Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence - May 5, 2010
OTTAWA, Wednesday, May 5, 2010
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to consider Bill S-2, An Act to amend the Criminal Code and other acts.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Honourable Senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
We continue our study of Bill S-2, An Act to amend the Criminal Code and other acts. This afternoon, we are pleased to welcome Mr. Christopher Earls, a professor at the Université de Montréal.
[English]
Mr. Earls, please proceed with your opening statement, after which we will ask questions.
Christopher Earls, Professor, Université de Montréal: Good afternoon. I thank the members of the committee for inviting me today. I am a Professor of Psychology at the University of Montreal and have been researching and thinking about questions related to the assessments and treatment of sexual offenders for over 30 years. I began my professional career as a postdoctoral fellow in a specialized treatment unit at Atascadero State Hospital, which is a maximum security psychiatric hospital in Southern California. From there, I was hired as a researcher at l'institut Philippe-Pinel de Montreal, which is also a maximum security psychiatric facility. My mandate at Pinel was to establish a laboratory for the assessment of sexual offenders. Two years later, I was hired by the University of Montreal, where I continue to conduct research concerning sexual offenders and the prediction of dangerousness.
I have worked extensively as a consultant to Correctional Services Canada in British Columbia, Ontario and Quebec. On numerous occasions, I have been hired to conduct sexual offender program evaluations. In 1992, I was mandated to establish an assessment and treatment centre for sexual offenders at La Macaza Institution in Quebec.
As a young clinical researcher in the late 1970s, I watched as crude rudimentary treatment programs developed into highly specialized and sophisticated interventions. In fact, when looking at treatment programs for sexual offenders today, it is very difficult to imagine what else could be done to improve them.
Unfortunately, over the years I have become persuaded that, in general, treatment programs for sexual offenders, whether administered within a federal penitentiary or within the community, do not work. They do not achieve the desired objective of reducing recidivism. I am also persuaded that the key to reducing recidivism is the level of supervision in the community. In much the same way that sexual offenders have limited opportunity to reoffend while incarcerated, supervision in the community also limits opportunity for offenders to re-offend. In my view, increases in supervision in the community should be accompanied by decreases in recidivism.
In this context, I am strongly in favour of the national registry for sexual offenders, which is being considered by this committee. I will do my best to answer any questions that you may have regarding my opinion.
The Chair: If everyone were so brief, we could spend even more time asking questions.
[Translation]
Senator Boivenu: Thank you, Madam Chair, for the honour of asking the first question. First of all, I want to thank Dr. Earls for making himself available on such short notice to appear before the committee. Judging from your curriculum vitae, you are an outstanding expert on this subject. I have a main question, and possibly two secondary questions, for you.
Could you explain to the committee the two schools of thoughts, or positions, on sexual predators, whether pedophiles, or so-called "normal'' sex offenders. One school holds that pedophilia can be treated. You seem to disagree with that position, believing instead that post-sentencing supervision is the solution.
I am trying to understand how persons who may have attended the same university can hold different opinions or how, after 20 years in the work force, they can subscribe to different treatment approaches. For the lay person, this is all quite confusing. Who is right, the person who believes that intervention on a broad scale in prison is the key to rehabilitating such offenders, or those who maintain that nothing can be done, other than supervising these offenders after sentencing? In your opinion, what causes this philosophical difference of opinion?
Mr. Earls: After reading existing scientific literature on the effectiveness of treatment for sex offenders, I feel confident about my position. As far as this difference of opinion is concerned, I do not want to be mean, but I think it can be explained by asking the following question: do individuals who favour treatment programs derive part of their salary from treating sex offenders? I am not being mean, but such individuals are in fact paid to say that treatment is an effective course of action. Sex offenders are extremely difficult people to work with. The situation can be heartbreaking. People who work with sex offenders have no choice but to have a certain amount of faith that treatment is effective and useful. It is only when you step back a little that you realize that all of the hope and all of the efforts may not have produced the desired results. When I say to you today that I am convinced treatment programs do not work, my assessment is based on scientific literature in which offenders who were treated were compared to those who were not.
Senator Boivenu: My second question relates to the money that the federal government is investing in correctional facilities in Canada. Year in and year out, the government invests $2.5 billion in rehabilitation and reintegration programs. Forty per cent of that amount is allocated to treatment programs for sex offenders. So then, approximately $1.2 or $1.3 billion is spent on treatment and from what you are telling me, we are not getting a lot for our money.
First of all, should these sums of money be invested in post-sentencing supervision and second of all, does the bill go far enough in terms of improving the sex offender registry? What kind of additional improvements would you recommend to make this a true supervision tool?
Mr. Earls: To answer your first question, I believe that the money invested in treatment programs would probably be better spent elsewhere. That said, I am not saying that treatment programs for sex offenders will never be effective. At this stage of my career, I cannot imagine anything more that could be done.
Regarding your second question, I am not a lawyer, but I do support the idea of a national sex offender registry. As I said in my opening statement, I think the level of supervision exercised in the community will give us more authority and reduce the recidivism rate. The more offenders are supervised and the closer their actions are monitored, the fewer opportunities they have to re-offend.
Senator Boivenu: So then, from what you are saying, the more anonymous the offender feels, the greater the likelihood that he will re-offend.
Mr. Earls: For me, it comes down to supervision. If we go to the other extreme, inside a federal or provincial correctional facility, the recidivism rate is zero. In the community, the offender enjoys a certain amount of anonymity, which provides opportunities to re-offend. However, fewer opportunities to re-offend arise when a person is closely supervised.
[English]
Senator Baker: I will follow Senator Boisvenu's series of questions. He pointed out that you conducted research on 165 sex offenders in six Quebec penitentiaries. There were three groups. One group of 34 consisted of pedophiles. The second group consisted of 122 other sex offenders and assailants. The third group consisted of 19 murderers.
The results of that study showed that most of the victims of those who committed sexual assault, related offences and murders were strangers to the offenders. Senator Boisvenu pointed out that the evidence we heard was that most of the victims in such cases knew the offenders.
Was there a distinction in the number of victims that were strangers to the offender and the number of victims that were familiar with the offender, in particular in the case of pedophiles being known by the family and the victim?
Mr. Earls: Do you have the year in which that study was published? I am afraid you might be talking about another author.
Senator Baker: No, this study is by Christopher Earls.
Mr. Earls: Then I am a lot older and my brain cells work a lot less than I thought.
Senator Baker: The rate of recidivism of these people who were followed appeared to be very high at about 40 per cent. Is it correct that 40 per cent of the people studied by you in penitentiaries ended up back in prison?
The Chair: Senator Baker, perhaps you could have the clerk show a copy of the paper you are quoting from to Professor Earls so that he might refresh his memory.
Senator Baker: Yes.
The Chair: I will suspend for a moment to give him time to do that.
Mr. Earls: I did that study in 1984 when I was at Pinel. It was not a study on the treatment outcome or on recidivism. The study was done to know the demographic characteristics of sexual offenders at that particular moment.
Senator Baker: The next study was released by the Department of Corrections Services in Ottawa and shows figures on recidivism. What is the rate of recidivism of the people whom you have studied in penitentiaries in Quebec? Is it about 40 per cent?
Mr. Earls: It depends on what type of recidivism you are talking about.
Senator Baker: Okay.
Mr. Earls: People talk about sexual recidivism and will add general recidivism. They also sometimes talk about breaking conditions imposed by the parole board. A comprehensive definition of recidivism would include all three categories.
Other people in treatment programs will say: "I am treating a sexual problem, so I do not care about other types of recidivism. I only care about sexual recidivism.''
The type of recidivism depends on the research you are looking at. If you put the three types of recidivism together — sexual, general and breaking parole conditions — Correctional Services Canada indicates that about 50 per cent to 54 per cent of inmates will return to a federal penitentiary.
The Chair: Is that all inmates or sexual offenders?
Mr. Earls: All inmates.
Senator Baker: Recidivism depends upon getting caught. The figures used are for those who return to prison for any of those three types of recidivism you mentioned. I do not know the rate of recidivism for people that commit sexual offences who are not caught. Have you looked at that?
Mr. Earls: I am not exactly sure of the nature of the question, but I will answer it anyway.
Senator Baker: Good.
Mr. Earls: You are absolutely correct. We have commission and detection of the act, an arrest for the act, a trial and adjudication on whether the person is guilty and the convicted ends up incarcerated.
When we look at recidivism, figures start out at around five per cent in some studies, while others go up to 70 per cent recidivism. The best figures available have been presented to you by other witnesses, I believe, last week. Dr. Andrew Harris published a study in which the rate of sexual recidivism was 15 per cent after five years, 20 per cent after 10 years and 25 per cent after 15 years. Twenty-five per cent recidivism is probably a ballpark figure that lies between the two extremes.
Most people will talk about the 25 per cent recidivism rate and suggest that means 75 per cent of offenders did not reoffend. I do not think the 75 per cent figure means that at all. It means that 75 per cent of offenders may not have committed a crime, but if they did, there was no detection of the crime. How many of these people reoffended and were not caught? I do not know, but I am sure it is more than one or two.
Senator Baker: Did you have difficulty in your investigations determining the number of people convicted of sexual assault cases? If someone is convicted and in prison for an offence relating to sexual assault, there are usually other offences committed along with the commission of the sexual assault.
For example, in the case of murder, an associated number of counts are normally charged. It could be forcible confinement, sexual assault, kidnapping or any number of other charges. A court will usually stay other charges in favour of first-degree murder for which a person will receive a life sentence with chance of parole after 25 years. I imagine it is difficult to count sexual assault in such a case because you have to take into account all those other factors.
Mr. Earls: That is entirely correct. When administering assessments and treatment within Correctional Services, it is extremely difficult to identify how many inmates are in detention for a sexual offence because sexual offences are often masked by other things.
You mentioned murder, which is a more severe offence. It is one offence that tends to mask sexual offenders. One example used throughout these meetings has been breaking and entering, in which we are somehow able to determine the motive of the offender. In general, unless we have access to the police report, admission on the part of the offenders or other information leading us to believe there was a sexual component in the offence, it is difficult to know the motive of the individual.
Senator Baker: Someone convicted of break and enter into a dwelling house with the intent of committing an indictable offence, the indictable offence could be sexual assault. However, someone is then also charged with the commission of sexual assault. What would appear on their record is break and enter and/or sexual assault. Senator Boisvenu and Senator Carignan pointed this out at an earlier committee meeting.
Senator Carstairs: You are identified as a researcher. Have you ever done counselling as part of your work? If so, have you counselled sex offenders?
Mr. Earls: I was director at the Macasa when I was mandated to put together the assessment and treatment program. One principal responsibility was to administer therapy as well as to supervise the team of therapists that I hired. I have been seeing sexual offenders face to face in counselling or therapeutic environments since about 1982.
Senator Carstairs: Your testimony comes not only as a researcher, but also as someone with experience in the field.
Mr. Earls: I have seen upwards of 2,000 to 3,000 sexual offenders.
Senator Carstairs: We heard from a number of witnesses that a vast majority of sexual assaults are never reported. My concern is not about the registry. I think we are moving in the right direction on it. I am concerned about how we will get at the rest of the offenders. Have you any ideas about how we could change our judicial or corrections systems to have people come forward more willingly when they have been sexually assaulted?
Mr. Earls: To have people come forward more willingly after a sexual assault is extremely difficult because of the nature and type of reasons that they do not come forward. The reasons can be extremely varied depending on whether we talk about children or women.
Many children do not actually know they have been abused. They know something is wrong, but it is only as they grow up that they acquire the cognitive apparatus to allow them to understand what was happening at the time. There are also elements of embarrassment and fear of the consequences of reporting a sexual assault for the child.
My working clinical hypothesis is that one reason people and researchers often cite incest as having a lower recidivism rate is simply because in the present way we look at incest in Ontario, the Ministry of Children and Youth Services favours putting the aggressor back into the family. The family unit is considered to be what needs to be saved.
A child sexually abused by her or his father goes through all of this therapy; they interact with police, lawyers, judges, et cetera; once they are back in the home, they are faced again by the aggressor. That could be a substantial reason why the child would not declare another sexual offence.
Children may also feel guilty or responsible for the sexual assault. The same factors raised with women can apply to children. They may feel guilty about somehow having encouraged the offender. Some children do not identify the sexual aggression as sexual aggression. When we look at surveys, it is often the researcher who classifies something as a sexual offence and the victim may not have considered it in those cases.
Women also do not want to come forward because it may cause trouble for someone such as a boyfriend, an ex- boyfriend or boss. They may fear losing their jobs. There are many variables to explain why people will not come forward.
It is difficult to say what we can do about that. There are prevention and awareness programs, but the problem is that most of these programs have not been evaluated.
One of the major problems with sexual offender research, whether in the penitentiaries or with respect to prevention, is that no one puts in an evaluation component. We just go ahead; we give treatment and do prevention, and we never ask ourselves whether this works. In the last 40 years as a society, we have not advanced nearly as far as we could have had we actually looked at what we are doing and the effects of what we are doing.
Senator Carstairs: That was helpful. One of the things you missed when talking about the incest victim is that frequently the child is removed from the family, so it is the child who then suffers because he or she is in the group home or the foster home, instead of removing the offender from the home.
Because you have done this work, I would like your reaction. I have been told that many who have been convicted of sexual assaults choose to serve their full sentence rather than request parole because if they request parole, they are monitored. If they receive their full sentence, they are then released without parole. Has that been your experience?
Mr. Earls: It has been my experience that some will fall into that category. Of those, they do not want to be monitored, or they are afraid the family will be waiting for them on the outside. My experience is that it is a very small proportion of sexual offenders who will opt for going to the end of their sentence or the warrant expiry date.
[Translation]
Senator Carignan: My question is fairly straightforward. You are an expert, as your curriculum vitae clearly shows. You have evaluated the performance of programs and have noted their failure. Why are these programs failing? You might be tempted to say that if you knew the answer to that question, you would be a wealthy man. However, would you care to venture a response?
Mr. Earls: I do spend a great deal of time pondering these questions. There are a number of reasons why programs have failed, among other things, the reluctance on the part of the Correctional Service of Canada to advocate a particular approach in the early 1990s.
Last week, Mr. Harris spoke to you about the responsivity principle that should be embraced. Simply put, it amounts to adopting a theoretical approach. He also talked about cognitive and behavioural therapies that are preferred approaches. The Correctional Service of Canada has been involved in the treatment of sex offenders since 1974, or thereabouts. Its involvement will soon date back 40 years. Yet, 25 or 30 years passed before it could agree on which approach to adopt.
To give you some idea, and to answer your question, it was recommended at one time that Correctional Services adopt a homeopathic approach to treating offenders.
Funding of that approach was not approved. However, a wide range of different programs are now used. These programs are based on theoretical approaches commonly used in the fields of psychology and psychiatry, such as cognitive, behavioural, psychodynamic and biomedical therapies. A wide range of treatments are used. In fact, this situation creates some competition among experts who try to secure funding for their programs and for their treatment methods.
We have known for the past twenty years that the cognitive and behavioural therapy approach works best. In spite of that fact, other approaches and treatment programs continue to be funded, even though their effectiveness has not been evaluated. It makes for a lack of cohesive action. The feeling is that every new theory is being tested in the hope that one program turns out to be the magic bullet.
Senator Boisvenu: Since we are talking about solutions, I recently read about a study done either in California or in Virginia that suggested performing a lobotomy, and I realize that this is a scary word, as a form of treatment for this condition. A surgical procedure is performed to destroy one or two cells in the part of the brain that controls sexual deviance and the person loses any and all predilection for sexually deviant behaviour. Are you familiar with these studies?
Mr. Earls: I am sorry, but I am really not familiar with these studies.
Senator Carignan: You stated that if offenders are supervised in the community, there is less likelihood that they will reoffend. Aside from lobotomies, what type of supervision in the community do you advocate to reduce recidivism?
Mr. Earls: I have already recommended brain transplants, but I do not think that is very realistic!
Obviously, the problem with supervision is that it is too costly. The ideal way of supervising offenders is through the use of section 810 orders, the so-called 810 standard. However, the fact remains that the more an offender is supervised, the lower the recidivism rate. Unfortunately, providing more supervision is naturally a more costly approach.
Senator Carignan: Have you ever considered the option of GPS-equipped bracelets or some other readily available electronic device?
Mr. Earls: No, I have not studied this option, but based on my theories, such devices would probably reduce the recidivism rate.
[English]
Senator Wallace: My question is somewhat similar to Senator Carignan's. You have pointed out that, in your opinion, the key to reducing recidivism is the level of supervision in the community. Senator Carignan used the word "monitoring'' rather than "supervision.'' Do you see those terms as being one and the same?
Is it supervision that is conducted by law enforcement officials that you are referring to there, or is it perhaps broader than that?
An organization appeared before us called the Circles of Support and Accountability, with which you are probably familiar. I understand it is an organization that does work similar to Alcoholics Anonymous. There is monitoring, supervision or counselling that that organization involves itself with.
Perhaps you could expand on what you mean by "supervision.'' What would be involved?
Mr. Earls: Some of the things that would be involved, in fact, this committee has been considering. It would include having the address and vehicle information of the offender. I would want to know where the offender is working and the proximity to children. I would also appreciate offenders being made aware that they are being supervised by the police; they come to verify the address, as they do. People on parole have Correctional Services officers come to do inspections. They can come unannounced and do inspections. In general, the individual feels watched.
The Circles of Support and Accountability reject the idea that it is simply supervision. However, when we look at their program, there is no active ingredient that we could call psychological, psychiatric or social work. The only thing there is that level of supervision. It was to such an extent that it was mentioned that they could possibly meet with a core member, who is the offender, on a daily basis. That is intensive supervision.
However, within the confines of what is available at the moment, supervision would involve having as much information as we possibly could on the whereabouts of the offender. Also, it would be good to have someone drop in every once in a while to check on the whereabouts — the place of employment, that there are no schools in the vicinity, that there are no nurseries in the vicinity, that generally there is a limited access to children.
Senator Wallace: Are there any other aspects of Bill S-2 that you feel are beneficial in providing this increased supervision you feel is necessary, other than what you have touched upon?
Mr. Earls: In reading through it, I came to the point where I was acting as a psychologist and mental health professional, and then there were aspects of the law involved. I think you have been informed in depth on that.
I am just happy to see it going forward as it is. I think it is a considerable improvement. One thing I thought was extremely encouraging was the lack of discretion, that now everyone will be on the sex offender registry. I think that is a major step forward.
In terms of supervision, we run into problems of economics and what we can actually do. Increasing supervision on a more frequent basis would probably help. However, again, we run into resource problems, financial problems, et cetera.
Senator Wallace: We have heard from other witnesses that approximately 42 per cent of those convicted of sexual offences are not on the registry. That would seem to me to be a subject of concern. Would that be a concern to you?
Mr. Earls: Of course. I think it is a crying shame that they are not on that registry. I do not understand. Again, I am not a lawyer, but I think that is one of the problems with having this discretionary process that is put into the hands of the courts. For whatever reason, they are not there.
To me, it is similar to the dangerous offender legislation. A prosecutor can make a request that there be a dangerous offender hearing. In my view, this is not used often enough. This is a major way in which we could prevent recidivism, by identifying high-risk offenders who have gone through treatment, who have been in the community and who have gone back to prison on more than one occasion. I think it is something that should be used more often.
Senator Lang: Following up on the mandatory condition that the name go on the registry, do you see that, either consciously or unconsciously, acting as a deterrent in keeping an offender from reoffending?
Mr. Earls: I am not sure that being on the registry will keep an offender from offending. I am not convinced of the preventive nature of the registry. It is an empirical question.
If everyone is not on the registry, you will never be able to answer that empirical question. One of the problems with most of the research that has come out to date is that it is very difficult to know, if we had everyone, would this have been different?
I view the registry in terms of the prevention of subsequent recidivism. An additional advantage to being on the registry is probably to assist law enforcement in tracking down the perpetrator more quickly.
I know the studies from the United States have been disparaged in these committee meetings by a number of witnesses. However, some of the data coming out of the United States shows that one of the benefits to registration and notification — we will forget about notification for the moment, but just for registration — is that it permits the police to have a quicker arrest rate, to identify the offender more quickly. I am not sure I have answered your question.
Senator Lang: Do you see the name being placed on the registry as a possible deterrent for some, from your knowledge and the work you have done?
Mr. Earls: One could not say "no'' with any sort of assurance. What I think would be more of a deterrent is the fact of being on the registry, along with all the information that is now available to police agencies. Yes, that could be a deterrent but, again, this is an empirical question.
Senator Lang: I understand.
Senator Runciman: When I saw your name on the witness list, I wondered about the relevance, but it is very relevant to what we are talking about, and I really appreciate your being here. As a follow-up to Senator Carignan and Senator Boisvenu, focusing on pedophilia, it is recognized as a mental disorder rather than an inclination or behaviour. In terms of sexual orientation in a pedophile, is that a life-long orientation?
Mr. Earls: I will answer in negative and affirmative to the question, in that on a mental disorder versus a controlled or behavioural disorder, one could come down on either side of that point.
With respect to a life-long condition, I would answer in the affirmative. Once you have pedophile tendencies and a sexual interest in children, this is not something that goes away all by itself. It is one of the reasons why I mentioned in the beginning that I do not think treatment is very effective, simply because this is something that is inherent. It is core in terms of the sexual preference of the individual.
Senator Runciman: In terms of your support for the registry, you are saying essentially that controlling the behaviour should be the focus rather than attempting to cure it, which, in many of these instances, is not in the cards.
The question of lobotomy was raised. However, I know in some jurisdictions — I think it is permissible in Canada — there is the whole question of chemical castration. Do you have a view on effectiveness or lack thereof with respect to that?
Mr. Earls: I have very strong views. I do not think it is an effective alternative in the long term. Chemical or physical castration reduces a number of androgens — number one being testosterone, which is responsible for the male erectile capacity. I have assessed people in the laboratory in which they had been receiving the anti-androgens that reduce the testosterone and they are still capable of having an erection. However, assuming that reducing the male erectile capacity works, it does not remove the aggressive component of a sexual offence.
A sexual offence is not only sexual, it is aggressive. We see this most typically with rapists or sexual aggressors against women. If we go to the point where the anti-androgen has been specifically titrated and the dose is such that we follow it in the laboratory and we see a reduced erectile capacity, then we have an offender who has no sexual life whatsoever.
The problem with that approach is they will continue to take the medication until such a time that they want to have a sexual relationship, or they are tired of not having the erectile capacity, and then they will stop, which means their original fantasies will return. It is either a life-long proposition or it is a temporary solution.
Most of these solutions, like chemical castration, are done when they are either incarcerated or in a psychiatric hospital. They will not recidivate when they are in that environment.
Senator Runciman: They have to continue to be monitored.
Mr. Earls: Yes, because you cannot rely on one form or another of castration to be a permanent solution.
[Translation]
Senator Chaput: Mr. Earls, if I understand correctly, you said that offenders who are supervised are less likely to reoffend. Is a sex offender registry not in fact a tool for supervising offenders? Therefore, would a registry not help to control recidivism to some degree?
Mr. Earls: Personally, I hope and believe that it would. Again, we are dealing with an empirical question. The registry will serve its intended purposes in that it will make offenders feel that they are being monitored and thus it will reduce the likelihood of their reoffending.
Senator Chaput: Why then would only some names be included in the sex offender registry? Why would the names of all sex offenders not be listed? Why would the registry not contain the names of all known sex offenders?
Mr. Earls: Judging from what other witnesses before this committee have said, it is a legal issue. Judges exercise a certain amount of discretion. The Crown asks that a name be included in the registry and some plea bargaining ensues. Because of various factors, only 42 per cent of offenders end up having their names listed in the registry.
Senator Chaput: Should judges have this kind of discretion in the case of pedophiles, the worst possible offenders, in my opinion? Should their names not be included automatically in the registry?
Mr. Earls: I agree that their names should be automatically listed. There should be no room for judicial discretion. The work that you are doing today, and the registry as such, would be of no value if the names of offenders were not automatically included, otherwise we would never know if the registry is effective or not. Your proposal is admirable. This is a golden opportunity to try something that has not been tried before. Canada has a reputation of being a pioneer in the area of sex offenders and I believe that, from a legislative standpoint, this reputation will be further solidified.
[English]
The Chair: More along this vein, we have not been able to find out which 40 per cent are not on the register. We have had different explanations for why they are not on the register. I believe that it was the minister who said that in his experience, the Crowns are often too busy and they just do not get to it. The defence lawyers said that no, these applications are almost automatic and they happen all the time. We do not know whether there is any difference in the gravity of the offences where applications are made or granted by the judge. We do not know, and I understand that you do not know either.
Mr. Earls: I have no idea.
The Chair: It certainly raises a question.
Senator Angus: It puts into question the stated number of 40 per cent.
The Chair: In a way it does and it raises all kinds of questions.
Senators will know that I have been obsessed by the following question: Mr. Earls, as you know, the definition of "sexual assault'' in the Criminal Code is hugely broad and encompasses everything from rape and worse on down to the example I use of the drunken 19-year-old at a Christmas party who pats his coworker or his classmate on the backside. This is not as weird an example as you might think. Such a case was reported recently in Ottawa where someone was charged with sexual assault for patting someone on the backside while drunk.
It can happen. I am not saying that such behaviour as engaging in any kind of unwanted sexual touching should not be an offence. However, I wonder whether, in your view, people who engage in that kind of inappropriate behaviour, almost based on an innocent motive, belong on a sex offenders' registry. Do you see any distinctions that deserve to be made or taken into consideration in deciding who is placed on a sex offender registry?
Mr. Earls: I do not believe in innocent motives when it comes to sexual behaviour, although I understand the example that you have given. I think that such behaviour is fairly infrequent. On the other hand, I gave up knowing long ago what goes on in the hearts and minds of the people that I treat. Many things look innocent and are for the first time. Many say that they have never done it before and I will never do it again because they have learned their lesson or they have found Jesus or whatever. Trying to infer what the motive of the individual was is a dangerous path to go down. We can always think of exceptions that make the offence look innocent. On the other hand, if we open the door to those exceptions, we open a Pandora's box because all kinds of discretionary things are done after that.
It is unfortunate that some people in a nondiscretionary environment will be put on this list. However, I do not know how innocent the offence was, what the motivation was, whether he has done it before or whether he was on the way to a sexual assault and started with a pat on someone's backside. I do not know any of these things.
The Chair: Thank you for the answer to my obsessive question.
Senator Baker: The code and this bill recognize certain designated offences and make inclusion on the registry automatic. For others that are not considered as serious, an application is to be made by the Crown.
I have one concluding question, professor. I like reading the results of your studies, even back to the 1980s, because they are clear and understandable. You are fairly explicit in your answers and I hope you will continue to be explicit and definitive in answering my next question.
You support the registry and say that the bill is wonderful. You recognize that 42 per cent of those convicted of a designated offence are not in the registry, which is since the coming into force of the act on December 15, 2004. Thus, 42 per cent of those people would automatically be on the list had this bill been enacted December 15, 2004. Also not on the list are those who were serving more than a 6-year jail term in Canada, such as someone serving a 25-year jail term and coming up for release after this bill is enacted. That person will not be on the registry.
Arguments have been presented by lawyers at the Department of Justice that it should not be done. Do you have any comments on this? I know by your answers today that you have read the transcripts of these meetings. Have you an opinion on whether this bill should include application to all those who are serving a sentence for a serious sexual offence?
Mr. Earls: I have strong opinions, as my daughter will tell you, on just about everything. On that question, it is a real shame. I am not aware of the economic or legal ramifications of doing that. As has been testified to here, and as I know from my research, of the 27,000 inmates currently incarcerated within the correctional services system, roughly 15 per cent to 17 per cent are sexual offenders. That means there are about 5,000 sexual offenders who could be in the registry immediately. I have two feelings about this: I think it is too bad but, within 10 years, this situation might be improved somewhat when we will have caught all the people from today forward. Again, if it were possible, I would say this is a really good idea. Do not miss the opportunity.
Senator Angus: I am interested in the evidence. There are many aspects of doing the right thing for which we do not have the financial and human resources. In respect to the retroactivity as opposed to the retrospectivity of this act, we were basically told it would be chaos to account for retroactivity, to be aware of the day offenders get out of jail and to notify the keeper of the registry.
Am I not correct in that this was the evidence given to us on that suggestion?
Senator Baker: Yes, that is. Could the professor comment on the excuse — well not excuse, but the —
Senator Angus: Is it a valid excuse?
Senator Baker: The retort to this question is that police would find it difficult to determine who is in prison and when they will be released.
Is there any legitimacy in a response such as that based on your research?
Mr. Earls: I am not a member of the police but I tend to have confidence in what they say. What I think is too bad — and I heard other witnesses speak to this issue — is that there is some sort of agreement with Correctional Services but there is no obligation.
The question of release dates could be answered more quickly if Correctional Services supplied the release dates to police. I do not know at what point that would make the lives of police easier to enter this data.
I think Correctional Services of Canada has a moral and ethical responsibility to supply this information. It is too bad this is not an integral part of the bill.
Senator Baker: It is not difficult to find out the name of someone convicted of a serious crime. I presume you can track down people who have served terms of 25 years in prison.
Mr. Earls: Yes, it is very easy if one has access to the Correctional Services data base.
The Chair: Thank you, Professor Earls. I indicated you were the last witness; you have been a fascinating witness. We are grateful to you indeed.
Mr. Earls: Thank you for having me.
The Chair: Honourable senators, before we conclude today's work on this bill, I will ask for a motion to file a number of documents we have received in connection with this bill as exhibits with the clerk. All the documents in question have been distributed to committee members.
So moved by Senator Lang. All in favour?
Hon. Senators: Agreed.
The Chair: Honourable senators, we shall proceed now to the study of Bill S-215, An Act to amend the Criminal Code (suicide bombings). The bill was piloted in the last session of the Senate by former Senator Grafstein. It is now sponsored by Senator Frum.
This committee has studied this bill in its earlier incarnation, which was identical to the present one. We studied it at length. This committee has adopted this bill twice. Therefore, the steering committee members consulted every member of the committee to inquire whether committee members were willing to do what we have not infrequently done in such circumstances when an identical private member's bill comes back. If all senators are in agreement that they will accept the work of the previous committees, then we would proceed to clause-by-clause consideration.
Therefore, colleagues, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-215?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried. Does the committee wish to consider appending observations to the report on this bill?
Hon. Senators: No.
The Chair: Is it agreed that I shall report this bill without amendment, without observations, to the Senate?
Hon. Senators: Agreed.
The Chair: I shall report the bill tomorrow, honourable senators.
We will now go in camera for a very brief session.
(The committee continued in camera.)