Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for February 26, 2004
OTTAWA, Thursday, February 26, 2004
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:56 a.m., to give consideration to Bill C-16, an Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts.
Senator George J. Furey (Chairman) in the Chair.
[Translation]
The Chairman: We will first move to clause-by-clause study of Bill C-5. Second, we will begin consideration of Bill C-16.
[English]
Honourable senators, we will move to clause by clause. Is it agreed that the committee move to clause-by-clause consideration of Bill C-5, respecting the effective date of the representation order of 2003?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Senator Nolin: On division.
The Chairman: Shall clause 2 carry?
Senator Nolin: On division.
The Chairman: Shall clause 3 carry?
Senator Nolin: On division.
The Chairman: Shall the title carry?
An Hon. Senator: On division.
The Chairman: Is it agreed that this bill be adopted without amendment?
An Hon. Senator: On division.
The Chairman: Does the committee wish to append observations to the report?
An Hon. Senator: No.
The Chairman: Is it agreed, honourable senators, that I report this bill without observations to the Senate?
Senator Cools: This afternoon.
Hon. Senators: Agreed.
The Chairman: Thank you, honourable senators. We will now begin consideration of Bill C-16, respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other acts.
Please welcome your witnesses, Mr. Cliff Yumansky, Senior Advisor, and Ms. Mary Campbell, Acting Director General, both with the Corrections and Criminal Justice Directorate within the Department of Public Safety and Emergency Preparedness. With them is Mr. Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice.
I understand Ms. Campbell will be making a brief presentation and that will be followed by questions from honourable senators.
Ms. Mary Campbell, Acting Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness: Thank you for the opportunity to appear before this committee once again.
I will keep my remarks fairly short. I just want to outline the main features of the bill and some of the amendments that were passed in the House of Commons committee.
Bill C-16 creates one act, which is the sex offender information registry act, and it makes amendments to the Criminal Code of Canada. In essence, it allows for the creation of a database about sex offenders that can be accessed by police forces across the country.
It is intended to be an investigative tool for police, and this is really at the heart of the structure of Bill C-16. The idea is to be able to provide rapid access by police to a database of sex offenders and to help solve crimes by identifying "possible" sex offenders near to the offence site.
It is an offence-based system, so persons convicted of certain specified offences are eligible for registration.
It is not a risk-based test, and it does not replace CPIC as a data bank of conviction history. It is a complement to that. There are 33 offences listed. Twenty of the offences are, by definition, sexual offences, and 13 offences are listed that may contain a sexual intention, but that would have to be proven as part of the process if an offender is to be registered.
Essentially, following sentencing for one of the specified offences, the Crown would have the opportunity to apply for a registration order. For those offences that are by definition sexual offences, the registration would be presumptive, but the offender would have the opportunity to rebut that presumption. The test is one of gross disproportionality. That, I would note, is the same test as in the DNA Identification Act.
Once the order is issued, if it is issued, offenders are given notice of their obligation to register, which they must do within certain time periods, and re-registration is obviously required.
The length of the registration requirement is set out in Bill C-16 and depends on the maximum penalty available for the offence. It can be as long as a lifetime.
Within the registration period, offenders will have the opportunity to apply to be deregistered, if you like. The test, again, is one of gross disproportionality.
The first reporting by the offender must be in person, and the information that the offender must provide is set out in Bill C-16. It includes such things as current address and telephone number, but also personal identifiers about the accused, for example, height, weight, hair colour and that sort of thing.
The information remains on the database indefinitely, subject to an exercise of royal prerogative of mercy, for example, where the person is found to have been innocent of the original offence, and the information is accessible only to police officers.
I want to just talk for a few minutes about three points in particular, the first one being judicial safeguards, also known as addressing the Charter issues. The proposed legislation attempts to create a balance. The best way to conceptualize it is that the more procedural protections there are, the less the Charter risk is. If procedural protections are diminished, the Charter risk goes up. It is basically that equation. The bill has attempted to strike a balance that provides adequate procedural protections and manages any potential Charter risk.
That is why, for example, the bill allows offenders to rebut the presumption. It gives them their day in court, if you like, at all stages of proceedings. That is why there is no public disclosure of the registration information. That is why the offender has the ability to apply for deregistration or a termination order under certain circumstances.
Certain amendments were made as the bill passed through the House of Commons. I will highlight those. In order for police to access the registry, the original bill provided that they must have reasonable grounds to believe that a sexual offence had been committed. There were some concerns and discussion around that test, and at committee it was changed to "reasonable grounds to suspect." It went from "believe" to "suspect," which is a slightly lower test. The police must have a suspicion that a sex crime has been committed if, for example, a child were to go missing this afternoon in a particular neighbourhood.
The bill contains additional information that must be provided by offenders, such things as eye colour and hair colour. Fingerprint information has also been added. There were also amendments to provide more information about the date and place of the offender's offence and the victims. This speaks to trying to have enough information about the ex-offender's modus operandi, if you like. Do they target specific victims? Do they have a particular methodology and offending patterns? There were further amendments along the lines of address information.
Two other significant changes are on the issue of retroactivity of the provisions. First, Bill C-16 provides that all offenders registered under the Ontario Sex Offender Registry will be rolled over into the national sex offender registry. Second, offenders who are under sentence, regardless of where they are in the country at the time of the coming into force of this bill, will be subject to it.
In conclusion, it is important to stress that what you see in Bill C-16 is very much the result of a collaborative process between the federal government and provincial and territorial governments. The bill has been very much driven by provincial and territorial concerns and interests. When you ask your questions, the answers will, in many cases, be that it came out of this consensus, but we can certainly illuminate wherever possible the thinking process behind it.
All three of us are happy to answer any questions.
The Chairman: Thank you very much, Ms. Campbell.
Senator Beaudoin: My concern, of course, is the Charter of Rights and the question of retroactivity. There is a lot of disposition that applied to this question of retroactivity. We have already adopted Bill C-7 and "les casiers judiciaries," and this will add to that statute, as far as I can see. Perhaps, to a certain extent, what we have under that will not be as important as it was. What is the relationship between the two? Is it to be more effective than what we have in Bill C-16? Is it that the other one is not sufficient?
Mr. Cliff Yumansky, Senior Advisor, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness: Bill C-7 makes the pardon records of sex offenders available for screening purposes when it comes to positions of trust, particularly when working with vulnerable populations. This is quite a separate matter. Bill C-7 still applies, but for employment screening purposes. The retroactivity scheme resulted from long discussions with our provincial partners and will essentially capture those designated offences referred to in proposed section 490.011.
Senator Beaudoin: How many persons will be affected by this?
Mr. Yumansky: We anticipate, with the rollover of the Ontario registry, somewhere between 6,000 and 7,000. There are close to 6,500 currently in the Ontario Sex Offender Registry. We expect there will be probably another 5,000 or so that could be caught by the scheme, those offenders under sentence at the time of coming into force of this proposed legislation.
Senator Beaudoin: Do you consider that this is in accordance with the presumption of innocence that we have in the Charter?
Mr. Doug Hoover, Counsel, Criminal Law Policy Section, Department of Justice: The design of the retrospective application of Bill C-16 had foremost in mind the Charter rights of the affected offenders. The Supreme Court of Canada has been clear that, while offenders under active sentence still retain a strong bundle of rights under the Charter and under fundamental principles of justice, it is a diminished bundle. As such, it was Justice Canada's view that this was a viable scheme if we restricted access and provided full opportunity to exercise due process, et cetera.
It would be viable in bringing in those offenders who were under sentence based on the purpose of the act. This is not a broad intrusion. The rights are safeguarded. Sections 7 and 8, on the privacy rights of the offenders, will be upheld vigorously in this proposed legislation.
Senator Beaudoin: To give them the burden of evidence may to a great extent be against the presumption of innocence.
Mr. Hoover: You have to understand that this is not a finding of guilt against the offender per se. This is an administrative consequence of a previous conviction. In other words, the Supreme Court of Canada has held that in retrospective application, an administrative consequence can be viable as long as the offender's rights are upheld through due process. All retrospective offenders will have the opportunity to make a case in a court.
Specifically, if you are talking about the burden of proof, the burden is on the Crown to prove beyond a reasonable doubt that the individual was convicted previously of an enumerated sex offence. Once the Crown has established that burden, the offender has the opportunity to make full argument that his rights regarding privacy and security of the person would be grossly disproportionate to the objective of the scheme. The scheme is not intended to subvert privacy rights. It is intended to protect the people of Canada against future sex offences.
That registry would have strict limits of access. The police may only consult the registry for purposes of investigation of a specific sexual offence. By putting a box around that purpose, we are quite confident that this is Charter-viable and that the rights of the offenders will be protected, regardless of the possible conviction subsequently based on searching that registry and finding that a particular individual who is registered was a suspect for a future sex offence and ultimately charged and convicted.
Senator Beaudoin: Is the burden of evidence always on the Crown at the start?
Mr. Hoover: The Crown, to bring an application, must show that there was a conviction.
Senator Beaudoin: In all cases?
Mr. Hoover: In all cases. There must be a conviction against the offender. In the original conviction, the Crown had to prove beyond a reasonable doubt that there was the act and all the prerequisites of the offence had to been met.
Senator Beaudoin: The doctrine of beyond a reasonable doubt is still there.
Mr. Hoover: Absolutely. This does not go to the heart of that particular fundamental principle of justice in any sense. Again, the retrospective scheme is predicated on the Supreme Court of Canada ruling that an individual who was under active sentence for a previous conviction has a diminished expectation for privacy. Section 7 rights still exist. We are well within the parameters of the previous court guidelines on those particular issues.
Senator Beaudoin: We will wait.
Mr. Hoover: Things can change. The Charter is a living tree.
Senator Beaudoin: I believe strongly in that. However, we have no precedent on that yet.
Mr. Hoover: We have the DNA act, which has retrospective application as well. That has been upheld by the courts.
Senator Bryden: Was this bill before the Senate in another form in the fall?
Ms. Campbell: No.
Senator Bryden: I want to go on record that I am not attempting to delay or to complicate anything here. It normally is the case, however, that if a department is bringing an issue before the Legal and Constitutional Affairs Committee that would affect the rights of citizens, the preparation is usually made by the appropriate minister.
The appropriate minister, in this instance, if I read this correctly, is the Honourable Anne McLellan. Why is this particular bill of sufficient insignificance that the minister would not appear?
Ms. Campbell: There is no question that the minister regards this bill as being of enormous significance. My understanding is that there were scheduling issues. In the interim, we thought that if we as officials could provide technical clarification, it would be useful. The minister regards this bill as extremely important.
Senator Bryden: Are you saying the minister is prepared to appear?.
Ms. Campbell: Yes, my understanding is —
The Chairman: If I can interrupt, Ms. Campbell. Senator Bryden, the minister, if the committee feels she should appear after we hear from officials, is quite prepared to do so. It is a question of arranging a time suitable for us and the minister.
Senator Andreychuk: Without wanting to interfere, I thought we had an understanding in this committee that the minister would come here on any bills unless we chose otherwise. I do not remember being asked that question. The minister should be here. Also, would it be of benefit to hear from the Minister of Justice? There are many justice issues that we would want to address.
Senator Bryden: If I could continue.
The Chairman: Sorry, I certainly take your point, Senator Andreychuk. Obviously, if this committee wishes to have the minister, we will have the minister.
Senator Bryden: I am aware of the size of the portfolio and responsibilities of this particular minister. Therefore, it may be the case that we are sort of populated with assistants, associates and parliamentary secretaries who carry various aspects of a large portfolio such as that.
I am not restricting it, but I want to ensure that we can have access to the minister or someone who can speak for the policy of the government. I realize that is not the role of these witnesses.
This is an administrative procedure. You say that the burden of establishing that the person has been convicted of the appropriate offence is on the Crown. That is to be established to the Attorney General, is that correct? Is it not to a court?
Mr. Hoover: It is to the court, yes.
Ms. Campbell: It is to a court. I would expect that normally, the procedure would be that potentially forthwith following sentencing, the Crown might bring its application. There might be some delay, but it would be in a courtroom.
Senator Bryden: As for the rollover that will occur, those people have already been convicted and some judge has already said that they can be placed on some database?
Mr. Hoover: No, that is not quite right. The retrospective scheme is that the offender under sentence is eligible for an application by the Crown. In order for that to occur, the offender must be given notice of the intent of the Crown. There are again mechanisms within the bill to ensure that notice is explicit, lawful, and that an affidavit of service of that notice is put into the record. Once the notice is received, the offender has opportunity to make a formal application to have his case heard before a judge, based on the same principles as in the prospective scheme.
Senator Nolin: Could we have the clause number?
Mr. Hoover: Yes, it is clause 490.019, which is the obligation of the under-sentence offenders to apply.
Clause 490.02 provides the rules as to who is eligible for service of the notice of the obligation to comply with the act. In other words, that applies to the offenders who are under sentence or, in the case of Ontario, offenders previously registered under the Ontario act.
Clause 490.21 provides for the period and method of service. There is a one-year period for the Crown to actually serve the offenders who are under sentence. If they do not serve those offenders who are under active sentence, then those offenders are not eligible to be put on the registry. We do not want to wait interminably for the Crown to make its determination. The Crown has to determine exactly who is to be in the registry.
I should point out that the discretion of the Crown in this instance is important for two reasons: First, it is a Charter safeguard when there is a discretion for this kind of procedure such that the Crown can exercise discretion in terms of the risk of the particular offender. In that way, they are able to weed out those they think are not high risk.
Second, this was desired by a number of federal-provincial-territorial jurisdictions that stipulated it was a prerequisite for their support of this scheme that they retain a discretion, that the names of all such offenders would not be added automatically to the registry and that there be due process. That was integral to gaining the agreement of the provinces and territories to the scheme. The support of the provinces is, overall, important to the scheme because they are responsible under the Constitution for the administration of justice. Without their full cooperation and support, the scheme would be applied in a checkerboard pattern across the country. The support is important for those two reasons.
The remainder of the retrospective scheme is found in clause 490.022, duration and dates of obligation. Clause 490.023, application for exemption order, provides for the ability to apply down the road for an exemption order similar to the prospective scheme. Clause 490.024 concerns under-sentence offenders' appeal of the exemption orders, et cetera. There are a few more clauses as well. That is the heart of the retrospective scheme, in clause 490.019 and on.
Senator Bryden: Is the order to enter a person in the database made by a judge?
Ms. Campbell: Yes, that is correct.
Senator Bryden: I ask that because that is the way the DNA database works. We saw in the press recently that judges are not breaking down the doors to fill that database. A good number of people who perhaps should have been caught by the database are not being caught because the judges are deciding, for whatever reason, not to do that. In some areas, it is mandatory for a person convicted of first-degree murder or other violent crime to be entered into the database. Research in the press has turned up cited instances where even those kinds of convicted offenders did not have their DNA entered into the database. Clearly, where there is discretion given on certain other offences such that the Crown needs to apply to enter the person's DNA into the database, there appears to be a tendency on the part of the judiciary not to allow it, for whatever reason.
I think it would be helpful to have some information on what is causing this problem. If it is a problem, new or old, then is it likely to continue in respect of sex offenders? Others present today may be in a better position than I to question the implications of the Charter of Rights. We have had many instances, with all due respect to the Department of Justice, of everything appearing to be fine under the Charter until the first case goes to court, and then we find that it is not. Therefore, we tend to be a little anxious about whether it is Charter-proof. I will certainly look at it more carefully than I have had the opportunity to do to this point.
Ms. Campbell: I will make a couple of comments in response. Certainly I have seen that press article and it is also the only information that I have. I agree that it bears more exploration. Any time we bring forward proposed legislation, we are very conscious of ensuring that all partners in the system are well aware of it. Sometimes the issue is with judges, or with counsel in the courtroom who are not raising the matter and bringing it to the judge's attention. We are very conscious, and particularly now following the recent DNA experience, of trying to get a better handle on what is happening. You have raised a very important point for us.
In terms of making the registration mandatory, of course that touches on the equation: If you make it mandatory then you will have effectively reduced many of the procedural protections and the Charter risk will go up. It is part of trying to find the right balance. The government believes that the provisions in Bill C-16 do strike the right balance, but certainly the points you raise are extremely important.
Senator Andreychuk: When you use the words "under sentence," are you talking about that period of time after plea-taking, or finding of guilt, and before the actual sentencing?
Ms. Campbell: No. The phrase "persons who are under sentence at the time the bill comes into force" means people who are still subject to some kind of sentence. They may be people who have been convicted and sentenced; they may have been ordered to pay a fine and have not yet done so; they may be subject to a probation order; or they may be in custody. It refers to people still serving the sentence or still subject to the sentence, who will be caught at the time of the coming into force of the proposed legislation.
Senator Andreychuk: You said, "subject to sentence."
Ms. Campbell: That is right.
Senator Andreychuk: Has this been thought through in respect of stays of proceedings that can occur at any stage in the legal process? Will they be trapped in this and be considered "subject to?"
Mr. Hoover: A stay would mean that there is no conviction entered.
Senator Andreychuk: It can be resurrected at any time.
Mr. Hoover: Once they are convicted, it would become a prospective order under clause 490.01 and not a retrospective application under clause 490.019. It would be the ordinary application; in other words, if the procedure is stayed, it means that no conviction has been entered.
Senator Andreychuk: I fully appreciate that, but when you say "under sentence," I want to be absolutely certain that the Crown has contemplated what happens in the case of stays, which is discretionary to the Crown. I am talking about enforcement. I have been involved in those negotiations whereby you weigh the cost of proceeding against many other factors in putting in a stay of proceedings. Then, you watch, follow and track your communities. I want to be absolutely certain that we understand how police enforcement would change in the event of stays of proceedings.
Mr. Hoover: Again, if the proceeding is stayed, it means there is no conviction; so there would be no authority, either under 490.012, the prospective scheme, nor 019, the retrospective scheme, to make an application. Until the proceeding is picked up again and a conviction is entered, there could be no order to comply under the SOR. It is not applicable to this proposed legislation.
Senator Andreychuk: It is an administrative problem that I am worried about, as to whether one utilizes the stay as a shortcut.
The Chairman: It is a very important point that Senator Andreychuk is raising. I want to make sure that there is a clear understanding from Mr. Hoover that until a final sentence has been entered, there is no registration.
Mr. Hoover: That is correct. The prerequisite is that there has to be a conviction entered against the offender. If there is no conviction entered, then there can be no order to register, either retrospectively, in the case where he is under sentence, or prospectively, once this is coming into force.
The Chairman: I believe Senator Andreychuk's concern was about names falling through the cracks during a period of stay of proceedings, which would be contrary to what is envisioned in the act. Is that correct?
Mr. Hoover: That is correct.
Senator Andreychuk: Also, I am aware that names have been listed from time to time on CPIC — it is manned by people and people make errors. It has not been that uncommon to find stays listed and have to correct those. I want to be sure that we know what we are talking about here.
Will we have anyone from the police or someone to testify on the administration?
The Chairman: We will be having other witnesses. Perhaps if we have time at the end of this session, we will take a few minutes and discuss just that issue.
Senator Andreychuk: My other question concerns the administration. CPIC is administered by the RCMP, and this now will also be under the RCMP.
How will it work in Ontario and Quebec? Will there be special arrangements with the police, or will it follow the same understanding to make sure all the data — In Saskatchewan it is all RCMP, so it is easier.
Ms. Campbell: The database will be administered by the RCMP. It will utilize the CPIC system, but all police forces have access to CPIC. All police forces across the country, whether provincial, municipal or RCMP themselves, will be able to access the sex offender registry database.
Senator Andreychuk: I presume we will have someone from the RCMP providing training. CPIC is different from the sex registry, although they will be complementary in some ways. It will be incredibly important to have training and an understanding of the dilemmas from province to province with the existing systems. However, I think we can leave that for the enforcement.
I have a question on a more legal point. We are going to transfer 6,500 names, if I understand you correctly, from the existing Ontario system. We will not be transferring anything from other systems. To me, that seems to be an inherent injustice. All of those who committed offences in nine other provinces and territories will not be catalogued in any way and made subject to this act, and yet the Ontario offenders will be.
That is hardly a safeguard for Canadians, on the one hand; but on the other hand, it seems to raise Charter implications.
Ms. Campbell: The reason Ontario sex offenders' names will be rolled over is that they are on a registry now. Ontario has the only sex offender registry in the country.
Obviously, this was a point of much discussion and debate — what to do with the one existing registry — and a great deal of thought was given to the implications across the country. The final decision, partly on Charter grounds, was to respect the Ontario registry and incorporate those people into the national one. The simple fact is that there is no other registry in any other jurisdiction to which to apply the same approach.
If people are under sentence in any other province, they will be potentially subject to a registration order.
Senator Andreychuk: It seems inherently unjust when, if you committed the same crime — the same sexual conduct — three years ago in British Columbia, there is no registry there. If you do it in Ontario, you are trapped. You are stuck in a system that is inherently unfair. It is the same dilemma as retroactivity.
Senator Smith: They are already registered in Ontario.
Ms. Campbell: Certainly, part of the discussion was, if we were to pursue that, then how would you construct a model that would apply across the country? How far back would you go? What procedure would all provinces agree to?
This, ultimately, was the model with which the provinces themselves felt most comfortable. It was the most workable.
None of this replaces traditional police work — whatever tools are out there for pursuing offenders in other jurisdictions — but this was the model, after a lot of thought, with which the jurisdictions were comfortable.
Senator Andreychuk: You have eliminated some of the criticisms of proceeding retroactively. I understand the sentencing period, and that seems a better way of doing it.
Inherent in this, however, is that by putting in retroactivity — perhaps even modelling the same registry, but that does not matter — you are trapping Canadians in Ontario in a way that you do not trap them elsewhere. That is raising some concern for me as an unjust system, from the point of view of the citizen who is trapped under these provisions.
Ms. Campbell: Citizens in Ontario are currently subject to a different regime than exists in any other province. There is currently a court challenge in Ontario. No judgment has been rendered yet.
Senator Nolin: I want to understand this: If we use the mechanism in the bill, someone who is no longer under sentence in Ontario but is registered — because it could be a lifelong registry — will be automatically in the new registry. However, the person who committed the same offence in Quebec will not be in the registry.
Mr. Hoover: That is an important issue and one that we took a long, hard, careful look at in the context of the Charter. In the final analysis, we had to recognize that the Ontario registrant was under a current disability.
Senator Nolin: It was like some kind of acquired right.
Mr. Hoover: He was under the disability and he is under the disability. However, again, when he comes under the federal registry, he still has the same access to the court to challenge the registration.
Senator Nolin: I am not raising the specifics of any cases. I am just saying, same fact.
Mr. Hoover: It is not the same fact because he is not under a disability in Quebec. There is no registry in Quebec. If there were one and this person was on it, under the broad tenets of the scheme, he would be subject to the same application order as the Ontario offender would be.
We made that clear to the provinces when we were discussing this, because some raised it. They said, "How come our people will not be on it?" They take, perhaps, a different angle; they may have wanted their offenders to be on the registry. Our response was, "If you proclaim a lawful registry and put your offenders on it, then probably we would have the same response." However, in response to Ontario, given that offenders are under a disability, and assuming it is lawful, our position was that as long as their Charter rights were respected in terms of how they were placed on our registry, you could do that. The key notion is that they are under the current disability when they are on the Ontario registry.
There is no further disability placed on them. I also should point out that this is not punishment. It is not a sentence.
Senator Nolin: It is hanging over the head of someone.
Mr. Hoover: There may be some impact on the offender.
The Chairman: Mr. Hoover, from the reaction of senators, there may be some question as to whether it is punishment. We will get to that, I am sure.
Senator Pearson: I would like to go back to the purpose of this bill, because we are spending a lot of time on tactics and other things. The purpose is to enable the police to have another tool to rapidly identify whether there are people in the immediate area of a crime who have a history of sexual offences and so on.
That is my understanding of what the bill is about.
I listened to the arguments about the Ontario registry as opposed to all other jurisdictions, and if we never had any kind of retroactivity, it would be a long time before this would become a useful tool.
I would like to have some reflections on the experience with the Ontario sexual offence registry. Is there one in England? Is this a useful tool? Is it making any difference? I know the pressure to develop this is very strong. In the United States, for example, this is the law. You have been looking at all these kinds of things and I understand that it would be useful if you could comment on that. The pressure did come from the provinces, and so they will assume most of the costs. Could you comment on those questions?
Ms. Campbell: You are correct. There is a sex offender registry in England and many of them in the United States. It is important to bear in mind that they are not a monolithic entity and it is important to look at the particulars of any given sex offender registry.
For example, in the United States, some of the registries are accessible to the public. Indeed, the public can go on the Internet, access the registry and obtain a great deal of information about the ex-offender. Other registries are less accessible.
You have study to the particulars and the objective in setting up a registry. Some jurisdictions have been explicit about wanting to set up a registry so that communities are aware of who is living amongst them and can take some kind of proactive action.
The registry that is reflected in Bill C-16 is intended to be an investigative tool. It is based on having looked at the experience of these other registries and some of the problems that have occurred.
For example, in some jurisdictions, there has been a high rate of compliance. People are registering when they have been ordered to do so. England has a high rate of compliance with initial registration.
One of the challenges has been that there has not always been good follow-up on the offenders. This is where local resources are crucial and this was discussed at great length with our partners.
You may have seen in past years some media attention focused on California, where they have acknowledged that they have effectively lost track of about 22,000 sex offenders. These are people under a registration requirement. At this point, they actually have no idea where they are.
Much of the effectiveness of any sex offender registry is in the follow-up. It is in the enforcement. That is where you will see the success or failure of the registry to a large extent.
I will address your question about looking at the research. We looked carefully and exhaustively at the experience of other jurisdictions. The model that the government adopted in Bill C-16 reflects that research and review.
Senator Pearson: Do you have any evidence of how helpful it has been in any particular case? Do they keep that kind of the information?
Ms. Campbell: It is difficult to get that kind of information. It is always hard to get good research on what crimes have been prevented. That is a constant dilemma. In some ways, you are further ahead with the construction of something that has clear goals, is modest, in the best sense of the word, in its scope and gives police or other partners in the system another tool to use. This recognizes that no single tool will solve all problems.
Recently, we have seen people with no criminal background whatsoever arrested for crimes in Canada. We have to be careful that we do not put all of our eggs in one basket; we need to have a variety of baskets, with each one being solid.
Senator Joyal: I would like to come back to this issue of presumption. If I understand the way that it works, somebody is found guilty and sentenced according to one of the listed offences, and there is automatically a presumption that this person has to rebut why he or she should not be in the registry. Is that the way the system works in principle?
Mr. Hoover: Yes, in the court, once you are convicted and have been sentenced, the onus falls on the Crown. If it is a retrospective application, the Crown does have to show that there was a conviction, but in a prospective application the same judge will be hearing the application, so I do not think the Crown has to go so far. The onus is on the offender to prove, under proposed section 490.012(4), that the imposition of the order would be grossly disproportionate to the purposes and to his privacy and security interests.
Senator Joyal: How can you maintain that this is not part of the sentence? The presumption is reversed.
Mr. Hoover: In the sense that the DNA orders in 487.055(1), 487.055(2) and 487.055 of the Criminal Code use the same scheme. We followed what that scheme did and what the court said about that. The DNA scheme has been upheld as a Charter-viable methodology to impose an order that affects the privacy of the offender. It is an administrative consequence of the conviction. In other words, there is an objective stated in the bill to protect society against future sex offences.
The methodology used puts a registry of known sex offenders and a current address database in the hands of police when they are investigating a sex offence.
As such, and I do not mean to be disrespectful of the senator's view on this, it is not intended as a punitive impact as a result of sentencing. It is not a retributive impact. We are not trying to punish the offender. That is not the intent. There may be an impact on the offender, but it is justifiable in terms of the Charter in the sense that we are trying to protect all Canadians and to do so in a minimally intrusive manner. We are putting in very important safeguards, both procedurally, in terms of who can access the register, and also in what you can do with that information. It is not publicly available. Police have expressed concern about some of these restrictions placed on them. However, it was fundamental to the scheme in the context of the Charter that these restrictions be placed on access to the registry to prevent its use for other purposes than that which was intended. It is solely for the investigation of future offences.
This is a viable scheme and is not intended as punishment or as part of the sentence. Due process is an important aspect. Our opinion was based on the scheme in the DNA Identification Act, which the court indicated was viable under the Charter.
Senator Joyal: Could you cite the DNA case? When the minister attends, perhaps we will review it.
Mr. Hoover: There have been many cases.
Senator Joyal: If you would provide a list of those cases, we could see how the court has developed its approach to this.
The Chairman: Mr. Hoover, would you be kind enough to supply that to the clerk, who will distribute it to the senators.
Senator Joyal: It is difficult for any common person not to see that as in fact an impediment to freedom of movement. The Charter provides that we have the right of mobility in Canada, and that right of mobility is protected by the privacy of people. I have the right to move wherever I want. I can establish myself in Nova Scotia, Saskatchewan, Ontario, wherever, and I do not need to report to the police where I am going. This is a very fundamental element of freedom.
I understand your approach. You have tried to make it Charter-proof. I am trying to follow your reasoning, and I will certainly looking into the court's reason for maintaining the DNA provisions. However, it seems to me that here we have something else. I do not doubt the purpose. I agree that it is for the purpose of protecting the public, of serving law and order and preventing pathological criminals from roaming free. You can cite all the horror stories you want on this, and people react immediately. However, we have to ensure that what we are doing in terms of the fundamental rights that are at stake is proportionate to the objectives. That is the first element of the Oakes test — the least intrusive, best-adapted means, and that the means taken serve the purpose for which they were intended.
I am trying to use the Oakes test on this system, and I am asking myself, "What is the fundamental difference between DNA and this?" I would like to review the reasoning of the court in those decisions, because I am not sure that once you have been under sentence you are immediately presumed to be somebody that the justice system wants to keep an eye on; and not only that, from then on, you will have to report all the time. As much as I agree with the objective of tracing back the habitual criminal and the pathological cases, there is a limit to what you can do with the system to protect the individual.
The sex registry is essentially founded on the presumption that the person will become a future suspect. That is the idea. Prove to me that all the sex offenders always repeat their offences. I am trying to understand the mechanics behind the sex registry. If we adopt a registry for all criminals, we should have a registry on everything. Some people who rob, for instance, might be robbing all the time, so we should have a registry for robbers because it will help to know who are the robbers in a neighbourhood. I want to understand the principal motivation that would withstand the test of reversing the presumption.
I am not questioning your approach. I agree with that. You make your best effort, and I commend you for that, but there is an element on that aspect that is not yet clear to me.
You mentioned that there is currently a court challenge in Ontario. Would it be possible to have the details of that case? You can provide it to the clerk.
Ms. Campbell: We could give you a summary of the arguments that were presented in the case. Judgment has not been issued yet. If it would be helpful, we could also provide two judgments from the United States Supreme Court. They looked at the issue of whether this is punishment or just an administrative consequence.
The Chairman: The Supreme Court of the United States has found that damage to reputation does not constitute infringement of liberty. Is that the kind of reasoning that you will present to us in the DNA cases?
Mr. Hoover: No, not at all. There is an extreme distinction between this registry and the American registries.
The Chairman: Not that we want to slavishly follow the United States.
Mr. Hoover: We are not in that ballpark. In the Alaskan case, they have a strong provision regarding double jeopardy, which we have in our section 11 of the Charter. The basis of that case was the punitive impact of a retroactive application and putting the person's face on the Internet. We do not do that. We studied all the registries around the world, looking at how they operate, their effectiveness and the rights issues, and we are confident that this registry does two things that most registries do not do. We provide a truly useful tool, restricted to the investigation of sex offences. Our registry is not designed to in any way promote an impact on the offender, as in the scarlet letter type of registries in the United States. We do not do that with this scheme. We took great pains to resist many jurisdictions' efforts to bring that type of regime into statute. The minister may speak to the policy reasons, but I can say from Justice Canada's perspective that this was a Charter of Rights issue, and we were not going to go that way.
The Chairman: In the Alaskan case, we are talking about individuals who had committed crimes a long time ago, in some cases, 20 years ago or more. Also, the registry went beyond posting their pictures to include very onerous reporting schedules. Is that correct?
Mr. Hoover: The reporting schedules were brought up in the factums as being part of the punitive impact. As I recall, the impact on offenders who brought the application in Alaska was such that their ability to gain employment was fettered by the fact that this information was out there, and that was the primary basis for their argument of punitive impact.
While the Ninth District Court found that there was a punitive impact, the United States Supreme Court overturned that ruling and found there was no punitive impact and therefore there could be no reliance on the double jeopardy. It also said in obiter that nonetheless, it welcomed further challenges to all registries in the States to ensure that how far you can go was clear.
In our particular instance, we were careful to resist any attempts by certain interests or stakeholders to turn the registry into a scarlet letter campaign. That was not on the table from the very beginning.
Senator Joyal: On the same issue, you said, and I tried to catch every word, that it is essentially for the purpose of investigation. In other words, the police cannot receive a phone call from somebody somewhere, let us take the worst scenario, a day care centre for kids, saying, "We want to hire Mr. or Mrs. X. Can you check if he or she is on the sex registry?"
Mr. Hoover: Absolutely not. That would be an offence.
Mr. Yumansky: A method of obtaining that information currently exists in a national screening system. Employment checks are available for this very purpose.
Senator Joyal: The other question I have is in relation to the Quebec government. Did the Attorney General of Quebec express his interest in and support for that?
Mr. Hoover: In the case of Quebec, there was a change in government while we were engaged in the FPT consultations, both before and after this bill was tabled. The initial Quebec government certainly indicated their full support of the bill as tabled on December 11, 2002. The subsequent government pronounced on this proposed legislation as amended in October 2003. Both the Attorney General and the Minister of Public Safety did indicate full support, not only for the bill as tabled, but also for Parliament to proceed as soon as possible in order to get this up and running. That was their position.
Senator Beaudoin: I have one point. I cannot understand why it is not a violation of the Charter if, from the mere fact that in one case you have been found guilty of something, you lose the presumption of innocence for others to come. This is certainly against the Charter.
The presumption of innocence is always there. You may reverse the burden of evidence. In some cases, it has been accepted by the jurisprudence. However, how can you put in a statute that if you are found guilty of a sex crime, you can no longer be presumed innocent? You are presumed guilty. There is something that I do not understand.
Mr. Hoover: It is a very good question, because it goes to the heart of what our true intent is. Is our true intent to punish? Is our true intent to make a punitive impact on the offenders for what they did? The answer is no.
We were asked specifically to draft a scheme that allowed police to locate through a registry database those people previously convicted of a sex offence so they can identify suspects in future offences.
That does suggest that there is a correlation between past offence and future activity. It does not mean that you are guilty, but it allows police to consult a registry when a sexual offence has been committed in a specific geographical area. If there are five offenders living within a block of the offence, they can immediately go to those people. The police can eliminate those people as suspects so that they are no longer under a cloud of suspicion.
I should point out that the presumption of innocence is not at the heart of this scheme. When we go to court, we want to make sure it is the judge who makes the orders. There is no presumption of innocence required in this particular type of scheme. The courts have been clear on that.
We are not asking for a further finding of guilt. There has already been a finding of guilt. As a result of that, there is a consequence. Honourable senators may want to take an in-depth look at R. v. Budrio in the Ontario Court of Appeal. It dealt with the ability of the police to bring section 810 applications against an individual who has never been charged with an offence. It is similar, in that if you successfully bring an application before a judge and make a case that a particular individual is at risk of committing an offence of some kind, you can put severe restrictions on the liberty of that individual for up to 12 months. If that individual refuses to abide by that, he can go to prison for up to two years.
Budrio said, given that that scheme was designed to protect individuals from future offences, given it was done in a minimally obtrusive manner and given that there was due process with Charter elements built into the scheme, it was Charter viable, even though there was no finding of guilt. In this case, it is not a burden issue. It was the issue of whether there was a conviction.
The courts determined that you do not need a conviction in order to protect Canadians as long as we respect the Charter in doing so. In other words, we can proceed in a manner proportional to our objective with the least obtrusive methodology available.
These were the paramount considerations for Justice Canada in the design of the sex offender registry. Provinces wanted us to go much further.
The danger with sex offender registries is that it is eminently politically feasible to sell the idea to your constituents that you can go a lot further than this. If you read the papers, you will find that there is much pressure on politicians to go much further. The politics of fear invade this debate to the point where it is very difficult to resist.
The concern would be that if we do not have this opportunity to put into place a Charter-viable scheme, we might find that a nonviable scheme comes forward. Arguments might be made to invoke section 33 of the Charter. In other words, do not worry about the Charter. That has been considered.
From the perspective of this committee, that would be a much greater danger than what we are looking at here. We have done our absolute best to ensure that the purpose of the scheme sticks to investigation of future sex offences and respects the rights of offenders.
After five years, an offender can come forward and say to a judge that he should not be on this registry any more. Ours is the only scheme in the world that provides for that safeguard.
Senator Beaudoin: Which clause provides for that after five years?
Mr. Hoover: That is 490.015
Senator Beaudoin: The individual may take the lead?
Mr. Hoover: It is called a "termination order" under 490.015. Depending upon the type and number of offences for which you were convicted, you will have either a 5-, 10-year or lifetime order. Termination can be brought after 5, 10 and 20 years.
Even if you have a lifetime order against you because you have more than one sex offence conviction, which puts you at the highest risk for future offences, you can still come forward after 20 years and make an application to a judge. You can provide evidence, and the judge can in fact order that you be removed from the registry.
The Chairman: I have one quick question following on from Senator Beaudoin's. The Ontario registry has been in place now for approximately three years. How successful has it been?
Mr. Hoover: The key to that question is how you determine success. Most regimes provide an answer by noting the compliance rate. The Ontario registry has, officially, about a 90 per cent compliance rate. In other words, 90 per cent of offenders required to register actually do so on a regular basis under the terms of the act.
The Chairman: How successful has it been as an investigative tool?
Mr. Hoover: There is not much empirical data out there. However, looking at all the research that has been done, there is no doubt that from the police community perspective this is a useful tool. There is a downside, in that it takes a certain amount of resources to administer, follow up, et cetera.
Depending on the design of the registry, the cost can outweigh any benefits. We were very careful to be cognizant of that particular problem. We have tried to limit what you can use the registry for. That limits how broadly the police can act.
I would also point senators to the United Kingdom study on their Web site. There were a couple of studies in 2000 and 2001 that tried to take a hard look at how successful the U.K. registry that was established in 1997 has been. There is not a lot of empirical proof as to success, but the anecdotal proof from police officers on sex investigations and follow-ups shows that they implicitly concur that this is a positive tool. It allows for closer monitoring, better investigation.
They think this is useful as part of the bundle of tools available for sex offender management and risk management in the U.K.
Senator Andreychuk: I want to underscore the last point. I think that their reports indicate that it is one good tool, but not the only tool. We should not be selling this as the only tool that will solve the problem.
Mr. Yumansky: Mr. Hoover mentioned that resources should be available to provide the support services and follow-up for the highest-risk group of sex offenders. That is where you get the level of success with which you could be somewhat satisfied.
Senator Cools: I must tell the chairman that some of my alarms are beginning to ring. I hope we will give this bill the consideration it deserves.
My first question is a repeat of Senator Joyal's question. Could we learn more about the basis for determining why sex offenders are to be included in the registry? Anyone who has worked in the system knows that you could just as easily identify granny assaults, or B and Es or bank robberies. Let us say for the sake of argument that you are limiting it to crimes against a person. Why have sex offenders been identified for inclusion? The answer to that has been hinted at, but I hope that we can clarify this more as we proceed.
You said that Justice Canada was asked to bring forward this proposed legislation. Can you tell me more about the demand for this and where it came from? Was it from the minister?
The next question refers to page 37, clause 23, the amendment to the Criminal Records Act. Could you explain the impact of this clause on the Criminal Records Act? I do not like the inference. Can you explain the intent of the clause? The Criminal Records Act is a peculiar piece of legislation by which pardons are granted for a finite set of offences. For example, there could be no pardon for first-degree murder under the Criminal Records Act. My understanding is that the result of the pardons is to vacate the offences. How are the offences becoming partially "un-vacated?" Would you explain?
Ms. Campbell: On your first point, senator, in large part that is a policy question that the minister could answer. Certainly over the past decade, I have been before this committee on a number of occasions in respect of proposed legislation that addressed the problem of sex offenders. Where does the pressure come from? This issue of how best to respond to a crime that has a devastating, particular kind of impact on the victims has been longstanding. A number of measures have been brought forward over the years. I do not think I would characterize it as recent or surprising pressure to continue to refine the tools that are available, because it has been fairly consistent.
Certainly sex offender registries became more popular in the United States during specific time periods. People became more aware of them, which fomented more discussion about them and their utility as one possible tool. A number of provinces became very interested in having registries. There has certainly been some discussion in the House of Commons over the past few years about sex offender registries. Where did the pressure come from? It actually came from many different sources. A consensus developed at the meetings of federal-provincial-territorial ministers of justice that this was a tool that they wanted to pursue. They had many discussions about what form it should take. From my professional perspective, that is where the pressure originated.
In terms of the relationship with the Criminal Records Act, a person can apply for a pardon under that act when the time requirements and other criteria have been met. Under this scheme, if someone on the sex offender registry with an obligation to continue in the registry into the future receives a pardon under the Criminal Records Act, it is one basis on which they can appeal to the court to be relieved of the registration requirement.
Mr. Yumansky: I might add that the Stephenson inquest that took place in the late 1980s did recommend the creation of a national sex offender registry.
Senator Cools: Perhaps, Chairman, our researcher could bring forward some of that information. I remember how troublesome that inquiry was.
Senator Bryden: I will be brief. One of the witnesses used the term "what this allows the police to do." As a former deputy attorney general and solicitor general, I think that is a considerable question that raises a very considerable fear.
As you know, in many instances, it is not just at the pool of sex offenders that you look first when a crime has been committed. Police also look at people who have committed other crimes, who have done time, who live in the city or who have a certain reputation. There used to be a blanket warrant that allowed police to search for illegal liquor and bootleggers. That blanket warrant was used to gain access to all kinds of information that had nothing to do with illegal liquor. It was used to determine where stolen goods were stored, who was trafficking in drugs, and ultimately, at least in our province, that kind of warrant was taken away, and in all provinces, I believe.
That is a concern and the reason there is so much caution in this committee to ensure that we do not arm the people who protect all of us with a power that almost begs to be abused. I would be willing to bet that if we were to have the police association provide evidence in respect of this, they would probably want to have a more far-reaching power. When they appeared before us on the DNA database, they were adamant that people should supply DNA information for the database not upon conviction but upon charge, and even upon arrest. They do that in Britain. It is a delicate balance.
From the point of view of the police, the registry in Ontario has been very helpful. Do we have any way of tracking the possible abuse of that registry? Have there been complaints?
Mr. Hoover: Interestingly enough, the Ontario registry, the design of their statute, is quite open in terms of its ability to constrain police access. As I understand it, the Ontario act says that you may use or access the registry for the administration of police purposes. It is very broad.
We did not follow that route. Under 16(2)(a), it is for police investigation of a specific sex offence. Further, we provide that if you knowingly contravene that purpose, you can be charged with a federal offence. It will be a federal prosecutor laying the information and the charges in most cases. That is how we deal with that.
The only known instance of what may be termed an "abuse" of which I am aware was in the recent abduction of a young girl. The Toronto police commissioner suggested that there was x number of registered sex offenders living in a three-block area. He said that he had consulted the sex offender registry.
In my opinion, that would be not be within our objectives. In fact, I would suggest that under our bill that would be illegal use and access. If he were to have accessed our registry in such a case, he could be liable. The police do not like this, but we designed it this way in order to retain the viability and stay within the primary purpose of investigation of sexual offences.
Mr. Yumansky: That is precisely why we have clause 16(3), on limited data matching. That limits it to the investigation of a crime of a sexual nature.
Ms. Campbell: We have heard, and you may well hear, calls to further lower the test that has already been lowered from "reasonable grounds to believe" a sex crime has been committed to "reasonable grounds to suspect." I am not sure how much lower you can go and still have a constitutionally valid test.
We were very aware that it would not be appropriate, if someone were stopped for an alleged traffic violation, to allow police officers to check the sex offender registry for something that has no apparent connection to the matter under investigation.
Protections have been put around police ability to access the registry in a way that will still allow them to do their job when circumstances demand that some immediate action be taken. It is a careful balance.
Senator Bryden: It is important that that balance be there. We will look at whether you struck it adequately. There is no question that if you create the registry, you will not prevent some people who have power from abusing it.
Senator Buchanan: The use of the database is limited under this bill. As I understand it, and maybe I am wrong, in jurisdictions such as Britain or many of the states, these data banks are almost public information, are they not?
Ms. Campbell: It depends on to which database you are referring. You want to be able to access the information for "consistent use" — that is the normal technical phrase. There is a danger of being able to match the data in a sex offender registry with welfare rolls. That was problematic for many people.
It is hard to compare it to other countries without knowing how their system works or what policy decisions they have made. We have tried to allow for appropriate matching with other databases, such as high-risk, violent offender, but disallow inappropriate matching.
Senator Buchanan: Did I hear you mention that some states' registries are on the Internet?
Ms. Campbell: Absolutely. There is a sex offender registry in every state now, and you can find many on the Internet. I simply picked one state. I entered my family name and got a list of names, with photographs, addresses and other personal information. Those systems are available as we speak.
Senator Joyal: You referred often in your answers to the DNA act. Is there a similar system by which your DNA can be erased from the data bank after a number of years?
Mr. Hoover: No, the DNA is retained permanently, even if the offender is pardoned. I am not an expert on that legislation.
Senator Joyal: You said they are parallel systems.
Mr. Hoover: As you pointed out, it is not quite the same. The intrusion in the DNA act is at the front end. They take a piece of your body tissue. While it has consequences down the road if you commit future offences or they find a historical match, the Charter intrusion is at the front end. It is clearly a violation of privacy, but a justifiable one, given the minimum intrusion and having satisfied the Oates case.
In order for this database to function properly, we have to have the offender report his current address and other vital data for police to effectively use it to investigate current sex offences. Based on that, we had to tailor many of the provisions.
We started with the DNA template that we knew was successful, had been upheld and had a fair amount of support among other jurisdictions. We then made sure it was tailored to satisfy the Charter and procedural concerns specific to this type of model.
Senator Joyal: The court drew a parallel between fingerprinting and DNA. With fingerprinting, you are giving your identity via the thumb that you put on the paper.
You say that after 5, 10, 20 years you can be released from the obligation. It is difficult not to make the connection with the sentence. It is like being on parole. You are on a kind of parole for a period of time. If you are good, we will forget about you.
It is very difficult to make the distinction that you propose in reading this bill. I will read the decision on the other and see how this issue of the test is important. As my colleague Senator Bryden has mentioned, it is difficult to measure the utility of the registry versus privacy invasion on the basis of the overall objective of the proposed legislation.
As you know, it is the first element of the test. The court has always been very strict in establishing the link between the objective sought and the means used.
You say it is but one tool. It is certainly helpful, but how far does the usefulness compensate for the privacy intrusion? To me, that is the first question that has to be directly answered. You said openly that it is difficult to establish an absolute reliance on the results of a system within our Charter parameters.
I think we will have to revisit this issue, Mr. Chairman.
The Chairman: It is quite obvious that all senators see the merit and value in this proposed legislation. Ms. Campbell, you zeroed in on the issue that percolates through the bill. That is the balance between the benefits and the possible encroachments on individual rights.
Therein lies the problem. The problem is not with support for this bill. Everyone believes in the objective of this proposed legislation.
I thank the witnesses for sharing information and being open in your responses.
The committee adjourned.