Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for April 14, 2010
OTTAWA, Wednesday, April 14, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-2, An Act to amend the Criminal Code and other Acts, met this day at 4:16 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, I see quorum. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are beginning our study of Bill S-2, An Act to amend the Criminal Code and other Acts.
Our opening witness is the sponsoring minister, the Honourable Vic Toews, Minister of Public Safety. Minister, I think this is the first time in quite a while that you have been before this committee and certainly since you assumed your present responsibilities.
Hon. Vic Toews, M.P., P.C., Minister of Public Safety: I thank you and apologize for being a couple of minutes late. I know we are under some time constraints given the vote at 5:15 in the House of Commons. I am accompanied here today by Ms. Mary Campbell, Director General, Corrections, Department of Public Security and Emergency Preparedness Canada, and Mr. Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice Canada, whom I believe you have met before. I am pleased that they are here from my department and the Department of Justice.
Mr. Toews: Bill S-2, An Act to amend the Criminal Code and other Acts, the Protecting Victims From Sex Offenders Act, is about ensuring that sex offenders are properly identified so police have the tools to do their jobs and so Canadians can feel safe in their communities. It is about providing greater protection for our children and all Canadians.
Our bill responds to the concerns and recommendations expressed by provincial and territorial governments who have been widely consulted about the National Sex Offender Registry and how it can be improved.
It responds as well to the concerns and recommendations of law enforcement officials as well as various victims' groups. Of course it has benefited from government and opposition amendments put forward at committee hearings. I am hopeful that we can work together to ensure its speedy passage.
As honourable members of this committee are aware, Bill S-2 proposes several fundamental reforms to strengthen the existing Sex Offender Information Registration Act. First and foremost, the amendments our government is proposing will ensure that in the future every individual convicted of a sexual offence in Canada is automatically registered on the National Sex Offender Registry.
As well, offenders convicted of a sex offence and ordered on the registry will automatically be subjected to DNA sampling. At the moment, not every individual who is convicted of a sex offence has his or her information entered into the registry.
In fact, as I understand it, about 42 per cent of those convicted do not have that information entered, under the present law, because of the way it is set up. The Crown must first make an application for a registration order and the judge has the discretion to make the order.
That means that in some cases, police do not have access to all the information they need in their investigations. They are not aware of these offenders as potential suspects. The absence of automatic inclusion on the registry for all offenders convicted of sexual crimes has also led to the inconsistent application of the law across the country. Someone convicted of sexually assaulting a child in one province may be ordered on the registry while in another province they may not.
As officials from the RCMP noted during standing committee hearings in the other place, given the difficulty of determining which sex offender will reoffend and which will not, the way the present system works means that some of the recidivists are falling through the cracks. By making registration fully automatic, the police would have the information they need to do their jobs more effectively and our streets and playgrounds would be safer for everyone.
Under the reforms the government is proposing, the police will also be able to use the National Sex Offender Registry both to investigate crimes after the fact and also to prevent them from occurring in the first place.
The way things work today, the police can only access the registry after a crime has already been committed, in order to establish a list of possible suspects. They are not allowed to use it in a pro-active way to help keep our children and other vulnerable members of society safe. They might see something suspicious happening near a playground, for example, but the way the present system operates they have no way to find out if the person involved is a registered sex offender.
I recall that during the announcement of the bill, which Senator Boisvenu and I attended, the press was asking for an example. The example was the playground. They asked for another example. In fact, one of the primary examples is suspicious activities around playgrounds and schools. It is by far, as I understand from the police, the most common example.
It makes no sense to find out only after a crime has happened whether the person was on the sex offender registry. Changes are needed, and this is what our government is delivering. The amendments proposed by Bill S-2 are vital. They are fair, they are needed and they strike the right balance. Police services and victims' groups have been very clear that the National Sex Offender Registry must be strengthened so it better protects our children and communities from sex offenders.
Under the changes our government is proposing, federal and provincial correctional agencies would have the authority to advise registry officials when sex offenders are released or readmitted into custody. Sex offenders would be required to provide notice in advance of any absence from their home address of 7 days or more, rather than the current 15 days. The amendments would also allow police in one part of Canada to notify police in another part, as well as police services in a foreign country, when registered sex offenders are travelling to their jurisdictions.
Canadians who return to Canada after having been convicted of a sex offence outside of Canada will also be required to register on the National Sex Offender Registry. Other proposed legislative changes will help police investigate sexual offences and keep Canadians safe, for example, by expanding the amount of information offenders must provide to the registry, such as requiring that sex offenders provide the name of their employer or the person who engages them on a volunteer basis.
The bill before us today sends a very strong message to all Canadians that the government is taking action to ensure the safety of our communities. They want to know that individuals who commit serious sex crimes are properly identified. They want to feel safe in their homes, streets and communities. They want to know that their families, especially their children, are safe, and they want us to take action now.
Since 2006 our government has taken action to tackle violent crime and help make our communities safer for everyone. We have cracked down on gangs and organized crime with tough new sentencing rules. We have given police the tools and resources they need to do their jobs. We have introduced measures to tackle drug dealers and help our youth stay out of trouble with the law. We have taken steps to ensure that our young people stay safe online.
I know that honourable senators support these efforts to protect the safety and security of Canadians, and I am confident that the provisions in Bill S-2 also have your support. There is surely nothing more important than protecting the safety and security of our children. I therefore look forward to working with this committee so that we can give Bill S-2 the speedy passage it warrants.
As I understand it, there was good cooperation from opposition parties when this bill was in committee in the other place, and there were amendments made as a result of consultation with the opposition. I am very grateful for that. Hopefully that non-partisan approach can continue here.
The Chair: This committee has quite a history of doing its work in as non-partisan a way as possible, and I am confident that that will continue.
I remind all senators that, as the minister said, there is a vote in the other place at 5:15, so he will have to leave here, by my estimate, at eight minutes past five.
Senator Wallace: Thank you, Minister Toews. It is good to see you again and we appreciate you being here today.
It seems from your comments, I guess not surprisingly, that the focus of this bill is on the protection of society and the prevention of these types of sexual offences, or limiting them. It seems to anyone who is paying attention to the media that the number of sex-related offences is far higher than it was in the past.
In preparing this bill, did you find the need to respond to new pressures and new demands in the community for protection against these types of offences? Is there actually the increase in these offences and in the concerns of citizens that the media reports?
Mr. Toews: That is a very good question. If the statistics can be believed, there is a decrease in the reporting of offences to police. People are becoming discouraged about the justice system, so we see misleading indications that crime rates are going down. Crimes reported to police are going down, but the victimization surveys that Statistics Canada does every five years show an increase in victimization. When you compare those victimization statistics with the American statistics collected on an annual basis, you will see that Canada does not fare as well as people think in terms of safety in our streets, and that is a concern.
Although I do not have it before me, I recently saw a statistic on the incredibly high number of sexual offences that are not reported. That in itself is disconcerting. Speaking as a former prosecutor, it is even more disconcerting to prosecute an offence involving the molestation of a child. I would much rather take pro-active steps to ensure that sexual offenders are stopped before those crime are committed and children are put through the difficulty of having to testify at a trial.
Some of the changes that have been made from the prior bill are excellent in terms of giving police the ability to prevent crimes from taking place as opposed to dealing with matters after the fact.
Senator Wallace: Thank you for that.
From your comments, it seems that this bill was not prepared in isolation within the confines of the federal government, but rather that you sought out the opinions of the provinces, the territories and law enforcement officials. Can you say a bit more about the extent of that consultative process that led to the preparation of the bill?
Mr. Toews: I think Ms. Campbell is in the best position to answer that. However, I can say that this has had extensive consultation with victims' groups and provincial and territorial governments.
The Chair: Minister, since we will lose you before your officials, I will ask the officials to take notes about the questions that have been put and then they will get a chance.
Mr. Toews: That would be fine.
[Translation]
Senator Boisvenu: Thank you, Madam Chair. Good afternoon, minister, and welcome. It is a great pleasure to see you here.
Earlier you said: ``I had the pleasure of taking part with you in the public announcement of this bill.'' I was at the press conference to announce the bill, at which a journalist asked you what this registry would change and how it could be more effective. At that time, I cited the example of my daughter's assassination. If the registry had been in existence at the time, we could have saved a life. It is obvious that the more effective this registry is, the more lives it will save. I think we have to stand behind you, minister.
I would like to hear what you have to say about the amendments you want to make to the current registry. In what way will the registry become much more proactive and have an impact on protection, not only on solving crimes? Will the registry become proactive for police officers and make it so we can protect women and children even better?
[English]
Mr. Toews: Thank you. I appreciate your participation in that press conference. Your comments were quite important, I believe, in terms of getting the message out on the bill.
This particular bill, when passed, will amend the law to allow the police to access the registry for specific information. For example, if there is a car parked at a schoolyard or a playground and the report comes in, the police can access the sex offender registry to ensure that individual is not on the list. If the individual is on the sex offender registry, they can take proactive measures. In that sense a crime can be prevented, not simply solved.
The other important aspect of this relates to the automatic inclusion of individuals once they have been convicted. I cannot stress how important that is. When this bill was first passed in 2004, I expressed a concern, when I was in opposition, that creating these procedural barriers would have a significant impact on the ability of Crown attorneys, police and judges to actually get people into the registry. The current system is that, instead of having automatic registration upon conviction, you have to proceed to a new hearing. Whenever you have a new hearing, you will almost automatically have people falling between the cracks.
There did not seem to be any rationale as to why, after an individual has been convicted of a serious offence by a judge and sentences, they were not on that sex offender registry with DNA samples being taken. It makes no sense. In our law we already have fingerprinting, even before someone is convicted. If you are charged with an indictable offence, you are fingerprinted. It did not make sense.
My fears that we would lose many of these sex offenders after conviction and that they would not get on to the registry have proven correct. I understand about 42 per cent of those convicted, for one reason or another are not placed on the registry when they should be.
I am not blaming anyone here. It is just the nature of a very complex and busy system. Crown attorneys and police often do not have the time to initiative a new process. Many would simply move on to another case after they have gotten the conviction. I think it is so important that registration occurs automatically so that, when the individual is released in the future, we have that evidence. In that way, we can take proactive measures that hopefully will prevent a crime from occurring rather than waiting until after the crime occurs and then trying to clean up the mess.
[Translation]
Senator Boisvenu: Minister, in 2004, I was president of an association that defended the victims of criminal acts. When the first version of the sexual predator registry was adopted, one of the criticisms made at the time was that the registry was not retroactive for criminals who had previously been sentenced, who had been released, and who were dangerous.
Will this bill apply to criminals who are already incarcerated, who are dangerous, who are going to be released, but who are not in the registry?
[English]
Mr. Toews: No, this bill does not apply to them. There is some dispute. Perhaps Mr. Hoover takes a different position than I do. I tend to take a little stronger position than sometimes the Department of Justice lawyers do. However, I do not believe there is a constitutional barrier to applying these provisions retroactively. You are not convicting a person of a crime; you are simply placing them on a particular registry. It is not a criminal punishment.
I know in certain provinces, there is nothing preventing someone from retroactively putting people onto the registry when you create the registry. However, the policy decision has been made that it not be retroactive, and that is the position that we are proceeding with.
I would rather see this bill move ahead quickly than get caught up in a constitutional argument. Perhaps it is an argument we can save for another day. Would it be better? I think it would be better. I am not prepared to make that argument here today.
Senator Baker: I have questions relating to the construction of the bill that I will keep for the officials after the minister leaves, so it would be great if I could be put down for later.
Let me welcome the minister. He has had a remarkable career to date, and he continues to carry out the work that has been given to him in a very admirable manner.
Minister, I would like to continue along the same line of questioning. When the judges get this bill, they will look to the various measures to read and study to find out what the intent of the government was regarding this bill. This will be along the same line of questioning that the honourable senator just pursued with you. I notice that, in the backgrounder of the bill that sometimes is raised in court cases and adjudications, it repeats what you just said a moment ago. On page 2 of the backgrounder:
Registration would be automatic upon conviction, or a finding of not being criminally responsible, for a prerequisite sexual offence, making it mandatory for the sentencing judge to impose an order to register and provide a DNA sample. The Crown prosecutor will no longer be required to bring an application for an order. This provision will apply prospectively only.
The honourable senator was not asking you for a retroactive application but a retrospective application.
Mr. Toews: Yes.
Senator Baker: The whole point being that unless you state in the bill that this will have a retrospective application, then it will be applied as it says here, prospectively only, which means that when this bill passes and the RCMP lays a charge a year down the road, this bill will not apply. This bill will not have application if the event, if the delict that is being prosecuted happened prior to the passage of the bill. You could get in the appellant sections of this bill something happening six and seven years from now, and this bill will not apply.
I understand the answer you gave a moment ago. Why is it that the government presents a picture of immediacy, and here we have a bill that will not apply to some prosecutions that will be made six and seven years down the road?
Mr. Toews: In respect of incidents that might have occurred a decade ago.
Senator Baker: Yes, or this year.
Mr. Toews: Or this year, yes.
Senator Baker: Let me be more direct in my question.
With respect to ``retrospectively applicable'' and ``prospectively applicable,'' when you look at the case law, it goes back to the Manitoba Court of Appeal, to a case in 1981. It was the Department of Labour at the time that was looking for a retrospective application of the law. A magnificent argument was made. You were the person making the argument.
Mr. Toews: I know. I think I lost it, though.
Senator Baker: You lost the case, but here you are now in the position of initiating the legislation.
Mr. Toews: It was on a payment of wages, was it not?
Senator Baker: It was exactly on a payment of wages. The great quote that I think everyone would appreciate that struck you down was one sentence from Maxwell on the Interpretation of Statutes:
It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the act.
What would happen if the Senate were to amend the bill to give it a retrospective application for primary designated offences in the first portion of each one of the acts? Do you have any comment on that?
Mr. Toews: You would not get much argument from me. It is a difficult issue sometimes to explain the distinction between retrospective and retroactive, and I do not always get it right.
Senator Baker: You had it right in 1981.
Mr. Toews: I know I had it right. I am not saying the court was wrong, but the argument was right. You certainly do your homework, Senator Baker, because I had forgotten about that case.
I am led to believe in this situation that where there in fact is a conviction after the bill comes into force, even though the event occurred prior to the bill coming into force, this would apply. The trigger would be the charge, as I understand it. Therefore, it would not apply retroactively, and that is the distinction.
If the charge, for example, was laid in 2010 and the bill comes into force in 2011, these amendments would not apply. If the bill came into force in 2011 and the charge was laid in 2012 in respect of a 2009 event, it would apply.
Senator Baker: Your backgrounder is wrong and the judges will be reading your testimony for what this bill means. Is that right?
Mr. Toews: I do not know if my backgrounder is wrong here.
Senator Baker: I read it out. Is it how one interprets the sentence? It was pretty clear in the way I read it out.
Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice Canada: I do not think prospective is intended as a term of art in the backgrounder or a legal restriction on how the act is to be interpreted. Clearly, we are quite satisfied with the drafting. The intent here and the intent that the judge will pick up is that, as the minister has stated, if the individual is charged after the coming into force of the bill, the provisions will apply.
Senator Baker: It has a retrospective application?
Mr. Hoover: Certainly at least in my mind and that of Justice Canada. We believe retrospective would apply to those under sentence at the time of coming into force.
Senator Baker: Does it have a retrospective application?
The Chair: Senator Baker, if you want to pursue this with Mr. Hoover —
Mr. Toews: It is an important point. I would invite you to have that discussion with Mr. Hoover because I think it is an important point. If the Senate were to want to make that clear, certainly you would not have any objection from me. Given that Justice Canada is on side, I am really pleased because it does not always happen that we are on the same page.
Senator Angus: Nice to see you here, minister. I wanted to pick up on your comment during your opening remarks where on page 4 you said:
As well, offenders convicted of a sex offence and ordered on the Registry will be automatically subject to DNA sampling.
Then you parenthetically added:
Today, at least 42 per cent of them do not have that information entered.
Could you elaborate a little bit? Why is that? What is the trigger or the flaw in the law that has made that happen?
Mr. Toews: I am hoping the 42 per cent figure is correct. That is what I was told by the RCMP. I am relying on that. I think it is safe to say that a sizeable number of people who should be on the registry are not. If it is up to 42 per cent, that is very significant.
Why is that? It is for a number of reasons. First, if you give a judge discretion, they will exercise that discretion, as they are entitled to do. The ideas that judges have differ from individual to individual. Even though they are applying the law, we all bring unique views to the application of the law. Certain judges would say, ``I do not think this is serious enough to go onto the sex offender registry or the DNA data bank.'' Parliamentarians have made that decision as well in terms of where we consider DNA needs to be provided. Judges make those kinds of decisions in the context of their discretion.
The second reason is that, simply put, many Crown attorneys are far too busy to initiate a new application after a conviction. They have gotten a conviction, it has been a hard-fought battle and the individual then decides not to consent to being placed on the sex offender registry. The Crown attorney, after getting a five- or ten-year sentence, says, ``I do not have the time to call witnesses and all of this,'' so they simply do not proceed. That decision happens because of the workload that many of these individuals are carrying.
The third reason is simply that administratively these things fall through the cracks. Crown attorneys go back to the office and tell their assistants to set up this hearing, but it does not get set up, time goes by and it does not happen.
It appears to me there is no valid public policy reason not to include these individuals for these specified offences. I have tried to think hard on what basis we should exclude these individuals when their guilt has been proven beyond a reasonable doubt in respect of a very significant and difficult crime to prove, in many cases.
From a public policy point of view, why are we then having this dual process? It just does not make any sense to me.
Senator Angus: As I said, I was surprised. Furthermore, from your answer, I take it that judicial discretion meant that a judge might specifically say that we will not enter the name of this offender because there are extenuating circumstances. For all of the other cases, I understood — I am not a criminal lawyer, but I am an attorney — that the law presently did require that they be entered. You have given two circumstances in which this is not the case. Am I right?
Mr. Toews: The Crown has to specifically ask for it.
Senator Angus: Why would they have to call witnesses to do that? The trial is over.
Mr. Toews: You would think so. You would think you could apply the evidence mutatis mutandis to this hearing and say that evidence speaks to this matter. However, if it is a contested matter, it is not easy applying evidence mutatis mutandis to a second hearing. You are going through the expense of bringing forward police officers and civilian witnesses and all kinds of individuals, so it becomes complex.
Senator Angus: Now it will be mandatory.
Mr. Toews: It will be mandatory if the Senate sees fit to pass it that way, and I would recommend that.
The Chair: Senator Angus, I was trying not to interrupt you, but we are getting very tight on time.
Senator Angus: I am finished.
The Chair: Thank you so much.
Senator Joyal: Mr. Minister, in the second section of the bill, it is recognized quite clearly that there are offences punishable on summary conviction. An offence that is punishable on summary conviction usually means a lighter offence. I think we all agree with that. You have been a prosecutor yourself. You would certainly have many examples of that.
Why would we not maintain judicial discretion in the context of a summary conviction, not leaving it to the prosecutor but leaving it to the judge? I am referring to the offence in section 18, exposing genital organs for a sexual purpose to a person who is under the age of 16 years. Let us imagine this. A person is 18 and a half and commits the offence with somebody of 15 and a half who looks almost like an adult, because we know that sometimes that happens. Why would we not leave to the judge the discretion in circumstances like that to avoid the stigma of being in the registry, if the Crown decides to proceed with summary conviction proceedings?
Mr. Toews: There are many reasons, I would suggest, for including them. The point is that an individual has been convicted of an offence here. I understand the distinction between indictable and summary. When it comes to fingerprinting, we do not include the summary ones, just the indictable.
When it comes to sexual offences, often lesser offences are pled to, especially when it is children, because you cannot get a conviction because of the difficulty in obtaining that conviction. Not all those facts can be explained in a courtroom.
The period of time on the registry is much shorter, though, for a summary conviction. It is five years. There are some that are ten years, twenty years and life. We have taken into account the fact that the summary offence may not be as serious, but I still think it warrants inclusion on the registry for a number of very practical reasons.
Senator Joyal: Do you have any statistics or figures or reports that would lead you to conclude that, even on a summary conviction, there have been so many cases where a prosecutor or a judge has not imposed the inscription in the registry that it justifies you to proceed with this?
Mr. Toews: Ms. Campbell can probably explain it better, but this list of summary conviction offences matches up now with the mandatory DNA sampling that is required, so there is a consistency both with the DNA sampling and with the sex offender registry.
I think the point you make about excluding certain offences and including others can also be considered when we talk about DNA sampling. I favour much broader DNA sampling. I remember back in 2004 when we heard the witnesses from Great Britain on this. In Great Britain, DNA is taken upon arrest, before conviction.
Senator Joyal: Yes, we know.
Mr. Toews: It is done taken not only in respect of violent offences, but also with so-called property offences, because of the clear connection between the two. We seem to make this distinction that it is only a property offence as opposed to a violent offence. Criminals operate quite freely in both areas, in my experience.
The only time you actually see that distinction between violent and non-violent is when the criminal lawyer comes to you as a prosecutor and says, ``Look, what do you want as a sentence?'' I will say, ``What will he plead to?'' The response is, ``He will plead to anything as long as he does not have to plead to any violent offences, and he will take the same time.'' They will do anything they can in order to avoid having a record of violent offences. In the same way, agreements are made, and again for very valid reasons sometimes, to take summary convictions where it is very difficult to obtain a conviction in going through a trial, and that is the risk you take.
However, in my opinion, once somebody has been convicted of these kinds of offences, with a summary conviction, at least it is five years that that individual is on the registry. If it was a youthful indiscretion, as you are suggesting it could be, at least that will end at a certain period of time. As it becomes more serious, 10, 20 or life is imposed.
Senator Joyal: I have no problem with primary designated offences and serious crimes. We are all in agreement with that. I do think the objective of the act is essentially in sync with the original objective of the legislation. When the act gets stricter, I question the modulation of the responsibility for someone to be on the registry. That is essentially where I am in pondering how we can take a graduated approach to the registry in terms of the seriousness of the offence versus an offence that is a first offence and so forth. The judge is there and has heard the representations of the Crown in terms of the sentence and so on. All those facts can be put in front of the court, and the judge is in a position to appraise them. It seems to me that it is an important element of our justice system to calibrate the system in proportion to the seriousness of the offence.
Mr. Toews: I believe that is more correct, if I can use that term, although it is not proper English, in the context of a sentence or punishment. I think we have to be careful not to remove judges' discretion too much, although we have done this with impaired driving. We have done it with murders. We have done it with certain firearms offences. As a society, we say this is the floor that has to apply for various reasons.
However, this is not part of the punishment. It is a consequence that flows as a result of committing the crime and the conviction of the crime. It is a consequence. I do not believe the same considerations occur, especially when we look at the fact that these sex offender registries are not public like they are in the United States, where these people's name and picture and record are put on websites.
There, if you go to the computer and enter in a specific state, you will see all these sex offender registries. We do not have that in Canada. We control that quite well, and we have created a balance in Canada where the police essentially control the registry without letting the public know too much about that.
In places where it is in the public interest, it is released. Some victims' groups have advocated going more towards the American model, but I think our system is a compromise. It weighs the interests of the accused — the situation you have mentioned — and yet seeks to place the interests of the victim at a higher level.
It is a fine balancing act that we have done here. If we were talking about the public disclosure of all sex offenders on websites and lists, I think your argument would have greater strength.
The Chair: Thank you very much. Colleagues, we are up against the clock and we have three senators, including myself, who still want to put questions. On the assumption that you have to leave us in four minutes, minister, I will ask senators to put their questions and have you please, if you would, respond in writing. Otherwise we do not get to put the questions.
Senator Lang: I would like to refer to offenders convicted abroad of sexual offences who return to Canada. Will we be able to go retroactive on that particular piece of legislation as far as those offenders who are already here? Do we have that information?
Senator Runciman: I just caught the tail end of Senator Baker's points on whether or not this has retrospective application. I gather, minister, that your officials and you believe it has. Maybe I misinterpreted or misunderstood that.
Mr. Toews: It depends on what you mean by ``retrospective.'' I do not want to get into that discussion. I think we came to some conclusion here and I do not want to screw up the record by trying to repeat that.
The Chair: He liked what he heard.
Senator Runciman: We may be seeking some further clarification in writing.
I am curious, minister, how this lines up with the Ontario legislation in terms of the operation of the sex offender registry? Is it in line with it now?
Mr. Toews: It is moving closer to that.
The Chair: I made Senator Lang wait for his written response, and so it is only fair to make Senator Runciman wait for his as well.
Senator Runciman: I have a major concern, and I know it was a recommendation of the House of Commons committee, relating to Correctional Services Canada (CSC). You have not obligated CSC in terms of reporting. I think you have given it the authority to advise, and I wonder why that exemption has been allowed in that one particular instance.
Mr. Toews: Okay.
The Chair: My question, minister, has to do with the offence of sexual assault. As you know, it is, under our law, a term with a vast definition. It runs all the way from rape — horrible assault — down to unwanted touching: A 19-year- old gets drunk at a Christmas party and pats somebody on a backside. Yet, under this bill, any sexual assault is a mandatory designated offence. You go on the registry. Your DNA sample is taken. That does have consequences, apart from the fact that the police may then be watching for you. Certain employers, for example, can check to see if you are on the sex offender registry, and you may not get a job because of one drunken mistake at a party one night.
Is there any way in your view and, if so, would it be appropriate to envisage some form of variability in what is done with and to offenders, depending on the severity of the offence? I am not arguing that rapists are not right up there. You can answer this in writing because I know you need to go.
Mr. Toews: Let me say that the designation of all of these sexual offences under one category was perhaps the biggest mistake in criminal law that the Parliament of Canada has ever made.
The Chair: We did it.
Mr. Toews: We did it. It was as a result of certain pressures, especially because women's groups were concerned about the way rape trials were conducted and the way women were treated in the course of those. What happened, I think, is we threw the baby out with the bath water. We should have been much more specific as to the type of offences we were talking about. We have created all kinds of problems as a result of that, but that is another issue.
Ms. Campbell will answer some of that after I leave in terms of your specific question, but I could not help but say that was a terrible mistake. Maybe some parliament will correct that in the future, because it has not served the interests of sexual assault victims, especially women.
The Chair: May I say that, from our point of view, the House of Commons has made a terrible mistake in scheduling its vote at 5:15, but there is not much we can do about that. We prefer it when they respect our requirements, so we have to respect theirs. We thank you very much, minister.
Mr. Toews: Thank you very much. I appreciate your attention.
The Chair: Thank you. Colleagues, the officials will stay with us, and there are a couple more in the room who will join us to proceed with our study of this bill.
Ms. Campbell and Mr. Hoover have been joined by Ms. Rosemary O'Brien, Senior Policy Analyst, Corrections Policy Division of Public Safety Canada; and Lieutenant-Colonel Bruce MacGregor, Director of Law, Military Justice Policy and Research in the Department of National Defence.
Thank you all for being with us. We have Senator Wallace lined up with a question on consultation and Senator Baker wanted to pursue retrospectivity.
Mary Campbell, Director General, Corrections Directorate, Department of Public Safety and Emergency Preparedness Canada: In a word, the federal-provincial-territorial consultation has been extensive. The primary vehicle is through the form of federal-provincial-territorial ministers who meet once a year. Their deputies meet twice a year, and I co-chair a working group of senior officials. We have met as often as, at one point, five or six times a year. We have been doing this for probably at least a decade now, and of course the sex offender registry has been one of the central issues we discuss. It is a working group on high-risk offenders.
So everything you see in both the original registry and in the amendments has been discussed with provinces and territories. That does not mean everyone agrees with everything that is in there. This is a national registry, so of course there is some compromise required of all parties at certain points.
The working group consists primarily of Crown attorneys, criminal justice policy advisers and police representatives. For example, our RCMP colleagues have been very active. They have a central role to play in administering this, so they have been very active as well as more local police representatives as well.
Senator Wallace: Perhaps I will direct my question to you, Ms. Campbell, but others might want to provide the answer. There was a reference to the Ontario Sex Offender Registry, and I have two questions. Do other provinces have similar registries; and regardless of the answer to that, how does our federal registry interact with that provincial registry? Does Ontario's registry duplicate the federal registry? Is there really a need for a provincial registry? How do we relate this federal registry with the provinces?
Ms. Campbell: There is only one provincial registry, the Ontario Sex Offender Registry. It was the first registry to be created, and then discussions continued at the federal-provincial-territorial forum of ministers and a decision was then made to create a national registry. Ontario decided to continue with its registry after the national registry was created.
Obviously we try to ensure that the registries are compatible. These amendments bring the two registries a little closer together because the Ontario registry has always been an automatic inclusion model. The national registry has some differences in terms of some of the steps in the process of registering information. The national registry has a slightly longer list of offences, for example.
There are no other provincial registries. There are a couple of provinces that have websites of what they call high- risk offenders, but they are not sex offender registries per se.
Senator Wallace: So the federal registry, with these amendments in particular, would be more extensive than the Ontario registry? I guess what I am asking is whether it would be possible to have someone convicted registered in the Ontario system and yet not appear in the national or federal system. Is that fair to say?
Ms. Campbell: I think at this point we are all trying to get the two registries in better sync in terms of who is covered. I said that the national registry is a little broader because, in addition to the list of designated sex offences, we also have a list of offences that are not sexual on the face of it but may have a sexual component, and so that was created.
The Ontario registry at that point only had the list of fully obvious sex offences,. We do occasionally have people who commit break and enter with intent to commit a sexual offence, or perhaps there is trespassing by night which has a sexual component, so the national registry wanted to get at those offences as well.
Officials certainly in the province of Ontario are quite conscious of the need to have the two registries not compete or overlap, and not to have any gaps between the two.
Senator Baker: Madam Chair, I will leave the subject of retrospectivity and that whole matter to other questioners, and if the department wishes to elaborate on what it means by ``the applicability of provisions of this act,'' then we would certainly appreciate that clarification.
However, what I need to do, just as a matter of interest to me in the construction of this bill, is ask about the overall construction of the bill. I would like to ask this of Lieutenant Colonel Bruce MacGregor, who has been a prosecutor before the court martial appeal court, and has also been a defence attorney at the Supreme Court level of the provinces. He is well versed in the law and has appeared against Minister McKay on occasion, and hopefully he won some of those cases.
Now, as I see the bill, you have provisions being made to amend the Criminal Code, and then you have provisions — I would suspect they are mirror provisions — to amend the National Defence Act. First of all, is my assumption correct that that is the intent of this bill, to provide the same changes to the Criminal Code and to the National Defence Act?
Lieutenant-Colonel Bruce MacGregor, Director of Law, Military Justice Policy and Research, Department of National Defence: The military justice system, from the outset, is a separate and distinct justice system from the criminal justice system in Canada. There are differences throughout, and there have to be differences because, as former Chief Justice Antonio Lamer noted in the Généreux case, the military justice system is for the discipline, the esprit de corps, the morale and the operational effectiveness of the Canadian Forces. That is why it is distinct and will remain distinct, consistent with the Supreme Court of Canada.
When there are changes in the criminal justice systems that are consistent with the purpose of the military justice system, for the most part, the military justice system will react and provide the same measures that the criminal justice system is providing. In this case, there is no real need for us to diverge from the criminal justice system's progression with respect to this act.
I guess that is a long answer to your question. In this case, we are trying to be consistent with the government in respect to this particular act. This bill has National Defence Act amendments. For example, 227.01 talks about how our system mirrors the Criminal Code changes, but there are particular aspects to it that we have to build in that talk about the Canadian Forces Provost Marshal and those kinds of things.
Senator Baker: I am talking about the implementation of these measures. The Charter applies in your court martial court as it applies in our provincial and Supreme Court levels in the provinces.
When I looked at the bill, I noticed there were some substantial differences in the wording. I will give you an example. I have not read the bill thoroughly, but it is so obvious.
On page 6 of the bill, we are talking about amending the Criminal Code. The progression arrives at this conclusion, subsection 4 on page 6, Failure to make an order.
It says ``if the court does not consider the matter, the court shall'' — first of all, within 90 days — then it says ``retains jurisdiction over the matter''; because, do not forget, now it is gone so it retains jurisdiction for that 90 days. Then it says it may ask the accused to appear ``by closed circuit television or any other means,'' and then it says ``as long as the person is given the opportunity to communicate privately with counsel.'' ``With counsel'', reflecting 10(b) of the Charter — consultation with counsel — ``if they are represented by counsel.''
No such provision is provided in the amendments to the National Defence Act. The only thing that is provided, on page 39, for the exact same provision is the 90-day rule. However, it says nothing about an opportunity to appear before the court, and it makes no reference to a person's consultation with a lawyer.
One of two things is happening here. Either we are neglecting a right to consult with counsel or it is not necessary for us to have all of these things, such as consultation with counsel in closed circuit television. My question to you is which one is it?
As you have said, you carry the same requirements as the criminal law. You administer the criminal law, so how can it be that different in one bill initiating the same measures?
Lt.-Col. MacGregor: With respect to that subsection at page 39 of the bill, which is clause 47, if an order is not provided, as you say, there are 90 days to bring it back. What has to happen is that our courts martial are sui generis, and therefore we would lose the jurisdiction of that court at the end of the court martial.
In many cases where a person is convicted of sexual assault, they do not necessarily stay within the military and are no longer subject to the code of service discipline. That is why, for greater certainty, the person continues to be liable to be dealt with under the code of service discipline. There is a jurisdictional aspect to that.
Senator Baker: With respect to the two other provisions now.
Lt.-Col. MacGregor: With respect to consultation with a lawyer, within our system, there is a right for every accused before a court martial to be represented by a director of defence counsel services.
Senator Baker: We have the same provision in the Criminal Code.
Lt.-Col. MacGregor: With respect to this provision, given all of our protections, it does not appear it would be necessary to put that into this legislation; 10(b) rights, you quite rightly point out, are built into our system.
Senator Baker: I get your answer. I know I am at the end of my time.
The Chair: At least on this round.
Senator Baker: Yes, Madam Chair, but I think in examining the comparable provisions amending the National Defence Act, we should have a good look at it when we are dealing with clause by clause.
The Chair: You can come back to it on a second round because it is important; but not on this one, in fairness to patient other members of the committee. Senator Boisvenu.
[Translation]
Senator Boisvenu: My questions are for Mr. Hoover or Ms. Campbell. Two of the three questions do not require an answer today because they concern statistics. We could have the answers later.
I want to go back to retroactivity, which has been an important issue for me since 2004.
The Chair: Retroactivity or ``retrospectivity''?
Senator Boisvenu: For me, it is retroactivity. In French, that means ``applicable to those who are currently incarcerated.''
My daughter was murdered in 2002. Her murderer escaped the registry because it was not in existence. He is going to be released in four or five years. He started his criminal career at the age of 18, when he forcibly confined a woman. At the age of 19, he forcible confined another woman and raped her for 24 hours. Then he murdered a woman. So this is an individual who could well be released from prison in 2015 or 2016 and who could still be dangerous. In my mind, retroactivity is a matter of safety and concerns people we are going to release within five to 10 years.
First question: Do we have any idea of the number of criminals who are currently incarcerated and who have committed a serious sex offence, that is a murder, a long-term forcible confinement, for example, or a gang rape, and who have slipped outside the law?
The second question concerns criminals who have committed a serious sex offence, who are released five years later and who apply for a pardon. Are these criminals deleted from the National Sex Offender Registry? Perhaps you can answer me right away.
[English]
Ms. Campbell: I can respond in part. In terms of the number of current inmates who would not have a sex offender registry order, we will have to look into that. I do not have that information.
The Chair: Would that be the 42 per cent that the minister referred to earlier?
Ms. Campbell: At some point you may wish to ask the RCMP more about that figure. I think there is a composite population in that figure. I would say, however, before I leave that question, that if an offender comes out of penitentiary or prison and they have completed their sentence in its entirety, there is a mechanism that was created a decade or so ago called, in its short form, 810 orders. There are a number of these orders in that grouping.
They were designed exactly for this purpose, to deal with someone who may have finished their sentence but is still regarded as a danger to the public. A Crown attorney can ask for such an order before a court. There is a hearing.
All of which is to say that the sex offender registry is, of course, one tool. It is not the absolute tool to solve everything. For those people that are a concern at the end of a sentence, I think 810 orders have been proven to be quite useful.
In terms of the link between pardons under the Criminal Records Act and a person who is on the sex offender registry; a person can apply for a Criminal Records Act pardon and receive one. That does not automatically take them off the National Sex Offender Registry. The person might be on the registry for a duration of 20 years.
That individual may take their pardon and use that as an argument to ask for early termination of the registration order, but the pardon does not lead automatically to coming off the registry.
We will get back to you as best we can on the issue of the number of current inmates without an order.
The Chair: While you are at it, could you let us know how many section 810 orders have been issued?
Ms. Campbell: Yes, I may have that here.
[Translation]
Senator Boisvenu: Madam Chair, there is another piece of information that it might perhaps be interesting to have. How many sex offenders entered in the registry since 2004 have received a pardon and have had their names deleted from the registry? It would be interesting to know that number.
Last question: Section 810, I understand, is a Criminal Code section that can be used over a very brief period of time, 12 to 24 months at most. These are often criminals who have permanent problems, except that the Criminal Code offers only temporary solutions.
Would it not be appropriate to make provision in this bill for a retroactive mechanism for criminals who are released, rather than use section 810? In other words, there would be an automatic order, without going before a judge. Do you remember the Homolka case? There was a lot of publicity around that, and I think it impeded justice.
Having a mechanism within the act would make it so that dangerous criminals who are not in the registry are automatically entered in the registry as soon as they are released, instead of using section 810.
[English]
Ms. Campbell: You are quite correct regarding the duration of the section 810 orders. The maximum duration initially was one year. That was changed a year or two ago to a maximum of two years at a time. However, the orders can be renewed in perpetuity as long as each time it is renewed there is a present danger. They cannot be automatically rolled over.
Senator Boisvenu: However, you have to go before a judge. That is very heavy as a process. What if the present law provided that those criminals, instead of going before a judge, could be automatically put in the sex offender registry?
[Translation]
In my view, that would entail much less administration.
[English]
Ms. Campbell: There are differences between the two regimes. An advantage of the section 810 regime is that the court can place specific conditions on the person in terms of such things as following treatments, not being near schools and that sort of thing, whereas the sex offender registry does not have the ability to impose conditions other than the reporting conditions. They perform slightly different functions, so one does not substitute perfectly for the other.
In terms of the number of section 810 orders, I thought I had it, but I do not, so we will provide that as well.
The Chair: Thank you very much.
Senator Lang: I would like to refer to the situation where a sexual offender has been convicted in the court, successfully appeals, and it is found that he is not guilty. Is his name automatically struck from the registry? Second, is his DNA destroyed?
Mr. Hoover: I cannot confirm on the DNA, as I am not an expert in that area, but I can for the sex offender registry. If the appeal is successful, the order is that the registration automatically ceases as of that date.
Senator Runciman: I am following up on Senator Boisvenu's comments and the issue related to the inclusion of individuals who are charged and convicted before legislation comes into place. In some circumstances that already applies with respect to DNA testing; does it not?
Mr. Hoover: There is some retrospective application of DNA testing. For example, I believe that in the case of dangerous offenders, there are specific provisions that allow for that.
Senator Runciman: Is there resistance to adopting the same approach?
Mr. Hoover: To be honest, more than anything else, it is a policy choice of the government of the day. For example, prior to 2004, when the original discussions took place with the provinces, there was a lot of discussion about how broad the provisions should be. There was a lot of concern on the part of some provinces not just about the potential for successful Charter and constitutional challenges, but also the cost and effort to go back and find hundreds of thousands of pre-existing sexual offenders. The provinces were not keen on it.
Senator Runciman: Ontario did it.
Mr. Hoover: With due respect, Ontario's legislation, with which I am familiar but not an expert, did not limit it to prospective or even retrospective. The original legislation for the sex offender registry was retrospective in application in that it allowed bringing in those under sentence at the time of coming into force, so we went a significant way. That was with the support of the provinces.
My understanding of the Ontario legislation, and you could bring in Ontario's sex offender registry people to confirm this, was that as a policy they chose not to go back in time before the coming into force date for those who were no longer under sentence.
Senator Runciman: No longer under sentence, yes.
Mr. Hoover: We did include under sentence.
Senator Runciman: Even with what happened in Ontario, there were concerns about the Charter challenges, which never proved to be the case.
I would like to preclude the necessity for having a written response related to the Correctional Services Canada issue that I raised when the minister was here. This goes against the recommendations of the House of Commons committee, and I am wondering what the rationale was behind allowing CSC not to be required to report.
Ms. Campbell: I did not have the chance to note specifically what section you were referring to, but as I understand it, it is this provision that authorizes CSC to provide release dates, revocation dates and that sort of thing to registry officials.
Senator Runciman: It does not require them.
Ms. Campbell: The issue is that there needs to be that communication so that registry officials know when an offender is out in the community. The Correctional Service of Canada is bound by the Privacy Act and its own privacy provisions in the Corrections and Conditional Release Act. They had some concern about their ability under law to share this information with registry officials. The matter was discussed, and it was resolved through a memorandum of agreement between the agencies because both are involved in a common endeavour.
Out of an abundance of caution, it was decided to include an explicit permissive section in this bill, so there could be no doubt about CSC's authority. It is authorization because there is no disagreement about the need to do it. Therefore, it simply authorizes CSC to share the information. Is the CSC obligated? That question did not come up because there was no question that CSC saw it as their duty to make the registry work efficiently.
Senator Runciman: Regarding an abundance of caution and recidivism rates, I believe the 2004 University of Toronto study on the extra familial offenders was circulated. The recidivism rate was 70 per cent. I know that we can get into arguments of how to assess recidivism. I strongly support the legislation, but it strikes me that we should have overcome that abundance of caution.
You talked about better synchronization with the Ontario registry. Where does that stand? What are the major differences now between what is proposed in this legislation and the current Ontario registry?
Mr. Hoover: You may be aware that the Ontario registry was recently amended in an effort to synchronize more closely with some of the offences that are in the federal registry as well as to provide specific authority for linkages to the federal registry.
As well, I believe in the 2006 amendments to the federal sex offender registry there was an attempt to provide for closer linkages. This is really more an operational issue. I would invite you to ask that same question of the RCMP and, if they also appear, of the Ontario Sex Offender Registry representatives, because I think they could provide a fuller answer to that.
Senator Runciman: When you are in sync, is the technology in sync with the two systems?
Mr. Hoover: I cannot respond to that. Probably the RCMP would be better able to answer.
Senator Runciman: I think you confirmed that Ontario is the only jurisdiction with a registry. Ontario went ahead because at that time the federal government refused to accept the recommendation of the Stephenson inquiry that a National Sex Offender Registry be established. A federal registry did not start to happen until 2004.
In any event, it strikes me that the only reason Ontario has a sex offender registry is because the federal government at the time refused to move on it. Going down the road, it may be desirable to have preliminary discussions with Ontario about the need for a separate registry. There may not be a necessity for that additional system, and we can perhaps convince the province of that if this system achieves what we all want it to.
Mr. Hoover: I take it that is a rhetorical question.
The Chair: You are not required to speak for the Ontario government.
Senator Joyal: My question is for Lt.-Col. MacGregor. Could you look at a copy of the bill at page 40? It is in the section of the bill that amends the National Defence Act. Clause 52 says:
The court martial shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or 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.
If I understand in lay terms, it means that the court martial still has the discretion to waive inscription in the registry, if the inclusion in the registry would be ``grossly disproportionate to the public interest in protecting society.'' Am I right in understanding that is the substance of the article?
Lt.-Col. MacGregor: You are, Senator Joyal. However this relates to the ability for the provost marshal to have brought a person that was charged and convicted prior to September 12, 2008, of a sexual offence. In this case, it has not happened. There was only one year that the provost marshal had an opportunity do that. This proportionality test is not for cases that have come in since September 12, 2008. For the cases after this bill comes into effect, assuming it does, the disproportionate test would not be for those people being charged and convicted.
Senator Joyal: There must be logic in the system. It is either disproportionate or not. My question is the same to Ms. Campbell. The bill would reclassify 17 offences as super-primary offences, but for the rest of those primary designated offences, the court would still have the possibility to suspend the order to provide a sample to the DNA bank if it would be grossly disproportionate to the public interest.
Mr. Hoover: There might be some confusion as to which provision, so could you please cite the provision of the Criminal Code being amended.
Senator Joyal: It is 487.04.
Mr. Hoover: Those are the DNA data bank offences. To avoid any confusion, it might be best to ask our expert on the DNA data bank to respond to the DNA questions. He is not at the table now. I would avoid getting into a discussion on my own without consultation with him.
The Chair: Are you referring to Mr. Yost?
Mr. Hoover: Yes.
The Chair: He happens to be within auditory range. Would you like us to invite him to the table, Senator Joyal?
Senator Joyal: I know other senators have questions of our witnesses here today. Perhaps at a future meeting we could invite Mr. Yost.
My concern is that in relation to this bill with the sex registry we say everyone is in, but when we deal with offences prior to 2008, we will say the principle of disproportionate impact on public interest applies. In the case of the National DNA Data Bank, the grossly disproportionate on the public interest applies also for some primary designated offences.
It seems to me that if we maintain the reality of what is a disproportionate impact, it is because we feel it goes overboard. If it was good enough for 2008, why is it not good enough when a judge is faced with a case where he or she evaluates that this would have a disproportional impact on the public interest? This is in the same bill.
Mr. Hoover: There might be some misreading of the provisions. I confess they are a little complicated when you just read them in the bill. You almost have to scrutinize them closely and compare them with the current provisions.
To be clear, the intent is to ensure that the list of automatic offences in the Criminal Code for the sex offender registry will also be automatic for the DNA. I believe that has been accomplished. In other words, it is not a grossly disproportionate test. If you look at the list of sexual offences for Sex Offender Information Registration Act purposes, which is in section 490.011(a) of the Criminal Code, all of those listed offences — we do not call them primary but designated — will lead to an automatic order for registration.
The purpose of the amendments to the DNA Act in this bill is to ensure that those offences that are automatic for the sex offender registry will also be automatic for the DNA data bank. That is the intent. I am fairly confident that that intent has been accomplished.
As to whether there is confusion as to how that is effected, I can speak quite clearly to the sex offender registry provisions, and Mr. Yost should be invited to speak to the DNA provisions in order to avoid any confusion.
Senator Joyal: Even if the Crown elects to proceed with summary conviction?
Mr. Hoover: I would be uncomfortable answering that. I believe that some of the amendments were to avoid that problem and to make a couple of the offences hybrid in nature in order for them to be automatic on the DNA list, and Mr. Yost can confirm that.
Ms. Campbell: I think part of the complexity, as I understand it, and I am not a DNA expert, is that the DNA scheme has four categories of offences while the sex offender registry has two categories. As Mr. Hoover says, there has been an effort to match up the two categories involving ultimately six different groups of offences to make some sense, but it is very complex.
The first four clauses of the bill mix and match DNA sections and National Sex Offender Registry sections. As Mr. Hoover says, it would be best to have a DNA expert at the table who can explain what exists now and how this has changed. The overall intent is to have consistency for the purpose of this automatic order.
Senator Joyal: Lieutenant-Colonel MacGregor, why do you think it was appropriate to maintain the principle of disproportionate impact on the public interest for offences prior to 2008?
Lt.-Col. MacGregor: As I said, clause 52 deals with the exemption orders prior to 2008. Clause 50 is consistent with the termination order, so that is probably a better clause to focus on. It has very similar wording to what you are talking about.
Both the exemption order and the termination order are essentially after the person has been found guilty. The termination order is after the person has already been registered, when after the 10 or 20 years have gone by, they make the request to have that terminated.
It appears to be inconsistent in that it is automatic to get on the list, but after a period of time there is an opportunity for the person to show evidence that it is grossly disproportionate to the public interest that he or she remains on it.
I cannot give you much more than that, senator. I can get something back to you in writing to give a fuller explanation of the rationale. However, I do point out the distinction that for a termination order the person has already been on the registry for a number of years and is now going to provide evidence to show that there is some disproportionality if he or she remains on it.
Senator Joyal: Thank you. I would appreciate receiving that additional information.
The Chair: We would appreciate if you would send us that information.
Lt.-Col. MacGregor: I will.
[Translation]
Senator Carignan: I have a technical question concerning the second subsection of section 190.012, as it appears on page 17 of the French version. According to that section, the court may order that a break and enter offence, for example, be entered in the data base where it can be proven beyond a reasonable doubt that the person who committed that offence intended to commit an offence referred to in paragraphs (a) and (c), and thus a sex offence such as rape.
We may consider the recent case of a military member suspected of break and enter. In such a case, it could be difficult to prove beyond all doubt intent to commit rape, for example, whereas some break and enter cases nevertheless entail a sexual element involving, for example, women's underwear. Have you considered somewhat expanding that notion?
The burden of proof beyond all doubt for proving the intent to commit rape is quite heavy. Has any thought been given to somewhat expanding that notion? Rather than refer to an offence of a sexual nature, reference could be made to an element of sexuality or sex-related offences.
I do not know whether my question is clear.
[English]
Mr. Hoover: That is a fair question. It is important to understand that this is a sex offender registry, not a break and enter registry. This is the only registry that I know of in the world that includes provision for an application to allow someone not convicted of a sexual offence to get on to it. I think that is a very progressive aspect of this registry.
The test is onerous because, if the Crown alleges that there may have been a sexual intent in the mind of the offender without a finding by the court that that is the case, I think it would have some problems from a policy perspective. It may also have some legal issues as well, some potential Charter problems.
Over all, I can only suggest that there was a strong consensus among the departments that were working on this legislation going back to 2001-02, as well as strong support from the provinces for that specific type of test. We have not been confronted with complaints about that up until today. It is certainly something that we can look at in the future if that is the recommendation of this committee.
[Translation]
Senator Carignan: In view of recent information, a person who has committed sexual acts upon breaking and entering is considered dangerous, even though that is not an offence referred to in paragraphs (a), (c), (c.1) (d) or (e). You should perhaps check that possibility and report back to us so that we can make recommendations on this matter.
[English]
Mr. Hoover: I am not sure what type of information we could provide on that.
[Translation]
Senator Carignan: You talked about the Charter test for proof beyond a reasonable doubt. Every person who has committed an offence or intended to commit an offence meets that Charter criterion. However, the burden of proof beyond a reasonable doubt will be hard to establish. In practice, this section might therefore have little application.
A lighter burden, with certainty beyond a reasonable doubt that there has been a sexual character to the offence, could apply to these broader cases, such as that of the military member referred to.
[English]
Mr. Hoover: I do not disagree with what you are saying. At the end of the day, this was a policy decision of the government of the day, and it has not been suggested that it be altered. As Ms. Campbell has said, we listened closely in the FPT framework to a number of Crowns, police and other members of that committee. This issue has not been raised before, but if the concern is real we would make every attempt to address it. Beyond that, we can endeavour to look at it in the future.
Senator Watt: My question is directed to Lt.-Col. MacGregor and is about clause 31 on page 26 of the bill. There seems to be a discrepancy. I would like you to explain the following:
Paragraphs 4.1(1)(a) and (b) of the Act are replaced by the following:
(a) within seven days after they change their main residence or any secondary residence or if they are required to report to a registration centre designated under the National Defence Act, within 15 days after the change;
(b) within seven days after they change their given name or surname or, if they are required to report to a registration centre designated under the National Defence Act, within 15 days after the change;
Could you walk us through and explain why there are differences?
Lt.-Col. MacGregor: The difference between the two is because under the civilian system there are more registration centres available for civilians changing their residence. In the military, you are subject to being posted at any given time. Unfortunately, we cannot always be close to a registration centre as easily as a civilian can.
There may also be operational aspects to it. You may be on deployment. You may be tasked to be away from any type of registration centre. That gives a little bit of an extra buffer; basically two weeks to get to a registration centre and provide that information. That is all.
Senator Watt: Is it basically understood by everyone that that is the case? That it is necessary?
Lt.-Col. MacGregor: Yes. It provides that extra buffer.
The Chair: I have a supplementary. As a civilian, if you have to report in within seven days if you are moving, what about people in the North who are going off hunting, maybe for several weeks? What happens then? Is it enough for them just to telephone in and say I will be gone for three weeks, or how does it work?
Ms. Campbell: Mr. Hoover is reminding me that provinces can pass regulations that allow for some flexibility so that the person can communicate otherwise than in person for one reporting requirement or, indeed, several, if the province is willing to do that.
The Chair: As long as you are within satellite phone range you would be okay if you had a satellite phone.
Ms. Campbell: Yes, and I am not familiar with what some of the more remote parts of the country do. Presumably there will be areas where there is no actual satellite. Mr. Hoover feels that Canada Post provides services where there is no satellite, which is enormous faith in that great institution.
Mr. Hoover: Registered.
The Chair: Indeed. I wanted to ask about lists. Do I understand correctly that you get on the list automatically but you do not ever get off the list automatically? You have to apply to get off the list?
Ms. Campbell: You get off the registry automatically if you reach the end of your 10 or 20 years. You are off automatically at that point.
The Chair: I had thought that was the case and then a couple of things that were said made me wonder if my understanding was wrong.
Senator Angus: If you are acquitted you get to get off.
The Chair: If you are acquitted on appeal or whatever you get off. I am talking about those who were rightly convicted once. Ten years later they come off automatically? They do not have to apply? They have not reoffended. They have been very good people ever since. They learned their lesson.
Mr. Hoover: It is when you reach the end of your statutory period, which is 10 or 20 years. Life is a problem. When you die you are off. However, 10 or 20 years, when you reach that statutory period, you are automatically off. The RCMP is required to remove the record from the registry.
The Chair: That shows great faith in the willingness of bureaucrats to move expeditiously, to remove anyone from any list at anytime, anywhere.
Mr. Hoover: I think they are pretty good at that. They will be here as witnesses. I am sure they will be able to testify to their abilities.
Senator Wallace: The bill would also require sexual offenders who are convicted abroad to register here in Canada upon entry into Canada. I am sure the intent of that is to ensure that Canada does not become a safe haven for sex offenders. We would want to know if they are in the country.
With all of the worldwide jurisdictions, all of the places in the world where one could be convicted, how do we have certainty that when a person comes into Canada, this will be known and that that person will appear in the registry? Does it require them to voluntarily provide it or do we have a way of verifying that in another jurisdiction? This is not necessarily the jurisdiction they came to Canada from, because they could come from one country but have been convicted in another. How do we have that certainty the system will pick those individuals up in the registry?
Ms. Campbell: It is an excellent question, and one that federal-provincial-territorial officials grappled with for quite a few years to sort out. As you mentioned, there are a number of practical problems. A Canadian may leave Canada and be abroad for 20 years and live in 10 different countries while they are away, commit a sex offence in the first country while they were away but have travelled on quite considerably before returning to Canada. How would we have the information other than relying on the person's honesty?
This bill contains some significant new provisions. There are really two ways that a Canadian returns from abroad. The first way is that they are under sentence in a foreign country and they come back to Canada under the International Transfer of Offenders Act. Obviously, when that person comes back, we know all about the conviction and the sentence.
The scheme that is in the bill for people coming back under sentence is that there would be an obligation for registration at the time of the person's transfer back to Canada. After the coming into force of this act, someone who is thinking of applying to come back to Canada under that act would be advised that this will be another consequence, because they are informed of how the sentence would be administered in Canada. Some of them choose to abandon their application once they know how it will be administered here.
If the person, on the day of the coming into force of Bill S-2, is already in Canada under sentence, having been transferred back under the International Transfer of Offenders Act, my understanding is that the registration requirement would not apply. I am looking at my colleague who might correct me. We are trying to capture those people as best we can, and it is much easier because we know who they are.
For the Canadian who comes back free and clear, as we say, the bill contains a new provision obligating them to report to police within seven days of their arrival back in Canada that they have been convicted abroad of a sex offence.
If they fail to do that, we are relying on some subsequent detection in order to prosecute the person for that failure. If they do come back and they report as required, they can be then served with a notice to register. There will be a court process at that point because there must be some judgment about equivalency of sex offence and that sort of thing.
If someone is here already, having arrived back in Canada free and clear, and they had a sex offence abroad and Bill S-2 comes into force, they are not impacted. Again, if there are current safety concerns about an individual and people know about the sex record, 810 orders are a very good mechanism to put some control around that person.
As the police have said in these consultations, we are somewhat subject to the limits of the practicalities of the situation. We have very good police information-sharing practices with some countries, but less so with others. There are countries struggling to establish their criminal justice systems that recognize the importance of this issue but have even bigger challenges to deal with right now than tracking this kind of offender.
As I say, the bill does try to cover off both situations, and hopefully we have gotten it right.
Senator Wallace: You continually referred in your comments to someone coming back into Canada. What about someone coming to Canada for the first time?
Mr. Hoover: The provision refers to a person who is convicted or found not criminally responsible on account of mental disorder for an offence outside of Canada, where the offence is an equivalent offence to one of the listed offences. That is any individual who comes into Canada.
As well, if an individual who is in Canada at the time of coming into force leaves Canada and comes back in, they are liable under these provisions.
Senator Wallace: It is not restricted to those coming back into country.
The Chair: Or to Canadians.
Senator Wallace: Exactly. That is a question I had.
Mr. Hoover: It is a broad coverage.
Ms. Campbell: One of the big concerns has been that Canadians might travel abroad to commit these offences in particular countries and then come back and have absolutely no consequences or no record here. Certainly if someone is moving to Canada and has that kind of offence in their background, they are expected to comply.
Senator Wallace: Do we have arrangements with other countries for checks through Interpol or otherwise on people who are coming into Canada for the first time or coming back into the country to see if there are convictions so we are not left to rely on somebody disclosing? Is there an automatic process?
I realize we would not have relations with every jurisdiction, but are there any jurisdictions with whom we do and with whom we automatically check upon entry into Canada?
Ms. Campbell: As I say, I understand we have better relationships with some jurisdictions than others. That is a question that would have to be put to the RCMP or other police representatives in terms of being precise about how the information is communicated.
Often people ask us why we cannot ask the person when they arrive at the customs and immigration desks at the airport. Officers at those desks have their own statutory authority about what they can ask you as a Canadian or a foreigner entering our country. It is largely limited to questions about your right of entry into this country. It does not extend to your conduct, good or bad, while you have been away.
Senator Wallace: Right. Thank you for that.
Senator Baker: Thank you. I will be very brief. Could we have something in writing from the department to explain to the committee what exactly is retrospectively applied under this bill and if, in fact, it was an error in the backgrounder where it says that the registration will be ``automatic upon conviction'' and that this ``provision will apply prospectively only.''
We would like to have something in writing to clear up this backgrounder, because more people than those in this committee will be reading it. Our courts will be reading it. It goes with the bill.
Retrospectively means the act was committed in the past but that there will be ramifications of that past action in the future, and that the bill would have to specify if it is the intent to apply the primary designated offences — the really bad offences — retrospectively and not prospectively only. That is my first point.
My second point is I understand Lt.-Col. MacGregor's explanation. My only problem with it is that, this bill says that under the Criminal Code you will have a right to speak to a lawyer, which you have anyway. It says that a judge has to give reasons, which a judge must do anyway. However, it is in that section of the bill amending the Criminal Code. It says that you can have videoconferencing. That is already in the Criminal Code. However, it spells it out in this bill.
Then when it applies to the military provisions, it is different. It leaves out rights to counsel in the exact same provisions. That is the confusion that I have and that anybody reading it in the future will have.
I understand your explanation. However, your explanation really does not wash because you could make the same assumptions with the same provisions under the Criminal Code as far as the videoconferencing and discussions with lawyers are concerned. In other words, why do these sets of amendments not mirror each other? Why are the amendments affecting the courts martial not the same as under the Criminal Code amendments?
That is my only submission, Madam Chair. I do not know if anybody wishes to comment on it. They do not have to.
Ms. Campbell: Peripherally to the questions that you have raised, senator, I think part of the reason why it is so explicit in the non-military context is because it is a national registry. The person may be in a provincial police lock-up, a provincial detention centre or a federal penitentiary. Not all of these facilities would necessarily have videoconferencing equipment or, indeed, easy access to counsel.
Therefore, because it applies nationally, I think the reasoning was to make it very explicit there for the non-military offender. As I say, the military, of course, has to adapt it in light of the full context of their system.
Senator Baker: It is not the same.
Lt.-Col. MacGregor: With respect, senator, the right to be represented is built right into the National Defence Act.
Senator Baker: Of course.
Lt.-Col. MacGregor: I am not sure you will find the exact same type of provision in the Criminal Code — the right to be represented. It is certainly in the Charter and the military justice system is subject to the Charter, as you well know.
Senator Baker: Yes.
Lt.-Col. MacGregor: Also, section 249.17 of the National Defence Act is the right to be represented. Section 249.18 of the National Defence Act is defence counsel services. It is not necessary to continually put in that you have the right to counsel and other provisions?
Senator Baker: The judge has to give reasons, anyway.
Lt.-Col. MacGregor: As you pointed out, that is in the Charter, as well.
With respect, then, senator, I am not sure it is absolutely necessary to duplicate the right to counsel in that section, given our difference within the National Defence Act, in terms of the right to be represented.
Senator Baker: Why do you think the criminal law section of the Department of Justice did it for the civilian courts, if it was not necessary?
I agree with you. Do not get me wrong.
Mr. Hoover: The only reason we put those provisions in was to try and be consistent with similar measures elsewhere in the code. There might be some who would suggest that there is a right to some of these things. I do not know that that would be correct.
Senator Baker: There is the right to written reasons and the right to counsel, of course.
Mr. Hoover: I do not think there is a right to written reasons.
Senator Baker: A judge has to give written reasons for appellate review.
Mr. Hoover: I do not think that is so. They do not give written reasons in many cases. I do not mean to argue with you, but often judges do not provide written reasons. They can give an oral decision. They often do.
I agree it certainly makes it easier for everybody if the decision is in writing. In any event, all I can suggest is that the particular provision was written the way it was to be consistent with similar measures elsewhere in the code.
Senator Baker: But not in the military code. Thank you, madam chair.
[Translation]
Senator Boisvenu: The application of section 810 of the Criminal Code is not a permanent solution; it is a temporary solution. For a permanent problem, there has to be a permanent solution.
I am putting the question again to departmental official following the question asked by Senator Wallace. If I am a Canadian criminal and I commit a sex crime in France, when I return to Canada, I have an obligation to be entered in the registry. So the registry is retroactive for me as I have committed a crime outside Canada, but it will not be for a Canadian who has committed a crime in Canada. I think that is a contradiction. We really have to examine the possibility of entering dangerous criminals in the registry. There seems to be to be a contradiction in the response.
You now know that the municipal courts such as those of Montreal and Quebec City hear trials for sex crimes. Last year, we were surprised to learn that some convictions do not appear in the provincial docket. People are convicted of sexual assault in a municipal court and that does not appear in the provincial docket. There is a kind of barrier between the provincial court and the municipal court.
Will someone who is convicted of sexual assault in a municipal court be automatically entered in the National Sex Offender Registry?
[English]
Ms. Campbell: I do not have the exact answer. We will look into that specific question about the Quebec municipal court.
In terms of offenders in Canada being on the registry, I want to clarify that any offender under sentence on December 15, 2004 was obligated to be placed on the registry and was served with a notice. If the person was previously convicted of a sex offence in Canada in the year 2000 or 1987, and they had completed their sentence as of December 15, 2004, they were not subject to registration.
As Mr. Hoover said, that decision was made collaboratively with all the representatives of our partners. They felt that the practical challenges of going out to find those people were virtually insurmountable and certainly too costly to warrant spending the resources. The issue was canvassed, but it was a practical matter. The person could be in another country; the person could be dead. They did not even know how to start trying to find people that were no longer under sentence.
I am simply explaining the rationale at the time. Anyone under sentence on that date was captured.
[Translation]
Senator Boisvenu: My question is more specific than that. I am convicted in France for raping five women. I ask to serve my sentence in a Canadian prison. So I make the application. Canada accepts me. When I arrive in Canada, I will be required to register with the National Sex Offender Registry, will I not?
Ms. Campbell: Yes.
Senator Boisvenu: So the registry is retroactive with respect to me since I have committed a crime outside Canada, is it not?
Ms. Campbell: Yes.
Senator Boisvenu: However, if I commit the same crime in Canada, today, and the registry is adopted next year, I will not be entered in the registry. Do you think it is normal for it to be retroactive in one case and not in the other?
[English]
Ms. Campbell: I understand your point, and I understand the argument that the principle is contradictory. At a practical level, if one were to say that everyone in Canada who has ever been convicted of a sex offence is put under an obligation to register or to report that conviction, there would be practical difficulties. That is where the line has been drawn. I understand your point, but I cannot say much more about that. That was the decision.
[Translation]
Senator Boisvenu: One final —
The Chair: No, I think we have received the answers that we can get to these questions. Everyone has understood your point.
Senator Chaput: I would like to go back to the registry. A person commits a crime, and his or her name is automatically entered in the registry. If I correctly understood, you mentioned that, when a person serves his sentence, let us say 10 years, his name is then removed from the registry. Why are the names removed from the registry? Why would there not be two parts to that registry? The second part could contain the information on those who have committed a crime, the nature of the crime and the sentence served.
We know perfectly well that some criminals reoffend. If their names are removed from the registry and those criminals commit the same crime a second time, that has to be started over from scratch. Would it not be more practical to keep those names in a data base?
[English]
Mr. Hoover: I have been somewhat incorrect. My apologies. After 10 years, the information is not removed from the registry. The obligation to comply with the registry ceases.
Senator Chaput: What do you mean by the obligation to comply?
Mr. Hoover: You have to register annually if you get an order under the Sex Offender Information Registration Act. You have to report a change in address or if you travel internationally. All of those obligations cease after 10 years.
Senator Chaput: The name stay in the registry, but the person is not obliged to give a change of address.
Mr. Hoover: That is correct.
The Chair: However, the name stays on the list forever.
Senator Chaput: The name stays forever.
The Chair: That was my earlier question, and that was not the answer you gave me.
Mr. Hoover: My apologies. The information stays on the registry and it is only the obligation changes.
The Chair: The DNA remains up to date.
Mr. Hoover: Yes, I suppose it does.
The Chair: It is not deleted. The RCMP will not, in fact, delete it from the registry ever?
Mr. Hoover: That is correct.
Ms. Campbell: Nor will the fact of the person's conviction and the sentence received for the offence be deleted from CPIC. Once their obligation to report is terminated, the information is still on file in the registry. In a sense, it is not much more than what is available on CPIC at that point, which also does not include an up-to-date address.
The Chair: I want to be very clear that my understanding of how this bill would work is accurate.
You go onto the list. For the sake of argument, you are in the 10-year category. Incidentally, does that start from the time of release or from the time of conviction?
Mr. Hoover: It is the time of sentence, to be specific.
The Chair: Okay. You are sentenced. Ten years later — presuming you have been out in the community for a while — you are no longer required to comply with the reporting obligations? Your personal obligations are done.
Mr. Hoover: Correct.
The Chair: However, you stay on the sex offender registry list forever?
Mr. Hoover: Correct.
The Chair: If I am a prospective employer and I want to look you up, you will still be there.
Ms. Campbell: As a prospective employer, you will not ever have access to the sex offender registry.
The Chair: Will I not if I am operating a daycare centre?
Ms. Campbell: No, that is CPIC.
As an employer, you can ask a perspective employee to provide a criminal records check. That goes to CPIC, the Canadian Police Information Centre, and that endures forever.
The Chair: I stand corrected.
Ms. Campbell: As the minister noted — unlike the United States — the sex offender registry is very limited in terms of who can access it. It is primarily police officers that can access it.
The Chair: Regarding the registry, if I have been convicted of anything at all under this list, am I on it forever?
Mr. Hoover: There are only two possible ways your information will come off the registry.
The Chair: Termination or exemption order?
Mr. Hoover: No, they do not come off that way either. If you are acquitted or if you get a Royal Prerogative pardon under section 748 of the Criminal Code, the information is expunged.
I cannot speak for CPIC.
The Chair: You will let us know if there are any further refinements.
Before I move on, I should note that we have been asking you to provide us with a large amount of material. I stress that we would like to receive it as soon as possible, please. You can understand that when we are studying a bill, we need the information while we are studying the bill. It is not of much use later.
Senator Wallace: Mr. Hoover has answered my question. It was related to the recent alarm over pardons, when they arise and the fact that a pardon can be granted and the public is not aware. My question was whether a name could or would be removed from the registry if the person were later granted a pardon. I think your answer to that was yes. A pardon would remove the person's name.
Mr. Hoover: It is only a Royal Prerogative pardon, which is extremely rare. They are different from the Criminal Records Act pardon.
Senator Wallace: A pardon would not remove the person's name from the registry.
Mr. Hoover: Not the Criminal Records Act pardon.
The Royal Prerogative of Mercy under section 748 offers both conditional pardons and absolute pardons. I do not think a conditional pardon would remove the name, but it may be a matter for the courts to determine ultimately. You would have to look at the conditions of the conditional pardon, but they are exceedingly rare. I know of no instance in recent history where an RPM was granted by the Governor General.
Senator Wallace: Thank you for clarifying that for me.
[Translation]
Senator Carignan: I think your answer raises a question.
Could I, as an employer, receive authorization from a person entered in the registry to check to see whether that person appears in the sex offender registry?
I understand your answer concerning criminal records, but consider the example I referred to earlier: we are talking about a person guilty of break and enter who has a criminal record for break and enter; but that person is entered in the sex offender registry because the prosecutor proved beyond a reasonable doubt that that person had intended to commit rape.
That person can go and work at a child care centre with a criminal record for break and enter, but it is impossible for me to access the information that that person was a sex offender and intended to rape a child when he committed the break and enter. Do I correctly understand this?
[English]
Ms. Campbell: Is the question whether the fact that information about them is in the registry can be revealed to someone else, if the person consents? The answer is no. The ability of police to access and use the information is delineated in the code and the Sex Offender Information Registration Act. They have no authority to disclose information, and there is a penalty provision if they do. Consent or no consent of the person is irrelevant, if that is your question.
If the person is consenting to the release of their criminal record through a CPIC records check —
[Translation]
Senator Carignan: The criminal record is not a problem for me; it is more the matter of consent. I find it curious that an individual who applies for a job cannot give permission to someone to confirm whether or not he is entered in the sex offender registry. That may cause another problem.
Senator Boisvenu: That is not the question. The question is whether —
[English]
Mr. Hoover: If an employer wants to know the criminal record —
[Translation]
Senator Carignan: The criminal record, that is it.
The Chair: We are talking about the employee.
[English]
Ms. Campbell: I understand, but if they have the information about the criminal record, whether or not the person is on the registry, I can see in some situations that might be relevant. They may wish to know if this potential employee will to be able to travel freely. I do not know if that is the issue. I guess that is a decision that the person, the ex- offender, would have to make. If they are applying for a job that requires a great deal of travel on short notice, for example, and they are on the registry, they may wish to rethink applying for that job.
In any event, the bottom line is simply that the act does not permit police to share that.
[Translation]
Senator Carignan: It is clear that when I, as an employer, decide not to hire someone because of a criminal record, the criminal offence must be related in order to justify my refusal to hire the person. If it is a break and enter at a child care centre, technically, I do not see how one could refuse to hire someone because he has a criminal record of break and enter.
However, if I learn that he is entered in the sex offender registry because he has committed a break and enter with intent to rape a child, that is different.
[English]
The Chair: We are well into overtime, senators and I even had a little question myself.
Senator Baker: Madam Chair, I think the witness is not understanding that the senator is referring to the fact that, if you are convicted of a break and enter, you are actually convicted of a break and enter with the intent to commit an indictable offence. On the record, it shows break and enter, not break and enter with intent to commit an indictable offence. You would not see the intent of the indictable offence, which could be in the nature of what he is talking about. That is why he addressed the questions to you, and that is why I suppose you misunderstood and said this is not break and enter. He referred to break and enter with intent to commit an indictable offence.
[Translation]
The Chair: Does that indeed reflect your thinking?
Senator Carignan: He read my thoughts. If it was not clear enough, he read it on my forehead. That is quite clear.
[English]
Ms. Campbell: I do understand the problem. There is, in fact, a very well known sexual predator incarcerated in Canada who I understand began his career as a break and enter person. Of course, this behaviour was not viewed with the alarm it should have been viewed with at the time because there was not an understanding of why the break and enters were occurring. That is a little anecdote.
I would also comment that as potential employers, whether of paid employees or volunteers, the Department of Public Safety is very active working with Volunteer Canada, helping organizations to screen effectively. A records check is one step in good screening, but it is not the whole story, however. The kind of complication you are raising is one of the reasons why we do stress that you need to do much more than simply do a records check, because it may not tell you the entire story that you need to know.
The Chair: I have a question and a quick commentary.
You may wish to respond to the question in writing. How much will it cost to strengthen the sex offender registry as this bill provides, and is there any prospect of that cost being shared with the provinces or will it all be federal? Do you have an answer now, or do you want to come back?
Mr. Hoover: Are you looking at me?
The Chair: I will look for a written response.
Ms. Campbell: I think we could provide you with a comment in writing. It is a shared endeavour.
The Chair: Do you think the RCMP will be able to answer that? If so, we can put the question to them when they appear next week.
Ms. Campbell: They may wish to speak to their own resourcing issues.
The Chair: If you have material to add, I would be grateful to receive it.
Mr. Hoover: It is clear that the difference between an automatic inclusion as opposed to a Crown application will save the courts and the Crown and defence counsel some effort. Only the provinces would be able to translate that into a dollar cost.
The Chair: Now I have a comment, which I would ask you to take back to drafters.
I am building up a real head of steam about the growing practice of the use of the rules of English grammar in legislation drafting, as in, for example: ``The court shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty. . .'' I am sure this is designed to avoid what is sometimes construed as sexist language. There are other ways to do that and other ways found in the drafting of this bill. Use ``he or she,'' or refer again to ``the person.'' This particular bill is littered with examples of the singular followed by a plural pronoun, and it is not what one expects. One expects precision in the drafting of legislation, and surely that will also extend to precision in observance of the rules of grammar. You do not have to comment, but you could take it back.
Mr. Hoover: I will enjoy raising this with the drafters next time I see them.
The Chair: You have stayed a long time. We are grateful.
Colleagues, we meet again in this room tomorrow morning at 10:30, and our witnesses will be the Privacy Commissioner, followed by the Federal Ombudsman for the Victims of Crime.
(The committee adjourned.)