Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 32, Evidence - May 27, 2015
OTTAWA, Wednesday, May 27, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-26, An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act, and to make consequential amendments to other acts, and Bill C-2, An Act to amend the Controlled Drugs and Substances Act, met this day at 4:01 p.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our study of Bill C-26, An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts. Bill C-26 proposes to increase mandatory minimum penalties and maximum penalties and addresses the provisions regarding consecutive and concurrent sentences for certain sexual offences against children. This bill would also establish a publicly accessible database for high-risk child sex offenders, among a number of other changes to existing legislation.
As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on the same website under "Senate Committees."
To begin our study on the bill, we have some familiar faces. Please welcome the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada; and the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness. Minister MacKay is accompanied by Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Nathalie Levman and Matthias Villetorte, Counsel, Criminal Law Policy Section, Department of Justice Canada. Minister Blaney is accompanied by the following officials from Public Safety Canada: Angela Connidis, Director General, Corrections; and Ari Slatkoff, Team Leader and Senior Counsel, Legal Services. And we also have, from the RCMP, Specialized Policing Services, Deputy Commissioner Peter Henschel; and Inspector Sergio Pasin, Officer in charge of Behavioural Sciences, Technical Operations.
Before we begin, I'd like to remind senators that the ministers are with us for the first hour and the officials will remain for the second hour.
Minister MacKay, we'll begin with your opening statement followed by Minister Blaney.
[Translation]
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chair and all honourable senators. I am very pleased to be here with my colleagues, Minister Blaney and all the other witnesses.
[English]
Mr. Chair, I'm pleased to be here to discuss, as you mentioned, Bill C-26, the tougher penalties for child predators act. This important bill proposes a range of measures which would both hold child sexual offenders accountable for their grievous crimes that they commit against our most vulnerable, our children, and assist in preventing child sex offenders from reoffending. This bill will amend both the Criminal Code and the Sex Offender Information Registration Act. The bill will also create a high-risk child sex offender database, and I'll leave it to Minister Blaney to discuss that in more detail as those amendments and the database are his responsibility.
Sadly, let me begin with stating the obvious: The number of sexual assaults that are occurring in Canada on a regular basis has become deplorable. In fact, I'm very sorry to report that the numbers are going up.
The number of sexual abuse cases against children reported to police, this category of violence, is one of the few areas, in fact, that we saw increase in 2013-14. This is a shocking and glaring call for all to act. Specifically, in 2013, the police reported that sexual offences against children increased by 6 per cent, while 2012 and 2011 both saw an increase of 3 per cent. This statistic comes from the Canadian Centre for Justice Statistics.
Furthermore, we know that organizations such as the Centre for Child Protection in Winnipeg and their work through Cybertip.ca, this non-profit group, have been working very closely with police agencies across the country. Lianna McDonald and those in that amazing organization have noted that sexualized images of children under the age of nine, most depicting explicit sexual acts, are the largest and fastest growing category of child pornography. In addition to the child sexual assaults that we are seeing an increase in, we also note commensurate increases in activity online depicting children in a sexualized way.
[Translation]
These are troubling statistics. The figures show the importance of protecting children from crimes of a sexual nature. To achieve that, we need robust legislation. Bill C-26 addresses that obligation.
[English]
To meet the pressing objective, Mr. Chair, Bill C-26 proposes a number of different measures, including increases in both minimum and maximum penalties for certain child sexual offences. In particular, all hybrid child sexual offences would have maximum penalties of two years less a day on summary conviction and 14 years on indictment.
In addition, Bill C-26 proposes mandatory minimum penalties of 90 days or six months for sexual assault offences preceded by summary conviction and six months or one year for these offences when preceded by indictment. Moreover, the most serious child pornography offences, the making and the distribution of child pornography, found in sections 163.1(2) and (3) would become strictly indictable for mandatory minimum penalties of one year. This proposal would ensure that these offences are always treated very seriously. The devastating effects of child pornography on both an individual and at a societal level have been widely acknowledged, including by the Supreme Court of Canada in its 2008 R. v. L.M. decision. It's trite to say that this is not a victimless crime. It has a very corrosive societal and individual impact.
We know from reported case law that penalty increases impact judicial decision making by conveying the severity of particular crimes. I believe it is, as I mentioned earlier, incumbent upon Parliament, the executive branch, to send that message across the country. Courts have in fact taken note of the powerful message delivered by recent reforms to the penalty structure of child sexual offences. In particular, the Ontario Court of Appeal has commented that increased penalties signal the need to denounce and deter crimes that involve sexual victimization of children. That case references R. v. D.M., a 2012 Court of Appeal for Ontario decision.
Frankly, I couldn't agree more. Child sexual offences merit denunciation and deterrence, as well as the preventative efforts, which are in fact the sentencing objectives to which judges must give primary consideration in these cases. That references section 718.01 of the Criminal Code. This is as it should be. These offences unquestionably cause irreparable harm to children. We have had numerous occasions in recent years to discuss with police counsellors and social workers who deal directly with families of children who have been molested and abused. It is clear from their work and their testimony, their anecdotal evidence, that the long-term impact on children is extremely detrimental. There is also a nexus between what we would call a cycle of abuse, where some victims go on to become abusers themselves.
So, Mr. Chair, Bill C-26 not only proposes increased penalties for child sexual offences but also for the offences that enforce breaches of supervision orders, that is to say probation orders, section 161; prohibition orders; and peace bonds. The maximum penalty for breaching provisions of supervision orders would be increased from six to 18 months on summary conviction and from two to four years on indictment. Supervision orders authorize judges to impose conditions on child sex offenders or suspected child sexual offenders in order to protect children. What we're talking about here is elevating the seriousness of breaching conditions that are specifically there to deter further assaults, to prevent, if you will, further assaults from happening. When those conditions are breached — the classic example being have no contact with children without supervision, so do not be in a schoolyard or a place where children are likely to be present — the suggestion, the underlying principle here is that we treat those breaches very seriously.
As to those conditions that may prohibit unsupervised contact with children, the use of the Internet is another classic example when we're attempting to deter certain behaviour. Therefore, a breach of such a condition is a clear indicator of the risk to children, thus requiring appropriate and elevated sanction. Holding to account those who breach conditions of orders intended to protect children conveys the serious nature of failing to abide by those conditions, regardless of whether the breach results in the commission of a new offence. This conduct, I would suggest, is wrong in and of itself, and it's precisely because it takes place in a forum that puts children at risk.
Punishing conduct that may pose further risk to children is critical to preventing the harm to them and protecting them from that harm.
[Translation]
For similar reasons, Bill C-26 will consider it an aggravating circumstance in sentencing if the offence was committed when the offender was subject to a conditional sentence order, or released on parole or statutory release.
[English]
Mr. Chair, colleagues, Bill C-26 would also end what is sometimes known colloquially as sentencing discounts for child sex offenders by requiring the courts to impose consecutive sentences in two particular circumstances or cases. The first is where offenders are sentenced at the same time for a child pornography offence and a contact child sexual offence. The sentences would therefore be required, prescribed by law, to be served consecutively. The second is where offenders are sentenced at the same time for a contact sexual offence on a child committed against different victims. This is very important, I would suggest, for all victims in that the crime committed against them is actually delineated, is noted, in the sentence meted out by the judge.
Many child sex offenders offend repeatedly. This is, again, a sad truth. There is a proclivity that has been documented time and time again in these cases, whether against the same victim or multiple victims. These are often resulting in sentences that take place at the same time for these offences. Imposing concurrent sentences in cases involving multiple incidents and/or multiple victims, in my view, sends a very wrong message. Offenders should not receive sentence discounts in cases such as these, but case law also shows that, very often, they do. This is the totality principle, of which I'm sure many are aware, which states that the total length of sentences ordered should not be unduly long or harsh. This is found in the Criminal Code currently, in section 718.2(c), and it has been applied in these types of cases, resulting in a reduction in what otherwise would be, I think, more appropriate sentences.
Bill C-26 would stop this practice, thereby reinforcing the overarching objectives of denunciation and deterrence that apply in these abominable cases.
Bill C-26's sentencing reform elements do not stop there. They also propose clarification and codification of sentencing rules, generally speaking, to bring greater clarity and certainty to the outcome of sentencing cases involving child sex assaults.
For example, where the court sentences offenders for multiple offences at the same time, the proposed amendments would direct courts to consider ordering the sentences for offences arising out of a separate set of events or circumstances to be served consecutively. This proposed reform would codify the same events or series of events rules, which hold that concurrent sentences should be imposed and served simultaneously for two or more convictions that arise out of one continuous criminal act or transaction. Conversely, consecutive sentences are imposed and served one after the other where the offences arise out of separate criminal transactions.
That is a bit of a convoluted explanation, but what we're saying here, in particular, is that we need to highlight the harm done to each individual child when they have been sexually assaulted, even in circumstances that are hard to imagine where there are several children present at the same time where the abuse is happening.
Bill C-26's proposed sentencing reforms in this regard serve to modernize, clarify and codify existing sentencing principles, thus facilitating their consistent and coherent application by the courts across the country.
One final specific point, Mr. Chair, colleagues: In Bill C-26, you'll find included a proposal, a reform that would ensure that spousal testimony is available in child pornography cases. This is because the evidence of the accused's spouse is very often required to prove the guilt of the accused beyond a reasonable doubt, for example, where child pornography is found on a shared home computer or a computer that may be on the other hand owned by another individual. You will know that, in other legislation, including the Victims Bill of Rights, which received your deliberations, there were similar provisions that were aimed at intending to remove what was commonly known as spousal immunity that prevented the testimony of a spouse. In serious sexual assault cases and other violent offences, I would submit that it is an archaic part of our law that suggests that a spouse should not testify. It hearkens back to a time when spouses, women, were deemed as property. So this is, again, an attempt to modernize our legislation, to keep pace with other initiatives, in this bill and otherwise, that are meant to protect children, first and foremost, and that should be the starting premise.
I'm very pleased that this bill proposes these reforms in a way that I think will bring about comprehensive change, whether it be with regard to spousal testimony, whether it be with regard to other types of violent offences that involved what was essentially shielding important testimony from making its way to the court.
The efforts of many in this particular field of criminal justice are commendable. I mentioned the work of the child advocacy centre. I'd be remiss if I didn't at least reference one of the most innovative improvements that I think our country has seen, and that is the work done by child advocacy centres, operating now in 21 locations, with the intention to open more, places like the child protection centre that bears the name of Sheldon Kennedy. I know this committee is familiar with him and his good work. Places like Boost in Toronto, Sea Star in the city of Halifax. These are among the most compassionate and innovative efforts that we have seen to diminish the actual harm that I referenced earlier that occurs with children who have been sexually abused. So this is part of that overall effort by our government, by Parliament generally, to address these very serious situations.
[Translation]
Mr. Chair, the government recognizes that legislative measures alone are not sufficient to deal with matters as complex as the sexual exploitation of children. This is why we will continue to support the child advocacy centres that help young victims and witnesses to overcome the harm they have suffered and that also provide support for victims through the legal procedures.
[English]
In total, Bill C-26 forms an integral part of our ongoing efforts to support the protection of children, and its objectives are simple but critical. It behooves us all to ensure that the legal framework is in place to protect children and continues to respond to the risks and harms posed by those who prey on our most vulnerable citizens.
Your examination of this bill is greatly appreciated. I thank you in advance for your deliberations.
[Translation]
Hon. Steven Blaney, P.C., M.P., Minister of Public Safety and Emergency Preparedness: I would like to echo the comments of Minister MacKay in thanking you for studying this bill which, I feel, will surely be the final one that I have to bring before you in this current session. I would also like to thank you for your work on the Victims Bill of Rights Act, which received Royal Assent in April. The bill before us today is essentially one along the same lines; it is designed to safeguard our families and our communities.
[English]
Tougher measures are needed to protect our children from sexual exploitation and abuse. Why? As Minister MacKay stated, violent crime rates in Canada were down in 2013, but sexual violations against children increased by 6 per cent. Police reported more than 4,200 incidents of sexual violations against children in 2013 alone.
This is a grave concern to our government and to all Canadians.
To help address these troubling issues, Minister MacKay and I have introduced the tougher penalties for child predators act.
[Translation]
The minister mentioned the sanctions imposed on those convicted in order to increase the accountability of registered sex offenders. I would like to talk to you about measures directed at those with convictions, especially with regard to their movements, their monitoring and the registry in which they would be recorded.
I will also bring up the matter of better information sharing between the Canada Border Services Agency and the RCMP.
[English]
We've proposed important changes to the Sex Offender Information Registration Act, the legislation that created the database of information on convicted sex offenders across Canada. The National Sex Offender Registry is administered by the RCMP and is used by police to help prevent and investigate crimes of a sexual nature.
It is worth noting that there are approximately 37,000 sex offenders listed in the database. What is even more relevant to our discussion here is the fact that approximately 25,000 of them have been convicted of a sex offence against a child.
[Translation]
These offenders will be subject to reporting obligations. Currently, all registered sex offenders must annually report their address, their legal name, their place of employment and their volunteer activities. They are also required to report absences of seven days or more, for trips either within or outside Canada. In the case of international travel, they are only required to report that they will be out of the country for seven days or more and their estimated travel dates. However, there is no current requirement to provide specific destination information, or information on travel for less than seven days.
[English]
This is very concerning, and it must change immediately. We can and we must do everything to protect our children from sexual exploitation, but it's also a duty that extends to children all over the world. The legislative changes we are proposing in the tougher penalties for child predators act will serve to improve the accountability of convicted sex offenders. At the same time, it will make authorities aware of their travels.
[Translation]
With the passage of this legislation, we can ensure that this awareness does not end when these registered sex offenders leave our borders. Under this bill, all registered sex offenders would be required to report their actual travel dates and the addresses and locations of where they are staying for trips longer than seven days outside of Canada. In addition, the reporting obligations for those sex offenders who have been convicted of child sex offences would be even more stringent. They will be obligated to declare absences of any duration for international travel, and to provide their specific travel dates and locations.
[English]
This legislation also proposes to close the current gap in information sharing between officials at the National Sex Offender Registry, which is at the RCMP, and those at the Canada Border Services Agency. As it stands today, colleagues, officials at the National Sex Offender Registry cannot share offender information with officials at the CBSA — another great example of the right hand of the government ignoring what the left hand is doing.
The tougher penalties for child predators act will also ensure that CBSA officials may collect travel information about certain registered sex offenders when they return from a trip outside Canada. That information will then be shared with officials at the National Sex Offender Registry, so we are breaking those silos and allowing RCMP and CBSA to share this sensitive information.
[Translation]
Finally, the bill contains the long-awaited provisions creating a national, publicly accessible database of those high-risk child sex offenders. The registry, administered by the RCMP, will contain the names of the high-risk child sex offenders who have previously been subject to a public notification in a provincial or territorial jurisdiction. It is important to clarify this, because a lot of false information has been spread about the bill. The database will be made up of information that has already been included in a public notification in a provincial or territorial jurisdiction. It will target those convicted of sexual assault against children and are considered to be of high risk.
[English]
In conclusion, I cannot stress enough how important this legislation is to keep Canadians safe. We expect that senators will support this bill, as the session is about to close. We certainly are hopeful that this bill will better protect the most vulnerable of our society.
[Translation]
Our government has long believed in doing everything we can to protect children from sexual exploitation. The Tougher Penalties for Child Predators Act will help us to do just this. I look forward to answering your questions.
[English]
The Chair: Thank you both for your fulsome statements, which have generated a lot of interest. I have a long list of senators who would like to ask you questions. Again, I encourage senators, given the limited amount of time the ministers can be with us, to be as concise as possible. I ask the same of our witnesses. That would be very much appreciated.
We'll begin with our deputy chair.
Senator Baker: I'll abide by those directions and just ask one question. Before I do, Minister Blaney mentioned that this is perhaps the last time he will appear before this committee on a piece of legislation before this Parliament before the next general election. I must say that, although I don't always agree with the government legislation put forward, these two ministers have done a commendable job on behalf of the Government of Canada in their respective portfolios, especially Minister MacKay, who has perhaps introduced more legislation than any other minister in Canadian history. The downside of that is that if you ever get to the bench, there's such a thing as a reasonable apprehension of bias.
My question is just a general one, and it concerns the imposition of a mandatory minimum sentence on summary conviction offences. I'm not just thinking about a possible challenge to having mandatory minimum sentences for summary conviction offences, because this is not new. In fact, I wonder, Mr. Chairman — you said there was an increase in the mandatory minimum sentences here. I look at pages 1, 2 and 3, and I see mandatory punishment for a summary offence, a term of 90 days. That is not new. In 2012, this committee dealt with a bill that increased it to 90 days from 14 days.
I just want some clarification on that and a general comment from Minister MacKay on the mandatory minimum. As he was speaking, I was thinking not just about constitutional challenge but also about subsection 11(f) of the Charter that says that somebody is entitled to a jury trial if the offence charged carries a penalty of five years or more, or a more serious penalty, whether there is a danger of going down the road of having summary offences under which a person charged would have a right to a jury trial.
So mine is just the general question on mandatory minimums for summary conviction offences.
Mr. MacKay: Thank you very much, Senator Baker. As always, you come to this committee well prepared. You're well versed in our Criminal Code, as in many areas of the law, and I appreciate your opening congratulatory comments. I would simply return to this committee our gratitude for the good work that you do, particularly on these sometimes very complex matters of the law.
I'm going to get in trouble with members of the House of Commons committee for saying this, but I think your deliberations reflect a tremendous amount of experience that is of great service to Canadians, so I thank you for that.
With regard to your specific questions, I would simply point out first that there are some 64 sections of the Criminal Code that deal with penalties involving mandatory minimum penalties, some of them going back to the origins of the Criminal Code. So while the concept itself has received a great deal of attention lately, mandatory minimum penalties have been around for a long time.
Some would accuse us of having brought in more, and I'm proud of that fact. I would suggest that in the vast majority of the cases where we have brought in increased mandatory minimum penalties, they have been in direct response to areas of the criminal law that involve serious personal-harm types of offences: violence against the individual, or situations where violence could be expected to occur, particularly when it comes to the use of firearms, particularly prohibited or restricted firearms.
Members here will be aware of the recent case from the Supreme Court of Canada, R. v. Nur. While it struck down sections of the Criminal Code that dealt with mandatory minimum penalties, it affirmed the sentences. The sentences meted out in lower courts were, in fact, in excess of the mandatory minimum penalties, and they refer to reasonable hypotheticals, which the dissenting judges called unreasonable. But I digress.
The issues with respect to a jury trial resulting from increased penalties would not apply here, but I take the senator's point. All changes to the Criminal Code, including these that calibrate sentences, must be done in ways that are compatible with other sections of the Criminal Code. We've taken great pains to ensure that is the case. I would suggest as well, as an overall comment, that Charter compliance is always the prism the Department of Justice looks through when determining whether we should ever table legislation. It has to be Charter-compliant, in our view. However, it is folly to suggest that we would ever table legislation with the mistaken belief that it would never be challenged. As sure as night follows day, there will always be challenges to these sections.
But I come back to the very real concern we have for sending messages of denunciation and deterrence, in particular for offences that involve child sexual abuse — violence is what it is — and the corrosive impact it has on communities, as well as individuals. That's the very clear underlying principle behind the bill, and we believe it is drafted in a way in which it is both coherent and consistent with other sections of the Criminal Code and Charter-compliant.
Senator Plett: I would like to echo Senator Baker's comments and congratulate our two main crime fighters that we have over in the other place. We certainly appreciate all you do. As a father and grandfather, I'm proud to be the sponsor of this bill here in the Senate.
But my question to Minister MacKay is that some critics, including some defence attorneys appearing in the House of Commons and, indeed, the critic of this legislation in the Senate, have stated that there is not enough of a priority on the treatment for child sex offenders. I personally see nothing in this legislation that precludes treatment. In fact, Sue O'Sullivan, the Federal Ombudsman for Victims of Crime, noted that if the offender is incarcerated for a longer period of time, he has more of an opportunity to receive treatment through various programs that are available through Correctional Service Canada.
However, not all pedophiles are treatable. Even CSC states:
The data from the Clearwater Program indicate that pedophiles, even if treated, present a greater risk to the community than other sex offenders.
Too often these types of treatment programs, named relapse programs, are treating pedophilia as substance abuse.
I would like your comment on the criticism that not enough focus has been given to treatment. Also, please outline the government's first priority in bringing this type of legislation forward.
Mr. MacKay: As the senator is well aware, the first priority is the protection of the public and the protection of children. For the most part, these are sanctions in this bill.
In terms of the overall program availability for rehabilitation of sexual predators, those who prey on children — pedophiles — that is within the purview of Correctional Service Canada, so I will defer to Minister Blaney.
As an overall comment, I agree with the senator's premise that the priority here — and this is not to in any way diminish the importance of rehabilitation — but the real impetus for this bill is to put greater emphasis on society's condemnation of anyone who would harm a child and who would use some of the most insidious means to get at children, such as luring over the Internet or going to places where children frequent.
I recall prosecuting a number of these cases at a time when they were not deemed nearly, in my view, to be as serious and impactful on children as we now view them today. Much like a drug, in some cases, the cognitive distortions and the impact it has on a child's brain to go through this type of trauma — we know that has serious long-term implications.
To emphasize, this is why we believe that one thing we can do, among a cadre of others, is to put greater emphasis on deterrence and denunciation through higher sentences.
Mr. Blaney: Yes, the goal of our correctional service is rehabilitation. In the case of sex offenders, that is the same goal. So all correctional jurisdictions in Canada provide rehabilitation services to individuals convicted of sexual offences against children. Treatment services typically involve group counselling aimed at the psychological risk factors. As well, there are medications that are selectively used to manage compulsions and to lower sexual drive.
Research has shown that comprehensive treatment programs can be expected to reduce the sexual recidivism rate of a child molester from about 17 per cent to 10 per cent after a five-year period. This is certainly a challenge that we are dealing with.
One thing I can reassure you of is that Correctional Service Canada assesses sexual offenders early in their sentences, and the treatment is offered to those with a moderate or high risk to reoffend. Low-risk offenders with sexual recidivism rates are expected to be less than 3 per cent to receive general correctional intervention. Within correctional services, those with 50 per cent of the sex offender that have a moderate intensity, I would say, who need a moderate treatment, get it. We have 20 per cent who get a high-risk treatment.
There is also a program for follow-up at Public Safety put in place once the sex offenders are released. Some have proven successful. These programs are offered when offenders are within our facilities, and we are actually looking at the success of some of these post-sentencing programs that have been proven effective to reduce reoffending. This is a sensitive area, but we're on it, if I can put it that way.
Senator Fraser: Thank you to both of you for being here and to all the wonderful people accompanying you. As the chair said, familiar faces.
My question is for Minister Blaney. It's about the new registry. The existing registry operates by law under the principle that the information it contains should be collected only to enable police services to prevent or investigate crimes of a sexual nature and that access to it should be restricted.
Mr. Blaney: Absolutely.
Senator Fraser: The purpose being to protect the privacy of sex offenders — after all there are constitutional rights to privacy — and the public interest in their rehabilitation and reintegration into the community as law-abiding citizens.
Can you please explain the rationale for deciding that this new registry should be publicly accessible? In particular, I wonder if you would address yourself to the risk that the existence of a publicly available registry of this nature would lead to vigilantism, as has happened in some jurisdictions where such registries exist.
Mr. Blaney: Thank you for your question, Senator Fraser. Just to reaffirm, the national sex offender registry is maintained. I have mentioned the data; 37,000 offenders are found in this database, 25,000 related to child offences.
Now, from where comes the need to have a new public database, which is totally different? I would point out to you, senator, that this information is already out there in public because, as I indicated in my statement, we will put together only existing public information that has been deemed to be of public interest that certainly outweighs any other consideration because of the risk. This risk is assessed by the law enforcement community, by local authorities. Of course, we have already engaged in consultation and are working with them, but, again, this database will be made of existing information of high-risk sexual offenders against children.
So, frankly, as a father, as a parent, I feel comforted that we are taking a strong stance in that direction. Let me just quote the Federal Ombudsman for Victims of Crime, Sue O'Sullivan. She said: "The proposed public database should provide victims and communities more consistent access to information about high-risk child sex offenders."
Senator McIntyre: Thank you, ministers, for your presentations.
I note that the act is called the tougher penalties for child predators act. I think I can understand why. Let's take, for example, the offence of making and distributing child pornography. Since their enactment in 1993, those offences have always carried higher maximum penalties. As you pointed out, minister, this bill not only increases their maximum penalty from 10 to 14 years imprisonment but also proposes to make both of these offences straight indictable offences. In other words, the Crown would have no choice but to proceed by indictment. It could not proceed summarily, and I can understand that position.
Under the Safe Streets and Communities Act, the former Bill C-10, the Criminal Code also imposes, at the moment, maximum penalties on all child sexual offences. The bill goes further, and I just wanted you to emphasize, once again, the reasoning behind this bill. Is it to further emphasize the particularly heinous nature of these crimes? Is it to better reflect the severity of these crimes?
Mr. MacKay: Thank you very much, senator, and the answer is, in short, yes.
[Translation]
We understand the impact on vulnerable children completely.
[English]
As you have stated, there have been efforts in the past quite frankly by all governments to home in on any and all methods — through deterrence, through denunciation, through rehabilitation — to stop this from happening, this blight on society. We, in keeping with Minister Blaney's comments about sharing of information, never want to be known as a country that exports our problems to the world, and there have been, sadly, instances where Canadians have taken this horrible attack on children to other countries. I think of an individual from my own province of Nova Scotia. The name Fen MacIntosh may be familiar to some here. I note that there's an individual about to be released or pending release who had victimized a number of junior hockey players in the West. So yes, there is a need for more deterrence and denunciation of this type of activity, this horrible victimization. It's to prevent re-victimization, as we have seen in some instances. During the consultations on the Victims Bill of Rights, what we very often heard was the shock and the trauma that Canadians experienced from encountering, at the local supermarket or on the street or at the mall, somebody who had preyed upon their child or upon them and was released without proper notification.
So, in total, as to your statement about why we are doing this, it is to underscore further every time, as often as possible, how much this behaviour must be deterred, and we have to do everything in our power, I would suggest, which I think is something we can all agree on, to protect children who are particularly vulnerable, including some of the important protocols that are now in place. Through athletics, Guides and Scouts and Big Brothers and Big Sisters and all of those organizations, there has been a marked improvement in this area that has to be noticed.
Senator Jaffer: Thank you to both witnesses for being here. There are so many questions that I have in my mind, but we have limited time. So I will focus on just one. Minister Mackay, you were talking about the issue of sex tourism, so I once again suggest to you that, if we are serious about these issues, we need to look at embedding police officers in, for example, Thailand and Vietnam. I'd once again ask you to consider that. As I was listening to you, how can you not feel so upset about the figures you give? This is very good work you do.
But I come from British Columbia, and our courts are bursting. There are no resources to deal with all of the legislation you are making. When you increase the sentencing, then the legal aid gets increased. Then the court time gets increased. Everything increases. Both chief justices, on a regular basis, tell me that it's very tough to provide the operational services with all of these bills that are coming up. I know it's not part of you. I know the province provides that. I understand that. But you are in the leadership role, and I'm sure that you don't just pass this law. You also look at the full picture of how you support the provinces to make sure that the resources are available to prosecute these cases.
Mr. MacKay: Thank you very much, Senator Jaffer. I appreciate very much the comment, and I agree that we are seeing a period of unprecedented increase in litigation in some areas. Certainly, that is true in the family courts. We are seeing a lot of unrepresented accused, which impacts on the efficacy of the courts and trial process. That's why you will find, in many of the bills, an effort to try to also streamline and improve the way that the process itself is working. On resources, we have increased the number of judges in some provinces based on need. I note that the provinces of Quebec and Alberta have received more Supreme Court justices. I also appreciate your acknowledging that the administrative side of our justice system is very much a provincial responsibility, although we work very closely with our provincial and territorial partners in that regard. We have kept legal aid funding, you will note, even through the recessionary period, stable. Yes, there are always requests for more resources in some areas, and we are constantly looking at that and weighing that based on statistics of the amount of court time, the volume within the courts.
I will let Minister Blaney speak to the other aspect of embedding police officers. More and more we find that we have to work closely with all departments. The Canadian justice system is highly admired for the way it operates. We have a high demand for judges and lawyers from Canada to go and help build capacity in other countries. Ukraine is a perfect example, and Afghanistan is another.
Mr. Blaney: I would just like to add to the comment of Minister MacKay that as was discussed earlier, many mandatory minimum sentences of two years were introduced. As you know, those sentences of two years and plus are served in the federal penitentiary. I use the expression "apocalyptic" because we have heard a huge number of our prisons would be like no vacancies. The latest number I have, dated yesterday, is below 15,000, which is almost like a very slight increase, although we've moved forward with the legislation to make our streets safer. So that would be my comment on the correctional service side.
We are reviewing our projection à la baisse because it is not the projections of increase that are not happening. That is the reality that I have.
Senator Batters: Thank you very much to both of you for being here again. My home province is Saskatchewan, so I find it poignant to have this particular bill before our committee in a week where we have seen notorious convicted child predator, Graham James, whom the minister just referenced, charged yet again with sexual assault arising from incidents in the early 1990s when he coached the Swift Current Broncos of the Western Hockey League. This hits a little close to home for me because it was during that time that I worked for the leagues' Regina Pats, as the team's organist. So I knew a lot of players in that league. I always find it sad when I think that at that time I would probably have been watching the Swift Current Broncos playing the Pats and thinking that the most stressful thing on the mind of those Bronco players would have been winning that game — but little did we know.
Minister MacKay, could you please let us know why you've chosen to employ consecutive sentencing provisions in this bill? What messages are you hoping that this change will send to child victims of sexual crimes and the offenders who abuse and exploit them?
Mr. MacKay: Before I do, I want to congratulate you publicly for the recent award that you've received for your work in mental health. I think that's outstanding. It puts a very different light on the image that some Canadians have about the important work done by the Senate.
To your question, I totally agree that the impact that this has had on so many young people now really warrants this bill and other efforts that we are making as a government, that we're collectively addressing. The specific question with regard to consecutive sentences, in my experience — both in my time at the Department of Justice, but also in working as a Crown, as a defence counsel — individualizing the sentence is extremely important for a victim. It does away with the phenomenon of re-victimization or depersonalizing the sentence in a way that the victim feels that there has been no acknowledgment of the harm done to them. Consecutive sentences do that. They allow for the individual to feel that there is a punishment specific to the crime that was committed against them. It is very personal.
I recall vividly and poignantly a victim saying to me, and in this case she had been badly abused and beaten, that even the way we style the cases in court — the Queen versus or the Queen and — she said, "The Queen wasn't assaulted. I was assaulted." We sometimes as participants in the justice system lose sight of how foreign and intimidating the justice system can be when you are brought in unwittingly and through no fault of your own. Consecutive sentences individualize the sentence in a way that matters greatly to victims. It acknowledges their harm and suffering in a way that concurrent sentences, when they are lumped together, are lost on a lot of victims.
Senator Joyal: I would like to address Minister MacKay. The bill contains many provisions to increase or establish minimum sentences. You're certainly aware because I think you have made public comments. Recently, the high court in Canada has struck down some provisions in relation to minimum sentences and has established criteria. Could you explain to us how those criteria, and I'm thinking of the case R. v. Nur, that this Supreme Court has established in relation to minimum sentences are reflected in this bill, so that it could stand further eventual challenge, as you have mentioned yourself?
Mr. MacKay: That is a relevant and important question. The principle of mandatory minimum sentences though, as you would know, in this recent Nur decision from the Supreme Court was upheld. In the Nur decision, the majority of the court confirmed that the test that is to be applied under section 12 of whether the punishment inflicted is grossly disproportionate was in fact upheld.
So while the specific mandatory minimum penalties in the case of Nur and Charles was struck — the test that is sometimes difficult to meet, importantly — the court recognized the validity of mandatory minimum penalties in addressing violent crime. That's what we're talking about here. Sexual crime is violent crime of the most intrusive and far-reaching nature. I believe fundamentally and I believe that the courts have effectively recognized that society's denunciation of violent crime is a valid purpose that is encompassed by having mandatory minimum penalties.
Gone are the days when even what would sometimes be described as minor sexual assaults that are dealt with by way of serving that sentence in the comfort of your own home. That approach, we believe, is not acceptable. So I think the objectives are critically important here in the context of sexual assaults against children. I think that child sexual offences unquestionably, as I have said before, cause long-term damage, not only to the individual but to the community and Canadian society at large. What the Supreme Court said in Nur, it's my view that these mandatory minimum penalties contained in the bill would not result in grossly disproportionate penalties. They would result in penalties that I think most Canadians would expect, that are not of a cruel and unusual nature, under the Charter, and that they would very much be Charter-compliant, if challenged. I very much expect that they may be challenged. We will vigorously defend.
Senator Joyal: Do you apply the same principles for the consecutive sentences that the bill contains?
Mr. MacKay: Indeed I do. These specific mandatory minimum penalties are targeted in a way that we have gone through the Criminal Code in significant detail to identify areas in which we feel that both child pornography and the sexual touching of a child warrant a minimum penalty. It is a starting point, and it is within the judge's discretion to go up to and including the maximum penalty. In many cases — I referenced earlier in the case of Nur and Charles — the judges didn't find that the sentences, based on the facts before them, were disproportionate or cruel and unusual. They used a hypothetical that was not before the court.
The Chair: Ministers, we're pretty close to the deadline that I was given. Do you have a little more time? I have three more senators.
Mr. MacKay: By all means.
[Translation]
Senator Dagenais: My thanks to the two ministers and my congratulations for your excellent work. I am sure that police forces will welcome this bill warmly.
We must never forget that police officers are also mothers and fathers. At times, when the accused receive penalties that are too light and they are arrested time and time again, there is often a danger that they will reoffend.
Have you measured the impact of the increase in minimum sentences? Also, have you assessed the public perception of this issue?
[English]
Mr. MacKay: I will let Mr. Blaney respond as well. In my recent experience at round tables, in public consultations and in simply meeting Mr. and Ms. Canada on the street, certainly parents and people who have, sadly, suffered victimization — and talking to people at these child advocacy centres is very stirring and inspiring, as people attempt to overcome the impact that sexual assault has had on them. It's a life sentence for them. Even in cases where it happened when they were very young, they carry these scars; the psychological impact and the self-esteem issues stay with the person a lifetime.
To respond to your question, Canadians seem very much behind measures that will send that strong message of deterrence and denunciation. But overall, I think it's healthy for our country that we're having this discussion and that we're taking steps and, beyond simply this legislative initiative, that we're doing more to embrace and support those who have fallen victim, to hold offenders accountable and to move beyond a terrible time when these issues were hidden from plain view. I think of Mount Cashel. I think of cases that Senator Batters referenced involving young hockey players and many more.
Finally, it's giving more Canadians — parents, victims, children — the confidence to come forward, knowing that the criminal justice system is responsive, that society is more accepting and that there's overall more wraparound support of their plight.
Senator McInnis: My question does not particularly deal with this bill, but I certainly concur with this bill. Minister MacKay, I read that you had appeared before the Standing Committee on Justice and Human Rights 51 times, and I rather suspect that Minister Blaney is probably not far behind. We've seen here a number of key bills go through — the Victims Bill of Rights, cyberbullying, the response to the Bedford case before the Supreme Court of Canada — a whole host of bills and more to come.
I'm wondering, as Parliament comes to a close, are you satisfied that we've set the framework to make our communities and streets safer?
Mr. MacKay: As a former attorney general yourself, I think you will agree with the assessment that justice never sleeps and the work is never done. There will always be both the need and the desire for positive change in our criminal justice system. We have people not only at the Department of Justice Canada but at the provincial and territorial justice departments who are committed, professional, commendable, passionate people about how we improve our justice system.
One of the most notable improvements in my time in working within the justice system at various levels is the devotion now to support victims — those who have found themselves, through no fault of their own, pulled into a very sometimes complex system and situation.
This Senate committee, as has been noted now a number of times, has been very busy as well, and we're grateful for that. I mentioned to Senator Baker just before we started that these are issues that really are of the most non-partisan nature that we're seeing. In the life of this Parliament, I suspect we have done more positive, forward-looking, modernizing steps to improve our justice system than in any Parliament in the history of Canada. That is a bold statement, but when I look at the legislation, the improvements, the work of this committee and the parliamentary committee, I think this is an area of convergence that we can all be very proud of.
But, yes, there will always be more work to do.
Senator White: Thanks again to the officials and the ministers.
Public notification has been around for a long time. In fact, for over a decade I was involved in improving public notifications. The biggest concern and complaint of the public has always been that one will be missed. What if the commanding officer or the chief of police misses one and something bad happens — information they should have had access to?
What we're trying to do here is put it into a form and codify it so that the public know it will be there; we don't have to hope that the police official does the right thing at the right time in the right space. Now we can see the exact people we would've put into a public notification put into a public notification data bank that people can access. Really, that's what we're talking about.
Mr. Blaney: Absolutely, Senator White. I thank you — that coming from a man of your experience and depth in the public safety community. I was in the Ottawa headquarters on Monday, and I could see you on the wall there.
Maybe more broadly, the trust of Canadians toward an institution is a principle of our democracy.
[Translation]
You know the expression "a slap on the wrist" and it goes without saying that a public loss of credibility in the justice system threatens our institutions and our democracy.
Clearly measures designed to toughen sentences, especially with sex crimes — for which society demands harsher penalties — are likely to re-establish the credibility of our justice system, and thereby of our institutions and our politicians, for the benefit of our democracy.
The message in this bill is very clear: no one touches children. As such, as my colleague Minister Peter MacKay would say, I feel that this bill has found consensus and achieves its objective. For example, the victims' ombudsman and the executive director of the Canadian Centre for Child Protection are in favour of the bill.
[English]
Specifically — and I will close with this — on the high-risk sex offender registry, here's what she has to say:
. . . the creation of a publicly available high-risk sex offender database is an initiative that we support. The provinces of Alberta, Manitoba, Ontario, and Nova Scotia already perform public notifications in high-risk cases. It is our view that providing such information to the public can be of great assistance to families and communities that wish to better protect children.
I would add: Let's do it in an orderly manner, based on law enforcement experts, because I've opened newspapers and I've had some of those databases that are collected and done in such a way. Let's do it. It's done now. Let's collect this information and do it in a professional, Canadian way, and we'll be all better at the end of the day.
The Chair: Thank you both. We very much appreciate it, and we especially appreciate your staying a little over time. We know you both have very busy schedules.
I had previously introduced the officials. They've now taken their places, and I'm going to move right into questions, beginning with Senator Baker.
Senator Baker: I just have one question and then I want to assign the rest of my time to Senator Fraser.
I asked a question of the minister, and he didn't answer it, but we remind you that the 90 days are not new provisions for the mandatory minimum for summary conviction offences found throughout this bill.
Am I correct in my recollection that in 2012 this committee dealt with that very same section and increased it from 14 to 90 days? Am I correct? That's my only question.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes, you're correct. The Safe Streets and Communities Act, Bill C-10, amended a number of the child sexual offences to increase some of the mandatory minimum penalties that were in place at the time from 14 days to 90 days and otherwise and overall sought to bring some coherence and consistency to MMPs as they apply to child sexual offences because they didn't apply in all of the offences to that point. They applied in some of the child-specific offences enacted in 2005 and then to the general sexual assault offences. Bill C-26 does do more than that.
Senator Baker: I'm not asking you what else it does. I just wanted to verify that I'm correct in that.
Mr. Chairman, I wonder if Senator Fraser could ask my second question.
Senator Fraser: Back to the new high-risk child sex offender database, what does "publicly accessible" mean? Does it mean on the Internet? Does it mean you go down to the local police station? Is any record to be kept of who has access to the registry? What is the description of the offences that the registry is to include? Is that a graphic description or is that the legal title of the offence that was committed? Who decides who poses a high risk, and on what grounds is high risk to be defined? What are reasonable grounds to remove a name or information from the registry? How will we know the grounds upon which such decisions are to be made?
Last couple of questions: How much is this going to cost? Will the RCMP have extra resources to administer this database? How sure can we be that it will actually be up to date?
I said I had a series of questions. I have no preliminary statement here, just questions.
How can we assure that it will be kept up to date? I gather that CPIC is months and months behind. What grounds are there for thinking that this registry will be different?
The Chair: That was about eight questions, I think. I know you won't have adequate time to respond, but perhaps over the course of the next 45 minutes you may have an opportunity. Who wishes to respond to that?
Peter Henschel, Deputy Commissioner, Specialized Policing Services, Royal Canadian Mounted Police: The intention is for the registry to be publicly accessible so that people will be able to access what data there is online or whatever. The high-risk definition is only one step of the two steps to get onto this publicly accessible database.
One, the offender has to already have been subject to a public interest disclosure because they're a risk to the community, and every province has their own approach in doing that. But right now you have these public interest disclosures, as Senator White was talking about earlier, and they're done because the authorities feel there is a significant enough risk to the public that it supersedes the privacy rights of the individual and that it's important to publicly disclose that. That's step one.
The other step is they must be a high-risk child sex offender. For that we're using a tool called the Static-99R, which is an accepted tool that is used to assess child sex offenders to determine if they're high-risk. It's a two-step process.
There's not going to be additional information available publicly than there is right now. It will make it accessible to everyday Canadians to be able to go online and see who is currently subject to basically a public interest disclosure.
The Chair: We'll move on from that point.
Senator Plett: I will also not have a preamble and will ask three questions, the first one for the RCMP and the next two for Ms. Levman.
To the RCMP, can you explain to me what the major differences are between the proposed high-risk sex offender database and the National Sex Offender Registry?
Mr. Henschel: The Sex Offender Registry is the registry of everybody that is convicted and meets the criteria in the legislation. They must register themselves with the basic data of where they're staying. Now driver's licences or passports have also been added, but it's basically the tombstone information that is kept for convicted sex offenders. That is used only by police and law enforcement and can only be used for investigational or prevention purposes. That will remain the same. It will be, again, very tightly controlled, and in the past the legislation has been clear about when you can and can't use that. It's an offence to disclose or use it if it's not for its intended purpose.
The public database is, again, where there have been public interest disclosures; it's basically collecting that in one place so that people can have access to that as opposed to having to go to their local police station or you've done a public interest disclosure. Now it's just going to be available at one location across the country.
Senator Plett: Thank you. I have two questions for Ms. Levman, if I could.
Could you please discuss the totality principle in a little greater detail and the effect that it has likely had on sentencing of child sex offenders and multiple victims?
In your estimation, has there been a lack of consistency from the courts in sentencing sex offenders with multiple child victims? Will this legislation rectify that inconsistency?
Nathalie Levman, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. What we see now in terms of our case law review is different approaches when it comes to sentencing in child sexual offence cases. We are seeing a trend in case law that indicates that courts are imposing consecutive sentences where offenders are sentenced at the same time for child pornography offences and contact child sex offences. It's not required by the code, but we do see a trend that indicates some consistency in that regard.
Where we're not seeing as much consistency is in cases that involve multiple victims. We see two trends there. Sometimes courts will sort of lump together offences committed against each victim. For those offences, the sentences are served concurrently but consecutive to the offences that were committed against other victims.
Sometimes we see it the other way around, where we have types of offences that are lumped together. So child pornography-type offences, contact child sex offences, regardless of the victim, would be served concurrently and then consecutive to the different types of offences.
We're not seeing a great deal of consistency in that regard; that's true. All of these considerations are based on, as you indicated, the totality principle, which states that the sentence shouldn't be unduly long or harsh. Judges are using that principle to adjust how they sentence offenders.
Bill C-26 would require judges to impose consecutive sentences where offenders are sentenced at the same time for offences committed against multiple victims. So you will no longer see judges imposing concurrent sentences in respect of multiple victims if Bill C-26 were to come into force. You would also see an entrenchment, if you will, in the Criminal Code of the current practice of imposing consecutive sentences where offenders are charged with child pornography and contact child sex offences, and that's to recognize the additional harm created by the child pornography offences.
Senator Jaffer: My question is this: From what I understand, more than 80 per cent of the sexual offences are against children. I want to know how will the publication of this information impact the children and how will it impact the children's family? If it's within the family, how will it especially impact the children? Has any research been done on that?
Angela Connidis, Director General, Corrections, Public Safety Canada: I'll get back to you about whether we have particular research on the impact, but it should be understood there would be no publication of an offender's name if it was determined there was an adverse impact on the victims. That's one of the starting points.
Senator Jaffer: For me, that's comforting, but how is it understood? I don't follow that. Is there a protocol that you will have of how the database —
Ms. Connidis: To add to what my colleague said earlier about determining who is on the database, we are consulting with the provinces because, as he said, it's implemented across the country but a bit differently. We want to have a common basis on which to determine the criteria.
Static-99R is also one of them but not the only criteria we'll use. Under the new Victims Bill of Rights, victims do have the opportunity to receive information but also to participate and provide their perspective. We would anticipate that if victims have any concern about the publication of an offender's name, they would be bringing that forward to us.
Senator McIntyre: First of all, thank you all for your presentations and for being here.
I draw your attention to clause 17 of the bill, which deals with cumulative punishments. Clause 17 has a number of subsections to section 718.3 of the Code. For example, an amended 718.3(4) changes the wording that "a court may consider," which is currently used, to "shall consider directing." Again in 718.3(4)(b), in the case where multiple sentences are being imposed at the same time, a court "shall consider directing." Finally, I note that under new clause 718.3(7), in the case of a court sentencing an accused at the same time for more than one sexual offence committed against a child, "a court shall direct," as opposed to "a court shall consider directing."
Critics of the bill questioned the wording "shall direct" as opposed to "shall consider directing." May I have your thoughts on that, please?
Matthias Villetorte, Counsel, Criminal Law Policy Section, Department of Justice Canada: Yes. The intention to have the wording under 718.3 as it is currently, "shall consider," is a direction to turn the mind to imposing consecutive and concurrent sentences in certain circumstances. Proposed subsections 718.3(4), (5) and (6) do two things. They clarify what is already in the Criminal Code right now at 718.3, but they clarify the language. What we have currently in 718.3 dispositions throughout the Criminal Code were some of the rules predating Confederation. With the passage of time, it was convoluted and needed clarification. That is one of the things it does.
The second thing subsection (4) does is codify certain rules as they relate to consecutive and concurrent sentences. One of them is that courts, which they already do, shall consider imposing consecutive sentences for offences that are not part of the same criminal transaction or, as described in the bill, same event or series of events. That is not an obligation to impose consecutive sentences or concurrent. It is those situations that the courts should turn their mind to. The determination of whether sentences shall be served concurrent or consecutive is fact specific.
The language in proposed subsection (7), namely "shall direct", is an obligation, in those circumstances, to order that those offences shall be served consecutively, that offences imposed for child pornography offences be served consecutively. There is no choice. Under subsection (4), however, a court is free to provide reasons why it should be served concurrently.
Senator McIntyre: In your opinion, would those sections be in conflict with the totality principle as set under section 718 of the code?
Mr. Villetorte: Again, proposed subsections 718.3(4), (5) and (6) don't change the current law, and they codify certain situations. It's not an imperative. Courts have the latitude to determine fact specific. It wouldn't necessarily change the interpretation of the totality principle. With subsection (7), I repeat what my colleague Ms. Levman aptly summarized: It's a recognition of the trend currently. The determination of the totality principle wouldn't necessarily be suffering from paragraph (7) as it is.
Senator Joyal: I'll just make a nuance to what you said. The reality now is that the piling up of minimum sentences, plus the totality principle that you remove, could reach a point of being grossly disproportionate. That's where I think the bill runs the risk of being quashed by a court.
I can certainly think of a case in which an offender is guilty of pornography and there is a direct link with the child molesting. Then, I can understand that there's a link between the two offenses. But somebody could be guilty of child pornography in a situation that has no link with the molestation of a child in another offence. By linking the two and adding, as I say, the minimum sentences to it, that's where I think you can reach a point whereby this bill could be challenged in court.
I'm not against fighting child pornography or child molesters, but I think we have to make it within the confines of the Charter and, especially, of course, section 12 of the Charter. That's where I think this bill could run the risk of being quashed.
Mr. Villetorte: First of all, I want to say that the totality principle does not disappear just due to the fact that the amendment would direct that they would be served consecutively. Certain courts — for instance I've seen it predominantly in Ontario and Alberta — will not necessarily concentrate on the imposition of consecutive and concurrent sentences as an interpretation of the totality principle. There is something called the R. v. Jewell approach, whereby courts determine, first of all, the global sentence that should be imposed. They determine the totality of it and then determine the individual sentences that will meet that total global sentence and determine, as well, whether certain offences shall be served consecutively or concurrently.
You mentioned where there is a linking of the child pornography and the child sexual offences. This goes to the interpretation of the same event or series of events rule. In the situation you were describing, they wouldn't be committed as part of a single transaction. They would be committed as two separate offences, not as part of the same event or series of events. In that case, courts usually will impose consecutive sentences. What we're saying here is that, even in cases where they are committed as part of the same event or series of events, they shall be served consecutively, and this is to emphasize the recognition that we've seen in courts, for instance, as the Supreme Court noticed in R v. L.M., that ordering that consecutive sentences be imposed where there is a contact child sexual offence and child pornography offence goes to reflect the severity of the child pornography offence and the impact it has, especially when distributed through the Internet. This is a long-lasting offence. I just wanted to make that comment with respect to what you said.
There might be challenges under the Charter, but what we've seen from the case law and sentences imposed in those circumstances is that, routinely, they are above what is put forward in Bill C-26.
Senator McInnis: Minister MacKay earlier referenced the Fenwick MacIntosh case in Nova Scotia, that he was charged with child sexual abuse, and because of the fact that they didn't get it to court on time, he walked. As a consequence, he was able to leave the country and is now doing seven years for child sexual abuse in a foreign country. He was a child sex tourist.
What international responsibilities and agreements do we have to fight sexual tourism, and what difference will this bill make, insofar as the status quo is concerned, now that the RCMP and CBSA are sharing information? Could you comment on that?
Ms. Connidis: The sharing of information between CBSA and the NSOR is a very significant step forward in countering child sex tourism because it allows us to share information on high-risk child sex offenders that are leaving the country so that the Canada Border Services Agency is aware of that. They have been flagged. When they return, they can then be noted by CBSA officials and taken for secondary questioning and review so that we can make sure they provided the proper information when they left the country. We know where they were and what happened, and they can be accountable. If they had not complied with the registry information, then they can be held accountable for that as well. Perhaps the RCMP would like to add to that.
Mr. Henschel: The requirement now that a high-risk child sex offender must provide, in advance of travel, everywhere they will be on that international travel is information that we can then, if necessary, share with local authorities where they're travelling. How we deal with that is on a case-by-case basis, and it's taken into consideration, everything from what country it is, how that information would be used there, whether it would be properly handled, what the implications of that are. Also, are there some grounds to believe that that person is going there for child sex tourism, and is there something from either an investigative or a preventative approach that would be important to share with local authorities?
Having that information allows us to make those considerations to determine whether there are some steps that we would take proactively to help protect the children in that foreign jurisdiction.
Senator McInnis: Are any international agreements in place to deal with this, INTERPOL or anything?
Mr. Henschel: There are some general information sharing provisions and agreements in place, and we have ministerial directives on sharing information. So there are various mechanisms in place about how you share information.
Sergio, do we have anything specific on children?
Inspector Sergio Pasin, Officer in charge of Behavioral Sciences, Technical Operations, Specialized Policing Services, Royal Canadian Mounted Police: Yes, there is, as well, the Virtual Global Taskforce, which Canada is a member of, represented by nine countries. They changed their mandate in recent years from online child exploitation only to also include what we now refer to as transnational child sex offenders, formerly known as child sex tourism. These are countries that come together with other private sector partners as well, exchange information, complete projects, develop technology on how to investigate these cases and so on. There is a nucleus. There are most definitely agreements between these countries.
Ms. Morency: There is a legal framework as well, over and above what has been mentioned. Canada is also a state party to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Being a state party to that protocol and to the Convention on the Rights of the Child provides all state parties with opportunities for mutual legal assistance, irrespective of whether there is a bilateral treaty. Canada also has many bilateral treaties with various partners, so there are different ways through existing legal mechanisms to provide legal assistance in addition to what has been mentioned.
Senator Batters: Thank you very much, all of you, for being here today. I have one question for the justice side of the equation and one for the public safety side.
To the justice side, I'm wondering if you could tell me how the provisions in this bill complement those contained in the recently passed Bill C-13, the cyberbullying bill.
For the public safety side, you touched on this in a previous answer, but I would like a little bit more detail. How will someone's high risk be evaluated, and who will make that determination?
Ms. Levman: Bill C-13, as you know, created a new offence, non-consensual distribution of intimate images, and also created a prohibition order where somebody is convicted of that offence and there is concern that that person will go out and either reoffend or do something improper on the Internet. A judge can make an order to impose conditions on the Internet use of the offender.
So that in way is quite similar to section 161, the child sexual offence prohibition orders, so Bill C-26 will ensure the penalties are consistent. There is a coordinating amendment in the bill in that regard. Bill C-26 deals with child pornography, and we know that children sometimes engage in, unfortunately, a practice called "sexting," and often law enforcement may find that the child pornography provision is a little heavy-handed in contexts like that, so it would be possible for a Crown or police, depending on the jurisdiction and whoever is in charge of the charging, to choose to go with a non-consensual distribution of intimate image charge in a sexting case as opposed to a child pornography charge.
Ms. Connidis: With respect to your second question about how we determine who is high-risk, the provision in the act is that we will have regulations that will establish criteria. Those criteria are now being determined in consultation with the provinces. We had several working group meetings discussing that and looking at the criteria that provinces use, looking at Static-99, the criminogenic factors that contribute to being a high-risk child sex offender, and looking for consensus across the country on which factors would be taken into account to be put on the public registry. Those will, of course, be subject to public consultation through the regulatory process and form regulations.
Senator White: My first question is a bit of a cleanup, I think, based on Senator Jaffer's question, and is probably to Mr. Henschel.
The public notification system in place now already takes into account the release of information that may have been considered by the court previously, not to be released in relation to identifying victims, and that has to be met first before they go into the system anyway. So realistically, we're not going to see people in this system that weren't already publicly notified and that have been already considered by those agencies. Is that correct?
Mr. Henschel: That would be correct.
Senator White: The second question is for Mr. Pasin, who was a troop mate of mine in Regina, Saskatchewan, in 1981. I could tell you stories today.
Mr. Pasin: So can I.
Senator White: So we won't go there.
I have a question about the will-fly list. I know some countries — in particular, I think Sweden does — have a will-fly list for child sex offenders.
Have you or has the RCMP been involved in any research about recommending the adoption of such a program where sex offenders for tourism, for example, that notification would be automatic, as it would be for no-fly lists to other countries of risk? I guess that's the question, whether we have given consideration for making recommendations to public safety around that.
Mr. Pasin: There have been discussions within the VGT about that. This was brought to the table, I believe, in the second-to-last session. There is variance from one country to the other as to how they see these lists. We haven't formed a definite position on it.
Senator White: This data bank would be accessible by our embassies and by law enforcement officials that are assigned to those embassies overseas. It could assist in stopping some of the criminal behaviour that others would be involved in.
Mr. Pasin: The high-risk child sex offender database, yes.
Senator Fraser: I will do the same thing again. If the chair cuts us off before I get all my answers, for whoever hasn't had a chance to respond, I would like answers to the questions to be provided to the committee in writing. That's a frequent procedure around here and helps solve time problems if necessary.
Just to confirm, the intention is, as I understand it, that the high-risk database will be available online. What will the cost of it be?
Will the RCMP be given additional resources to administer it? With or without those additional resources, what reasonable expectation can we have that it will be kept up to date?
What is the description of offences that offenders have committed that is to be included in the database?
Finally, what are going to be considered "reasonable grounds" to remove information from the database? Who will decide? It says the commissioner, but it always says the commissioner.
Will the criteria for determining whether or not information is to be removed be public? Regarding the time — it has to be reviewed within a given period of time — what will that given period of time be?
Mr. Henschel: The intention is to have it available online. The overall cost for the RCMP to implement the legislation is $6.72 million over five years and about $1.1 7 million ongoing. We are handling that from within existing reference levels.
The next question, we're doing it within existing resources, so without any new resources.
Senator Fraser: Good luck. How can we be sure it will be more up to date than CPIC?
Mr. Henschel: First of all, I take exception to saying CPIC is not up to date. CPIC is completely up to date. You're talking about the National Repository of Criminal Records, and I can give you a very detailed answer on what the backlog is around the National Repository of Criminal Records.
Senator Fraser: You can write me a letter.
Mr. Henschel: The National Repository of Criminal Records has a significant backlog because we're going from a paper-based 100-year-old system to a fully electronic system. It's a shared responsibility, so we have a backlog that we hold because police services send stuff sometimes 10, 20 or 30 years old. They're still sending us stuff from their backlog. We have our own backlog as a result of trying to go from a paper system to an electronic system. We've delivered RTID, which is real-time identification.
We're currently in the process of delivering what's called "criminal justice information modernization," and it will be up to date in the sense of police services in the future will be able to update things real-time for criminal records.
There is no CPIC backlog. What guarantee do you have? We're talking about apples and oranges here. What we're talking about here about the public database is putting into the database what's already subject to a public interest disclosure.
A simple way of saying it is taking the disclosures that have been made publicly and putting them in one place for the public to access.
The Chair: We're not going to have time to respond to the remaining questions. Hopefully, the officials have taken note.
Senator Fraser: Description of the offences, reasonable grounds to remove, time period.
Senator Plett: I have no idea whether my question was in that list of questions there somewhere or not, but let me ask mine.
Will you be able to explain in further detail what type of mandatory notification exists now for high-risk child sex offenders leaving the country and specifically what changes will be made if this bill passes?
Mr. Henschel: Right now there isn't mandatory obligation because there is no requirement. In the new bill, there will be a requirement for high-risk sex offenders to notify when they are leaving the country and to say exactly where they will be going, for what duration, where they will be along the way and the place where they're staying. If they change those plans along the way, they will immediately update that information as well. That's a new obligation under the proposed legislation to require high-risk child sex offenders to disclose that information in advance of travel.
Senator Joyal: You have outlined that the information that will be gathered to decide whether somebody is a high-risk offender will be drawn from various sources and will be established by regulation, but who will decide that a person is a high-risk offender? Which legal authority decides that?
Ms. Connidis: I think that is still under determination, but it will still have to be, first of all, the local authorities that will publicize it, and then the common criteria will have to be met before we go on to the publicly accessible database.
Senator Joyal: In other words, who will have the opportunity to challenge that decision? Because of course that decision has a lot of consequences for somebody who will now be on the computer of the RCMP, accessible to anybody. If I would be pinpointed as being a high-risk offender, I want to have my day in court. I want to be able to challenge that information and why I should not be deemed a high-risk offender. That seems to me to be a very sensitive legal proceeding.
Mr. Henschel: The high-risk sex offender, child sex offender, is a different designation than just those that are going in the publicly accessible database.
Senator Joyal: Of course, but both of them have a lot of legal consequences for the person.
Mr. Henschel: That's right. But the high-risk child sex offender, if somebody is going to be placed on the publicly accessible database, efforts will be made to notify them in advance so that if they want to make representation as to why they should not be on the public database, they can do that. But let's recall that irrespective of that process, if a local authority has decided to do a public interest disclosure, that information will be public already. There will be a mechanism, though, for them to come to the Commissioner of the RCMP to make representation why they shouldn't be on the publicly accessible database.
Senator Joyal: And that decision could be appealable to court?
Mr. Henschel: I have to look at my Justice friends, but I would assume that you can do a judicial review on it, yes.
Senator Joyal: My other question is in relation to the statement made by the Minister of Public Safety that what will be made public in the new publicly accessible database, and I quote him, is "information already made public in a provincial or territorial administration." Those were the words in the presentation — not in answer to a question but in his brief that he read.
What do you mean by "information already made public"? What is the word "information" in relation to that? Are we dealing here with criminal information? Are we dealing with what was in the newspaper around that person? What is the definition of that information?
Mr. Henschel: This refers to the public interest, the disclosures that are made in the public interest that, again, as I mentioned, are made by local authorities. Every province has its own mechanism for dealing with that, so it's not consistent across the country. But as Senator White mentioned earlier, as a police chief he was making decisions in jurisdictions to determine whether or not there should be — if somebody posed enough of a risk to the community, that it was more important to advise the community that this person was in the community than for the person's privacy rights to not release that information. So the information that is typically released is to say that this offender is resident in this community.
Senator McIntyre: My question has to do with the information sharing on registered sex offenders between the RCMP and Public Safety.
I understand that Canada only conducts entry controls and not exit controls. So I would like to know how that will work with the new act.
Can you tell us more about the Entry/Exit Initiative involving the Canada Border Services Agency and the American Department of Homeland Security?
Mr. Henschel: I can't comment on your second question, the U.S., regarding the entry-exit issue.
But on the first piece, the way it will work is that we would, as a matter of course, advise CBSA; when we have notification from a high-risk child sex offender that they are travelling abroad, that information, as a matter of course, would be shared with CBSA. So when the person comes back, so on entry, CBSA can take whatever action they deem appropriate, including confirming things such as where was the person and did they comply with the information they provided before they left.
Senator McIntyre: So you welcome these amendments?
Mr. Henschel: I think these amendments help strengthen our ability to do something about travelling child sex offenders, yes.
Senator Batters: I want to draw the officials' attention to an important aspect of this bill that hasn't received a lot of attention, but it may go a long way to keeping Canadians safe. The sections I'm referring to relate to measures that protect Canadians from convicted child sex offenders.
For the benefit of this committee and Canadians who may be paying attention to this particular bill's study, can you please explain what this bill proposes with respect to penalties for breaches of probation orders, prohibition orders and peace bonds or supervision orders?
Mr. Villetorte: With respect to the supervision orders that you just referred to — probation, prohibition, section 161 and peace bonds — it would ensure that they are punishable by four years on indictment and 18 months on summary conviction; in the case of probation order, by also increasing from the current $2,000 fine to the $5,000, to be in line with the default penalty imposed where the fine is not specified, and that's section 787. That's what the bill proposes to do.
Also, increasing the maximum, either on indictment or on summary, sends a message, a signal of denunciation that those orders are specific to child sexual offences; and a breach of a condition of them, whether it results in the commission of an offence or not, must be taken seriously.
Senator Batters: Thank you.
The Chair: Thank you, witnesses. I appreciate your appearance and your assistance this evening.
The final item of business this evening is to begin clause-by-clause examination of Bill C-2, An Act to amend the Controlled Drugs and Substances Act. Bill C-2 creates a separate exemption regime for the operation of supervised consumption sites in Canada.
Before we begin, I want to advise members that we do have officials here this evening from Health Canada. We can call them to the table to answer any technical questions that you might have. What's the wish of the committee? Would you wish them to come forward now or just if something arises? How do we feel?
Senator McInnis: How do you feel, chair?
The Chair: Officials, why not come forward and I can introduce you. We can expedite matters.
We have Jacqueline Gonçalves, Director General, Controlled Substances and Tobacco Directorate, Healthy Environments and the Consumer Safety Branch, Health Canada; Greg Lyost, Director, Controlled Substances and Tobacco Directorate of the same agency; and Diane Labelle, General Counsel for Legal Services for that agency.
I don't see any questions off the top, so we will move right to clause by clause.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-2?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Senator Fraser: On division.
The Chair: On division.
Shall clause 2 carry?
An Hon. Senator: On division.
The Chair: Agreed on division.
Shall clause 3 carry?
An Hon. Senator: On division.
The Chair: Agreed on division.
Shall clause 4 carry?
An Hon. Senator: On division.
The Chair: Agreed on division.
Shall clause 5 carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Shall clause 6 carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Shall clause 1, which contains the short title, carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Shall the preamble carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
An Hon. Senator: On division.
The Chair: Carried on division.
Senator White: Shouldn't we ask a question?
The Chair: Does the committee wish to consider appending observations to the report? Seeing none, is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Thank you, witnesses, for your significant contribution to our deliberations. It is very much appreciated. The meeting is adjourned.
(The committee adjourned.)