THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, May 28, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which was 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, met this day at 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Today I welcome colleagues, guests, and those following the Standing Senate Committee on Legal and Constitutional Affairs. We're meeting today to continue our study of Bill C-26, An Act to amend the Criminal Code, the Canada Evidence Act and Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts.
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 website under "Senate Committees."
For our first panel today, please welcome Greg Gilhooly, as an individual; from the John Howard Society of Canada, Catherine Latimer, Executive Director; from the Canadian Centre for Child Protection by video conference from Winnipeg, Monique St. Germain, General Counsel; and from Victimes d’agressions sexuelles au masculin, Alain Fortier, President, and Frank Tremblay, Vice-president.
We will begin with five-minute opening statements from Ms. St. Germain followed by Mr. Gilhooly, Ms. Latimer and then finally Mr. Fortier and Mr. Tremblay.
Ms. St. Germain, the floor is yours.
Monique St. Germain, General Counsel, Canadian Centre for Child Protection: Thank you, Mr. Chairman and distinguished members of this committee. I thank you for giving our agency the opportunity to provide a presentation on Bill C-26. My name is Monique St. Germain, and I am general counsel for the Canadian Centre for Child Protection, a registered Canadian charity that is dedicated to the protection of all children. Our agency began its journey as Child Find Manitoba, supporting and advocating for families dealing with the horror of a missing or murdered child. Over last 30 years, we have grown into an agency that offers a variety of national programs and services aimed at reducing the sexual exploitation of children, such as Cybertip.ca, Canada's national tip line to report the sexual exploitation of children; MissingKids.ca, Canada's missing child resource and response centre; Kids in the Know, a safety education program for children; and Commit to Kids, a program that goes beyond the limitation of a criminal records check by helping organizations establish meaningful policies and procedures to help prevent sexual abuse before it occurs.
The scope of our programs and services helps connect us to numerous professionals working to protect children. Through our work in triaging reports made to Cybertip.ca, we regularly connect with law enforcement and child welfare. Through our educational programs, we regularly interact with students, educators and child-serving organizations. We regularly consult with experts in psychology, child development and sex offender behaviour. We work directly with families of missing children and with those who are trying to cope after abuse has come to light. We monitor cases moving through the court system that involve child sexual abuse or child pornography. We do all that we can to help ensure that our programs and services are responsive to current risks and trends; understand how victims are treated within the legal, child welfare and educational systems; and what can be improved upon.
Our agency supports Bill C-26. Earlier this year, I presented on behalf of our agency before the House of Commons Standing Committee on Justice and Human Rights, expressing support and highlighting our position on issues such as consecutive sentences, changes to the sex offender reporting requirements and the creation of a publicly available high-risk sex offender registry. Rather than repeat those remarks, I refer the committee to that testimony. There are three other components of Bill C-26 that we support.
First, we welcome increased minimum penalties for sexual offences against children. Our agency has a unique lens into understanding the distinctive nature of child sexual abuse offences and the devastating, long-lasting impact it can have on the victim, the family and the community at large. We recognize that every case that makes it to sentencing is significant because we know that such cases represent only a fraction of abuse that is taking place in this country. We know that victims are typically abused by someone close to them and that many are unable or unwilling to disclose the abuse when it is occurring. We know that adults and others who work with children may not recognize problematic behaviour, that technology has added an additional layer of complexity to an already complex problem, and that there are offenders who offend against many children for several years before the abuse comes to light. We see the difficulties in prosecuting these types of cases.
When a conviction is successful, the length of the sentence is very important. It tells the victim that they matter, that what was done to them was not okay. It denounces the offenders' conduct. It sends a strong message to society about the seriousness of such offences. It prevents the abuser from abusing another child, while they're serving the sentence.
Also, we support the increased penalties for breaches of court-imposed conditions. When conditions are imposed upon an offender, the court takes into account the nature of the offences committed and the risk posed by the offender. The conditions are an attempt to manage that risk and protect the chance of additional victimization. The conditions are purposeful, and they are extremely important to the ongoing protection of children. As such, the penalty available upon breach must be meaningful.
Third, we support the change to facilitate spousal testimony in child pornography cases. Child pornography is the permanent record of the sexual abuse of a child, and those who access, possess, make or distribute it are a serious risk to children. The spouse of the accused person may be the only one who can provide the court with the information needed to sustain a conviction. Given that the overriding objective of the offence is to protect children, it makes complete sense to add it into the list of offences for which spousal testimony is available.
In conclusion, while we recognize that criminal sanctions are only one part of the solution, they are an important component of better protecting children. This bill sends a clear message about the seriousness of sexual offences against children and will help to rebalance the scorecard between victims and offenders. Thank you.
Greg Gilhooly, as an individual: Thank you very much for having me. I want to commend the government for coming forward with this piece of legislation. Is it a perfect piece of legislation? I don't think so. Does it solve all the problems that we face with respect to these issues on a go-forward basis? Absolutely not. But I want to pick up on the last comment that Monique made. This is part of a group of bills that the government has brought forward that as a victim are very important to me and I think put the government on the side of the angels for the simple reason of messaging.
For too long, we have seen the balance sway in a back and forth between the state as prosecutor and the accused, the criminal and his or her rights. In that battle a game has taken place. Victims have been sitting on the sidelines for far too long. Victims are nothing but witnesses in our justice or our legal results system. The problem that we face is that the participants in our system sometimes get caught up and themselves become advocates. I refer specifically to some testimony that took place at the house level when a criminal lawyer, speaking on behalf of the Canadian Bar Association, our national association of lawyers, spoke of the constitutional duty of a criminal defence counsel, and the need, the duty that the criminal defence lawyer has in that battle against the state.
The criminal defence lawyer should just be a lawyer representing an accused. What's happened is that our system has come to view criminal defence lawyers and "the game" as something that actually does have winners and losers — irrespective of the victims.
Speaking from my own experience through Graham James, I can go watch proceedings take place. I can go to the Manitoba Court of Appeal and be introduced to the Crown. That person isn't my lawyer; that person was never there to represent me, and that person didn't have time to talk to me. That's just a sort of microcosmic glimpse into the problem that we have in our system right now that is being corrected by the government in terms of moving forward the role and the contemplation of the role of victims in considering what should be done.
Absolutely I am not a "lock them up and throw away the key" type, but when it comes to this legislation and its views with respect to how the system should treat those who prey upon children, I think we're dealing with a different kettle of fish.
You will hear from Mr. Spratt in the next session, and he's going to do his Criminal 101 and go through as criminal counsel would and find any provision that makes it more difficult for him to represent his client to get a victory in that game he is playing. Remember that this is a legal game that takes place after the crime has been committed, after the event has been committed, and the provisions we're speaking of now deal simply with what we're doing with a criminal. We're not talking about pieces of evidence or the evidentiary rules; we're talking about what we do with the guilty.
When people refer to me as a victim rights advocate, I say to you, when you you're talking to Mr. Spratt next session, refer to him as a criminal rights advocate, because that's what he is in the system.
Victims are nothing more than witnesses, and victims should be more than witnesses, especially when it comes to those who prey upon children.
I agree with 90 per cent of what the John Howard Society does. I don't agree with what the John Howard Society does when it comes to those who have preyed upon children. I agree with 90 per cent of what Mr. Spratt does on a day-to-day basis. I do not agree with his approach to this piece of legislation, nor this sector of legislation.
I'll wrap up now simply by saying that whether or not the government has gotten everything correct in this bill and in this set of bills is not important to me as a victim. What is important to me as a victim is the strong message that the government has been sending out that victims do have a place in the discussion and that the government has a duty to rebalance that fight that's taking place in the game between prosecution and defence. Victims matter. This legislation helps.
Catherine Latimer, Executive Director, John Howard Society of Canada: It's a great pleasure to be here to speak to you and to share some concerns that we have about the tougher penalties for child predators act.
I think it's fair to say that all of us are concerned about children and protecting them from sexual abuse. To follow up on Greg's point, the John Howard Society is committed to just, effective and humane responses to the causes and consequences of crime. We do a lot of work with victims, and we do work with sex offenders to try to reintegrate them when they're coming back into communities in a way where they're unlikely to reoffend. Actually, the recidivism rate for child sex offenders is quite low.
I want to share our concerns specifically about the approach of increasing the penalties as a way of addressing child sex offending, which is one of the key elements of this particular bill.
While we agree that people who commit criminal offences should be fairly and proportionately accountable for criminal wrongdoing, it is really unlikely that the tougher penalties for child predators act and its increased penalty structure will protect our children by reducing sexual crimes against them.
In 2012, the government increased the penalties for many of the offences covered in Bill C-26 and argued at the time that it would protect children and reflect society's abhorrence for such offences. Many maximum penalties were raised to 10 years and minimum penalties raised to 90 days. There is actually a chart of the set of proposals that have changed with the penalties attached to the comments that may have been circulated.
Bill C-26 is further proposing an increase to maximums of 14 years and minimums of 6 months for many of the very same offences. While I would welcome seeing the evidence, it seems unlikely that society's view of the seriousness of sexual offences against children has changed appreciably over the last few years, when 10-year maximums and 90-day minimums were thought adequate for a number of these particular offences. Minister MacKay now advises that child sexual offences are increasing and child sexual offences need to be deterred.
Current increased offending suggests that the earlier stronger penalties did not have a deterrent effect on child sex offending. The social science evidence is quite clear that tougher penalties do not deter, but this bill is once again increasing the maximum and mandatory minimum penalties, ostensibly to protect children. This doubling down on a dubious deterrence theory does not protect our children and imposes great costs, particularly on overburdened provincial justice and corrections systems.
Mandatory minimum penalties also risk violating Charter rights by creating disproportionately harsh sentences. This risk is enhanced by also requiring that certain sentences carry mandatory minimums that are to be served consecutively.
Given the public reaction to child sex offenders, the publicly accessible database of high-risk child sex offenders and potentially sharing information about travelling Canadians with foreign countries could pose a risk and be highly prejudicial to some individuals. The regulations guiding the registry and information sharing will need to be closely examined. The utility of the child sex offender registry needs to be carefully assessed.
What has been assessed and found successful are programs like circles of support and accountability that support crime-free reintegration into communities of those convicted of sexual offences, but those programs are being defunded. Children are at greater risk of being sexually abused by people they know rather than by strangers on registries. If we really want to protect children from sexual abuse, we need to focus on prevention.
In conclusion, the criminal penalties should reflect the seriousness of the offence and the degree of responsibility of the offender, but increasing penalties will not deter crime nor keep our children safer from sexual abuse. Investment in prevention, treatment and rehabilitation are more effective approaches to protecting children from sexual abuse.
[Translation]
Alain Fortier, President, Victimes d’agressions sexuelles au masculin (VASAM): Thank you for the opportunity to appear before you today. I will begin the presentation, and Mr. Tremblay will finish it. Today, we are pleased to share with you the reasons for our full support of Bill C-26. Among the provisions of the bill, three of them have drawn our attention in particular: making public the database on high-risk sex offenders; the increase of the minimum and maximum sentences for certain child sexual offences; and the obligation to impose separate sentences on offenders convicted of sexual offences against multiple children.
Last week in Quebec, a number of newspapers and radio shows talked at length about a pedophile living near a school. The local residents were afraid and anxious, because they could not identify the pedophile. They all agreed that they wanted access to a registry of pedophiles. We believe that the registry is an essential tool in prevention and in protecting the public. It is wrong to say that the registry would prevent pedophiles from being rehabilitated, because the registry is for repeat pedophiles who, in our view, cannot be rehabilitated. In addition, implying that people want to access the registry for revenge is like the Y2K announcement. It is a disaster that will not happen. If I’m not mistaken, this type of registry has already been around in other provinces since 2004 and no cases of rage against pedophiles have been identified. We especially should not forget that the most powerful weapon for offenders is silence. The registry helps us break this cycle. We believe that the public, and I, as a father, are ready to welcome this type of registry and that now is the time to put the safety of our children before that of the offenders.
Frank Tremblay, Vice-president, Victimes d’agressions sexuelles au masculin (VASAM): I would like to continue with the increase of the minimum and maximum sentences and the obligation to impose separate sentences on offenders convicted of sexual offences against multiple children. The policy must now be implemented. Judges must be allowed to impose sentences that are proportionate to the wrongdoings. From the public’s view, the incomprehensible and sometimes ridiculous sentences that completely discredit our justice system must stop.
Take the case of Tania Pontbriand, 32, who had sex with one of her 15-year-old students. She received 20 years in prison, while Luc Bergeron, 47, who raped a 10-year-old girl, received a seven-month sentence. Our full support for Bill C-26 is not just ideological; it is based on a series of painful personal experiences. It is not intended to further punish the aggressors, but to better protect victims and to impose the appropriate sentences on child sexual predators and to take the necessary steps to ensure that they in fact serve those sentences. We must consider the abused children and respect them. Protecting children is the spirit of Bill C-26. It is not only a matter of months or years.
Let me give you a personal testimony; in the case of my colleague, Alain Fortier, 23 years ago, his assailant received 90 days in jail, served intermittently. My assailant, Raymond-Marie Lavoie, got three years in prison. The sentence was appealed in the Court of Appeal and was unanimously increased to five years. Of a sentence of 60 months in prison, he served 26 months for 13 victims. You might think that the sentence should have increased, but the sentence decreased instead: 26 months for 13 victims. In my mind, that’s two months per victim. In my heart as a child, this man spent 60 days in prison for having spent 80 full nights with me. Do we want to keep that? Do Canadians want to keep that? People may appear before the committee to tell you it is proven that severe penalties are not a deterrent, but I honestly don’t believe that. However, I can guarantee you that inconsequential sentences discourage victims from going through the nightmare of the legal process. Again, my colleague Alain Fortier is living proof. He talked about it at a conference and he said that, after the 90-day sentence for his first assailant, he clearly decided not to report his second assailant. It was too difficult for him. If he had reported him — he speaks about it with regret today — he knows that at least one other victim would not have been assaulted.
In closing, if we want to increase the reporting rate, which is about 10 per cent right now, we should perhaps do things differently and take action for the victims and their protection, not for the assailants who, by the way, are fully responsible for their actions.
Let’s remember that the spirit of Bill C-26 is to protect children, including those who continue to live in the bodies of devastated adults. When I talk to victims within our organization, I feel that I am talking to children as they reveal what happened to them in childhood. Thank you.
[English]
Senator Baker: Thank you to the witnesses for their excellent presentations to the committee. This will be very helpful in our consideration of the proposed legislation. I have only one question, as I know other members wish to question the witnesses, which is directed to Ms. Latimer.
At our meeting with the minister on this bill, Senator Joyal raised concern about the constitutionality of recent provisions brought in by the Government of Canada. In R. v. Nur, on April 14, 2015, just a few weeks ago, the court struck down those recent provisions introduced by the government. The dissenting opinion in that from Wagner and Rothstein and one other judge was one sentence: "Parliament's intention to divert the least serious cases into summary proceedings is critical to assessing the constitutionality . . ." That case, a less serious case, as there always are, could be prosecuted summarily. In this bill, even summary conviction offences carry a mandatory minimum sentence. What are your thoughts concerning that?
Ms. Latimer: Whenever you have mandatory minimum sentences, you certainly have an injustice in that there will always be cases where the appropriate sentence is less than the mandatory minimum. Those people will receive a greater penalty than what is a proportionate response to the offence.
This proposed legislation certainly will be challenged and will likely lose in terms of violating protections against cruel and unusual by having disproportionately long sentences, particularly so when you compound that with the consecutive sentence requirements that can apply even to the summary offences. Say a bus driver has tapped the rear end of all of the kids coming onto the bus. While the effect of that may not be great, when you add the cumulative effect of the mandatory minimums, that person could be doing as much time as someone who did an aggravated sexual assault against a child. It distorts the proportionality and fairness that we like to see in criminal justice legislation.
Senator Plett: I have questions to Ms. St. Germain and to any or all of the victims here today.
Ms. St. Germain, thank you for being here; it’s nice to see you again. I am continually amazed at the incredible work done by your organization. I've been proud to be able to work with you in the last few years.
About a month ago at your thirtieth anniversary celebration, we had the opportunity to hear from Mr. Lyle Miller and his family about the traumatic experience of their son Zack, who was abducted and abused by Peter Whitmore. Could you give us a short description of the devastating impact it had on Zack, indeed on the whole family and the family of the other boy abducted with Zack? As well, do you truly believe that through increased mandatory minimum penalties and mandatory consecutive sentencing in certain cases we'll begin to see more just sentences for child predators — sentences that reflect the severity and heinous nature of their crimes?
Ms. St. Germain: In terms of the Peter Whitmore situation, I believe we testified before the committee before in connection with this particular offender. He was an offender who had repeated sexual offences against children. He had already violated seven children before he met the child of the Millers. The sentences he had received early on were significant. But what was happening after was that he would repeatedly breach the conditions. When we think about Bill C-26 and the increased penalties on breach of conditions, this is an offender that this would actually make a meaningful difference for. What happened with him, I believe, is that probably the police were following him quite a bit because they knew he was a danger, and they would pick him up on breaches. He had breached and breached and breached and was being subject at the time to a section 801 — I believe that is the correct number — on recognizance, which he breached again when he captured the boy from Winnipeg and travelled to Saskatchewan where he abducted the child.
The impact on that family has been enormous. Our agency has been working with that family for a number of years. It's been a devastating ordeal for them. They are now faced with the problem that he's up for parole and eligible for parole every two years at this point. He was not declared a dangerous offender because the young boy was too young and his family didn't want to put him through that.
In terms of Bill C-26, we believe that it's on offenders like this specifically that it will have an impact. It's also important to recognize that when an offender comes before the court, it may not be their first offence. If a serious penalty is imposed upon them when they come to the court, I believe that there will be a deterrent effect on them offending again, but not all offenders of course because there will be those who repeatedly offend. Certainly, it will have an impact for many.
Senator Plett: My next question is to any or all of the three gentlemen. Thank you very much for being here and sharing your stories. When I hear heartbreaking stories like yours, it makes me proud to be able to carry this proposed legislation in the Senate and to be the sponsor of this so that we can start to see some just sentences for child predators.
We've been called many things, Mr. Gilhooly, so I'm proud to be called on the side of angels for a change. I'm hoping we can tweet that I'm on the side of angels.
Would you comment specifically, any or all three of you, on the new mandatory consecutive sentencing provision for an offender being sentenced for the abuse of multiple victims? Certainly, Graham James was convicted of multiple crimes, and we have heard the same from both of the other witnesses here. As victims, do you believe it is important that each and every child is recognized in an offender's sentence as opposed to lumping them together and giving concurrent sentencing?
The Chair: Just one of you may respond as we don't have time to go through all three.
Mr. Gilhooly: This is an instance where the bill delivers a message that it's important. Absent a holistic amendment through the Criminal Code where you have issues of proportionality and totality, this is more of a message but will have less effect in reality, as the sentences will be given consecutively, handed down consecutively and then ratcheted back through other provisions of the Code.
Senator Joyal: Welcome. I would like to refer back to two statements made by Ms. St. Germain and Ms. Latimer. I will refer to your brief, Ms. St. Germain, on page 3, where you said, "We know that victims are typically abused by someone close to them and that many are unable or unwilling to disclose the abuse when it is occurring." Ms. Latimer, your brief, at the last paragraph, states, "Children are at greater risk of being sexually abused by people they know than by strangers on registries."
[Translation]
Mr. Fortier and Mr. Tremblay, my understanding is that the objective of your association is to represent victims of sexual predators in educational institutions that used to be administered by religious orders. You could apply the comments made by the two previous speakers to yourselves in that the most significant danger lies in young people’s immediate surroundings.
What would you propose to reduce this inherent danger from among family members, family friends, educational institutions or all those who approach young people? We have seen this in sport as well, and I won’t mention names to avoid becoming graphic. However, it seems to me that the biggest danger facing children is in their immediate surroundings.
A bill designed to deal with an external but distant danger would not be as effective as a bill designed to deal with the problems young people face at home or in school. What do you make of this situation?
[English]
I agree that we have to increase sentences, but it won't change the fact that tomorrow morning, if you are a kid, you run the risk of being assaulted by an uncle, parents, the neighbour, your school teacher, your master of sports, more so than running in a park and being abducted by an unknown person, the kind of horror story we see in films. I think this is the major problem, in my opinion, and I'm not sure that this bill addresses that.
[Translation]
I am not sure this bill will have the intended effect in terms of the danger as we understand it.
Mr. Tremblay: The best protection we can give children, having personally experienced it, is to convince children to tell all. In that way, we can contain the damage. We cannot keep children in a glass case. This bill does not codify the education that can be provided to children. Our way of thinking needs to change. Awareness needs to be raised about how serious the impacts of sexual assaults are. Bill C-26 will impose harsher sentences on uncles, brothers, grandfathers just as much as on strangers, such as in sport, because sexual predators act where children are present. If I want vegetarian food, I won’t go to a sports bar such as La Cage aux Sports.
Why are we asking for tougher sentences? Why do we support them? Because that’s how our society works. If someone you know committed adultery, ask his wife whether the gravity is the same if he did it 20 times or once, or with a different partner each time. The same thing goes through the mind of a 50-year-old guy who was assaulted, whether or not he is with 50 50-year old guys. The offence is not the same, and the sentence needs to be imposed accordingly.
Will we better protect our children to prevent them from being assaulted? Work needs to be done, awareness needs to be raised, and the public will understand that we are now dealing with this crime. When I was young, I used to see people driving around with a beer bottle between their legs. Today, if we see someone do that, we want to beat them up. We have the same thing here: things must change, and it is unacceptable that an individual, such as my assailant, if I use my example, or many others, gets away with a sentence that does not work. The legislation must reflect our way of life in Canada.
[English]
Senator Batters: Thank you very much to all of you for being here. First, Mr. Gilhooly, you are also a lawyer in addition to being a victim advocate; correct?
Mr. Gilhooly: Correct.
Senator Batters: You have practised law for how long?
Mr. Gilhooly: Since 1989.
Senator Batters: When Minister MacKay was here yesterday, I started off my question to the minister by stating that I find it poignant to have this bill before a committee this week, a week where we saw notorious convicted child predator Graham James charged yet again with sexual assault. When I said that, I had forgotten that you were coming here today. I wanted to reiterate that to you, as it applies to you, too. You and I have talked before this committee about your hockey playing days and my connection to those Western Hockey League days as well. I find it sad that at the time I was watching the Broncos play the Pats, I was thinking that the most stressful thing on the minds of those Bronco players was winning that game, and clearly that wasn't the case for some of those young players. I repeat that to you as well.
I thought it was fairly clear from your comments, but I wanted to confirm that you want to see this bill passed as is, as you think it strikes the appropriate balance without amendments, so that it can start to help victims as soon as possible; is that correct?
Mr. Gilhooly: Yes. I think it sends a strong message. If I may elaborate and pick up on the last question just briefly, and on Ms. Latimer's comments, nowhere did I hear victims. Sentences are designed to do more than stop people from rehabilitating in the future. It is our justice system. Our justice system. Everyone in Canada's justice system, including victims. If tougher sentences help victims through this process, then that in and of itself is a good that comes out of legislation like this.
You can quote statistics until the cows come home when it comes to sexual offenders. I hear numbers like 83 per cent this and 72 per cent that. Well, for 29 years, I wasn't anywhere on anyone's statistic. These statistics are unbelievably unreliable. This is a distinctly different area of offending under the Criminal Code. This is not like the rest of the stuff you deal with.
When the Canadian Bar Association brings us a lawyer from its criminal division and that lawyer says on behalf of all lawyers in the country that you have to take the emotion out of this and that defence lawyers are here to uphold the constitution and ensure that there is a proper balancing of rights between the Crown and the criminal, as a victim, you take a step back and say, hang on a second. I'm a victim, and I'm a lawyer, and I have no problem dealing with my emotions and my legal brain at the same time. I'm going to tell you, let's turn it on its head. Don't keep the victims out of it because they are too emotional. Keep those who haven't been victims out of it because they simply don't understand what it's like and what the impact of legislation like this can have to the good for a victim.
Senator Batters: Briefly, to Ms. St. Germain, you made a comment, and I thought it was important to reiterate. We so often hear about child pornography that if often almost gets discounted as to how devastating it can be. You made the comment that child pornography is the permanent record of the sexual abuse of a child, and that is so important to keep in mind. Thank you for your comment about why it's important that that particular offence be dealt with in this legislation today.
Thank you also for pointing out that this particular bill, the breach-of-condition changes that it includes, would have made a difference in the Peter Whitmore situation, which of course is a devastating situation to everybody who talks about that. That was just my comment to that, but thank you for your comments here today. It was very helpful.
Senator Jaffer: I want to thank all five of you for presenting. To the three people who have been victims or are representing victims, you appeared in front of us before, and I do not for a minute understand the challenge and the terrible consequences.
I have I have a question for Ms. Latimer of the John Howard Society. The challenge I have with this bill — on paper it's a great bill and I probably will support it. I want this to happen, but I also know what the real world is like, right? I always feel with these kinds of bills that my heart breaks because we are raising expectations. Even before the ink is dried, someone will challenge it, and when that happens and the bill is no longer in existence, then the people who have put so much hope in it feel that it's the justice system that is wrong rather than the drafters of this bill.
Let me ask my question: We don't throw the key away. Person is sent to jail whether for five or 10 years. My senior partner always used to tell me — he used to be a judge — and he said, "We don't throw the key away." When we send someone to prison, we have to look at what they will be like when they come back to society. We don't want them to reoffend and hurt another child. I want you to tell us: What it is like now? What resources are available for prevention, for rehabilitation? You said that that investment in prevention treatment and rehabilitation is a more effective approach. I agree with you. But what exists at the moment for them?
Ms. Latimer: Largely, if people are convicted and sentenced to something less than two years, then they are probably not going to see any treatment in a provincial institution because of resources and capacity. If they are in a federal institution, then you're talking about people who have received sentences of more than two years, so largely higher-end offences. If they are deemed low risk, which gets into calculating what is a low, a medium risk — and for low, then they get no treatment for sex offending. It is only medium- and high-risk people who get treatment for sex offending.
The high-end treatment that is available can be really quite effective. Treated sex offenders’ recidivism rates are considerably less than those of non-treated offenders. All of them have relatively low recidivism rates, but the subsequent offence of the child is always a serious matter. Basically, with CSC cutbacks, the availability of programming, generally, has been reduced. The numbers behind bars have increased, and I recognize that Mr. Blaney indicated that the number was under 15,000, when he spoke yesterday. But when I started at John Howard, three or four years ago, it was 12,000 and change. So it has gone up considerably. That is about four more institutions’ worth of offenders without additional resources — in fact with fewer resources. Many people now are being released at the end of their sentences or at statutory release, rather than on parole where you have more of a chance to impose conditions and provide guidance and support as they come back into communities.
There are programs. The CoSA program, Circles of Support and Accountability, which has been cut, was quite successful in dealing with high-risk sex offenders by providing circles of support in the community around people who were at higher risk of reoffending.
It is not as good as it should be — really not nearly as good as it should be. We can do a lot better in terms of preventing offending.
Senator McInnis: Thank you. I have two quick questions. Ms. Latimer, do you not agree that in terms of penalties, the culpability of the offenders and the seriousness of the crime must be taken into consideration?
Ms. Latimer: Absolutely I agree with that, yes.
Senator McInnis: Thus that's the reason for mandatory minimums?
Ms. Latimer: No, because mandatory minimums, I would see as in opposition to that. I will give you an example. The let's say a 15-year-old hires a 25-year-old sex worker for sexual activity. Who is the victim there? That person, the sex offender, would get the mandatory minimum penalty for sexually abusing the child. Whether or not that's fair, those are the kind of hypothetical or real examples that will be brought forward when the constitutionality of this set of laws is being challenged before the courts. This is because it isn't a fair sentence. There are reasons why the mandatory minimums actually deny fair and proportionate accountability, which we absolutely agree with.
Senator McInnis: They can.
Ms. Latimer: There are certainly chances, opportunities where the mandatory minimum is too high for the fair and proportionate penalties.
Senator McInnis: It's based on the culpability of what took place. With respect to minors, we have the Young Offenders Acts that deal with that.
Mr. Gilhooly, a multiplicity of legislation has taken place with respect to shifting the emphasis onto the criminal and off the victim, most recently the Canadian Victims Bill of Rights, but there is a whole host of pieces of legislation. Do you not agree that that is a good thing, that finally we are bringing the victim to the attention of the public and to the courts and having them participate?
Mr. Gilhooly: I think it is because the pendulum did swing too far. I think we took a very cautious approach to all potential legislation out there. We got into the habit, as lawyers, as a collective, and the Canadian Bar Association is the prime example, of going through clause by clause that this could possibly run afoul of the Charter, so back away.
What gets lost in that process is not problem solving but ratcheting back in protective view to protect legislation that is unchallenged. I think it is wonderful that the legislation will be challenged by the Charter. That means you are pushing the debate, that game, further and further to consider more and more. It's not a bad thing that legislation may come under Charter review. That's a wonderful thing, and everything out there should be cognizant of the fact that we have that protection. Ultimately, if this runs afoul, some court, the Supreme Court will step up and say: Well, that's too far.
There are two lines of constitutional law. Just because something may run afoul of the Charter doesn't make it unconstitutional. It's in the application and disposition of cases under that legislation.
[Translation]
Senator Dagenais: My thanks to our guests. My question is for Ms. St. Germain. I read the documents that your organization released. You say that we must thwart the new tactics of those who prey on children, using digital technology, among others. I agree with you. I would add that we must prevent them from reoffending.
Do you think the current bill will help improve the situation or at least support the measures that your organization shared with us?
[English]
Ms. St. Germain: I think that the longer someone is incarcerated for an offence, then they are not able to offend against another child while they are incarcerated. The conditions that are then imposed upon that offender when they are released are conditions that a judge will make based on the level of risk that the judge perceives.
This bill will also work to ensure that should the offender breach those conditions, then the penalty, which is available to a judge, should the offender come back before the judge, could be higher. In that respect, we believe that the bill will do a good job of protecting children. But I think that we all agree that sentences and the criminal justice system are not necessarily the be all and end all of protecting children.
As mentioned earlier, prevention is important — and it is important. As a society, we have been on a learning curve for a number of years in understanding the prevalence and the impact of sexual offences against children. We are still learning, and our courts are very slow to catch up. We have a lot of good sentences that are out there. We have a lot of good decisions that are out there, but every day in courtrooms across this country we have sentences that don't meet what one would think would be appropriate for the circumstances. We believe that the minimum sentences help set the bar at a level that is appropriate given the damage that is done to the victim.
[Translation]
Senator McIntyre: Mr. Fortier, in your presentation, you said that, among the provisions of the bill, three of them draw your attention in particular, especially the one about making public the database on high-risk sex offenders.
You also talked about the cycle of silence, adding that the best weapon for the offenders is silence, and that the database helps us break this cycle. That said, you clearly see a connection between breaking the silence and making the database public. Could you briefly clarify your thoughts on this provision in the bill?
Mr. Fortier: Yes. We know that the way most assailants operate is by manipulating the victims so that they don’t talk to anyone around them.
How does that relate to the registry? When a pedophile is released in a city or region, people often don’t know where the pedophile comes from, allowing him to start over again as if nothing happened. That’s what the situation was with the pedophile I mentioned earlier, who moved across from a school. That person could have started the cycle of assault all over again.
The registry will therefore help parents find out whether a pedophile is in the area and, if so, they will be able to use the registry to explain to their children that there may be people in the neighbourhood who have done bad things. This would break the cycle of silence by telling children that they must be careful around that person. For me, the connection between the registry and the ability to break the silence is very clear, because those who have committed crimes are known publicly.
Let me further say that we are used to the perception of the perpetrator, but it is better to consider the victims, as Bill C-26 does. The victims are not the ones who chose to be assaulted, whereas the assailants chose the time and place of the crime, the number of times that they committed the crime and the duration. So this bill is really important for protecting victims, and the registry is a pivotal tool in being able to do so. If we had had the registry in the case of Chantal Demers, who was murdered by a repeat offender in Quebec City, we would have been able to avoid that crime.
Senator Boisvenu: Thank you very much to all the witnesses for your testimony.
Ms. Latimer, you say that we must be humane and fair toward criminals. Did you know that all the sentences handed down in municipal and provincial courts are not listed in the recidivism statistics, and that the only statistics that we have on reoffending in Canada are on criminals who receive sentences of two years plus a day?
Did you know that, according to the latest study on pedophiles across Canada and the U.S., after five years, 48 per cent of them will reoffend and 70 per cent will return to prison for other types of crimes?
In Montreal, in 2012, the increase in sexual cybercrime was at 30 per cent. For the past five years in Canada, child sex crimes have steadily gone up by 5 per cent every year. Child sexual abuse crimes have gone up the most.
Under such tragic circumstances, do you think this bill is really inhumane toward child molesters?
[English]
Ms. Latimer: I believe that there are elements of the bill that might actually be detrimental to the interests of young people. For example, if there is a close relationship between the perpetrator and the child, it is a very confusing emotional experience for the child. If the child knows that someone they care about may well want the sexual activity to stop but they are aware that by going public and telling someone the person will get a mandatory minimum penalty, in particular a member of the family, it may well discourage young people from speaking out to get the help we want them to have. Those elements pose some additional stress on the children who are being subjected to sexual abuse; and I wish that were not the case. But it can be easily remedied.
Some of the issues that could be addressed would be sentencing guidelines rather than mandatory minimums so that there is some flexibility in the system. We worry about whether the cumulative effect or the effect of the sentences is disproportionately harsh, which is an injustice that we would consider to be inappropriate. There is no question that people have suffered. It is important to take that into account particularly in terms of victim services and ensuring that there is adequate support, therapy and treatment to help people who have been subjected to it. Again, I would say that the element we should really focus on is preventing child sex offending from the beginning. That's where we would like to see efforts directed.
[Translation]
Senator Boisvenu: Ms. Latimer, 30 years ago, our justice system gave judges all this flexibility to deal with pedophiles and sex offenders according to their circumstances. When we look at the statistics on crime, we see that this has not worked. Those crimes have increased the most. It is the class of criminals with the most repeat offenders.
I am trying to understand your reasoning when you say that we have to try something other than tougher sentences. Could you explain your reasoning? I don’t understand how you can say that, in the case of child abuse, the system needs to be more flexible, when the flexibility has shown that the crimes continue to increase.
[English]
Ms. Latimer: If you believe in deterrence, which is that tougher penalties will deter, then I can understand where you're coming from. But the social science evidence we have is that tougher penalties in and of themselves don't deter and that raising the maximums, as we are doing in many of these cases, from 10 years to 14 years and from 6 months to 12 months, is really a marginal difference that will not make much of a difference. It could serve a justice function, but it won't serve a deterrence function and is unlikely to reduce the level of sexual offending. You need something more concentrated.
If you really want to reduce and put young people first and prevent sexual offending, our view is that you don't do it by increasing penalties but with a broader approach, which includes prevention. It should really focus on prevention.
The Chair: I'm afraid we've run out of time. I thank all of our witnesses for their very helpful contributions on this proposed legislation.
For our second panel today, please welcome, from the Criminal Lawyers' Association, Michael Spratt, Member and Criminal Defence Counsel; from the Canadian Bar Association, Paul Calarco, Criminal Justice Section Member, and Gaylene Schellenberg, Lawyer, Legislation and Law Reform; and from Kids Internet Safety Alliance, David Butt, Legal Counsel.
We will begin with a five-minute opening statement from Mr. Spratt, followed by Mr. Butt, and then Ms. Schellenberg and Mr. Calarco.
Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers' Association: The protection of society and children is an issue of paramount importance, and this bill seeks to do that through the use of minimum sentences and a public high-risk registry, amongst other measures. The question that should be asked is, will these measures actually accomplish that important goal, the goal of protecting vulnerable children?
You heard from Minister MacKay and Minister Blaney yesterday. I read the draft transcript, and I think I counted reference to "deterrence" many times. Indeed, Mr. McKay said before the house committee on mandatory minimums that the short answer is that we can't do enough to protect vulnerable children. I have yet to see any evidence that minimum sentences and public registries will actually accomplish that important goal.
I will make reference to some studies, and I will forward those to the clerk of the committee so that they can be distributed to you.
A 2008 study of the New York Sex Offender Registry notification laws found that it didn't have any impact on reducing sex offences by rapists, child molesters or other sex offenders.
A 2003 study dealing with sex offender registration and community notification came to the conclusion that registries and notification systems aren't without their own problems and, as such, demand careful scrutiny before being implemented. This warning gains even more salience when one recognizes that their proclaimed benefits have yet to receive empirical support.
A 2007 study found that notification systems are more likely to negatively affect overall safety and don't reduce recidivism rates.
There have been many studies that have called into question the utility of registries. Indeed, if you look to California, you see them reducing reliance and weeding out names on registries. It's an issue that should receive careful scrutiny. I'll note that at the house committee, authors of these studies and empirical evidence on these registries weren't heard by that committee, so there should be some concerns with the public registry.
Let's move on to mandatory minimum sentences, something that I've talked to you about before. The message that is clearly being sent is that minimum sentences and longer sentences make us safer. You should know by now that that's not true, if you've read any of the evidence or followed any of the studies. You have been told that by me, and you've been told that by other experts. Over the last number of years, the government has heard from many experts who have counselled extreme caution with respect to the use of mandatory minimum sentences.
Anthony Doob, a highly respected criminologist from the University of Toronto, has testified many times. For the last 35 years, he has carried out research on a number of different aspects of the justice system, most notably on sentencing provisions and imprisonment policies. Mr. Doob testified previously that mandatory minimum sentences don't deter crime.
The government's own research department has been critical of minimum sentences. A 2005 Justice Department report found that minimum sentences are not an effective sentencing tool, that is, they constrain judicial discretion without offering any increased crime prevention benefits.
The Supreme Court in Nur recently considered minimum sentences. They agreed with Professor Doob and quoted him in some of the work, finding empirical evidence to suggest that mandatory minimum sentences don't deter crime. Yet, we have repeated assertions that that's the case. The evidence is clear that minimum sentences play little or no role in deterring crime. When looking at the section 1 analysis, the Supreme Court found that the connection between minimum sentences and deterrence was frail. They don't work; but they come with problems, such as constitutionality. You were told about that when Bill C-10 was being discussed. Years later, the Supreme Court confirmed that.
I'm going to cite a case, to which I'll make brief reference, from 2014: R. v. S.S., 2014, O.J., No. 1887 on Quicklaw, or if you prefer the neutral cite, it is 2014 ONCJ 184. I'll send it to the committee. The case from Ontario deals with one of the very provisions in this bill, when minimum sentence was 90 days. In that case, a compelling reasonable hypothetical was given, very close to the law being struck down at the 90 days. The only reason it wasn't struck down was because that hypothetical wasn't put before the court.
The Chair: Will you conclude?
Mr. Spratt: Yes, I have 30 seconds so I'll wrap up quickly.
I also want to talk to you, and I hope you ask questions, about the practical impact of minimum sentences — the perverse incentives for the innocent to plead guilty, for the guilty to take the matter to trial, the transfer of discretion from judges and courts that are reviewable to Crowns which are unreviewable. These are all downsides, and when balanced against the lack of empirical evidence for the utility and the purported purpose of minimum sentences, this committee should have grave concerns about implementing them in this bill.
David Butt, Legal Counsel, Kids Internet Safety Alliance: I'm legal counsel to the Kids Internet Safety Alliance, which is a Canadian-based charity with a global footprint that works to protect children from sexual exploitation online. Our reach is global in the sense that we're deeply involved in capacity building so that police services in other countries can come up to speed in being able to address these complex online child exploitation investigations and to rescue children. Because the Internet is a borderless world, empowering online investigators in other countries has direct benefits here in Canada. There isn't an Internet child exploitation investigation in the world that doesn't reach into multiple countries, including back to this country.
I come to this bill from the perspective of advocating on behalf of children, keeping children safe on the Internet and developing capacity to do that. I also come from my professional background of 13 years as a prosecutor specializing in Internet child exploitation cases and 13 years in private practice, during which I split my representation between accused persons, police officers and victims of crime. So I like to say that I bring a 360-degree perspective to this issue.
KINSA supports this bill and the mandatory minimum sentences, not because all mandatory minimum sentences are a good thing but because measured approaches to mandatory minimum sentencing that keep a firm eye on the moral compass underlying the number are a salutary expression of support for the victim perspective in the criminal justice system. KINSA also supports the limited and thoughtful public registry, bearing in mind that this is simply an accumulation of information made easily accessible where police have already made the decision that it's in the public interest to make it public. There is no net increase in intrusion on privacy; it's simply a device to facilitate access to information for parents and caregivers of children who want to access that information but may not have caught a press release three months before. Lastly, KINSA supports as an initial organization the measures in the bill directed at enhancing information flow about people who are on the National Sex Offender Registry who travel.
I served as a board member of ECPAT, the largest NGO addressing commercial sexual exploitation in the world. It works closely with the UN. In my time as a board member, I came to understand just what a big problem sex tourism really is. That's people travelling for the express purpose of abusing children in a country other than their home country. A measure that allows Canadian officials to track and share the travel patterns of high-risk persons is a salutary step forward. Thank you very much.
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to the CBA to present our views on Bill C-26 to you today. The CBA is a national professional association of over 36,000 lawyers, law students, notaries and academics with a mandate to seek improvements in the law and the administration of justice. Our brief on Bill C-26 was prepared by our national Criminal Justice Section, which represents Crown and defence lawyers from across the country. With me is Mr. Paul Calarco, a member of that section. He practises as a defence lawyer primarily in Toronto and will address the substance of our submission.
Paul J. Calarco, Criminal Justice Section Member, Canadian Bar Association: Thank you very much, senators. The Criminal Justice Section of the CBA supports measures that enhance the safety of Canadians and particularly the most vulnerable members of our society. Because of that support, we stress that it is vital to use correct measures to achieve this goal. That's especially important when we're concerned about protecting children. We must avoid measures that could exacerbate the problem of abuse. This is a complex issue. Simple one-solution-for-everything measures are often not appropriate. I would like to address two points in my opening remarks: first, the sexual offender registry and second, mandatory minimum sentences.
There is little evidence to suggest that sexual offender registries, as they are presently constituted, prevent sexual assaults. This can be seen in both reports of the Auditor General of Ontario and the John Howard Society cited in our written submission. Bill C-26 is unlikely to prevent sexual exploitation. Its reporting requirements are unlikely to have any discernible effect on public safety; or they will be unenforceable when they deal with matters outside our country. It is well known and confirmed by the government statistics that in 88 per cent of sexual offences against children and youth, the perpetrator is known to the victim. An offender registry will do nothing for the significant majority of cases and will not prevent abuse by a family member or someone known to the family. Similarly, our submission quotes a senior member of the Ontario Provincial Police in an affidavit used in the Supreme Court of Canada, noting that sex crimes are crimes of opportunity in most cases. A registry will not prevent these incidents.
One of the most important ways to actually ensure a safe and just society is by rehabilitating offenders. Once rehabilitated, that person no longer presents a threat to the well-being of our society. In this way, the national or social interest and the interests of the rehabilitated offenders are congruent. To address rehabilitation, prevent recidivism and promote offender reintegration into society, offenders need treatment and counselling. This requires resources, but it is unquestionably the most effective way to ensure the safety of the community. A simplistic approach of increased sentences will not have this effect and will likely have the opposite effect.
The bill proposes that a publicly searchable database be created, claiming it too will enhance public safety. A public database is more likely to have the opposite effect, driving offenders underground, away from police scrutiny, away from treatment, away from supervision, thus increasing danger to the vulnerable. As noted, sex crimes are often crimes of opportunity, and untreated offenders are more likely to repeat an offence, creating more victims. This is entirely preventable.
It's no answer to say that the database will only deal with high-risk recidivists. We do not know how the government of the day intends to determine, if by regulation, the meaning of this term. Testimony before the House of Commons committee indicated that a determination of who is a high-risk offender may be left to individual police forces. That results in inconsistency and uncertainty. In addition, innocent parties have been mistaken for offenders when vigilantes wrongly suppose it's proper to take the law into their hands. It cannot be accepted that self-styled avengers decide to become executioners. We cite several examples of this in the United States, and there is no reason to believe that this could not occur in Canada.
The second issue is about mandatory minimum sentences. The CBA Criminal Justice Section opposes those sentences and stresses the importance of relying on the informed discretion of judges to impose fit sentences. Criminal sentences must be proportionate both to the offence and the offender. This is a constitutional requirement. The courts take offences against children very seriously. It is a myth to say that those who abuse children receive minimal sentences. It is also well established that mandatory minimums have little, if any, effect in deterring or preventing crime. The legislation would increase mandatory minimum sentences and make them consecutive in some cases. For offenders who already receive sentences above the minimum, the bill does nothing. Another result is that for some offenders, those who by reason of special circumstance would have received a lesser sentence, the sentence will not be proportionate and may be grossly disproportionate. If any sentence is found to be grossly disproportionate, the court will be obliged to strike down the entire sentencing regime — not simply adjust the sentence to the particular offenders. The bill is constitutionally vulnerable.
The Chair: I will have to stop you there, Mr. Calarco.
Mr. Calarco: Thank you, senator, and I adopt the comments of Mr. Spratt, in addition.
Senator Baker: Thank you to the witnesses, and also I want to thank them for their litigation, for their great contribution that they make to Canadian law.
My question is just a general one. First of all, for any of you to verify this: I have never seen a sentencing judgment in which the sentencing judge did not consider the range of sentences applicable to the offence, in the jurisdiction and throughout Canada, and apply that range of sentences to the particular case that they are facing. If they didn't do that, then the case would normally be appealed. I've never seen a case reported in which the judge did not take the range of sentences, apply it to the case and then make a judgment. If he or she didn't do, then it's appealed.
That's just an observation you may want to comment on. In the case of Nur, mentioned by Mr. Spratt and Mr. Calarco, there is a whole paragraph, as Mr. Spratt has pointed out, that deals with the evidence concerning mandatory minimum sentences. The Supreme Court of Canada, one month ago, said it is not a deterrent factor. It is not a deterrent. That is the Supreme Court of Canada.
I wanted to ask you, have you considered the implications of having mandatory minimum sentences for summary conviction offences as well as for indictable offences, and concurrent sentences, running the risk of violating 11(f) of the Charter, which nobody seems to think about, which is a person's right to a jury trial? That was done in 1983, in which we said in the Charter, where the maximum sentence is five years and then it says, ". . . or a more severe punishment."
Mr. Spratt, you've been before the Supreme Court of Canada and every court in Ontario. Do you think, down the road, somebody is going to look at all this and say, "Perhaps in a summary matter somebody may qualify for a jury trial?"
Mr. Spratt: It is a distinct possibility and one that hasn't been explored. It is also illustrative of the other down sides of minimum sentences. The effect that minimum sentences have in our courts is to prolong matters, clog the courts and create unfairness, which may not rise to unconstitutional unfairness, but unfairness in our court process.
As I was saying before, there is a perverse incentive for someone who may be factually innocent to plead guilty to a lesser charge to avoid a minimum sentence. That's offered because the Crown uses their discretion to drop certain charges or to make certain arrangements. When you're facing a minimum sentence of a year, and you're offered a lesser sentence, where you have the opportunity to make submissions about a lesser sentence, or if the Crown joins on a position of a lesser sentence, there is a perverse and insidious incentive for an innocent person to take that deal.
On the other hand, if you're factually guilty, if you're looking at the mandatory minimum sentence, there is every incentive in the world to turn your nose up at a resolution, to proceed to trial and to force vulnerable complainants, vulnerable victims to come and testify. That Crown discretion is not reviewable in any form. They don't have to write it down. You can't appeal it. It can be applied inconsistently. Your point is well taken that it may raise other constitutional issues than what I have said, but the effect in court could lead to 11(b) problems and a whole range of problems that simply are not considered in this bill. Of course they are never accounted for in terms of the cost, when these bills are costed, if they are at all.
Senator Plett: The Canadian Bar Association is here supposedly representing 36,000 lawyers. Mr. Gilhooly was here earlier today and has been practising law since 1989. Ms. St. Germain was here from a child protection agency. They are both lawyers, so I'm assuming they are part of the Canadian Bar Association. So maybe you're not speaking for all 36,000.
Mr. Spratt, you have said in the House of Commons and you've said it again today, that those mandatory minimums do not make us safer. You said we know that's not true, that we’ve been told that before by you and by other experts.
I didn't know you were an expert. Are you a criminologist?
Mr. Spratt: No, but I read the studies. I listen to the Supreme Court, and I have yet to see any evidence or any testimony before —
Senator Plett: But you're not an expert.
Mr. Spratt: In criminology, no.
Senator Plett: Thank you. We have debated mandatory minimums, and they have been a long-standing tradition in Canada where crime is particularly heinous. You have stated before that there is not enough evidence of judges getting it wrong to justify mandatory minimum sentencing.
I would like somewhat of a simple yes or no answer to this. When you see cases like Gordon Stuckless getting two years less a day for the repeated rape of 24 boys and getting treated as a first-time offender before finally getting caught; or cases like Mr. Tremblay or Mr. Fortier that were here just a little while ago, who testified. Mr. Tremblay's aggressor assaulted 13 victims and was given a sentence of five years in prison. Mr. Fortier's aggressor received a 90-day sentence. Do you believe those were just sentences?
Mr. Spratt: I believe your question illustrates one of the problems: simplistic answers and thinking is the problem. That's what gets us to the Supreme Court and what leads to unconstitutionality. There are no simplistic answers to complex problems.
Senator Plett: Mr. Butt, you made a comment in the House of Commons that I found interesting and I want to read the quote.
The second problem is that mandatory minimums —
So you had a first problem, but you're talking here about the second problem.
— mandatory minimums can take away judicial discretion. I say they don't take it away; they simply adjust it. The judge is not left to be a trained monkey, rubber-stamping the minimum; the judges retain their entire panoply of discretionary judicial powers, but they start at a different place. It's appropriate that we value the sanctity and sexual integrity of children sufficiently that we say to judges, "You still have discretion; just start here instead of there."
I would like you to explain that comment and elaborate on it a little bit, please.
Mr. Butt: I think there's probably broad agreement that we need to understand that punishments need to fit the crime. As somebody who works in the field of child exploitation and sees the lifetime damage that even a "minor" assault can cause to a child, we question the kinds of sentences that you were referring to, at the very low end of things. We ask, what's going on here? Here's part of the problem. Judges are trained, and there is nothing wrong with this training, to look to precedent. When they're passing a sentence, they say, "What have we done in the past?" And that's the problem. It's backward-looking. You can't move forward if you do nothing but look in the rear view mirror. We need to sometimes take a step outside that precedent-based, backward-looking system and say, "You know what? We have to step in and adjust it."
In recognition of the sanctity of childhood sexual integrity, we need to say, "Judges, we're not going to take away your discretion entirely, but we are going to set a floor to it. Impose whatever you want within this range, but just start here."
I see, in this context, mandatory minimum sentences as a responsible way to increase the floor to recognize the inherent worth of protecting children without taking away judicial discretion entirely. It's forward-looking. The judges cannot correct this mistake themselves because they are obliged to be constantly backward-looking. That's the way the common law system works. We need to have Parliament step in and say we want to be forward-looking, we want to be visionary, and we want to do something different and better for children.
Senator Jaffer: Thank you to all of you for being here. My first question is to you, Mr. Butt. You talked about sex tourism. That's something I have been involved in. I have been in that area. I asked the minister yesterday as well, and I don't think I got an answer. One of the most frustrating things for me is that we are not protecting children from Canadians. We have been told time and again that if we had just one police officer embedded in Vietnam, Cambodia, Thailand it would change the lives of children. You mentioned sex tourism. How do you think we can deal with this issue?
Mr. Butt: I certainly support the measure in this bill as one aspect of dealing with that. What that allows is that investigators can get information from the Canada Border Services Agency and from the National Sex Offender Registry about the actual travel of known, higher-risk individuals, those on the registry. That's a piece of information. A piece of information all by itself isn't going to do everything. This is a first step forward, and I would encourage, and I think you are on the right track. Once we have that information, we have to be able to act on it in a robust way. If this bill passes, we will know if somebody is, for example, travelling to Thailand. What we need to be able to say is, "Okay, we know they're going there. We have a suspicion. Let's work on that suspicion and see what is going on there." That means having personnel in place, having resources, having investigative capacity and having the authorization so that we can know. Certainly in my work I have seen other countries who do have vigorous investigative capacity in-house in embassies abroad. FBI agents are situated all over the world in embassies to address this very problem. The Australian Federal Police places people. Yes, we need to take the kind of information we are allowing for here and then develop a capacity to act on it.
Senator Jaffer: Mr. Spratt and Mr. Calarco, I'm for this legislation, as you are. We want people who hurt children to get the serious punishment and not repeat. My first frustration is that we have the federal and provincial separation, so when you ask a minister a question, he says operations is provincial. For you two who work in the trenches every day, this legislation just slows the work down. If it's a higher penalty, you have to have more legal aid and more courtrooms and judges. On the ground, what does this and the other kind of legislation we have been putting through in the last couple of years do to your work? You are getting more work, and I understand that, but for running an efficient justice system, can you explain the challenges?
Mr. Calarco: Certainly it slows the criminal justice system down, first of all, because, as my colleague said earlier, there is an incentive on an actual offender not to plead, not to resolve, because the offender knows they are getting a certain minimum no matter what, and this does take away a judge's discretion. The judge cannot fashion the sentence appropriately. It will add backlog to the courts. With more people refusing to enter pleas, that will mean more delay, and offenders who may deserve to be punished may have their charges stayed because of undue delay. There aren't enough resources being put into the system.
It's a situation where you also cannot be fashioning the best sentence, best designed for the offender and best designed for rehabilitation, which is absolutely vital. This sort of bill will result in more backlog, and I think more offenders who are real offenders may be able to escape justice because they will never get to court, or they get to court and the charges are stayed. It just is not going to be a positive development.
[Translation]
Senator Boisvenu: I would like to talk about minimum sentences in particular. The reoffending rate is the highest in child sex crimes. After five years, almost 50 per cent reoffend.
Those crimes have increased the most in Canada over the past five years. It is as if the message does not get through to a large number of those sexual predators, sort of like the message about drunk driving. It’s like those criminals are in a bubble and they still don’t understand that children are not to be touched.
I looked at the statistics on crime and incarceration in Quebec. Proportionately speaking, there are four times more sexual predators in Quebec prisons than in federal penitentiaries in Quebec. Why? Because most sentences handed down by judges are less than two years. Most people are released after serving one-sixth of their sentence. They will therefore reoffend in three or four months after committing child abuse. In Quebec, treatment programs for pedophiles and sex offenders are almost non-existent, apart from the Gaspé where a few very severe cases of sex offenders are treated. Most receive no services.
What is the purpose of handing down minimum or lenient sentences, such as three or four months in prison, knowing that those people will receive no service during that time? After three or four months, they will come out of prison probably without understanding the message and most of them, about 50 per cent, will reoffend.
Should we not give harsher sentences of three, four or five years, so that they could be in federal penitentiaries and have access to better services than those in prisons? I am trying to understand your logic of having lighter sentences when harsher sentences would allow them to receive better services; otherwise, incarceration has no purpose. I am trying to understand your reasoning behind that.
[English]
Mr. Calarco: First of all, we did not say to keep sentences as low as possible. That is not what we have said.
Secondly, you indicated that these offences were rising continually. In preparing for today, I looked at Statistics Canada's reports. Statistics Canada, May 28, 2014, regarding police-reported sexual offences against children and youth in Canada in 2012, said that the rate decreased for the second consecutive year 2012 and was similar to the rate reported by police in 2009. Again, Statistics Canada, July 23, 2014, regarding sexual violations against children, percentage change 2003 to 2013: nil. Those are the government's own statistics.
[Translation]
Senator Boisvenu: Did you know that the rate of reporting by victims has decreased from 34 per cent to 31 per cent? The statistics you have shared with us are for the people convicted.
Fewer victims report and the worst part is that more victims drop their complaints while in court. Fifty per cent of victims drop their complaints while in court. The data you are providing are for the convicted. They do not reflect the victims who reported, because victims are reporting less and less, and fewer and fewer criminals are convicted. We must be careful with statistics.
[English]
Mr. Calarco: I agree that you have to be very careful, senator. That's why I quoted the rate of police-reported sexual offences against children decreased.
Returning to your earlier point, when you are considering what sentences impose, whether in a provincial or a federal institution, and going back to Senator Baker's comment earlier about the appropriate range of sentence, consider whether or not the offender spent time in custody prior to being sentenced. That has to be taken into account. That could move something from a federal to a provincial sentence.
It is not correct, senator, that persons will be paroled after one sixth of their sentence in the provincial system. In my province of Ontario, the correctional services legislation is quite clear that it's after two thirds that you are eligible.
Senator Boisvenu: Not in Quebec.
Mr. Calarco: Okay, but, in Ontario, that's our situation.
In addition, when you have a provincial sentence, you can have probation imposed upon the offender of up to three years. Therefore, you can actually have a longer sentence imposed or a longer period of court supervision for an offender when probation is included, and probation orders have teeth. An offender who breaks probation can be prosecuted summarily or by indictment. There are significant incentives for the person to comply.
Finally, what is absolutely vital is what we have said before. Use resources. It's not good enough to just say that these matters should go federally or provincially. You need to put in rehabilitation resources, treatment, counselling, and that costs money. That is what has to be done to ensure the safety of the public.
Senator Joyal: Welcome. I would like first to address the issue of minimum sentences because that has been raised by each of you. I would like to read paragraph 114 of the Supreme Court decision last month in R. v. Nur, specifically on the deterrence impact of minimum sentences because there are different opinions around the table in relation to that:
Empirical evidence suggests that mandatory minimums do not, in fact, deter crimes.
The Supreme Court quotes the study by Doob and Webster of 2003 and the Tonry study of 2009. The Supreme Court continues:
The empirical evidence "is clear: Mandatory minimum sentences do not deter more than less harsh, proportionate sentences."
That is taken from the Doob’s study published in 2001. The following paragraph, 115, states:
Despite the frailty of the connection between deterrence and mandatory minimum sentence provisions, a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution."
In other words, in the opinion of the Supreme Court of Canada today, they don't make any connection between deterrence and minimums. Minimums have an impact for denunciation and retribution, but to make the easy connection that minimums will deter the crime is not proof and is not accepted by the court. We can, of course, adopt provisions or debate provisions that establish a whole system of minimum sentences, but they run the risk of not being maintained by the court in the face of an allegation that accumulation of minimum sentences could end in a disproportionate sentence and be struck down by the court. That's the way I interpret the Nur decision of last month. Do you want to comment about this?
Mr. Spratt: I think that's precisely correct, and that's what criminologists and other experts have been telling committees like this for a number of years. It's not an answer to say, "People aren't getting treatment, so let's increase the sentence to an unconstitutional level so that they can get treatment. The answer is to have a connection between the purpose and the legislation itself. Saying that this legislation protects the public or keeps us safer is just wrong, and it's misleading. If the stated purpose was that this is to be tough on crime and to denounce and be punitive, then we could still have the constitutional debate, but, at least we'd be starting from an intellectually honest starting point.
What we should really see if we want to keep people safe is not unconstitutionally imposing sentences that are grossly disproportionate. Even if that gets a person into treatment, what we should be seeing is treatment at the reformatory, treatment for sentences that are less than two years. I agree with Senator Boisvenu on that point. There is no treatment in the reformatory, but this bill doesn't correct that. This bill doesn't keep us safe. We see programs like CoSA and other very important programs that work being defunded and losing funding. There needs to be an honest starting point between the purpose of the legislation and what the legislation does, and then we can have an honest conversation about its utility or take the constitutional risk for those purposes. Until you have that starting point, you are going to be back before the Supreme Court five years from now, and that doesn't help anyone.
Mr. Butt: I'd like to weigh in with a slightly different perspective on the same issue. As somebody who works front-line with victims, I'm the first one to say that we need to do more on the rehabilitative and prevention piece as well. It's a mistake to think in pigeonhole categories of let's do this or that. Let's do everything because, frankly, nothing is more important than protecting the sexual integrity of children. I don't say what I'm saying to walk away from the importance of the rehabilitation and treatment piece, but I do say this: When we are out of whack in our values about how we denounce crimes — and denunciation is what the Supreme Court said there is a rational connection to — we have to get back into equilibrium. If I walk into a bank and rob them without a gun for about $8,000, which is less than a rounding error for any of the big banks, I'm looking at a sentence that will start at five years. There are no mandatory minimums, but the courts have been very good at protecting the property of strong institutions. But, if I'm a child who's life is ruined by being fondled by the person I trusted and that person gets probation, in other words, goes home to watch TV, I think, as a child who suffered that, looking at the bank whose rounding error gets five years, something is out of whack. Yes, we need to continue to protect by prevention and treatment, but we also need to reflect the appropriate number for this kind of devastating crime.
[Translation]
Senator Dagenais: Mr. Calarco, I have a quick comment. You said that we must rely on police officers who are the first responders. I was a police officer for 39 years, and we were relying on crown prosecutors and judges; the police officers were not always making the decisions. Mr. Spratt, I heard you, you are a regular at our committees, so my question will be very simple: what happens with a repeat offender who has repeatedly assaulted children and who will continue to do so because he is an uncontrollable offender? Will he be released in the hope that he will not reoffend? Assailants are often family members who are very close to the child. It could be a father, a partner, and so on. So what happens with those people? You are saying that we must keep the minimum sentences. Could you comment on that?
[English]
Mr. Spratt: A repeat offender who has repeatedly sexually assaulted children should go to jail for a long time, and they typically do go to jail for a long time. The minimum sentences in this bill don't apply to them. There is no disagreement there. But the minimum sentences in this bill don't just apply to that repeat offender who should and will get a penitentiary sentence. This bill could apply to, as in the hypothetical in the S.S. case, a 19-year-old barely adult who communicates with a girl who is 16 and a half, two grades below him in high school, and asks her to send a topless picture of herself. That's the sort of hypothetical, and that's the six-month mandatory minimum starting period. This is the reasonable hypothetical that can't be taken into account. So, I agree that someone you are describing should go to jail for a long time. Someone who robs a bank should go to jail for a long time. But the important difference is this: When you are looking at a bank robbery, if that person who robs a bank doesn't use violence, doesn't have a weapon, is youthful, has mental health issues or possesses other mitigating factors, they could go to jail for five years, but the judge still has discretion to sentence them to less time. I agree with you that repeat sexual offenders, violent sexual offenders, people who commit acts that we can all agree are deplorable, should go to jail for a long time and get treatment. We agree on that.
However, that outside example shouldn't be used to dilute constitutional principles that might apply to people who are in much lesser circumstances. The bank example is a good one. You can imagine really bad cases, and you can imagine cases where you might think that it isn't worth five years, depending on the circumstances.
That's all I'm suggesting here. We can agree on everything, and I think we disagree on a lot, but minimum sentences cause problems. They are good at denunciation, but they present a lot of problems in addition to that.
Mr. Calarco: Senator, this hasn't been mentioned before this committee so far, but Canada has dangerous offender and long-term offender legislation, which can result in indefinite incarceration. So when dealing with a repeat offender — that very dangerous person — the Crown can also bring a dangerous offender application and have that person in prison for the rest of their lives. That is one of the aspects of incarceration.
[Translation]
Senator Dagenais: Basically, there is a clear difference between sex offenders and those who rob convenience stores or banks. I agree with you that sex offenders have an illness that must be treated. However, we must not forget that sex offenders tend to reoffend.
[English]
Senator Batters: Briefly to Mr. Spratt, the reasonable hypothetical you just used about a potential sexting charge, I think that would probably be covered by the new provision we just put into the cyberbullying bill, Bill C-13. It would allow the courts to have that type of discretion for a less serious offence and charge.
Mr. Spratt: — subsection 172.1(1) of the code, and then we would be relying on the Crown's discretion to drop that charge in favour of other charges. I agree, it could potentially be dealt with that way, but it causes some problems, too.
Senator Batters: I will go with your "I agree, it could potentially be." That's pretty good.
Mr. Butt, you testified before the House of Commons Justice Committee on February 4, and you had a useful quote dealing with mandatory minimums:
Somebody who steals a loaf of bread because they're hungry should not face a mandatory minimum sentence. The reason for that — I'll unpack this a bit — is that there is a real moral debate about the culpability of that person. However, when we're talking about the intentional infliction of sexual violation on a child, there is no responsible moral debate about the culpability of the person who is proven to have done that.
Could you explain for us why and whether you feel mandatory minimums are justified for sexual crimes committed against a child?
Mr. Butt: In reaching that position, as a lawyer, I am guided by what the Supreme Court of Canada has said. We cannot enact a regime that would result in the imposition of sentences that are grossly disproportionate to the crime. That's where I'm coming from.
The "loaf of bread" example is a situation where there is technically an offence, but there is very real sympathy and very real appreciation of the sympathy that should go out to the offender. To saddle the courts with a mandatory minimum in that situation could result in that sentence being grossly disproportionate to the moral culpability of the offender.
When talking about the violation of the sexual integrity of children, you're in a fundamentally different moral universe. There is no morally defensible sexual offending against children.
Second — and we've seen this repeatedly, as somebody who works with victims — the "most minor offence," "brief fondling of a child," can result in lifelong psychological damage. So we are dealing with offences that even at their "low end" of commission have immense and intense potential for devastating long-term effect.
That's why I say we need to recalibrate by setting a floor. Let's face it: The courts come from a historical system where the man exercised dominion over the home; wives and children were property. That's the history of the courts. That's the history we have to shed by taking a fundamental rethink in saying, "We're putting children first" — and even these "minor" offences, because of the demonstrated long-term psychological harm, need to be treated on par with other offences that we've already been very good at recognizing as serious. We have to change our thinking.
Senator Batters: Like pressing the reset button.
Mr. Butt: Yes, but in a responsible and measured way. I don't see the numbers in the chart in the summary of the bill jumping to astronomical degrees, particularly when you have the problem of stacking consecutive sentences. If you jumped too high, you would have that problem. That jump is not too high, in my view.
Senator McIntyre: Thank you all for your presentations. My question has to do with spousal testimony and the possible link between this bill and Bill C-32, the Victims Bill of Rights Act.
The Victims Bill of Rights Act, which will come into force in July of this year, will make spouses competent and compellable to testify in all cases. Therefore, the rule against spousal testimony will be completely eliminated.
This bill not only amends the Criminal Code but also the Canada Evidence Act and other acts. Under the Canada Evidence Act, it would ensure that spouses of the accused are competent and compellable witnesses for the prosecution in child pornography cases.
Can you see the link between these two bills? First of all, are you in favour of the amendment to the Canada Evidence Act regarding spousal testimony?
Mr. Butt: In terms of the context of child pornography offences, from my experience, prosecuting these cases and working with them, the most serious offenders amass large collections and actively trade in child abuse images, and if they're engaged in the creation of the abuse scenarios, they are obviously actively grooming children and seeking access to children.
Because so much of that criminal activity is home-based, it is quite possible that a spouse of that Internet predator can have very important evidence to give.
Senator McIntyre: For example, having a shared home computer.
Mr. Butt: Exactly right. As we know, the vast majority of children who are abused are known to their abusers. There is a grooming process that goes on. Based on what we know of the profile of these kinds of offending behaviours, the spouse is very often in a position to offer reliable evidence that will help get to the truth of the matter.
In the context of these kinds of offences, given the way they're presented and often committed, I do support that.
If we were talking about a general extension to all crimes, I would be much more reserved on that. But within the context of child pornography offences, I support that.
Mr. Spratt: You might refresh my memory because, although I testified on Bill C-32, I didn't review it in detail before I came here, but I think the amendments in the other bill largely cover this sort of section. It has to be recognized that in many of our common-law jurisdictions, the spousal immunity rules have been done away with completely.
I don't think that's necessarily a bad thing; it's a very historic content. It is a big change, though, and is something that I have advocated before should be studied very closely, because this is a way to compel evidence from inside someone's home. There are pros and cons to that change, and it's not something that I would concentrate on this bill as something that I would be very opposed to. But it's something that I think should be studied very carefully, and there hasn't been very much study on it.
Senator McIntyre: The objective of the legislation is to protect children, and I think the best way to do that is to incorporate spousal testimony in child pornography cases. That's the way I look at it.
Mr. Spratt: I don't think I would be entirely opposed to that change. As I said in the Canadian Victims Bill of Rights context, it might be good to update the language of the immunity section and not just talk about husbands and wives and recognize that there are other types of relationships that might apply to it as well.
Senator Baker: Mr. Calarco, you made a good point when you said that there's such a thing as a dangerous offender designation under the Criminal Code in which somebody can be sent to jail for an indeterminate period of time if they are a repeat offender and a danger to the community. This is done all the time.
Isn't it true, Mr. Spratt, that at times the defence lawyer in trying a case of a dangerous offender sometimes agrees with the Crown that the person should be designated a dangerous offender? I think I read your case law on this recently when you represented a person and agreed with the Crown. Am I wrong?
Mr. Spratt: No. In that case I did agree. There’s another case where my client meets the definition of "dangerous offender," and then we can argue about whether it's indefinite incarceration, indeterminate sentence or long-term offender, or 10-year supervision order. Your point is well taken in these things. We've seen in court that these dangerous offender proceedings are becoming more and more common.
In the Ottawa court, every provincial court judge has an ongoing dangerous offender proceeding in front of them. There are problems with that too because they are lengthy. It's a measure of last resort when looking at an indefinite period of incarceration. But these are options, as are preventive peace bonds and others. There are myriad options in the court to address the abhorrent situations that we find at the extreme top end of these cases.
Senator Plett: Mr. Calarco, I asked Mr. Spratt a question earlier that he seemed to think was too simplistic for an answer. Then he answered similarly when he answered Senator Dagenais's question. I'm going to try this on you. Somebody rapes 24 young boys. Is a sentence of two years less a day long enough for that person?
Mr. Calarco: I don't think you'll find anyone saying that that is appropriate. That was the Stuckless case. That sentence was imposed by Justice Watt on a plea and was increased by the Court of Appeal of Ontario to five years. That is exactly the sort of situation where the Crown could have brought a dangerous offender application.
Senator Joyal: Mr. Calarco or Ms. Schellenberg, I want to come back to a legal issue that you raised on page 10 of your brief, and I will explain it in simple terms. The bill proposes to link various sexual offences like pornography and assault together, removing the principle of proportionality and of course establishing minimum sentences for all of those offences. The accumulation of all those sentences, in my opinion, runs the risk of creating a disproportionate sentence and will be struck down by the Supreme Court.
I read in your brief that this issue has not yet been ruled upon by the Supreme Court, as I understand your study of the situation of the law in Canada at this stage. I raised the issue with the minister yesterday in the context of the Nur decision. It seems that this bill is open to a clear challenge on that ground. Would you care to comment on that? In your opinion, am I interpreting the substance of the bill in a way that is far-fetched?
Mr. Calarco: Senator, this bill is very likely to be challenged. Based on the sentencing jurisprudence from the Supreme Court, it is likely that a challenge would be successful, in my personal opinion.
There is one thing to consider: Before that one case gets to the Supreme Court, how many disproportionate sentences will be imposed, given that it takes five to seven years to get a case to the Supreme Court? The court will say, "You've been doing everything wrong for the past seven years. All of these people should have been sentenced in a very different situation." We have to look at that.
Considering the law as it exists, the court has been clear on this, and I think Mr. Spratt has been making comments about this. We should be very careful before rushing into legislation of this sort, which is highly vulnerable to challenge. At minimum, it must be carefully tailored to meet particular circumstances, not just done in a simplistic way to increase sentences, because that's not working.
Senator Batters: There were a few comments made, particularly today during this committee hearing, about the minimal impact, in some witnesses' view, that mandatory minimums would have for an offender where it's a family member or friend of a child sexual victim. Earlier today, Ms. Latimer indicated that there can be confusing emotions on the part of the victim. I was listening to that. Mr. Butt, maybe you could respond. Don't those child victims just want the abuse to stop? They're not thinking about mandatory minimum penalties and that sort of thing.
As well, Mr. Butt, would you agree that in this type of offence, if the perpetrator is in jail longer, they can't abuse the child that might be their family member or friend or abuse other children during that time? That would spare those children untold damage.
Mr. Butt: Correct on both counts. Children want the abuse to stop. In the legal profession, when they're in jail and can't commit offences, we call that "specific deterrence." It's well recognized.
I'll complete my answer by saying that I welcome a constitutional challenge. I do not share the view that it's vulnerable. I'm looking forward to participating in that debate.
The Chair: Thank you all for being here today and contributing your time to assist us in our deliberations on this piece of proposed legislation. It's much appreciated.
Members, next week our schedule has been changed. We've been given authorization by the house to conduct committee hearings while the Senate is sitting. We will meet next Tuesday, which is not the usual day for us, at 3 p.m. The Privacy Commissioner will be our witness on that occasion.
(The committee adjourned.)