Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence - April 28, 2010
OTTAWA, Wednesday, April 28, 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: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
We continue our study of Bill S-2, An Act to amend the Criminal Code and other acts — a very interesting study. Before I ask our witnesses to give their presentations, I would like to remind all senators, and this is at the asking of several members of the committee, that, like every Wednesday, our time tonight is limited because there are other committees that meet after the official hour allowed to our committee. We should therefore take that into account, limit as much as we can the presentation of our questions and ask questions that are as concise as we can.
[English]
We will hear from two panels of witnesses today, followed by a brief, five-minute in camera meeting.
We are delighted to have witnesses from the Canadian Council of Criminal Defence Lawyers, Treasurer André Rady; and from the Criminal Lawyers' Association, Lawyer Howard Krongold. Mr. Rady, please proceed.
André Rady, Treasurer, Canadian Council of Criminal Defence Lawyers: Thank you for inviting the Canadian Council of Criminal Defence Lawyers to attend today to answer your questions and to make some representations on our behalf concerning Bill S-2.
For those who are not aware, we are a council of defence lawyers from across Canada with representatives in each province and territory. Most of us represent larger organizations of criminal defence lawyers. For example, the Criminal Lawyers' Association would also have a representative here, but I am not that person today. We try to look at things from a national perspective when we appear before this committee and committees in the other place.
I will be brief in what I have to say. We have reviewed the legislation and have some concerns about it. Our major concern is the taking away of judicial discretion when it comes to placing people on the registry. That is our first concern. Our second concern flows into that and has to do with the nature of the offences that will require automatic inclusion under the registry. We would see the most problematic being that of sexual assault, because sexual assault can be of so many varying degrees, and it might be unfortunate that someone perhaps ought not to be on the registry but will be there automatically under the new legislation.
Perhaps we look at the legislation in a different way. Even though it is called a sexual offender registry, it would seem that the spirit of the registry is to have some control or contact with sexual predators — those individuals in society who might be recidivists or those who might commit a sexual offence again. Generally speaking, we are looking at offences against children and those who are vulnerable. It is our submission that the proposed registry will not really do that. It will not have sufficient focus. It will be too broad and catch too many people.
We are aware that in the province of Ontario we have Christopher's Law, which this bill mirrors closely. I am not aware of any other provinces that have legislation similar to Christopher's Law. There are none. It might be significant that the other provinces have not sought to mirror that legislation in their provincial laws.
Obviously, it is my concern, not only as a lawyer but as a taxpayer, that if the legislation is implemented in this way and mirrors so closely Christopher's Law, that taxpayers of Ontario, for example, will have to pay twice to have two registries? I do not know of any coinciding discussions between the province of Ontario and the federal government in terms of what would ensue should this bill pass and whether Ontario would keep its existing legislation. It would be cause for concern to have federal legislation that mirrors so closely a provincial legislation.
Those are some of our concerns. Perhaps I could develop that more during questions. Generally speaking, our highlight is what this bill is trying to accomplish. Does it simply sound good to the people and make them feel protected in some way? Will it be of assistance to the police? I question how much more it would assist than what is in place now.
There is also the issue of the stigma attached to being placed on the registry, which may differ for varying offenders. If I may say as my final remark, it is my submission that it might be preferable if the legislation were such that it did not encompass all offenders but rather the most serious offenders sentenced to a certain period of time in jail. Those are the ones we want to look after. That is one of the reasons that I have concern about the elimination of judicial discretion. Judges are in a position to know who the bad ones are because they appear before them in court. Already, there is a reverse onus on the offender to keep off the registry, but a check can be done in that regard. I am concerned that diluting it too much might put so many people on the registry that police might have twice the usual suspects to round up. Those are my submissions.
Howard Krongold, Lawyer, Criminal Lawyers' Association: As most of you know, the Criminal Lawyers' Association is one of the largest specialty legal organizations in Canada, with more than 1,000 members, mostly of whom are in Ontario. The Criminal Lawyers' Association is involved intimately with criminal justice issues and civil liberties issues, in particular in the courts. I extend my thanks and note again how grateful we are to share our views on this new legislation.
I say on behalf of the CLA that we want to bracket some of the concerns expressed before this committee about the efficacy of the registry. Although it is not our area of expertise, it is worth saying that we know that this registry impinges on Canadians' freedoms. As always, we want to ensure that there is good reason to do so.
I will confine myself to three areas. In comparison to the Ontario legislation, the Criminal Lawyers' Association has been reasonably supportive of the structure of the federal registry to date, in particular because it recognizes the importance of having some judicial discretion in making a person subject to the registry and because it provides for termination of orders, which is something that will be continued under this bill.
First, as Mr. Rady mentioned, we are concerned about the unavailability of an exemption under this bill. Having read the previous testimony before this committee, I gather that the concern expressed is that many offenders are escaping the net of the registry even when they are eligible. That might explain why this bill makes the imposition of a registry order automatic as opposed to on application of the prosecutor. However, I am not sure that the removal of the exemption is necessary to address the identified problem that some offenders are escaping the net of the registry when they should not escape it.
There are examples of relatively minor offences that are nevertheless sexual in nature and, therefore, criminal offences. Two such examples came to my mind: First, one might be concerned about putting someone on a registry for a long period of time for sexting in the media. For example, if a 17-year-old girl takes a sexual picture on her cellphone and emails it to her 18-year-old boyfriend, he is guilty of possession of child pornography. If he takes the picture of her, he is guilty of creation of child pornography. If he emails the picture to her or sends it to her cellphone, he is guilty of transmission of child pornography. Nevertheless, many people would think that that individual is not necessarily someone who needs to find himself on a sex offender registry for many years.
There are some cases of relatively minor sexual assaults. We talk about hypotheticals but these things actually happen in the courts. Imagine a situation of a woman who is angry with her boyfriend for cheating on her and grabs him by the crotch to show her displeasure. That is sexual assault. Someone who gets drunk and pats someone on the behind is also guilty of sexual assault. There are relatively rare cases where it will be grossly disproportionate to put someone on the registry who is convicted of one of these offences.
It is difficult to understand why Parliament would want to impose the registry on someone when, by definition, it is grossly disproportionate to do so. We had an exemption in the previous legislation that, I would say, was not being abused and was rarely applied. It is appropriate to recognize that there is a whole range of offences that can fall under the provisions making one eligible for the registry.
My second concern is with amendment 490.013, subsection 2.1. The provision would seem to say that if a person is convicted of more than one offence, or two counts, as I understand it, the person is put on the registry for life. That is my interpretation of the bill. The concern is that, in many cases, being convicted of more than one count does not necessarily correspond with the seriousness of the offence. The number of counts on an indictment, for example, is often arbitrary. A complainant who describes being sexually assaulted ten times during 2009 can result in a person being charged with one count of sexual assault covering January 1 to December 31, 2009; or ten separate counts depending on a variety of factors. The charge can go either way.
We also see situations where a person can be found with 10,000 images of child pornography on their computer could get charged with one count of possession of child pornography. Another person may have one image on their home computer and one image on a work computer. That person may find themselves subject to two charges. The examples continue. Charges of sexual assault and sexual interference usually go together.
Our concern is that by arbitrarily saying a conviction for two counts requires putting the person on the registry for life has a disproportionate effect. I do not think that is what is intended in the bill. Imagine a situation where a person is charged with two counts and the Crown elects to proceed summarily because it is a less serious offence. If the person is convicted on one count, they are on the registry for ten years. If they are convicted on both counts, they are on the registry for life. In contrast, a person charged with one count of a serious sexual assault and the Crown proceeds indictably will be on the registry for twenty years.
I do not think that is the intent of this bill, but that is its effect. I ask the committee to consider that matter.
My final point is regarding the provision on the release of information to prevent offences in section 44(1) of Bill S-2, which amends section 16(2)(a) of the Sex Offender Information Registration Act on the implementation of the registry. The concern is that the exemption now applies for the purpose of preventing the commission of a crime of a sexual nature. There does not have to be any specific suspicion that a crime is about to be committed. It seems to apply whenever the purpose is prevention, no matter how attenuated that may be from any imminent concern about an offence.
As I understand the purpose of the amendment, the examples provided to this committee were situations where some suspicious individual is seen lurking around a playground taking pictures of children. You want to run the person's licence plate to find out if he is on the sex offender registry. That might be a legitimate thing to do in the circumstances. The problem, in my view, is that the legislation permits access to the registry any time it is for the purpose of preventing a crime of a sexual nature. The concern is that it seems also to permit an officer — as long as they access the registry for a bona fide purpose — to run randomly the names of individuals they come across simply to determine if they happen to be on the registry or randomly to run licence plates of people who drive by their squad car. As long as the registry is accessed for the purpose of preventing a sexual offence, there seems to be no limitation that commission of an offence is likely, imminent or even suspected.
Again, I do not think the intention of the bill is to provide that carte blanche power whenever an officer accesses the registry for this purpose. The intention is to limit access to situations where there is concern something will happen imminently and police want to prevent it. I ask the committee to consider the language used.
Senator Wallace: Thank you for your presentations.
With this topic and nearly every topic that seems to come before our committee, it is a matter of trying to find the balance in protecting the rights of citizens and against privacy rights of the accused and convicted.
We heard from Minister Toews that extensive consultations were undertaken with law enforcement officials and departments of attorneys general in each province and territory prior to the preparation of this bill. From what this committee has heard from an impressive list of government and law enforcement officials, there seems to be a strong consensus that this bill will move the sex offender registry in the right direction and closer to the Ontario registry. That is needed to provide a more effective investigative tool when crimes of a sexual nature occur and to provide better protection to the public.
I understand you have particular concerns, but how are we to balance the concerns and issues raised and the consensus reached by government and law enforcement officials against what you say?
Mr. Rady: Hopefully, one listens to all parties when one comes to the Senate and the House of Commons. Law enforcement officials are very much in favour of another registry — the gun registry. However, there is a movement afoot to get rid of the gun registry. All groups must be listened to.
The input we can give is how defence lawyers perceive this bill. We are also citizens in the community with families. The protection issue is also very important to us.
We look at this bill from the point of view of what police can legally do currently and what will the bill will allow them to do further. The example given was that, if police see someone suspicious hanging around a schoolyard observing children, even currently, without a registry, police can take down the licence plate number, check the plate and get back a name, run that name through CPIC and CPIC will tell police whether that person has a criminal record.
If police meet someone on the street currently, with or without the registry, and the officer asks who they are, that person does not have to answer them. There is nothing in this legislation that forces anyone to make any statement to the police.
The question we have is: How does this become proactive? Police are obviously in a better position to know what they will do, but how will they deter an offence? I submit that this legislation will have no deterrent effect on someone committing a crime of a sexual nature. The punishment aspect in the Criminal Code will do that, not being placed on a registry per se.
What extra power does this bill give police other than, perhaps, to make it easier to know who the suspects are in some circumstances? The concern is that if we have such a broad base of people on the registry because we include lesser matters, we might have 1,000 people rather than a registry in which we have, for example, the one hundred most deviant recidivists in society.
I am not a police officer, but I am not certain how that will make the job of police easier. I do not see anything in this bill to give police more information, such as to look into what offence a person on the registry committed and how they committed it.
Currently, a judge has discretion and may say: "This person does not merit being put on the registry." In that sense, the convicted are shuffled to the side at the beginning because they probably will not be a sexual predator or deviant. If someone is on that narrower registry now, police are able to focus their investigation more. One concern is that in crimes of this nature, especially if a child has been abducted, police have to act quickly. The longer it takes to find the child, the graver are the consequences usually.
I defer to police to say this legislation will make their job easier. However, looking at the investigative powers police have now, I am not clear how this legislation will expand that power to make it easier. The legislation could proactively expand powers when a person moves into a neighbourhood. Does it stop police from going to neighbours and telling them that their new neighbour is on the sexual assault registry? I am not sure that is what we want from this legislation.
None of us want these crimes to be committed. We want to see the resources put in the right spot so they can be either prevented or will not do it again. The question is whether this bill satisfies that purpose?
The police think it is a tool, but I think police have the tools now.
Senator Wallace: I did not hear from law enforcement officials that it would make their job easier; I heard that it would make them more effective in terms of identifying crime. We can debate that, but that is what we heard from them.
Mr. Rady: The police are obviously doing their job, and I am not saying anything disparaging about them. It is only that I question whether having such a broad registry will make them more effective. If the legislation said that for crimes, even those on the list, a determination is made at the trial stage or at the guilty plea stage as to whether, based at the facts of the case, a person is a potential future predator or a one-time offender, how would that make the police more effective? That would help them focus on those possible future offenders. Otherwise, they will still have to check the background. With this proposed registry, if a person is convicted of sexual assault and is on the registry, it will have to be determined whether he is the kind of person who will abduct a little boy and do something horrible to him. I do not think this will give them that kind of information. However, if they are on the registry because their crime was serious, they will not have to bother going through the initial exercise to see whether this is someone they can discount.
Mr. Krongold: It is hard to conceive how the removal of an exemption that only applies in rare cases where it is so obvious that the person is not a risk of future harm will ever hamper the ability of the police to find the right guy when the time comes.
Senator Runciman: You talk about the scope of the legislation and your concern with respect to it, but I would suggest that your interventions have had some influence with respect to the government's decisions related to this legislation because the scope is dramatically different from the Ontario legislation. It is quite restrictive in the sense that it focuses only in the area related to the prevention and investigation of sexual crimes. The Ontario legislation is much broader.
We have heard a number of witnesses who deal with your clients, and they have indicated that these individuals are not upset about going on the register because it is not stigmatizing and it is not public information.
I see this entry on the registry as an administrative procedure, just like fingerprinting. It is only accessible to the police, so I do not see mandatory inclusion as an attack on the judiciary. You have already made your position clear on that.
Another issue that came to our attention was a study that indicated that 40 per cent of offenders have not been registered and that one of the primary reasons for that is that it is simply overlooked because prosecutors and judges are busy. I thought that was interesting, and you might want to comment.
In your experience has entry on the registry ever been an issue of negotiation in plea bargains?
Mr. Rady: In terms of not stigmatizing, that may currently be the case because we do have the discretion to not put people on the registry who ought not to be there because of the prejudicial effect it may have. With an all-inclusive mandatory registry, a businessman who grabs someone's behind inappropriately may be more stigmatized than some of the people who actually have a problem. It is a question of what this will do in terms of stigmatization.
I practice in London, Ontario and have practised all throughout Southwestern Ontario, and I have never seen a prosecutor who was too busy to try to get someone placed on the registry. That is always mandatory; it is just a given.
I have not seen any lazy prosecutors, and nearly all judges that I have appeared before ask the prosecutor whether they are seeking inclusion on the registry. They are very aware in this day and age of victims' rights and the concerns that people have in regard to the future. I have not experienced the case that you spoke of whatsoever. In fact, I believe it is just the opposite case. Judges will ask whether there is a victim impact statement. They go the extra step to ensure that that is done, as will the prosecutors that I have seen through a broad spectrum.
I just do not accept that they are too busy to ask for it.
Senator Runciman: You spoke about impingement on freedoms. Has there been a Charter challenge in that respect? The Ontario legislation has been in place for almost ten years now.
You talked about the scope of the legislation and the potential for abuse and said that it is giving the police carte blanche power. Since the majority of your membership is in Ontario, can you tell us whether there has been that kind of abuse in Ontario?
Mr. Krongold: I will start with the first question linking into the questions you asked earlier. With respect to how onerous the registry is and whether there is an impingement on freedom, the Ontario registry was indeed considered by the Ontario Court of Appeal in the case of R. v. Dyck. There was a recognition in that case by the court that there was an interference with the liberty of the subject, implicating section 7 of the Charter.
In terms of how onerous it is on a day-to-day basis, as Mr. Rady indicated, there was some interesting testimony before this committee by Dr. Fedoroff of the Royal Ottawa Hospital indicating that the individuals he works with do not find the registry that onerous. I think the context for that is worth considering. As I understand it, Dr. Fedoroff is working with pedophilic sex offenders, individuals who have been involved in very serious offences or have a very serious predilection and are quite rightly spending substantial parts of their lives, if not the rest of their lives, struggling to control their impulses. I wonder whether their feelings that it is not very onerous would apply to someone who is branded a sex offender for much less egregious conduct. I think it is context specific. If a person finds himself in a situation where they need to spend huge amounts of their lives getting treatment for sex offences, it is probably not that big a deal to sign up on a registry every once in a while. For someone for whom it is a truly out of character, almost bizarre situation, it may seem more onerous.
Senator Runciman: He was not the only witness who made that reference, though.
Mr. Krongold: In terms of the indication of carte blanche powers, I am not familiar with that occurring in Ontario.
Senator Runciman: With a much larger scope.
Mr. Krongold: I am not personally aware of that. If the intent is to limit the scope of this legislation to relatively specific areas of imminent risks and preventing imminent crimes, the legislation might well be appropriate if it said that. I am not making a specific recommendation about how it should read; I am just suggesting that it might be interpreted in a very broad way, and if the intent is not that it be so broad, it may well be worthwhile tinkering with the language to confine it a bit.
Senator Angus: Welcome, gentlemen. I understand that you are both criminal lawyers, and I am assuming that both are defence lawyers.
Mr. Krongold: That is correct.
Senator Angus: So it is a clientele with which you are familiar that are presently affected by this registry.
Is there anything good you see about this bill? I sense you are not in favour.
Mr. Rady: If I can answer that —
Senator Angus: It might be revealing.
Mr. Rady: Where do we spend our resources to really deal with the problem? Will this measure deal with the problem? Whimsically, I was thinking is the next thing a burglars' registry, a fraudulent actors' registry or a registry for some other kind of offender so we will know where they are? I am not sure that would assist much.
We want to deter this kind of crime. We want to try to solve it, to get at it so people will not do it. It also does not affect anyone who is under the radar, one who has not committed their first offence or may have but not been caught yet.
The government has limited resources to spend on crime prevention and to show these things. The question is how efficient is this proposal? What is the cost benefit of this particular legislation?
It might sound very good to put everyone on a registry. I think the general public want it on the registry because, first, we might know who they are — even though that is really not what our legislation is like; the American legislation is a little more like that — and second, it will attach a stigma to them.
Does that approach get the real predators the treatment they need? Does it really help to catch the real predators?
There are other ways. Would having more police officers or having more police officers around schools be more effective in stopping these sorts of things, or having more police officers on investigations? That might.
Senator Angus: I am hearing "no" so far.
Mr. Rady: You are hearing "no," but not from the point to say this legislation is bad and it will treat too many people unfairly. As I said in my opening remarks, it may be good if we can focus this group. I see all these people; I defend people from a very limited sexual assault to people who have committed sexual assault and murder in the course of that assault. Seeing these people after 28 years of practice, I know which ones you would want to be careful of and which ones you would not. A lot is determined by the gravity of the offence.
I am not certain that putting everyone in the same sort of bucket will achieve that purpose. That is why I made the remark to the effect that it be focused more on those predators. I would submit that it is not so much a sexual offender registry we need as a sexual predator registry, because that is who we are after.
A number of the sexual assault clients we see are university students, the date rape kind of situation. Perhaps some of those people have other underlying problems; perhaps some of them were just drinking too much one night and did not understand that "no" meant "no." Should they be on the registry; and how will that help, by putting them there, in terms of prevention or being proactive?
I am saying that if we want to be efficient, if we have limited resources, maybe there is a better way to do it. I am not a parliamentarian so I am not going to come up with that legislation, but maybe there is.
Senator Angus: I still hear a "no." We have a Sex Offender Information Registration Act already; and there is one you have referred to that seems to be functioning in Ontario. The purpose of this bill is to try to improve the effectiveness of the present law.
As someone mentioned, some 42 per cent of the offenders today that would be caught or should be caught by the present law are not in the register. I believe one of the goals with this legislation is to get at them.
We are told — and I think most of us agree, if not all — that there is obviously the big social problem. We all want to find a way to put an end to these kinds of offences, through whatever form of socio, psycho, et cetera process. This is just one element.
The government has declared that it is trying to find a way to give the police tools to investigate. We have been told that this measure is not meant to be a deterrent and punitive. It is more, as Senator Runciman suggested, administrative.
We have been told by the doctor mentioned that these offenders are not upset with having their name in the registry; in fact, they welcome it. We have to go by what we hear. It is not 100 per cent, obviously, but there does seem to be an element that is positive.
That is all I am really trying to get from you, gentlemen. I am not worried about those examples of the little offenders; with a lawyer like you, they will get off every time anyway.
Mr. Rady: I do not know about that. In terms of the stigma, for a group of the sexual offenders that I have represented — those who may have a university education or who may be university students, or those who may otherwise be your good middle-class kind of person — one of the issues is do I have to be on that registry? Everyone will know.
I think there is a sense of the stigma. Those are the people I deal with. I do not keep statistics. I deal with it anecdotally. For the people I see, there may be a stigma. For others, there may not be.
If someone has said there is no stigma, again, we have to ask who they are? If they are the real serious sexual offenders, they do not care about anything, frankly. However, if it is someone who went a little bit awry at the office Christmas party and a complaint was made and they end up on the sexual offender registry, which they probably would not be right now, I think they will have a problem.
In terms of people who want to register, that applies throughout the spectrum of criminal law; people who are placed on probation will not show up to see their probation officer. Some people do not care and do not know better, or will not abide by their conditions of bail. A lot of people out there will ignore their conditions.
Teeth in reporting might be more significant if it were in the legislation. In other words, if you have sign up, there must be some teeth if you do not.
Senator Baker: By the way, in R. v. Dick, to my recollection, the trial judge did find a section 7 violation, but that was overturned by the Superior Court and by the Court of Appeal of Ontario. That is just my recollection of the case.
As far as the ramifications of being on the registry are concerned, there was another Charter challenge when this bill originally was introduced in 2004. For one year from the time of the coming into force, the act applied to each person who was on sentence. The attorneys general of the provinces were given that one year to act to get those who were on sentence registered.
I think British Columbia was the only province that acted quickly to do that. However, those on sentence would be someone who is on sentence; in other words, they were under probation after being released or they had a condition beyond probation. Would you recommend that be one of the changes to this bill, that it apply to those people who are on sentence at the coming into force of the act?
Also, the House of Commons recommended that it not be automatic registry, but that the judge be given the power upon sentencing in, as the House of Commons put it, the rare cases where the grossly disproportionate test would not apply. This bill does not follow that recommendation of the House of Commons. What do you think of making the legislation retroactive to apply to those on sentence at the coming into force of the act? What do you think of changing the provision to allow the judge to have discretion upon sentencing to exclude certain persons if it is grossly disproportionate?
Mr. Krongold: I will address the first issue. Frankly, I did not come here prepared to deal with this kind of retroactive debate that is hotly contested and complicated. If we are talking about 53 per cent of people who could have been put on the registry and were not put on because no one made an application, that would be an onerous thing to do practically.
Mr. Rady: The issue in terms of "on sentence" is an interesting point. Under this bill, someone convicted could effectively receive a suspended sentence, probation and be placed on the registry. Someone could go to jail for one or five years and be placed on the registry. What is the difference? The difference is probably in the offence they committed.
I do not want to keep repeating my point, but it is this: Does the person who received the suspended sentence belong on the registry? Is that the kind of person we want on this registry? Is that the spirit of the bill? Is that what we are looking for with this bill? Let us make it a broad umbrella because it is easier to simply put everyone on the registry. It is not a bad thing. It is administrative. It might be bad for some but not for others. What do we want to do? Maybe we want to make some of the conditions and information more onerous so that we can get those persons who received only one or two years in a penitentiary but are the really bad offenders. We should not only ask them to give their licence plate numbers and the makes of their cars but also much more other information so that we know where they are and what they are doing.
Senator Baker: I forgot to congratulate both of you. You have made a great contribution to justice over the years, in particular Mr. Rady who has been around longer than Mr. Krongold.
When the first law came into effect in December 2004, there were challenges under section 11(i) of the Charter, whereby a person who is convicted of an offence will receive the lesser sentence if the law changes between that conviction and the sentencing. It was judged by all courts of appeal, that I recall, that being on the registry was not a punishment but merely an inconvenience.
Mr. Rady, you could have a case where someone was convicted and the judge pronounced a sentence of incarceration for a period of time. Then the probation and its conditions were dealt with. Following all of that, under a new heading of ancillary or corollary orders, the prohibitions were declared, the DNA registry was set up, and the sex offender registry was set up. Everywhere you look, being on the registry is dealt with as an ancillary matter by the court simply because of the adjudications previously made that it did not violate the Charter. Would you agree or disagree?
Mr. Rady: I would agree. Part of it is the interpretation. The punishment is in terms of the usual incarceration or fines, et cetera. The accused person is entitled to the punishment that was in effect at the time that the charge was laid. That is punishment.
We are getting into whether being placed on the sex offender registry is punishment. If it is not deemed a punishment but deemed administrative only, then it will not have that kind of effect. Per se in criminal terminology it is not punishment. It can be stigmatizing and an invasion of the person's privacy, mobility and many other things, but it is not criminal punishment, per se. That is how the courts have interpreted it. Even though it is not criminal punishment, per se, it can still have a serious effect on certain individuals who might be put on the registry. Assuming that some people are being stigmatized is not criminal punishment. This just adds to it. The question is: How does that help?
[Translation]
Senator Boisvenu: Mr. Rady, you said that the registry of sexual offenders should only deal with serious crimes. Could you define for me the word "serious"?
[English]
Mr. Rady: Some offences are obvious, for example those against children who are kidnapped, sexually assaulted and lured into child pornography on the Internet. A sexual assault involving a touching of one adult by another adult in an inappropriate way is criminal but a rape situation is a far more serious criminal act. One of the issues here is that sexual assault is so broad in its definition. We have had sexual assault with bodily harm, sexual assault and aggravated sexual assault. In days of yore, we had an actual offence of statutory rape, which was more easily defined. The problem lies in the fact that sexual assault is so broad. That has been debated or discussed either at this committee or in the chamber.
There might be a "line-drawing" exercise in terms of the penalty that the person faces.
[Translation]
Senator Boisvenu: According to you, would you say that a person that confines another person, without committing a sexual assault, has committed a serious crime?
[English]
Mr. Rady: Absolutely. Interestingly, the way in which kidnapping is enumerated today, there has to be a sexual aspect to it.
[Translation]
Senator Boisvenu: I want to be sure I understand correctly your answer. According to you, should the person who has confined another one without committing a sexual assault be in the registry?
[English]
Mr. Rady: I would submit that should be in the registry because a kidnapper is committing a far more serious offence than someone who commits a lower-end sexual assault. Kidnappers are the kinds of people that we have to be concerned about, especially when it involves children. We want to be aware of such people. My point does not take away the seriousness of the matter in terms of the degree of heinousness of the offence. A judge at a sentencing hearing has heard the facts and knows that this person is a very bad offender, and will choose to put them on the registry. That provides a check so that we put on the registry the ones we need to be aware of, if the choice is to have such a registry.
[Translation]
Senator Boisvenu: There is a theory which is fairly well received among those who treat sexual predators. In the criminal career of a sexual predator, who started his criminal activities at a very young age, we often see an increasing seriousness in the acts he commits over the years. There seems to be a pattern. If we have a sexual predators' registry, would it be a good thing to include acts which may seem now minors, knowing that the offender will later commit more serious criminal acts?
[English]
Mr. Rady: I am not certain there are any studies or statistics that say sexual predators start out doing minor sexual assaults and progress to worse offences. Many first offenders I have seen do very bad things from the beginning.
However, there are other ways, outside the scope of this legislation. Signs can be there for teachers in schools even as young children grow older. It would be helpful if we can catch those signs to treat people before they get to the stage of doing something criminal.
I am not certain we can say there is a progression in sexual offences. We used to say people start with marijuana, go to cocaine and then get addicted to heroin. That was one of the old arguments, but I am not sure we can say that in regard to sexual offences.
Senator Joyal: On page 2 of your brief you state that the courts have addressed grossly disproportionate standards, that exemptions are rarely granted.
From your experience, can the low figure of 42 per cent of offenders who find themselves on the registry not be explained by the judicial discretion not to put the name of the person found guilty on the registry?
Mr. Krongold: That is not a statistic with which I was familiar before I read the testimony before this committee. It came as a surprise to me.
In my experience, the direction in Ontario that seems to have been given to prosecutors is always to seek inclusion on the registry. In virtually every case, if not every case, prosecutors I have seen seek inclusion on the registry. I do not know if that statistic applies in Ontario.
In terms of exemptions from the registry, case law from the appellate court in Ontario and elsewhere in the country says that the grossly disproportionate standard is very difficult for an offender to meet.
Assuming the statistic is correct, I can only imagine it is because prosecutors elsewhere do not seek inclusion in the registry. Given the case law from the appellate courts, I cannot imagine that people are routinely given dispensation from the registry because of the grossly disproportionate effect that inclusion would have on them.
This bill addresses that by requiring automatic inclusion. If provincial attorneys general are concerned with prosecutors not making the application for inclusion on the registry, they should order their prosecutors to make the application. It seems that is what happened in Ontario, and it has been effective. The application is almost invariably made.
I find it hard to believe that the exemption is the reason for almost half of offenders not being included in the registry.
Senator Joyal: In your experience, the discretion given to judges within the context of the present legislation is not something that has been — I will use an extreme expression — abused by the court?
Mr. Krongold: It is quite the contrary. If you assume that the law is applied as the appellate courts say it should — I think that is a safe assumption — the exemption is not abused. In fact, it is rarely applied. I wish I had a statistic on it. That is not my area of expertise. Anecdotally, I have rarely, if ever, seen exemptions.
Senator Joyal: You refer in your example on page two to someone who wrongly pats someone on the behind and is charged with committing a sexual assault.
On page 3 of the brief we received from the Privacy Commissioner, she says: "Whether the intrusions to privacy are proportional to the benefits to be derived from the law enforcement and public safety perspective. . . ."
Suppose I am your client, and I am accused of that kind of conduct. How would you react if I asked you to challenge inclusion on the registry on the basis of the Charter of Rights and Freedoms as being grossly disproportionate with the intrusion into my private life?
Mr. Krongold: It is a difficult question. I suppose a person would not have the need to make a challenge under federal legislation. I do not know if a constitutional exemption has been sought, for example, under Ontario legislation because it was grossly disproportionate in a specific case.
I do not know the answer to the question.
Mr. Rady: I am sure some defence lawyer will make that argument, because that is what we do.
Again, I go back to the other issue. This bill does not deal with traditional forms of punishment per se and the kinds of sentences we have under the Criminal Code. Something else is occurring here, for example, like giving a DNA sample. It is something separate.
I am not overly confident that a Charter challenge would be successful. It is there to be made because of the disproportionality, but higher courts may find themselves in a situation in which they are not dealing with a disproportionate sentence under the Criminal Code. They are dealing with something more on the administrative side.
For example, Ontario passed Christopher's Law getting into realms of the federal government and the provincial government. Criminal law and punishment is under the realm of the federal government. Property and civil rights are under the realm of the provincial government. Christopher's Law was passed by the province, arguably, to have some effect on criminals. The province obviously could not legislate punishment for federal offenders because that is not within the realm of the provincial government. However, Christopher's Law has been upheld.
Perhaps one could argue that the province has legitimately acted on its own because it is not really within the realm of criminal law, although the offence may still be in the Criminal Code. Therefore, it is not subject to the kind of challenge you suggested.
Senator Joyal: Perhaps, but sexual assault within that legislation obliges the offender to provide a DNA sample. A DNA sample has been recognized by the court as an invasion of privacy. It could be challenged, perhaps not under the punishment section of the Charter, but under privacy protection of the individual.
Mr. Rady: It could be potentially. A DNA sample is a one-off occurrence, the same as fingerprints, which have been recognized for a long period of time.
There is still the debate whether or not inclusion of the registry is stigmatizing. The issue is whether there is the continuing invasion of privacy where you have to tell people where you are, your make of car and where you are going if you leave for more than 7 days now, as opposed to 15 days.
This is different than providing one DNA sample and having it in the bank in the same way that fingerprints are held for years, or if a person is in the military, their fingerprints are always on record.
Senator Joyal: When the minister appeared, we asked about the removal of the grossly disproportionate option from this bill that hitherto had been left to the court. He told us that there is the possibility after five or ten years to have your obligations removed. We learned from other witnesses that although the obligation ceases your name stays on the registry. It is impossible to have your name removed from the registry.
A permanent element in relation to privacy of the individual remains, by which, in my opinion, some minor cases like those you mentioned would be totally disproportionate to the right of individual freedom.
Mr. Rady: I agree with you completely on that.
Senator Joyal: In that context, do you think the answer given by the minister would stand the test of the court?
Mr. Rady: The challenge is there to be made perhaps. How the courts will determine that remains to be seen depending on the make-up of the court and the specific circumstances of the offence put to it. It is there to be challenged, but I do not know whether it will be challenged successfully. Maybe I am hedging my remarks on this because it seems that in all of our courts, from the Supreme Court of Canada right down to the provincial courts, there has been a swing toward a law and order mentality by the judges. There has been a swing to the right, toward being tougher on crime, despite what might be suggested.
When one is making a court challenge, one needs to know the court they are before. Right now, given the way decisions are coming down on general criminal matters, it may be a tough one to be successful with at an appellate level, from the defence point of view.
Senator Lang: I am pleased to hear that there is a movement to a stronger law and order mentality. I think there is a public that is looking for that. At the same time, they are looking for fairness and they want the law to work for the victim as well as for the defendant.
I have a question about the optional character of the registry now. To correct the record for Senator Joyal, I believe that 42 per cent are not currently registered because you have to apply to the court to go on to the registry.
Last week we heard that because being on the registry is optional, in some cases it may be used for the purpose of plea bargaining. The Crown can say that if an accused pleads guilty they will not have to go on the registry.
Have you encountered that?
Mr. Rady: In Ontario, we have Christopher's Law, so you can be placed on one or both. You are guaranteed to be on one in Ontario. I am not saying that is right, because I think it still has the same problems as we are discussing here, but being placed on the federal registry is usually not the plea bargaining tool.
The usual plea bargaining tools are the sentence, the probation order or the jail time, or whether it will be pleaded down to a simple assault as opposed to a sexual assault. It is geared more to the punishment. I suggest that this is not a big factor. It may be a bigger factor in other provinces where they do not have Christopher's Law.
From my colleagues across the country I know that the primary focus is usually on jail term, probation term and parole period rather than the registry.
The registry would catch people who should not be there, and if we continue to have discretion, I do not believe it will be a subject of plea bargaining.
Senator Lang: To pursue the discretion further, we have had discretion and 42 per cent of those who have committed these types of crimes are not on the registry. Discretion has not worked.
Mr. Rady: Perhaps judges, in their wisdom, have decided that certain people do not belong on the registry because theirs was a low-level sexual offence. We should find out how many of the people who have been sentenced to jail for a year or more for sexual crimes have been placed on the registry. I do not think you have that statistic, and that would be a helpful one.
We are talking about the broad spectrum of sexual assault and not just the serious matters. What percentage of those who committed a serious sexual offence are on the registry?
Senator Lang: I will not debate that, but this committee has also been told that, because it is a separate application, the Crown prosecutor and the courts are too busy to go through the process.
Mr. Rady: I will tell you how it works. At the end of the case, the Crown asks to have the offender placed on the registry. The judge usually asks whether the defence has any submissions on that. The defence can say that the offence is not serious enough to warrant it and that there might be stigma, and the judge makes a decision right then and there.
Cases in which someone has to provide further evidence are rare. It is the same as when there is a request for a discretionary DNA sample where it is not a primary or secondary offence. Those submissions last five minutes at most at the end of the case. There are not day-long or hour-long hearings about the registry. I do not know where that information is coming from, but that has not been my experience in the courts in Ontario, and I do not think that is the experience elsewhere either.
The Chair: There was a news report today about a case here in Ottawa in which a man was charged with sexual assault, pleaded guilty and was given a conditional discharge and nine months of probation. The offence, which was under the law of sexual assault, was touching a female police officer's buttocks. In addition to getting sentenced to probation for nine months, he promised to write the officer a letter of apology and continue going to alcoholic anonymous. That would fit the pattern you were talking about earlier of someone who has a few more drinks than he or she should.
The news report I have does not say that the judge ordered this person's name to be put on the sex offender registry. I suspect, from the few facts available to us, that discretion was used there. I believe that is the kind of case you are talking about, Mr. Rady.
Mr. Rady: Under the deeming provisions of the Criminal Code, when you receive a conditional discharge you are deemed not to be convicted, and you have to be convicted to go on the registry. If you receive a suspended sentence and probation, a conviction is registered.
Senator Carstairs: Mr. Rady, in some instances you grabbed my attention, and then you completely lost it. You and Mr. Krongold used the example of what I would think was a very minor sexual assault and said those people should not be on the registry. Then you used date rape as an example of an offence for which someone should not be on the registry.
I would like to know why you think that someone who rapes someone on a date should not be on the sexual offender registry.
Mr. Rady: I apologize if I used the words "date rape." It sometimes happens that sexual intercourse occurs because the accused has misinterpreted the other person's wishes. In that circumstance, going through the court system and receiving the punishment that they will is probably sufficient. Some of these people may be predators and some may not be, but in such incidents the judge could easily determine that.
I agree that date rape is a very serious offence. I am not trying to minimize that, and I apologize if that came across. However, the kinds of persons who do that are not often true predators.
Senator Carstairs: That is obviously your opinion, but I suggest that some individuals who have done this once have done it more than once, and that makes them predators.
Mr. Rady: If that is the opinion of the judge, he or she can still place the offender on the registry as a predator based on the facts just heard and the evidence at the sentencing hearing.
Senator Carstairs: My final issue is that we can talk about all of these sexual assaults all we want, but we know in reality that probably only 10 per cent of them are ever reported. Therefore, we have 90 per cent of people out there who have committed these crimes who are not on any registry because the people who have this action perpetrated against them do not wish to come forward.
In your knowledge, do you know of any programs in place in your provinces that would lead toward more reporting of these types of offences?
Mr. Rady: No, I do not know that there is more reporting. We have had a lot of advertising; you see it on university campus — "no" means "no." Again, we are getting into the date rape situation that people should report. There is probably more reporting than there was.
There is certainly more reporting on instances — and I can tell you in my own practice — where spouses have reported sexual assaults on their spouses, which probably was something that would have been unheard of 50 years ago. I believe there is more reporting. There probably still has to be more.
How that message gets out, I am not certain. Obviously, this is within the legislation that we are talking about here, but it goes back to the initial point that I made as well. There are a lot of predators out there who, for some reason, are able to operate under the radar, and how we capture them and can be proactive against them remains to be seen. I am not a professional in that field.
The Chair: Mr. Rady, Mr. Krongold, thank you very much for your very interesting and helpful presentations. We are grateful to you for being with us.
While we wait for our next witnesses to join us, I should tell you, colleagues, that we have received a submission from the Barreau du Québec. They will not be appearing before us, but they have sent a submission. It is in the rather unusual form of a letter to Senator LeBreton, but they have confirmed that is their submission to us. We are having it translated and it will be distributed to you momentarily. When you see it, as a letter to Senator LeBreton, please understand that it is in fact a submission to this committee.
We are pleased to welcome Mr. Glenn Woods, who is appearing before us as an individual but he is not just any individual. He is a retired RCMP officer who, as I understand it, ran the National Sex Offender Registry and helped to create it. His views are obviously of more than passing interest to us.
I think you have a statement.
Glenn Woods, as an individual: Yes, I do. Like the other speakers, I would like to thank you for the opportunity. I will try to be as brief as I can.
The Chair: You see me cracking the whip.
Mr. Woods: I am married so I am used to that.
The Chair: We will not go there.
Mr. Woods: I will start by providing some background that would help put my role with respect to the registry into context. I retired from the RCMP in 2007, after 10 years as director of the behavioural sciences, where I was responsible for a number of national investigative support programs. These included the violent crime linkage analysis system designed for sexual predators; criminal profiling; geographic profiling; truth verification, which is polygraph statement analysis; threat risk assessment; and last but not least, the National Sex Offender Registry.
I am a board certified criminal profiler and have extensive experience in the investigation and analysis of sexually motivated crimes and the offenders that commit them. In my experience, there are no good predators. They are all bad. Some are worse than others.
Over the course of my career in the RCMP, I have been involved in over 2,500 cases of sexual assault, either as an investigator or a profiler. I became involved in the development of the National Sex Offender Registry in June, 2001. This was after the creation of the Ontario registry, and at a time when our minister of the day requested the RCMP to create a sex offender category on CPIC to track sex offences. In effect, it was meant to be a precursor to the registry.
On December 11, 2002, the Sex Offender Information Registration Act was tabled in the House of Commons; and we in the RCMP, in consultation with our law enforcement partners, immediately conducted an operational analysis of the bill. That was done across the country.
It was clear from the outset that significant amendments were required in order to operationalize the registry and make it into an effective preventive and investigational tool. Much of our time and energy over the next several months was spent trying to gain support for amendments we felt were absolutely necessary to the operational success of the registry.
Bill C-34 was eventually proclaimed in December 2004 with very few, if any, of the changes that had been recommended. Over two years following proclamation, I led the RCMP efforts to operationalize the National Sex Offender Registry and continued to push for the much needed amendments.
Let us fast-forward to today, April 2010. SWARA still does not reflect the operational and practical realities of establishing an effective database of this nature. I believe that the amendments in Bill S-2, which are essentially the same as those that we proposed in 2003, will address most of the concerns and challenges that have significantly diminished the utility of the registry.
The registry is one of those things where you have to go all the way or not at all. Half measures in a registry like this are a waste of money.
A great deal of thought and analysis went into identifying the issues these amendments addressed. They are not minor in nature and, in my view, are critical to the success of the national registry.
Bill S-2 does not address every single issue. It is not perfect; but in my mind, its passage will allow for significant improvements to the operational utility of the registry in terms of prevention, investigation and enforcement.
Since the proclamation in 2002 and 2004, the National Sex Offender Registry has not enjoyed a lot of credibility within the law enforcement community. My concern is that even with the positive changes, it will be difficult to build that confidence back, so time is of the essence. I think it needs a speedy passage, keeping in mind that there are some adjustments that have to be done. My understanding is they would be ready in early next year. There is no value to bringing this into force without the registry, because the tool has to be in place before it will be effective.
Senator Angus: Welcome, Mr. Woods. You were sitting in the hearing room when the previous witnesses testified. From your very succinct statement, I gather that you disagree with pretty much everything that they said.
Mr. Woods: I do. Their concerns are genuine but in many respects, they are misinformed about the registry. It is not unusual because from the outset, the act has been very complicated, which is part of the problem. Initially, it discouraged the available use because of the intricacies and the balance in favour of the offenders, to the point where police officers have been discouraged from using it for fear of misusing it and being reprimanded or worse. Many things were said. I would like to go back to a point raised by Senator Carstairs that has to do with date rape and some of the other lesser offences.
Senator Angus: So-called lesser offences.
Mr. Woods: My experience has been that many of these offenders start out committing lesser crimes.
Senator Angus: They get away with it.
Mr. Woods: Do not forget, this is not a normal crime such as a break and enter or a bank robbery. This is a crime that comes deep from within. These folks start fantasizing at puberty about committing these types of acts. I always draw the comparison between normal folks and predators when it comes to sexual thinking and sexual fantasies. All men start thinking about sexual things as young boys. I cannot speak for women. Our thinking is mainstream about touching, caressing, looking at breasts and all the other things that young men think about. These guys start that kind of thinking but it involves violence and coercion. Their fantasies over time are created in their minds. It is almost like running a little film in their heads. Like normal young men, they think about these for a long time before they start acting out. When they start acting out, they do not act out their total fantasy but they start picking away at it. That is a good way to explain how they often — not always because there are no absolutes when it comes to this kind of behaviour — start practising little tidbits until that fantasy grows to where they want it to be. I will disagree with anyone who says they do not escalate after starting at lesser offences.
We talked about the lesser offence of patting on a rear end. I know five examples of people who started with that and turned into serial killers. They do not all escalate to that level but assessments can be done to make that determination. I also do not buy into the argument that having a few drinks is a good defence against committing assault. Certainly, it is not. Alcohol simply acts as a dis-inhibitor. It allows someone to do things that you normally want to do but you do not have the guts to do.
Senator Angus: I have one other question that you can answer quickly.
I might not understand the previous testimony when I made the statement that these register requirements are not supposed to be punitive or a deterrent. I believe that I am right in that. You said that significant amendments would be required in order to operationalize the registry and make it into an effective preventive and investigational tool. Is it designed to be a deterrent to these crimes?
Mr. Woods: There is a variety of sex offenders. You cannot profile a sex offender just like you cannot profile a senator. All of you around this table have similar interests but you are not the same people. You have different intellectual levels, different recreational interests and so on. To try to profile one offender and throw that across all offenders is a ridiculous concept. Some offenders can be treated and some can be deterred. It comes down to the individual's drive to commit the offence.
The registry is not meant to be a deterrent, but it can be one to some offenders, in particular those who start out at a young age and are identified and monitored. That might bring on counselling and all the other things that can nip it in the bud.
Senator Angus: It is not meant to be a deterrent but it can be in some cases? That is not the main part.
Mr. Woods: There is a difference between deterrence and preventive measures. The amendments would allow it to be used as a preventive tool, which is one of the most important aspects of this legislation.
The Chair: As I recall, we heard earlier testimony from police representatives who said that in their view its use would be first for investigation, second for prevention and third for deterrence.
Senator Angus: You distinguish between prevention and deterrence.
The Chair: Yes. Prevention would be in the case of someone lurking around a playground whose licence plate is known to the police from the registry.
Mr. Woods: This tool was originally planned to be used in conjunction with other tools. We have tools like ViCLASS, which helps us to identify a series of crimes committed by the same offender. We can identify a certain number of crimes committed by an offender and then put a geographic template on it. The geographic profiling can tell us that the offence was probably committed by someone who lived in this general area and then we can overlay that with the sex offender registry that tells us who is living in that area. That kind of analysis is preventive. I know that the schoolyard example is being used for valid reasons, but this is to be used with other tools.
[Translation]
Senator Boisvenu: Thank you very much. I am impressed by our experience and it is for me a pleasure to meet my first profiler.
I want to ask you two brief questions. I have read your submission with attention and it has raised a few concerns in my mind. The first is that you seem to say that the Bill S-2 is not perfect, but it is better than the status quo. Are there important parts which are missing in this bill to make it more efficient?
[English]
Mr. Woods: I would not say that there are major pieces but I would say that some areas have to be strengthened, more in relation to the kind of information that can be collected. The value of the registry is wholly dependent on the validity, reliability and accuracy of the information.
Senator Boisvenu: If you compare Bill S-2 with the existing legislation in Ontario, would you say that Bill S-2 would do the job?
Mr. Woods: Bill S-2 would do the job.
Senator Boisvenu: My last question is: You say it is difficult to win their confidence; I think you are talking about policemen. When the act will be passed, what should we do to make sure that this tool is well used by the policemen?
Mr. Woods: I am sure a communications strategy would be in place based on my experience with the RCMP and with the Sûreté du Québec. It would let officers know — the users of the system — that it has improved dramatically. Officers will try it because they always look for tools to improve their ability to investigate.
Senator Boisvenu: It is a matter of information, instruction and follow-up?
Mr. Woods: And then positive use.
Senator Joyal: I think you appeared when this committee studied the bill establishing the registry.
Mr. Woods: Yes.
Senator Joyal: On the last line of page three of your brief, you said that the sex offender registry has not had a lot of credibility within the law enforcement community. That is a strong statement. It corroborates what we heard from the Privacy Commissioner when she appeared. In her brief, she said: "We have asked repeatedly in respect of the existing sex offender registration scheme whether the measures proposed by Bill S-2 are effective in protecting the public from sex offenders."
The Privacy Commissioner is of the same opinion as you in that the registry is not very effective. Effectiveness is based on the way police use it because they are the only ones with access to it. Therefore, they are the measure of the effectiveness of the registry.
Based on your experience, why have police been reluctant to use the registry? I was under the naive impression that if a sexual predator is acting somewhere, the first thing police would do is to go to CPIC or the sex registry to check his or her name. I do not understand why police find themselves with a psychological block where they do not care.
Mr. Woods: I never said police did not care. I said the registry has lost a lot of credibility. These people are supposed to be the primary users but are not using it to full advantage. There are good reasons for that. At the outset, a lot of pieces of information were not available in the registry.
Senator Joyal: Like what, for instance?
Mr. Woods: Some basic information to enforce compliance was not included, such as when an offender was to be released. At what point do you start the clock when we are not told when a person will be released?
Senator Joyal: Bill S-2 will not correct that because it is a systemic problem. It is not a sex registry problem.
Mr. Woods: The bill addresses the fact that Correctional Service Canada will provide release dates and other relevant information to the registry for the purpose of prevention and investigation.
Biological and reporting information was very limited and restricted at the outset. Keep in mind that users of this system are situated in centres across the country. That was the balance to maintain privacy. I do not disagree with that because, from an operational point of view, having fewer people who know how to operate and analyze the information is better than having it used randomly by everyone on the street for whatever purpose.
More informed and professional use of the information will occur by limiting access to people who know how to operate the system, have experience using it, and use it in conjunction with other tools.
Senator Joyal: I might be wrong but it seems to me that the value of the registry is in it being up to date. For example, if an offender has not reported for the last three years to provide where he or she lives, a change of vehicle and so on, then the registry is obsolete by its very nature.
You said that police forces did not have enough resources to keep the registry up to date by following through with an offender because they have other priorities, manpower shortages, et cetera. If that is the case, I can understand that the registry becomes of no use because it is obsolete at that point.
What compliance with the registry have you observed in the past to maintain its usefulness?
Mr. Woods: I do not think compliance has been an issue. Compliance was good, certainly at the outset and until the time I left. That is a question you may want to ask the people operating the registry currently.
When we talk about the use of the registry, it also has to do with enforcing provisions and compliance. Success of the registry to me is whether the information is used in a preventive or investigative way to advantage. Those are the only two measuring sticks for the success of the registry. Compliance and all these other things are part of that plan, but the measure of success is what information was used from the registry and what impact that information had on any given case. That is the true measure of success.
Senator Joyal: Have you statistics based on those criteria?
Mr. Woods: I do not know if they have statistics on those criteria. Those types of criteria are not hard to keep.
Senator Joyal: Did you keep those criteria when you were in charge of the registry?
Mr. Woods: We began to. Keep in mind that we were dealing with a host of other things. Keeping statistics was an important part because it would demonstrate the effectiveness and success of the registry. That was built in at the outset.
I left less than two years after the registry began, so I did not see that through. That is a question you may want to ask my successor.
Senator Lang: Given your background, can you see the day when the Ontario registry and the national registry would be amalgamated into one registry?
Mr. Woods: From a practical, operational point of view, I would like to see that day. Politically — and it is not something I am expert in — it poses issues. In my view, the fewer the number of registries, the better off we are. The Americans have demonstrated the problems associated with having multiple databases. You cannot link them to the extent where you get accurate information by and large.
I am not in a position at this point to say which registry we should adopt. They are both good. If this legislation is passed, I think they will both do a great job. However, conceptually, one system is better than two.
Senator Lang: Based on your experience, is the database of the national registry versus that of the Ontario registry similar or are there many differences?
Mr. Woods: I think the registries are getting closer.
Senator Lang: Technically?
Mr. Woods: That is not my background; I cannot say.
The Chair: On the basis of your experience with the national sex registry we have currently and its expansion as envisaged in this bill, do you see a requirement for greater resources not only in terms of hardware, but also people to input information? For example, there have been indications that there have been data backlogs with CPIC even before layering on a new expansion of the sex offender registry. Will we face problems there?
Mr. Woods: I do not believe so. The infrastructure is in place now and, as you know, the provinces are assuming the costs associated with their jurisdictions. However, I know that it will make it easier and more efficient. I do not think that will necessarily translate into a requirement for more resources.
Senator Runciman: I am interested in your views on the system's readiness to handle the new changes. I understand that you are optimistic and confident. If that is not right, correct me.
You raised an issue about Correctional Service Canada, and I would be interested in knowing how significant a problem that was while you were responsible. The legislation gives Correctional Service Canada an out, if you will. There is no obligation placed upon them to report. I do not know why we have not been able to get a good answer as to why that is the case.
Could you elaborate on your experience in that regard?
Mr. Woods: I would like to see an onus on Correctional Service Canada and anyone else who is required to provide information. It should not be at their discretion, because it opens the door to exceptions, and exceptions become the rule.
I am not a technical person, but I can say that a direct or an electronic connection would solve the problem. It would take the human factor out. Dates are very important. The date that someone gets released starts the clock ticking. If we do not have that information, it will back up the whole system.
Having said that, from my experience with Correctional Service Canada I cannot imagine that they would hold back. I do not know anyone with whom I worked there who would, for any reason, hold back. It would be good to have it built in as an obligation and connected electronically.
The Chair: We will be hearing from Correctional Service Canada tomorrow, Senator Runciman.
Mr. Woods, thank you very much. We are grateful to you for having shared your knowledge with us today.
Mr. Woods: It was my pleasure.
Senator Joyal: I believe that the letter from the bar has been circulated around the table in both languages.
The Chair: It has.
Senator Joyal: I move that it be printed as an appendix to our proceedings.
The Chair: Is that agreed?
Hon. Senators: Agreed.
(For text of document, see Appendix, p. 5A:1. )
The Chair: We have some other documents that we do not necessarily want to print, but I would be grateful for a motion that the following material be filed as exhibits with the clerk: the final report prepared for Public Safety Canada submitted by witness Bob Dufour; the response from Mr. Anthony Tessarolo of Community, Safety and Correctional Services to a question taken on notice here — all of which are in connection with our DNA study — a response from Mr. Yost of the Department of Justice in response to a question taken on notice at our meeting of March 17; and a response from Mr. Wayne Murray of Maxxam Analytics to a question taken on notice here at the March 24 meeting.
You have a printed list of those documents.
Senator Carstairs: I so move.
The Chair: Is that agreed?
Hon. Senators: Agreed.
The Chair: We shall now proceed to an in camera session, which will be brief.
(The committee continued in camera.)