment and circumstances of that kind. However, I am given to understand that the military criminal code, the bill that we are looking at now, really covers anyone in the military and people beyond that. People may be there on a contract basis and otherwise.
Can you comment on whether or not the sweep of the legislation before us may be too wide?
Mr. Trudell: Is this the part where there is no Hansard of what I say?
We have been talking over the last couple of years about separate proceedings, security issues, secrecy, when we visited and revisited Bill C-36. As a defence counsel I know that there are some wonderful defence counsels who do a significant amount of this work. However, I do feel qualified to say whether a separate system of justice for members of the military who are not specifically on operations is necessary — other than for the insubordination-type offences. I believe that former Chief Justice Lamer did an extensive study. I think that in his early case of Généreux the military grabbed that case and found a passage in it that allowed them to move forward and say, ``We need a separate military system.''
The Hon. André Marin, when he left the ombudsman's office, called for civilian oversight. I do not think that has happened. You can see that we treat our soldiers and those subject to military discipline differently. I have been practising as a defence lawyer for over 30 years. My expertise is not in this area, so in preparation for coming here today we spoke to some people to make sure that we are not missing anything.
In answer to your question, I believe that Chief Justice Lamer's review has not been dealt with completely. I am not sure whether André Marin's report on military oversight has been dealt with.
This is one of the points I tried to make. We are not in the age of the Second World War. A soldier can be dispatched home in an instant, and I take it that happens often. However, they need a separate military code for discipline, like the police services. Police officers have their discipline code. Do I think that the breadth of this is too great? I am not experienced enough to say yes, but I am experienced enough to say that we have to be careful and shine a light on it to make sure that it is justified by the people who think it is necessary.
I do not know whether that helps. That is a rather weak answer.
Senator Eyton: You heard that Senator Milne had at least some reservations about the bill in her comment earlier. I have a sense that it is broader than it need be. I am confident that it is more complicated than it should be. I am reassured when I hear you, given your background and experience, one way or another saying the same thing.
You have given us a significant amount to think about. You have also suggested some actions that we may take, but if I interpret you correctly, it largely came down to saying go slowly, be careful, do not do anything rashly, take a year, perhaps more, and that will be helpful. Would that be the conclusion of your comments?
Mr. Trudell: I do not know what is going on with the military review and Chief Justice Lamer's report, but I do not think that this bill can be taken in isolation.
I am very concerned — maybe I should not be — about proposed paragraph 203(c) in relation to the insubordination offences. Someone may add, ``for a sexual purpose.'' I would not want to defend one of those cases. That would be very complicated.
You do not need that to bring the National Defence Act into conjunction with legislation on harassment and sexual misconduct. You lay it out at the beginning so you know what you are dealing with. To slide it in through the back door is a problem for me as defence counsel in the non-military world, but someone who is an officer or in the military stays within the military. They cannot punch a hole in the balloon completely. I think there must be enormous pressure to follow the rules. It is a disciplined organization. I am going too far.
When I read this, I have a real difficulty deciphering it. I am not very good at deciphering, but when I see certain proposed sections here that stand out as plain and they raise issues, then that is all I say: I think the people who will appear before you tomorrow probably should be grilled in a nice way about what this means.
We are moving our Armed Forces around. They are constantly being asked to get involved in some form of peacekeeping or theatres. I do not think I am making any sense.
Senator Eyton: We will try to emulate your style, Mr. Trudell.
Senator Andreychuk: I wanted a clarification. You pointed out the aspect of assault for sexual purposes. In the anti- terrorism bill, we started with activity that had a religious or political aspect, and we moved into motive. How does one discern an assault within a military that may be a slightly different arena than elsewhere?
Mr. Trudell: We had a discussion when revisiting Bill C-36 about the religious aspect and a very clever young man spoke to you about that issue.
What is cruel or disgraceful conduct? If I want to say that an offence is cruel and disgraceful sexual conduct or for a sexual purpose, I should spell it out. That is the problem.
What does abuse of subordinates mean? What does sexual harassment mean? Spell it out. Ill treatment of occupant or person on whom billeted. Does that mean for a sexual purpose? Spell it out. You have an insubordination offence, and later on we will add the sexual purpose tail. You have to know that at the beginning. Call it what it is.
Please do not take this to the bank, but if I were in the military, there would be a significant amount of pressure on me not to rock the boat. I am not suggesting that prosecutors are being unfair, but if I know that there might be a sexual allegation tail wagging the dog later on, I will get rid of it at the beginning. Is that the right thing to do? I do not know.
If I have a sexual motive for my illegal conduct and I am convicted, there is no question that I should be on the sexual offender registry. I may not agree with it, but that is the law. The police can investigate in the general community, but it is quite different if I am in the military, my conduct is insubordinate and then somebody decides it was for a sexual purpose.
Senator Andreychuk: What I was getting at was moving the yardstick. When you say, ``If I commit some offence for a sexual motive,'' my old criminal law tells me I intended and committed a sexual act; therefore, the description should be there to tell me. My motive is not very relevant at that point. It is my intent. What did I do? Did I comply with the section? Did I put my hand somewhere? Did I say something? Did I harass somebody? It should not be my motive.
Mr. Trudell: The way I read this, however, is that once you have been found guilty of an offence in the sentencing court, the Crown serves notice that it is for a sexual purpose. The onus then shifts to me to show that it was not. Intent and motive come in the back door.
I submit that that is a dangerous way of doing this. I guarantee you that we will have lengthy hearings. It will be overused early on because everybody is sensitive to and afraid of child pornography and sex offenders in our country. We will come back to it in a year or two and it will level out. It may be overused in the military, and if it is overused under paragraph (c), I will be very concerned about that.
The Chairman: I will refer you to page 4, Mr. Trudell, proposed section 203.01(2). It says:
As soon as possible after a court martial imposes sentence on a person for an offence...
At the end it says:
...if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a) or (d) of that definition.
Mr. Trudell: That is right. The onus is on the prosecutor after the offence and at sentence to get the person on a registry. Then it shifts to me to show that it is presumptively disproportionate.
The Chairman: The prosecutor establishes beyond a reasonable doubt that the person committed the offence after the sentence has been imposed.
Mr. Trudell: That is right. Having to go on the registry is supposedly not punishment. You have been convicted, and now the prosecutor must prove his or her case.
The Chairman: Would you agree with how that paragraph is written?
Mr. Trudell: I do not understand it.
The Chairman: We should ask the Department of National Defence why that paragraph is there.
Mr. Trudell: As lawyers we should be able to say, here it is: A, B, C, D, E; some people may read that and say it is very clear. It should be very clear to a person in the military who is on trial. It may be, but I am having difficulty with it.
The Chairman: It is not clear to me.
Senator Joyal: I would like to return to proposed section 39 at the top of page 33.
As I understand it, that proposed section relates to the Criminal Code and not to the National Defence Act. If you go back to page 21, you have the reference to the Criminal Code, and then you have a series of clauses of the bill that relate to the Criminal Code. Unless I am wrong, and I stand to be corrected, on page 33, clause 39 adds an offence to section 490.031 of the Criminal Code. Section 490.031 says ``Every person who, without reasonable excuse, fails to comply with an order made under section 490.012...'' — an order to report his whereabouts. The new offence in 490.0311 says ``Every person who knowingly provides false or misleading information...'' The first paragraph is every person who fails to comply, and the other one is giving false or misleading information. It is clearly a new offence in the Criminal Code.
Mr. Trudell: I asked some pretty clever people to help me with this. They suggested, and Madam Chair corrected me, that this is a new Criminal Code offence. Not to try to come back to something I retreated from, but I read this as a new Criminal Code offence introduced in this bill.
Senator Joyal: That is the way I read it too, on the basis of what 490.013 says.
The Chairman: It is a new Criminal Code offence.
Mr. Trudell: That was my original concern. I say that because it seemed to me that it was almost an afterthought in case we have all kinds of people going there and telling the registry people that they are somebody else. We think that it is new. If it is new, it is not housekeeping.
Senator Joyal: Of course. I want to be on the record here, and I will continue to say this: The Department of Justice comes to this table and the Criminal Code is within their purview and responsibility. They come here and say, ``Oh, it is just housekeeping. We are just streamlining a bill. Do not worry, do not worry.'' As soon as they tell us that, we think they are lying. Well, not ``we.'' I think they are lying. I take that on myself. That has happened in this committee time after time. It was the same with the bill on cruelty to animals. To quote them on a recent bill you are aware of, we were told, ``It is just updating the Criminal Code, old provisions dating back to 1892; we are just streamlining.'' We looked into the bill, and it was an overall change of the system. If they come to us with that kind of argument, I am sorry, but we will take our time to look into it and decide on the proper conduct. It is clearly a case of an addition. Why do they not come to us and say, ``Listen, there is a part that is streamlining, and there is another part that is new offences?'' We are big boys and girls. We can look into it and make a decision. I am sorry, but telling us that it is just streamlining does not fly with us any more. I want to be on the record as saying that, and I hope that we will send this to the Deputy Minister of Justice so that he knows that when he sends people to this table, they should not come forward with that argument when we know that is not right.
I apologize for the tone, Madam Chairman, but I think I have said what I want to say.
The Chairman: I accept your apologies.
Senator Joyal: I want to go to the Have case that you quoted. I think you were right to bring it to our attention. The Have decision is from this year, 2005. If I understand the case, it is that the simple possession of child pornography is not an offence of a sexual nature. Is that the way you have interpreted the case?
Mr. Trudell: In that case?
Senator Joyal: In that case.
Mr. Trudell: I would think that there could be possession of child pornography in circumstances where it is at the top of the scale, but Mr. Justice Duncan says that, in itself, does not fit in with the spirit of what we are trying to do here. It is an investigative tool. I think he has done a proper analysis of the particular offence in the situation and said, ``No, this is not what it is for.''
Senator Joyal: This is after the amendments that we adopted last June. I am looking at our colleague, Senator Pearson, because she was the sponsor of the bill, although I do not want to put her on the hook because I have too much respect for her. It seems to me that the way the Criminal Code was amended in the child pornography bill, the mere possession of child pornography, with no intention to go to the next step of assaulting or having the intent of assaulting, was a crime in itself. If the decision in that case is right, it means that a person cannot be asked to register as a sex offender on the basis of simple possession of pornographic material.
Mr. Trudell: In paragraph 25, His Honour says:
The offence for which the defendant stands convicted... (possession of child pornography) is the only one of the designated offences within the scheme that does not necessarily involve an act of a sexual nature or intent to committee an act of a sexual nature against a direct victim. In my opinion possession of child porn is therefore not a ``crime of a sexual nature'' within the meaning of section 3(2) of the SOIR.
Senator Joyal: We will look into this. That is an important element. I understand the designated offence in the context of the sex registry. It is so recent in my mind. I cannot remember exactly the context in which we discussed this.
Senator Pearson: Bill C-2 has not yet come into effect. Once it does, it would not be a crime of a sexual nature. Mr. Justice Duncan must be making this judgment on the way it was before.
Senator Joyal: That is what I would tend to believe.
Senator Pearson: It comes into effect in January or February.
Senator Joyal: We might also want to look into the concept of military operations. We raised that last week. Could you expand on what you think would be a proper approach to that concept? In other words, I personally have nothing against the reality of a military operation. We know it happens. We know that Canadian soldiers are abroad and so on, and there are particular circumstances. We know that it could happen. The problem we have is how do we circumscribe the use of that argument? In the bill, it is not defined. A military operation can be anything as long as it involves military people or equipment of a military nature.
What would you suggest would be a proper approach to address the concern that the military has, but in a way that is not open to abuse?
Mr. Trudell: This is really an uneducated suggestion. As Senator Eyton said, if there is really a front, a war going on, as we understand it, that might be an operation. Soldiers could be deployed in a highly secure operation. We do not know where they are, but we know they are over there somewhere. It is a different front, but it is a front quite unique to the world that we live in. Those might be two operations where different thinking has to be applied.
A soldier walking down a street in Europe, not on some secret deployment or engaged in a war, can be dispatched back here pretty quickly. The operation has to be defined to reflect why we have this unique piece of legislation. Those are the only points off the top of my head. If somebody is involved in an ongoing battle or war, as I understand it, or if somebody is involved in national security matters, those might be operations that would suspend the normal sex offender registry.
Quite frankly, if someone is involved in that, I do not think that any judge will order it anyway because it will be situational. I am sure that there are all kinds of operations that they know about that we do not and they probably cannot talk about. I see two: One that is obvious and one that is involved in national security, anti-terrorism or whatever, on which we will have to trust them.
Senator Joyal: In other words, what you say about the civilian oversight could have implications in that case?
Mr. Trudell: We have been talking about accountability before this committee on different bills for years. Civilian oversight is good enough for everybody else, including lawyers, so it should be good enough for the military. The public needs to have confidence that there is some transparency.
Senator Joyal: Thank you.
Senator Bryden: I think that you have touched on this. The concern that I have with the offences in 203(c), the ones that are incorporated from the Defence Act, comes from the fact that at one stage in my life I was a deputy minister of justice provincially and had supervision over police and prosecutors.
Those are very difficult jobs and people tend to use whatever tools are available — because most of them are overworked — to get the file closed as soon as is reasonably possible.
When I read that striking an officer or offering violence to a superior officer is a designated offence, that would be a charge, I assume, that would be laid by a prosecutor, and I agree with you that if that is a sexual offence, it should state that when the charge is laid.
This sets out that you prosecute the striking of the superior officer and you get a conviction. Then you apply to the court and attempt to prove beyond a reasonable doubt that this was for a sexual purpose.
Maybe it is just the suspicious nature of lawyers. I think it is a bargaining tool, or it could be, basically saying, ``There is some rumour that you did not punch that person out just because you did not like the colour of their eyes, that in fact, there is some sexual connotation to this.'' That is all that is said.
Then when it comes to plea-bargaining time, he says, ``If you plead guilty to that, then that will be as far as this goes. However, if I have to prove it, then as soon as I get a conviction, which I will, then I will proceed to prove — and I think I can — that this was done for a sexual purpose and you will register under the sex offenders act.
That to me is very troublesome. This is not straight speculation. I had all kinds of examples were those kinds of levers were used by police and by prosecutors, although not as many as perhaps one might think in some of the difficult situations.
I mentioned that simply to indicate, as I think was indicated at our last meeting, that if they want to put these in as offences that need to be registered if persons are convicted of them, then this should be amended. Instead of trying to incorporate by reference the sections of their own code, specify in here for the purposes of this bill that these are designated offences: ``Striking of a superior officer with sexual intent.'' That is not unusual. That is exactly the way it is normally done. You know what you are facing as a defendant. In a much more diplomatic way than I, is that what you are indicating, that in fact it leaves itself open to abuse?
Mr. Trudell: I am very concerned about it. There are supposed to be restrictions on the use of the sex offender registry, and I see a lot of it in here. It is to be used as an investigative tool. If I want to get a warrant, I will get access to the sex offender registry. I can tell you that if a client is sitting in front of me and says, ``I will take the 30 days or I will take the suspended sentence, but I do not want my wife and my children involved,'' we know the information gets disseminated despite all the good faith of people who are charged with keeping it secret. I am not suggesting anyone would use it as a hammer. They might use it as a card. It is a fact of life.
Senator Bryden: Thank you.
Senator Milne: Supplementary to that, how would you then reword that section?
Mr. Trudell: Which one? Striking or violence to a superior officer?
Senator Milne: Could (c) be reworded as an offence with a sexual intent by simply adding four words in that first line?
Mr. Trudell: It is a designated offence if done with sexual intent, or something like that. Then you know exactly what you are dealing with. Then there is no card game. The Charter does not talk just about punishment changing from when the offence is committed to when an enactment comes in as a breach of the Charter. The Charter also tells us we have a right to know specifically what we are charged with. Somebody will argue that that section of the Charter will be in play. What is the problem? Tell me what the problem is and I will deal with it.
The Chairman: If I can add to that, (c) is already in the National Defence Act. If we amend something, we would have to amend 203.01(2). It is already in the National Defence Act. It is the same wording.
Senator Milne: It is all red-lined here, though.
Mr. Trudell: Madam Chairman, can I just say that if you are found guilty of one of these offences in (c) and it kicks in, you become a sex offender. That is the label.
The Chairman: I would have to maybe correct number 2.
Mr. Trudell: Do you mean (b)?
The Chairman: I am referring to 203.01(2).
Mr. Trudell: Yes.
The Chairman: This is on page 4.
Mr. Trudell: What is the secrecy? If somebody is labelled a sex offender, then put on the table what the person did that you allege involved sexual misconduct, and then in the end the individual is a sex offender. That is a label that never goes away, whether or not you bring an application to have yourself removed from the registry.
You may be removed from the sex offender registry but you certainly will not be removed from the files of children's aid — absolutely not. You will not be able to teach. You will not be able to be around children. It affects somebody coming out of the military trying to start a new life.
I can devise a questionnaire for prospective teachers. Have you ever been on the sex offender registry? Have you ever been convicted of a military offence that had sexual connotations? Forget it. We are so aware of this in society. It has to be fair.
Senator Bryden: The section that you said already exists, is that in the Defence Act?
The Chairman: Yes, it is in the Defence Act.
Senator Bryden: Section 84 mentions striking or offering violence to a superior officer. Is that correct?
Robin Mackay, Law and Government Division, Parliamentary Research Branch, Library of Parliament: You would have to amend it if you wanted it to say ``with a sexual purpose.''
The Chairman: Yes. If we amend this one, we would have to amend the National Defence Act.
Mr. Mackay: Yes.
Senator Bryden: What does the National Defence Act say? How does section 84 of that act read?
Mr. Mackay: I believe that is the exact wording, but I am not sure. We will have to check.
The Chairman: We will have to check. We will give you the answer tomorrow. We believe it is the same wording.
Senator Bryden: This bill deals only with sex offender information registration. What is in the National Defence Act is not a sexual offence. I would say that since these are not sexual offences, we will not include them in the bill. If we do not include them in the bill, chair, you are right. You do not need (2), the part that says you have proved beyond a reasonable doubt that there is a sexual implication to it.
Why is striking a superior officer in this bill? It should not be here.
The Chairman: Yes. Maybe the researcher can tell us more about that.
Mr. Mackay: I think part of the problem is that this type of scheme is already in the Criminal Code. There are designated offences under the Criminal Code that on its face you would say have no sexual connotation; for example, breaking and entering a dwelling house with intent to commit an indictable offence. There is nothing in that offence that has anything to do with a sexual assault.
The Criminal Code already provides that a prosecutor can establish that that offence was committed for a sexual purpose, very similar to striking a superior officer. If you wish to amend Bill S-39, to be consistent we should go back and amend the Criminal Code to perhaps remove those offences that do not have a sexual connotation on their face.
Senator Bryden: I appreciate that.
Mr. Mackay: Parliament went through all of that in 2004 and approved it. Now I think it has become clear from what Mr. Trudell is telling us that you have a strange system of a trial, then sentencing, and then after all of that is done, you revisit the issue. The prosecutor then has to prove a sexual purpose. I think Mr. Trudell is telling us is it is not clear how that is done because that is certainly not the ordinary trial process that he is familiar with.
Senator Bryden: I think we may be saying the same thing.
Mr. Mackay: Yes.
Senator Bryden: There may be some mechanics.
Mr. Mackay: It might be clearer if, at the very beginning, the prosecutor has to prove you struck that superior officer for a sexual purpose. Then you are sentenced and put on the registry if you are convicted. It is not at the back end, which is the current wording that Senator Bacon is referring to under section 203.01(2).
Senator Andreychuk: Mr. Trudell, it is true that we determined that certain acts were so severe in the Criminal Code it was the prosecutor's discretion, as I understood, to determine the sexuality within those Criminal Code offences for the purpose of putting people on the sexual registry. Not everyone who commits a break and enter and theft will be on the sexual registry. There have to be sufficient facts to warrant it.
My difficulty with this bill is that we have designated offences and said that if there is a sexual connotation, we would create in the public interest a registry as an investigative tool to ensure that other people are not subject to this person's behaviour. We are blacklisting them, or whatever you want to call it.
I understood that we were saying to the military that no Canadian or no one subject to the sex registry should be exempted, and we found that the military was exempt unless we particularly applied it to them.
Would we not be better off with an act that listed any crime that I can be convicted of and put on the sexual registry? Anyone within military operations could also be subject to the same consequences of being put on a sexual registry. Then, if there are any particular sexual scenarios within the military, you might add those particular offences and justify why they are necessary in the public interest.
We would have one scheme, which is what I thought we wanted. We did not want exemptions because it is a protection issue. We did not want the military exempted from a sexual registry. We wanted them included, but we did not want a parallel scheme, I thought, where we would use this as a tool to get at sexual activity that may be inappropriate.
In this society, we have sexual activity that is inappropriate, but it is not subject to the sexual registry. It can be handled through discipline in a workplace. It can be handled by a code if you are a professional, but it does not lead you to a criminal offence. This seems to be a zero-tolerance sweep. They said, ``If any of these offences could have a sexual connotation, they will all go in the sexual offender registry or have the potential of going in the registry.'' Is it not the mindset and philosophy that is wrong before we try to amend it?
Mr. Trudell: I go back to what Senator Eyton said. Is the breadth of this too great, and perhaps it is. Here, (c) pertains to military offences. You might be right.
Senator Milne: I am still trying to get my mind around the simplest way that we could possibly amend this bill and address our concerns.
Mr. Trudell, you called the offences under (c) ``insubordination offences.'' Could they then be labelled ``insubordination offences with a sexual intent?''
I would hope that whoever is here from the department is listening and that when they come tomorrow, they have some suggestions for us along these lines.
Senator Pearson: I am looking forward to hearing some explanation tomorrow. I always have a problem when we get a bill amending an act and we do not have the actual act here. There may be some explanation of how they fit together.
At the moment, I am agreeing with everybody here because it seems very odd, but I do look at the kind of offence. There are certain types of offences that you would not see in the civilian population. One tends to think of what happened at Abu Ghraib because that is a military situation where a young woman sexually humiliated a prisoner. Now, that is not even on this list, but I suppose it is included in cruel and disgraceful conduct.
I can see there was some need to encompass certain types of activities that do not fall under civilian law, but I will wait to hear the explanation tomorrow.
The Chairman: Are there any other questions, senators? If not, we thank you, Mr. Trudell, for being here with us.
Senator Andreychuk: This article in the National Post may explain some of the issues: ``Some Sex Offenders Still in the Forces,'' October 11, 2005. It is an interesting take on Bill S-39.
The Chairman: We will try to get a copy for the committee.
The committee adjourned.