Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for April 15, 2010
OTTAWA, Thursday, April 15, 2010
The Standing Committee on Legal and Constitutional Affairs met this day at 10:35 a.m. to study Bill S-2, An Act to amend the Criminal Code and other Acts.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to the Senate Standing Committee on Legal and Constitutional Affairs. We will continue with our study of Bill S-2, An Act to amend the Criminal Code and other Acts. We have the privilege of having Ms. Jennifer Stoddart as witness here today. She is the Privacy Commissioner and is accompanied by Lisa Campbell, Acting General Counsel at the Office of the Privacy Commissioner of Canada.
[English]
I believe you have an opening statement. We will ask you to deliver it and then we will ask questions.
Jennifer Stoddart, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Thank you, honourable senators, for inviting my office to appear on this important and troubling question of sex offenders and their impact on Canadian communities.
We are discussing Bill S-2, and I must say to begin with that, when apparently competing rights intersect, we must carefully consider the merits of each and strike a balance that fits with our constitutional system of democratic governance. I believe that is why you have asked the Privacy Commissioner for an opinion on the issue of registering sex offenders.
We see in our system this balancing frequently, for example, when we ensure that constitutional legal rights exist within our criminal justice system, and we know that the Supreme Court of Canada has repeatedly held that the protection of privacy in Canada is a quasi-constitutional right to which all Canadians are entitled.
Bill S-2 represents an attempt to achieve the public benefit of protecting people from sex offenders, and in doing so it will intrude on the privacy not only of sex offenders but other innocent persons. We understand that it is extremely important to protect the public, and often the most vulnerable members of the public, such as children, from sex offenders. In some situations, this protection unfortunately may involve incursions into privacy to achieve the goal of public safety.
Therefore, it is critical, with any proposed incursions into privacy, to evaluate beforehand whether those measures are necessary. A vitally important question, and one that we have asked repeatedly in respect of the existing sex offender registration scheme, is whether measures proposed by Bill S-2 are effective in protecting the public from sex offenders. We have also asked whether the intrusions into privacy are proportional to the benefits to be derived from a law enforcement and public safety perspective. Lastly, it is important to consider whether there are other measures that are less privacy-invasive that will achieve the same purpose.
[Translation]
Bill S-2 would expand the current sex offender registration system in a number of ways, including:
Judicial discretion would be removed and all sex offenders would be automatically included in the registry, regardless of the factual circumstances.
Similarly, judicial discretion would be removed for certain sexual offences, for which it would be mandatory to provide a DNA sample for inclusion in the DNA data bank.
The amount of information to be provided would increase, and include information about employers, and vehicles regularly used.
Police would be allowed to use the registry for prevention and investigative purposes, as well as post-crime investigation.
People sentenced for sexual offences in other countries could be included in the registry on returning to Canada.
The requirement to provide additional information could impact not only the privacy of sex offenders but also their families, friends, co-workers and others. The requirement to provide information about a vehicle frequently used could mean that someone other than the registered sex offender could be watched, stopped and even questioned simply because they are driving the vehicle.
Our office appeared before the House of Commons Standing Committee on Public Safety and National Security on the Statutory Review of the Sex Offender Information Registry Act in April 2009. At the time, we raised concerns about greater transparency and openness about the program; since that time, there has been some improvement in the general information available about the National Sex Offender Registry.
We also recommended a formal evaluation of the effectiveness of the legislation and the registry by an independent third party. This has not happened; rather, the government has simply proposed an expansion of the existing regime.
The RCMP officer in charge of the National Sex Offender Registry testified before the House standing committee last spring that they have not solved any crimes where the offender was unknown. When asked about statistics regarding the use of the registry to solve crimes, he testified that there have been a few cases where the offender/suspect was already known to the investigating body and the registry was used to provide updated information, such as a photograph or address, which advanced the investigation. It has not helped in any cases where the crime was unsolved and the offender was unknown.
As this suggests, there is little or no evidence that the registry is effective. The Ontario sex offender registry has been operational for almost ten years. In 2007, the Ontario Auditor General observed, ``there is little evidence demonstrating the effectiveness of registries in reducing sexual crimes or helping investigators to solve them and the ministry has yet to establish performance measures for its registry''.
[English]
A 2009 study of New York's Sex Offender Registration and Notification Act concluded that there was no significant impact on total arrests, arrests for subsequent sex offences or on the number of first-time arrests for sex offending. Similarly, a 2009 state-funded study of New Jersey's sex offender registration and notification law, I believe it is Megan's Law, probably the first of its kind, concluded that the system failed to either deter sexual crimes or reduce the number of victims.
There appear to be a number of reasons for this failure, including that the majority of sex offenders and victims are known to each other, many offenders have no previous convictions and a large proportion of sexual offences against juveniles are committed by other juveniles.
These studies are among many that raise serious questions about the effectiveness of sex offender information registries from an economic and public safety perspective. Their conclusions also strongly support our recommendation last spring that the Canadian registry be assessed for effectiveness for the same reasons, as well as to evaluate whether its numerous privacy incursions are justifiable.
In May 2009, five years after the implementation of the legislation, our office received a privacy impact assessment of the National Sex Offender Registry from the RCMP. Although late, it addressed some of the concerns we expressed about internal handling and verification of personal information, as well as greater transparency about the operation of the program. It did not, however, address the broader question of the overall effectiveness of the system.
No information is available about the total or current costs of the program, the extent to which the registry is used and whether it is effective in preventing or solving sexual offences.
The proposed expansion of the current sex offender registry system, without an adequate assessment of its effectiveness, is a questionable approach to the serious challenge of protecting the public from sex offenders while ensuring that Canadians' constitutional rights to privacy are respected.
Thank you for your time today. General Counsel Lisa Campbell and I will be glad to answer questions that doubtless this committee must have on these remarks.
The Chair: Thank you very much, Ms. Stoddart. We have questions beginning with Senator Wallace.
Senator Wallace: Thank you, Ms. Stoddart, for your presentation. In listening to your opening comments about the need to find balance in protecting the rights of the innocent, the rights of the general public, the right to privacy and other rights and the rights of the accused and the convicted, there is a need to find a balance, there is no question. I think we all recognize that need.
I am surprised, though, that your comments seem to be directed critically, I would say, to the use of the National Sex Offender Registry. I did not sense a balance, if you do not mind me saying so, in this protection of the rights of the innocent who we do not want to see become victims of sexual offences versus those who commit these offences.
What is your response to that observation? Again, I sense a lack of balance in your presentation.
Ms. Stoddart: Thank you, senator. If I gave that impression, I thank you for this opportunity to correct it. I was pointing out that in our constitutional tests, as they have evolved, between rights and the necessity of infringing on rights — taking them away for some other social purpose — one of the basic criteria is: Is this necessary; is this justified? Then we go on to, if it is proportional, and other alternate means. To my great surprise when we updated our research into this question in the five years that the sex registry has been in function, we found that in the academic and scientific literature there seems to be a repetition of the message, and we did not find a message to the contrary or we certainly would have talked to you — these are footnoted in my remarks — that the efficiency of sex registries in themselves is far from being proven. That finding goes to my remarks and why I called for a proportionate balancing because, in my opinion, I think a serious question is raised about how useful sex registries are anyway.
I do not doubt the suffering of the victims, nor the importance for Canada to prevent these horrendous crimes — not at all — but to my personal dismay, I must say, I am concerned by these kinds of offences that you are looking at. I was surprised to see the extent to which the scientific literature said to us, unfortunately, we have not seen an improvement in this area because of sex offender registries.
Senator Wallace: I find that information surprising. I do not question that is the result of what you have looked at, but I find it surprising because yesterday we heard from Minister Toews, and he explained the rationale behind the bill. I asked him if this bill been prepared in isolation or if there was consultation. As was explained, I understand there was significant consultation with the justice departments and all the provinces and with law enforcement across the country. It was drafted with a view to what was happening in other countries.
We heard strong views that law enforcement and justice departments throughout the country felt that these amendments will be a definite benefit not only in investigating sexual crimes but in preventing them, and that had been confirmed from the effectiveness of sexual registries in other countries. Obviously Canada is not the first country to have these registries.
I find it surprising. As you say, you have referred to academic and scientific information. We will hear more next week from other law enforcement witnesses, I suspect, but Department of Justice officials seem to think something different. That information does not seem to be their on-the-street experience. I wonder how we reconcile your opinion with theirs.
Ms. Stoddart: I have not had the opportunity to look in detail at all the comments that the minister made yesterday. Personally, I hope that these registries are efficient. If that is the upshot of the discussion, and what the most recent scientific evidence shows, that will be wonderful, because it is disturbing for society not to have an efficient way to prevent and stop these crimes.
I am distinguishing between what I referred to in my remarks as an ease of possibility for the police if they know where all the registered sex offenders are. For example, if a child is kidnapped, the police can immediately locate sex offenders, find their addresses and determine if they have that child. I think that testimony was given from the Ontario experience. I do not doubt that the amendments will ease the life of law enforcement officials trying to deal with the issue of apprehending sex offenders and perhaps eventually convicting them.
However, I referred to more global statistics we were able to find that said that, as society's solution to this problem, sex registries do not seem to prevent the problem, nor do they lower the level of these kinds of offences. That is why I made that distinction.
Senator Wallace: You said that perhaps the registry eases the life of law enforcement officials. I would be shocked if the basis of their support was to ease their life. I am sure their purpose, and we can perhaps debate the extent to which it will be achieved, is the prevention of these crimes and the conviction of those who commit them. None of us want to see these types of crimes in our society.
The Chair: Perhaps, Senator Wallace, hypotheses about what law enforcement officials might say, while fascinating, are best tested when the law enforcement officials are before us.
Senator Wallace: Hypothesis is something that I have heard expressed extensively around this table in other hearings. I hear what you are saying.
The Chair: We have had two points of view on the possible perspective of law enforcement officials. Now, can we go back to privacy?
Senator Wallace: I thank you for that point, chair. Perhaps I was reflecting on my own experience in other hearings. That has been my impression of law enforcement. They are there to do their job effectively and not simply to make their job easier. Maybe I am wrong, but we will confirm that with witnesses next week.
Balancing the rights to privacy of the general public with the rights of those who are convicted or accused of these crimes is not an easy thing to do, and finding that balance becomes subjective. Do you agree, though, that when there is conflict in finding that balance, that it seems reasonable to find in favour of the rights of the innocent and the victims, or potential victims? We want to prevent intrusions into their privacy through these sexual acts. When there is conflict between the rights to privacy of the convicted and the innocent, should the rights of the innocent not be given prominence?
Ms. Stoddart: It is hard to say in all cases that this is what should be done, but I think there has been a general trend in criminal law over the last half century until recently to favour the rights of accused over the rights of the victims. From the 1970s on, we had a huge historical change. The testimony of children under two used to need corroboration, and there were all the sexual offences against women and so on. I am sympathetic to the necessity to recognize the rights of victims, and I think it has been an important, necessary change in our criminal law in the last generation.
Senator Baker: I welcome the witnesses to the committee. I listened carefully to the commissioner's comments. In regard to the constitutionality of implementing these provisions in the Criminal Code, the Ontario act that Senator Runciman mentions from time to time, Christopher's Law, has been challenged, and it was cleared in the Court of Appeal of Ontario and affirmed by the Supreme Court of Canada — not affirmed, but refused appeal. The Sex Offender Information Registration Act has met with the same reaction in the Nova Scotia Court of Appeal in a case called R. v. Cross. It was upheld in the Court of Appeal and refused appeal to the Supreme Court of Canada. The constitutionality of these two acts, as it relates to the bill before us, has been determined. I think you will agree.
However, here is my problem with a provision. I have sympathy for Senator Boisvenu's opinions, and I think they are correct on why the government did not make this bill retroactive for the most serious of offences. He is right, and I think the minister agrees with him. The concern is that the one adjudication on privacy that is contained in the Criminal Code provisions of the act is in the implementation of the act at section 490.012(4), where it says there will be a determination made by the judge. Senator Joyal mentioned this point at our last meeting. If it is determined that the privacy is grossly overbalanced by the aim of the act in issuing the order, then there is a determination here. This bill wipes out that entire determination. This bill removes that privacy consideration of the court from the law. Do you agree with my conclusion?
Ms. Stoddart: That is my understanding of the effect of the bill.
Senator Baker: The only other reference to privacy is in the act itself, the Sex Offender Information Registration Act. Section 2 of that act spells out distinctly that one of the objects is to balance the privacy of the individual with that person's integration into the community. I think you will also agree with that point.
The entire consideration of privacy has been removed from the Criminal Code provisions, and thereby sexual assault simpliciter, by this act, is brought in by a primary designated offence in the first half of the designated category, which means everything is mandatory. Everything will issue mandatorily for assault simpliciter, which, as Senator Joyal pointed out, means, under the existing law, that a judge will not issue the order under the existing section 490.12(4) because it would be simpliciter. It would not be a serious offence. That provision has been removed.
You see the quandary we are in by agreeing with perhaps the retroactivity of the most serious offences being registered, but now being brought into effect as assault simpliciter that will now bear the full brunt of the object of the legislation. Do you understand what I am trying to say?
Ms. Stoddart: Yes, I think I do.
Senator Baker: What do you think of it?
Ms. Stoddart: One thing I noted is the absence of discretion. This is one reason given for the change in the act. This provision includes people that commit what you called simpliciter assault that I think of in terms of an assault of a sexual nature at a young age.
Another big concern is social networking sites. An issue that comes up often with social networking sites is improper or unfortunate pictures. These might be proof that something happened at a celebration or party among young people at a certain point. They might technically fall under one of these categories. As I understand the impact of the legislation, the person who perpetrated these gestures or exposed himself or herself — I think there is a minor offence for exposure.
Senator Baker: Yes, it is indecent exposure in a picture.
Ms. Stoddart: Someone might find himself or herself enmeshed in this kind of legislation. I must point out that this situation is also a privacy concern. It returns us again to the issue of proportionality.
Senator Baker: Proportionality is being removed from the act with this removal of any adjudication on issuing the order.
Ms. Stoddart: I will ask Ms. Campbell to reply to your remarks also since she has been a practicing criminal lawyer.
Lisa Campbell, Acting General Counsel, Office of the Privacy Commissioner of Canada: The current scheme places a reverse onus on the accused. The order must be made if raised by the prosecutor. The onus is on an accused to show a grossly disproportionate effect on his or her privacy or section 8 Charter interests. There are cases in which judges have refused to make an order for those reasons. There is a high standard. In some instances, for those reasons, judges have not made an order and those cases have been upheld on appeal. The cases are primarily in Alberta.
That situation tends to show that having some discretion seems to be important for the courts. Bill S-2 includes all sex offender registration information, which is whereabouts data and includes employer and vehicle information. Combining that with DNA is a powerful indicator, and arguably attracts some of the highest privacy rights. Merging those pieces of information together creates a powerful profile for 10 or 20 years and sometimes for the life of a person. That registration has not been subject to Charter challenge.
Senator Baker, to answer what you were saying about these provisions being upheld under the Charter, we have yet to see a Charter argument brought forward addressing what this bill will create. As well, we have yet to see arguments made before the courts talking about effectiveness of the regimes. That research is only starting to come out from jurisdictions that have had registries for about 10 years.
Senator Baker: I agree with you, but I am sure you agree with me that it has been held by all courts that these measures are not punitive in nature. They are not considered to be punishment, although there was some confusion in the courts in various provinces.
As far as the defendant's responsibility to make the case is concerned, the Newfoundland and Labrador Court of Appeal always maintained the position that they did not have to, but the Ontario Court of Appeal said something different.
I thank you for saying that this legislation may open up a whole new territory for Charter challenge.
Ms. Campbell: Yes.
Senator Lang: Regarding your presentation, I, too — like Senator Wallace — was taken aback that it appears to be against even having a national registry in place. From my perspective, I believe there is a need for such a registry in view of the nature of the offence and the standard we set as society.
Senator Baker talked about the word ``punishment,'' but if we recall the minister's observations yesterday, he talked about the sentence and the consequences. I think what we view as tolerable, and what the threshold should be in respect to this type of offence, is important to us as a society.
Ms. Stoddart, are you aware presently that because of the way the legislation is now structured, nearly 50 per cent of those convicted of a sexual offence are not on the registry? I believe the figure was 42 per cent when it was provided to us yesterday.
Ms. Stoddart: Yes, I am aware of the fact that different jurisdictions apply this current discretionary measure differently. This difference has been seen as a large drawback to the effective application of the existing registry.
Senator Lang: In many cases, the reason application is not made to the court for insertion of a name into the registry is because of the workload of a particular prosecutor or court. Do you agree that workload may be one reason these names have not been put forward?
Ms. Stoddart: That is my understanding. It is not based on the uniform application of criteria regarding the nature of the offence, but rather administrative issues in various provincial legal systems.
Senator Lang: In view of the fact the reason for not putting names forward is more of an administrative issue, does that situation not give more reason for mandatory inclusion of the convicted sex offender's name in the registry, as opposed to the situation presently in place?
Ms. Stoddart: The situation argues in favour of measures to encourage administrative uniformity. However, it does not necessarily say that in all cases of all listed offences that the person's name should be added. The regime allows discretion for mitigating circumstances. Mitigating circumstances should be applied in a reasonably uniform way too, in my opinion.
Senator Lang: Following up on the chair's recommendation to have a study of the existing system, would you say that study is premature at this stage, given that nearly 50 per cent of convicted sex offenders are not on the national registry and we do not know how that situation ties into repeat offenders?
Second, why would we undertake a study when we are not able to come up with anything concrete — the study would be subjective — given that part of the reason for the registry is to be a deterrent? Those who commit one of these terrible crimes have their name and DNA added to this registry. How will a study determine whether the registry worked to prevent someone from deciding not to do this again because they know the authorities will know who they are?
Ms. Stoddart: I will respond to your first question, and I will ask Ms. Campbell to answer the second question.
I honestly think any independent study of how these banks have functioned in Canada up to now will be a useful addition to a huge social problem to which we are all seeking a solution. I heard from Senator Baker that some provinces have said this provision was to be applied automatically and some did not. Perhaps a researcher can take those provinces that have applied the provision across the board in a consistent manner and see what we can observe from that information. More knowledge would be better than the current general lack of knowledge that we have.
Ms. Campbell: With respect to deterrence, the twin goals in imposing any sentence, punishment or post-conviction measure is specific deterrence of that offender and also, general deterrence for other members of the public who might be inclined to commit that offence. As Ms. Stoddart said in her opening remarks, the empirical picture of who commits a sexual offence is complex. Over half of offenders and victims are known to one another, for some reason, whether it is familial or through volunteer organizations, schools or parks, so that information is something to consider. Many are first- time offenders. In other words, they are not known to the criminal justice system. Many studies tend to show that in one- third of the cases, the offender is a juvenile and the victim is a juvenile. The whole impact of social networks, as the commissioner also mentioned earlier, is another factor to consider when talking about deterrence.
The studies that are starting to emerge tend to show that providing information in and of itself does not seem to have a deterrent effect. I would argue that we have enough in the current sample to conduct an evaluation, even if it is not complete, and that is something that perhaps can be addressed by proper training. Even if the evaluation is not complete, there is a large enough sample to conduct an audit of its effectiveness.
Senator Runciman: At the outset, I will say that I also share the concerns of some of my colleagues with respect to the approach you decided to take here today and especially with your strongly expressed sentiments in the second last paragraph in your submission. What we have heard in response to some of the questions as well, I think, is regrettable. It raises legitimate questions about objectivity when you approach issues of privacy related to the sex offender registry. Clearly, commissioner, you and your supporter here as well, are not terribly attracted to the concept of the sex offender registry and its effectiveness.
At some point in the not-too-distant future, Jim Stephenson will be here. He is a former chair of the victims' office in Ontario, and his son Christopher was murdered by a sex offender out on mandatory release. The recommendation flowing from the inquest that followed that death was for a National Sex Offender Registry. Ontario is the only other jurisdiction that has a sex offender registry, and it was the first one initiated in Canada.
I understand what you are saying about having some kind of measurement tool in place when dealing with a sex offender registry to say we have been able to arrest so many people or prevent so many crimes. The reality is that we are dealing with lives, and we are dealing with children here in many instances, and it is difficult to put a number up on a wall and say we only saved 10 people. This tool is important. It may not be something that will have an effect in terms of an arrest or prevention of a murder once or twice a week, but there are occasions when this registry will be terribly helpful to the law enforcement community. I know that victims' organizations and virtually everyone in the criminal justice system that I have spoken to are supportive of having this facility in place.
The Chair: Your question might be?
Senator Runciman: I am getting there.
Yesterday, in response to a question I posed to a public safety official about why Correctional Services Canada was given the discretion rather than the obligation to release relevant information about offenders leaving custody to law enforcement for purposes of the registry, the official responded that privacy issues were involved. The words the official used were that they were ``exercising an abundance of caution.'' I would not call that a precise answer to a specific issue.
I looked at both the Corrections and Conditional Release Act and the Privacy Act. Section 25(1) the Conditional Release Act says:
The Service shall give, at the appropriate times, to the National Parole Board, provincial governments, provincial parole boards, police, and any body authorized by the Service to supervise offenders, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders.
As you know, section 7 of the Privacy Act creates an outright prohibition on the use of personal information held by government agencies without the person's consent, except in accordance with section 8(2), which creates a series of broad and purpose-specific exceptions, including for a purpose authorized by an act of Parliament or where public interest and disclosure clearly outweighs privacy interests, among others.
Clearly, the Privacy Act contemplates and authorizes the release of such information in these kinds of circumstances. I am wondering if you can confirm that there is no Privacy Act impediment for Corrections Canada to be required to release the sex offender registry information to the police, which I believe is intended by Bill S-2.
Ms. Stoddart: Thank you very much for that question, senator. If I can go back to your previous remarks, I was called by this committee to give you a privacy perspective. I am trying to give you a privacy perspective on this legislation. That does not mean that the challenge of trying to control a serious social and criminal evil is not an important social goal for Canadians. I am simply trying to give you one of the aspects of the question.
In answer to your question, honourable senator, about the correctional services, you will note in my remarks that I raised the question. I say this approach is questionable, and I suggest that we evaluate its effectiveness and look at other policy options. You referred to one of the other policy options, which is more publicity and information to police on the release of people who seem to be dangerous. Section 8(2)(m) of the Privacy Act gives discretion to heads of government agencies to give out otherwise personal information when it is in the public interest.
Time and time again, in the course of being the Privacy Commissioner, I have had to contradict officials who refuse to give out information, including in the case of various released offenders, who say it is against the Privacy Act. It is not. Officials have discretion when the public interest is better served by telling the public about a person who may be dangerous.
The Chair: For the record, let me confirm that indeed, Ms. Stoddart was invited here to speak as Privacy Commissioner, not as —
Senator Runciman: I have no problem with that. Obviously the commissioner has latitude to express her views about the act, but my concern — and I think it is regrettable — is that it is clear she feels strongly that this registry perhaps is not being the effective tool that many believe it has the potential to be, and that colours her perspective, in my mind anyway, with respect to how these matters are dealt with.
The Chair: It is your view.
Senator Runciman: That is right. Clearly, it is my view.
The Chair: She is, indeed, entitled to her view.
[Translation]
Senator Carignan: I listened to your presentation. Your expertise is in privacy. You seem to disagree with the registry on some areas.
If the registry is too intrusive, what other methods could be used? You must keep the right to privacy and the public interest in balance, but how can that be done without infringing upon the victim's rights?
The government decides to create a registry only after studying other options. Technically, it would be easy to put a tracking bracelet that would allow us to find the person. Do you not think that using a bracelet would be more discreet? Do you think that finding this balance has been studied enough?
Ms. Stoddart: I am not an expert in that and so cannot tell you if a bracelet, in every context, for all crimes and for everyone, would be better than the current registry. My expertise is in the protection of personal information. I am not saying that I am against it, but, since you asked me to appear, be advised that it is a questionable approach. As a Canadian citizen, I am as worried as you are about these crimes that keep happening. I am personally disappointed that these registries, which are an intrusion on people's privacy, do not seem to be effective in reducing these crimes.
You could get independent studies done to assess this method and others too. There must be people, criminologists, psychiatrists and others, who have qualifications in criminal law and monitoring prisoners, or others who can give you more information. I would be misleading you if I said that I knew what we should do.
Senator Carignan: When I read the criteria used to determine whether or not to register a person in the registry, I am happy I am not a judge. First, judges cannot rely on the quality of factual circumstances of a past offence, second, they must predict what could happen in the future, and third, they must weigh everything.
You seem to disagree with registering a vehicle because that could be an intrusion on the privacy of an innocent person who could be pulled over. To come back to my point, what intrudes on privacy most? Putting an ad in all the papers in order to find a specific vehicle, like in the disappearance case of Cédrika Provencher in Trois-Rivières? That seems to me a lot more intrusive than simply having the police check the registry beforehand for the necessary cross- referencing. If I drive a vehicle with the same features as the one seen near the scene of the disappearance, my privacy might be affected.
Ms. Stoddart: I do not disagree with the registration of vehicles. In Ontario, the plates have been in a registry for some time. A police officer told us that made it possible to find suspects already registered in the database faster. But I am just telling you to be aware of the implications for protecting data should other people use them. The police officer did not say that it allowed him to save the person in question before it was too late; he simply said that it had helped him to track the sex offender in the neighbourhood and then to follow what he was doing.
My message is quite simple: All these measures have been questionable until now in terms of effectiveness and they are privacy incursions. Be aware of these two aspects.
Senator Carignan: You are not saying that there is no effectiveness, but you are questioning the effectiveness.
Ms. Stoddart: It shows administrative effectiveness in police operations. But from what I was able to read, that does not seem to prevent sex crimes or to lower the overall rate of offences.
Senator Carignan: It is difficult to prove.
Ms. Stoddart: I read the report of the study.
Senator Joyal: I would like to come back to the question of finding balance between the objectives and the mechanics of the act and their impact on people's privacy.
[English]
First, what is the objective of the act? The objective is not punishment, as the court has decided. The sex registry or National DNA Data Bank is not assimilated to a punishment. If there is no punishment in that registry — and I make that comment in relation to what Senator Lang proposed — the element of deterrence is not the definitive element of the nature of the act. The deterrence aspect is of no point in terms of evaluating the nature of the act. A judge who must consider this act, and the impact it has, first must establish the nature of what we are contemplating here.
The second element is effectiveness. Is it proportionate? Since there are intrusions into private life, are the intrusions proportionate to the objective that the act aims to serve? It is the hope test. You have more or less spelled it out in its elements in paragraph 4 of your presentation, on page 3. I think we have evidence about the effectiveness of sex registries. You mentioned it on page 3, in the last paragraph, which states:
The Ontario sex offender registry has been operational for almost ten years.
We are not talking about five years; we are talking about 10 years. You go on to state that there has been an evaluation of the registry:
In 2007, the Attorney General observed, ``there is little evidence demonstrating the effectiveness of registries in reducing sexual crimes or helping investigators to solve them and the Ministry has yet to establish performance measures for its Registry.''
In other words, there is an evaluation or an element at hand that leads us to some conclusion. A judge who is in the position to adjudicate on the proportionality will definitely take that into consideration.
There is then the context in which the order to register the information is given. I raised this issue yesterday with the minister. Since the act does not contain any element of judicial discretion — that is, everyone is in the same slot — the minister has answered by saying, yes, but the time that their name remains on the registry is modulated. It can be modulated by the judge to be a minimum of five years, 10 years, or 20 years. The minister has eliminated the criteria of ``grossly disproportionate to the public interest'' by a reduction on the time that the names and the information remain in the registry.
In my opinion, there is no connection between the fact that their name is on the registry for a limited period of time versus the fact that it is disproportionate with the public interest to have their name on the registry. In some circumstances, a judge would be open to a challenge on the basis of the invasion of privacy and this act could be struck down.
Ms. Stoddart: We raise the issue, Senator Joyal, that the absence of discretion and the absence of proof of efficiency that we presently have but that we did not have in 2004 make it a different read.
The studies we quoted were all completed since 2004; we did not have them available at the time we appeared on the 2004 legislation. The elements that you have described make that amended sex offender registry a different animal than the current one. Therefore, its legitimacy in terms of constitutional law and proportionality might well be tested successfully. That is my opinion. However, Ms. Campbell is more familiar with criminal law, so I will ask her to answer.
[Translation]
Ms. Campbell: It is a bit like what I was saying earlier. Preventive data, which include details about a person, their home address, their work, their vehicle, even their DNA sometimes, are outside the scope of a crime investigation and is completely different from what we are currently experiencing.
In my opinion, courts will have a different take on that because of the Charter.
[English]
Senator Joyal: In your opinion, the jurisprudence that we have had, and that Senator Baker has quoted, will be appraised in a different context since we are changing something fundamental in the registry with this legislation?
Ms. Campbell: Section 8 of the Charter, and all the other legal rights in the Charter, operate to protect our constitutional rights in the most difficult circumstances. It is a constant balancing. This means that when someone is charged with a serious crime involving violence, that person still has certain legal rights in our system.
We are cautious about collection of evidence before a crime has been committed because normally most people who have not committed a crime and do not have a criminal record are free from unreasonable search and seizure. That balancing changes, of course, when someone has been convicted of an offence and they are followed either through parole or, sometimes, a registry. The submissions we are making today are simply to measure carefully whether registries are effective to meet the goal that we have set out for ourselves, which is to protect the public from sex offenders. The studies that we have brought forward to you tend to suggest that registries may not be and that there may be other policy measures that are more effective, from both an economic perspective and a balancing perspective, because this registry involves a significant invasion of privacy without any chance to contest it before a judge.
Senator Joyal: If we included the possibility for a person found guilty to request a judge not to place their name on the registry, would you find that an element of rebalancing the act?
Ms. Stoddart: Yes; I believe there is a reverse onus in the legislation.
Senator Baker: In the present legislation?
Senator Joyal: In the present registry.
Ms. Stoddart: Yes; similar to the old one, the person condemned to be in the registry, in particular circumstances, could say that the circumstances of their particular offence do not merit that need to be placed on the registry. That possibility would bring back an element of discretion and of proportionality in terms of the consequences of the sexual offence.
[Translation]
Senator Boisvenu: I listened carefully to your presentation. In law enforcement, when we assess the performance of tools and when we look at them one by one, doubts sometimes arise. The effectiveness of a police force comes from the fact that they assess a set of tools and ways to reduce crime, and not just one tool in particular.
As to the National Sex Offender Registry that was created in 2004, as the president of a victims association, I had predicted at the time that it would be a partially effective tool and very difficult to assess since it was lacking in information. More should have been done.
My first question is for Ms. Stoddart. I am a new senator and a novice, but I am learning a lot from Senator Baker.
Should your brief have addressed in greater detail the scope of the acts that you administer — the Access to Information Act and the Privacy Act — rather than the operational value of a file?
Ms. Stoddart: You are asking me this question because you think that my brief should have looked at the scope of the Privacy Act.
In general, with all due respect, when we appear before a parliamentary committee, we try to see what the Privacy Act and its interpretation can tell us about the bill being discussed. We are trying to see how the act can guide legislators to consider certain matters.
In general, our appearance is more targeted rather than being a general presentation of our act in relation to a given issue. You are making implicit suggestions for change and I would be happy to exchange ideas with you on this subject if you think it would be useful.
Senator Boisvenu: Your comment seems debatable since you do not have qualifications in crime. Reading your brief, I realize that three quarters of the text is on the work that is being done in the area of crime.
I would like to ask you a second question. When a private company sets up in my community, it has to tell me about the hazardous products it has so that my health is protected. The Environment Act is very clear on that.
In your view, when the government releases a dangerous offender, it has no obligation to inform the police that it has done so. Is that right?
Ms. Stoddart: Once again, these questions are outside my mandate. The federal Privacy Act does not prevent us from warning police authorities. They can then warn the community if a person is dangerous. I have repeated this message time and time again. We still read that, when people are released, the Privacy Act stands in our way. It is not true. Senator Runciman read the part that is an exception, in fact.
Senator Boisvenu: If I understand correctly, a registry of sexual predators is a better way of informing the police.
For eight years, I have been running in and out of courthouses. In my view, a person who commits a murder in Canada gets more rights than they lose. As a mother and someone responsible for the act, what do you think is more important for Canada: protecting privacy, period, or protecting life, period? What is more important? Protecting the life of Canadians or privacy?
Ms. Stoddart: It goes without saying that, without life, we cannot have privacy.
Senator Boisvenu: You are answering my question.
Ms. Stoddart: I say that in all seriousness. I do not think it is a choice. We must protect life. The question is how to protect it. Are we going to take measures that are needlessly intrusive in the privacy of everyone else whose life goes on anyway? I have no intentions of joking, I can assure you.
Senator Boisvenu: I think that, in 2002, if we had protected the private life of my daughter, even just her life, rather than the privacy of the criminal who murdered her, my daughter would still be alive today. There you go.
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Senator Watt: I also have tried to listen carefully as much as possible to your presentation. I believe I understand your concern — whether the legislation will be effective especially given the related financing.
Regarding the effectiveness of the act, are you asking an independent third party to undertake an investigation, to come up with a possible solution or highlight why the registry is not effective? You seem convinced that there is no real proof at this point, mainly in the province of Ontario if I understand correctly.
I appreciate that, but at the same time, I believe your organization is new. It has been in existence since when?
Ms. Stoddart: 1982, with respect.
Senator Watt: It is longer than I expected.
In other words, you are speaking from experience in being able to follow what is happening in that area and looking after privacy concerns. At the same time, you have to keep in mind public safety. I appreciate that.
In Giving a Voice to Victims, I noticed how we help victims. You say: ``We do not advocate on behalf of individual victims or —''
The Chair: Senator Watt, I do not think that is from Ms. Stoddart. It is from the next witness.
Senator Watt: It is probably the next witness. If that is the case, I take that back.
Regarding the effectiveness points you highlighted in your presentation, let us suppose this bill goes through either with or without modifications. Will it be too late then to engage the third party to undertake a study; to look at it not only in the short term but also in the long term, and also to include what is happening in Canada and other countries?
I imagine there is a chance to improve the bill at a later date, if need be. Will it be too late?
Ms. Stoddart: Honourable senator, I think it is never too late or too much to invest to gain more information to understand why these things happen and how to prevent them. Any time that any government or any body is willing to invest in the criminological sciences, the police science and so on, it is positive. These events are shocking and tragic. I think we all seek to learn how we can prevent them. I recommend that we know more about them, because as I have raised the point with you today, the evidence seems to be conflicting.
Senator Watt: In a sense, you are trying to alert us to the fact that there may be grey areas, and it may be better for us to revisit those areas before we go too far. You are not saying we need a third party report first, and then we will deal with the bill later. Is that what you are saying?
Ms. Stoddart: I do not think at this point that is a realistic suggestion. It would be good to add that suggestion to the law. There are also things you can add to the law such as the possibility to be exceptionally exempted from the data registry, given the wide range of sexual offences and circumstances in which these offences are committed. That is one concrete thing you could do at the present time.
Senator Watt: I was asking questions to our witnesses yesterday about victims in the case when people are out hunting. When the chair raised a supplementary question, the witnesses indicated that we can deal with these matters through a set of regulations.
Can some of the issues you raise be dealt with through regulations, in your opinion, rather than amending the law? Have you looked into that possibility?
Ms. Stoddart: No, we have not. I will ask Ms. Campbell to comment.
Ms. Campbell: Our answers, our questions about effectiveness and about the removal of privacy considerations all relate to the legislation. If the legislation itself has flaws from a privacy perspective, I am not sure how that could be fixed through regulation, which is a lesser instrument.
Senator Watt: Yes; can that be examined?
The Chair: Senator Watt, we can see if we can pursue that in various ways.
Senator Angus: I have to say I have no problem with your objectivity. I applaud your independence and your determination. Indeed, your French is extraordinary.
I want to go back to simple things, if I may. In its simplest form, I understand this legislation is being introduced because the current legislation was not getting the job done, to use the colloquial.
I found it interesting that you originally took for granted that the registers were effective. Then you started your research in connection with your functions. You were surprised, you said, to find that the registries were not working and that the scientists and the criminologists and so forth questioned their efficacy. That sets the background.
Obviously the registers, as they were constituted before this legislation came into force, were not working. That is why the government is seeing fit to introduce this bill. The Minister for Public Safety told us that he was informed, as best he could tell, that 42 per cent of sex offenders were not inscribed in the register. That situation, in itself, to me indicated a good reason why they are not working presently. The minister did not specify whether it was the Ontario registry or the federal one. He went out of his way to point out it was hearsay and what he had been informed, and he was surprised, but he felt the information was important in influencing the government.
Do you agree that one reason the registry is not working is because it does not have all the sex offenders in it, or has maybe half of them?
Ms. Stoddart: It possibly could be. We also do not have, to be transparent, a comparison of the kind of population and the mandatory aspect of the other notably American jurisdictions where there is compulsory sex registration. We do not have a comparison to either what is currently the state in the federal jurisdiction or what would be the new state with these proposed amendments. Yes, questions can be asked.
Senator Angus: Can you characterize it in one or two reasons? I have not read this literature that you referred to. What reasons are given for that?
Ms. Stoddart: The lack of efficiency?
Senator Angus: Yes, the efficacy.
Ms. Stoddart: I believe one reason is that people are registered, but then, as I understand it, future crimes are overwhelmingly or largely committed between people who know each other. That is one of the major reasons.
Senator Angus: You do not need to put your father on the registry.
Ms. Stoddart: I do not know enough about it, whether the police say it is no use putting the father on the registry or what it is, but it is not the predictor of recurring behaviour that was originally hoped for when these registries were established.
Ms. Campbell: I will add that the answer to the lack of registration or adequate population of the database is not necessarily a removal of discretion in the legislation. As an example, I can give the dangerous offender provisions in the Criminal Code. The Province of British Columbia invested heavily in training their prosecutors several years ago, with the result that there were many more applications for dangerous offender provisions brought, and successfully brought. It was not because there were more dangerous offenders in B.C. It was simply because people knew how to use the provisions. We see in many instances that adequate training of the prosecutors and information to the judiciary can help.
Going back to the question about the deterrent effect of these provisions, we will be happy to send the committee —
The Chair: Thanks to a wonderful staff, I have received the report. We will circulate it to all members.
Senator Angus: Ms. Campbell, I might have misheard my colleague Senator Joyal when he said that because of the fact that a register is not punitive by nature, it therefore cannot be a deterrent. In my humble opinion, there is no direct linkage between deterrence and punishment. Yes, punishments sometimes are developed and established as deterrents, but other things in life can serve as deterrents without being punishment. Do you agree?
Ms. Stoddart: Yes, certainly.
Senator Angus: In other words, even if there are requirements to maintain and enhance these registries as a deterrent, those requirements do not necessarily render them punitive.
Ms. Stoddart: It is difficult for me to answer that whole question of whether these registries are deterrents. I would say they seem to be punitive. Because of their invasion of privacy, these registration databases are, in my opinion, in themselves punitive. The question is, are they cruel and unusual punishment under the Charter? So far the judges have said no, but we have said that, with these changes, judges might say yes.
Are they a deterrent? I think if it was clear they were a deterrent, the balance of these measures in favour of privacy would be overwhelming because we all want to deter these kinds of acts. I am looking for evidence to say, yes, these registries justify the privacy incursion. To my great surprise, the scientific studies we see seem to say it is not clear that they do.
Senator Angus: They are based on the old system.
The Chair: They are based also on the systems in use in New York and New Jersey. We will also obtain for members of the committee the studies that Ms. Stoddart referred to in her brief.
Senator Angus: There is the usual caveat, as we were told yesterday, that they cannot compare apples and oranges, and there is a different setup there. My point is a simple one. This bill is intended, at least, to strengthen the system, and we will then see whether the registry is a deterrent or not. That is what this bill is all about, provided we do not do bad things to privacy. Thank you. I am glad not to have been cut off for once.
The Chair: Not for lack of effort.
Senator Angus: I know there is a concentrated attack against me, but so be it.
Senator Carstairs: Two issues have not been raised today, and they well may not be in your competency to address. The first is that the registry, as it presently exists, does not work because, I suggest, a large proportion of those sexual assaults that take place in Canada are never reported. They are never convicted. No charges are ever laid. Those people will never find themselves on any registry, and these people indeed may be the ones who come back, and for whom a deterrent does not have any impact.
The second issue is that if one knows something about the psychology of the sexual offender, one knows that, in reality, putting their name on a list will not be their deterrent. That is not how the registries work. That is not how they operate.
One is left, therefore, with the concept: Is this bill supposed to provide a comfort level for Canadians that it does not provide and in fact, the registry does not work? We are providing a comfort level that the registry does not provide and, at the same time, we are infringing on privacy rights. If I look at the studies from New York and New Jersey, they tell me that deterrents of this nature do not work. They say that, in fact, the registry does not work. Why do we have it at all? What is the purpose of the registry if it is not working?
Ms. Stoddart: Is that your question, honourable senator? As you said, these are questions that are beyond me.
The Chair: I have a question that I think is within your mandate. Yesterday, we established, after some to-ing and fro-ing, that once a name is on the registry, it never comes off. After a certain period of time, people on the registry are no longer obliged to fulfill the reporting requirements, that is the five-year, ten-year requirement, but once in, never out. How does that situation square with privacy legislation?
Ms. Stoddart: My understanding is if they are given a royal pardon, there are —
The Chair: Very rare.
Ms. Stoddart: There are quite a few royal pardons given every year.
The Chair: We were told very few, a Royal Prerogative pardon being different from the normal pardon system that has been much discussed in the press of late.
Ms. Stoddart: The issue of the time that a name stays in the registry is a concern in terms of privacy implications. In the present system, I believe they can apply to have their name expunged from the registry under the provisions that will no longer exist in the new bill. This aspect of the bill is privacy invasive.
Ms. Campbell: To reiterate, you are right, chair, that royal pardons are rare. The section 690 process of regular pardons happen more frequently. Only in cases of a royal pardon or an ultimate committal on appeal can a name be expunged, and we have serious concerns about possibly 10 years of data being kept about a person. Even though it is no longer updated, it is kept forever.
The Chair: That data includes DNA.
Senator Runciman: Senator Boisvenu and I earlier raised the issue of the release of individuals from correctional facilities and the Correctional Service of Canada having discretion, rather than an obligation, to report that release. The officials from the Department of Public Safety justified that discretion by saying they exercised an abundance of caution when dealing with that issue. It is passing strange that it applies only in that one area. Therefore I am curious whether either the Department of Public Safety or Corrections Canada approached your office and asked for a view related to this and, if yes, what was your advice?
Ms. Stoddart: Is this in relation to the present bill, senator?
Senator Runciman: It is in relation to Corrections Canada having this discretion to report, the discretion that the legislation deals with. It stands out as an anomaly in respect to the legislation as to why they are not obligated as others are. Has your office been asked to offer an opinion on it?
Ms. Stoddart: To the extent of my knowledge, we have ongoing discussions about various issues with Corrections Canada and the Department of Public Safety. I will have to check whether they specifically consulted on this legislation.
As the law concerns the Privacy Act it is clear; they do have discretion. My role is not to say how to exercise that discretion, because it applies across the board to every minister and every agency. The way discretion is exercised in the release of prisoners into the community I presume is subject to guidance from the Department of Public Safety. We would never make suggestions to them because that is not my job to see what criteria they use.
The Chair: Thank you very much, Ms. Stoddart, and Ms. Campbell. As usually, you have been extremely helpful.
We are delighted now to welcome Steve Sullivan, the Federal Ombudsman for Victims of Crime. Welcome back, Mr. Sullivan. I will not eat up any of your presenting time. I believe you have a statement; go for it.
[Translation]
Steve Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime: Madam Chair, thank you for inviting me to appear before the committee and for the opportunity to provide an important victim perspective on Bill S-2.
The Office of the Federal Ombudsman for Victims of Crime was created to help provide a voice for victims in Canada and it is exactly this kind of forum where it is crucial that their voice be heard.
Let me begin this morning by stating that I am generally supportive of this bill and the measures it proposes to strengthen the Sex Offender Registry and the national DNA data bank.
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I have worked with victims for over a dozen years. Anyone who has been directly or indirectly victimized suffers an incredible emotional burden and often a financial burden. What has always impressed me most is that, despite their own grief, anger and loss, most victims will tell you what they want most is to ensure that their offender cannot harm anyone in the same way again.
As I was preparing remarks for this committee, I looked back on some of the work done. You are all familiar with Jim and Anna Stephenson, who lost their son in the late 1980s. He was murdered by Joseph Fredericks, a convicted sex offender who was out on parole. It was the inquest into the murder of their son that led to the creation of the Ontario Sex Offender Registry, which was named after their son Christopher. They continued to push and were successful in creating a National Sex Offender Registry. I remember presenting with other law enforcement agencies on that original bill. Mr. and Ms. Stephenson have given a lot to try to ensure that their son was not murdered in vain and that other children will not suffer in the same way.
After I graduated from university and began to work with Victims of Violence, a group formed after a child was murdered by Clifford Olson, I wrote a paper on the creation of a national DNA data bank. The paper described how the data bank would help not only to identify suspects but also to identify those who are not the right suspects, and, hopefully, prevent crime. I testified on the original DNA data bank a number of years ago when the government proposed enhancements to it. I worked with three women: one whose daughter had been murdered and two whose sisters had been murdered. They wanted to enhance the data bank because the individuals responsible for their loved ones' murders were not listed in the data bank, and they were concerned about this type of crime being committed again when those individuals were released. They fought hard to see the amendments that were adopted in 2006-07. It is somewhat of a full circle coming here today.
Both the sex offender registry and the DNA data bank are important tools in helping law enforcement reduce victimization. Clearly on their own, as was indicated in some of the discussion that I heard when I came in today, it is clear that these tools are not a panacea for the problems in the criminal justice system. The registries will not singularly prevent all sexual abuse of children or adults. However, they are important tools. In the battle against victimization, every tool that we can give the hard-working men and women of law enforcement will help.
Many measures put forward in Bill C-2 respond directly to the recommendations our office made to the Minister of Public Safety in 2008. I am encouraged to see the government taking action on these important issues. One of the first recommendations our office made was to transform the way the registry was used to provide law enforcement with a tool they can use proactively. The committee in the other place heard a number of witnesses from law enforcement talk about their frustration with the current legislation, which did not allow them to use the registry pro-actively. It allowed them to use the registry only in limited circumstances. The Ontario registry is used, on average, 475 times a day; the national registry is used 165 times in a year. There is a huge difference in how the registry is used by law enforcement.
As you all are aware, under our current system, police can consult the registry only if they have reasonable grounds to suspect that a crime was sexually motivated. However, in many cases such as abduction, it is not possible to determine the motivation of the crime at the outset. In these cases, time is of the essence. As a parent, if my child were abducted, I would want law enforcement to use any and all tools available to help them find my child. I believe the sex offender registry is one more tool that, when used properly, can help law enforcement save lives and keep our communities safe. We support this amendment put forward in Bill S-2 entirely.
We also put forward recommendations that amend the Criminal Code to ensure that the offender be registered automatically. That issue has been contentious for some. The current scheme that requires an application to be made bogs down the process and increases the chances that a sex offender will be left off the registry. We know from the evidence that some Crowns, because of the burden of their work, do not make the applications; maybe it is plea- bargained away. There are other reasons why we see lower numbers than anticipated. We also saw those kinds of numbers when the original DNA data bank was proposed. It used to be discretionary for the primary offences. When we make it automatic, we have more convicted offenders in the data bank.
The final recommendation our office made was to amend the Corrections and Conditional Release Act so that the Correctional Service of Canada can notify local police agencies more easily about the release of sex offenders. I understand that recommendation has been partly addressed in the legislation. Notifying police agencies of the release of a sex offender helps provide an additional layer of awareness that can help enforcement more effectively.
The Chair: Mr. Sullivan, you must have heard my repeated request that everyone hurry up, but do not hurry up too much. Apparently, both the interpreters and the reporters are having difficulty keeping up with you.
Mr. Sullivan: I apologize. Given that this bill incorporates all our amendments and goes beyond those recommendations to further strengthen the registry and the database, I encourage the committee to support the bill as it moves forward.
The last time I was before the committee, we talked about a different aspect of the DNA data bank. It is not part of this bill, but it is important. That is, the DNA missing persons index. We testified before the committee that we believe the government should move forward in creating a missing persons index to provide some solace and information to those families whose loved ones remain missing. There are a number of unidentified human remains across the country. We have worked with some of the families who have lost loved ones and the remains may be sitting in a coroner's office somewhere in the country. I still believe that element of the data bank is important. It is not part of this bill, but I hope the committee will make its views known on that recommendation to the government.
I reiterate that the sex offender registry and the data bank are not a panacea; they are one more set of tools. DNA, the database, has helped solve thousands of crimes in its relatively short history. It has helped solve sexual assaults, homicides and other crimes. Although the focus has been on the sex offender registry, I think the data bank is arguably a more effective law enforcement tool.
I will touch briefly on some of the testimony I heard as I came in. There was discussion about comparisons to some of the U.S. models. I am not sure of the U.S. models you are referring to. I hesitate to use a direct comparison because in the United States the registries have some kind of public access. That access is supported by many, but I think it hurts the effectiveness of a registry. We know that in the U.S. experience, far fewer sex offenders will register because of the public access to the information. In Ontario, for example, the registration rates are relatively high in comparison because the registry is a law enforcement tool only. We support the continuation of that initiative. I caution the committee on direct comparisons to the American models.
There was some discussion about recidivism rates, and that most crimes are not reported. Depending on the study we look at, we know that less than 10 per cent of sexual assaults are reported to law enforcement. When we talk about the sex offender registry, we need to be clear that it is one tool, and we cannot oversell to the public what it can and cannot do. Most sexual assaults are not reported. When talking about recidivism rates of offenders in the crimes we know are least reported, the recidivism studies are under-reporting recidivism rates as well.
There are different threats, depending on the offender. Traditionally, studies show that incest offenders — those who molest the child within their family — are at lower risk to reoffend. For those who rearrange their lives to be near children, who are more of the predatory type of offenders, their recidivism rates can be high. The longer they track those individuals, the higher the rates are. With respect to the incest offenders, we do not know a lot about those offenders because often those crimes are not well reported.
Our information about incest offenders will grow, I believe, as our knowledge about those who are involved in trading child pornography or child sexual abuse images on the Internet increases. Our thinking had been that these kinds of individuals are not interested in other people's children. We know from law enforcement that the people they are arresting the most that are trading child sexual abuse images, abusing their own children and posting them on the internet are those who have access to children. They are fathers, uncles, brothers, et cetera. We also know those people are interested in other people's children. It is trading images. We have to lot to learn about the behaviour of certain kinds of sex offenders as we learn more about their use of child pornography.
With respect to the privacy issue, I have a lot of respect for the privacy commissioner. It is her mandate to promote privacy interests. We have a different mandate. It is difficult to explain to a sexual assault victim, the parent of a murdered child or someone horribly violated by a sexual offender, how the privacy of that person is given so much consideration. It is difficult to accept that the prick of a needle to take a little blood or having to walk to the police station once a year to spend 10 or 15 minutes telling the police where they live is such a huge invasion of someone's privacy when victims have lost so much of themselves or their own family. Those discussions are difficult to have with victims.
As a citizen who has to go to the motor vehicle bureau every year to spend 15 or 20 minutes in line simply to tell them where I live and provide details of my vehicle, that process is annoying. We all go through it. For someone who has been convicted of a sexual offence, the suggestion is that to go to the police station once per year to register their address is somehow a huge invasion of that person's privacy. I have a difficult time justifying those kinds of arguments to victims. I do not pretend that we should throw away people's privacy. These registries should be law enforcement tools and not available to the public. However, we need to balance privacy of an offender with the privacy and violation of their individual victims.
I will stop there and try to answer any questions committee members may have.
Senator Wallace: That was informative.
In your presentation, you stated that both the sex offender registry and the DNA data bank are important tools helping law enforcement reduce victimization. We heard from other witnesses who suggest that a sex offender registry perhaps gives a feeling of nothing more than false comfort. They said that in reality, the registry does not help to prevent these types of crimes and perhaps is not the investigative tool that some would think it should or could be for police officials. That view is based perhaps on theory and study.
Your experience is beyond that level; your experience is on the ground level. You deal with victims and the actual occurrence of these crimes. How do you see the enhanced and expanded use of the sex offender registry and the DNA data bank — both of these tools represented in Bill S-2 — reducing victimization? How will these expanded tools work, and how will they achieve that goal?
Mr. Sullivan: The database has helped law enforcement solve 11,000 crimes over a decade. Those crimes include over 1,700 sexual assaults and over 700 homicides. Those are offenders we might never have known about without use of DNA evidence from the DNA data bank.
In working with victims, one of the most difficult situations to deal with is when the crime remains unsolved, especially in the case of homicide. The crimes are tremendous tragedies for families who will never know what happened to their loved one or why. The knowledge that the individual who had taken their loved one or used them might be taking or using someone else is a tremendous burden for families and victims to carry. If we take these offenders off the street, ideally they go to prison, maybe we can treat them and they will not reoffend in that way again.
I think the data bank speaks for itself as to how effectively it can help prevent crime.
The registry is more difficult to assess because the registry we have in Canada has not been effective. Law enforcement is frustrated with the registry. It is hard to see how it helps prevent crime.
If we look to the U.S. to make comparisons, the situation is entirely different. By making the registries public, they make them ineffective. It is difficult to look at their studies and say they are effective or they help reduce crime when they might increase crime in some situations. By focusing on offenders and telling the population where offenders live, they might drive offenders underground and away from their families. This result does not include the other punitive measures they take with living restrictions where offenders cannot live within 100 feet of schools. They have people registered living under bridges in some states. It is not a good model to look toward for effectiveness.
Law enforcement indicates that when they have a missing child, sexual assault of a child or any situation where the offender is not identified, law enforcement spends a lot of time knocking on doors of sex offenders trying to find out who is in that community. The registry is helpful even if all it does in certain situations is help to reduce the time police spend looking at the wrong suspects. Police spend a lot of time knocking on doors and time is of the essence in some of these situations. If a tool helps to focus their investigation and eliminate a list of people, I think that will help them to solve crime.
There is evidence in the U.S. from a study many years ago — I will try to find the citation for the committee — that showed registries can help identify suspects sooner and apprehend them sooner. Is that a good thing? It did not prevent the crime, but it might prevent the next one.
Senator Wallace: Any studies on the existing effectiveness of the sex offender registry in Canada are based obviously upon the form it takes today. You have recognized shortcomings in that registry and made recommendations, most of which, if not all, are reflected in Bill S-2. I assume then that any studies conducted to this stage are not able to show the benefits that these amendments will bring.
Do you feel strongly that these proposed amendments will positively affect the effectiveness of the sex offender registry?
Mr. Sullivan: I think the amendments will make the tool more effective. If you conducted a study today of the registry, you will find it is not effective. That is because the system is ineffective.
Having said that, we should be careful about how far we go and how effective it will ever be. As we heard from Senator Carstairs, most crimes are never committed. It is one more tool that law enforcement has. The registry adds to the arsenal police have in addressing crimes, but it is not a panacea.
However, I think these amendments will make the system more effective.
Senator Wallace: Senator Runciman pointed out earlier that we cannot look at any of these tools in isolation. They are part of a complete package.
Senator Angus: Chair, in the interests of currying favour with you for future times, I will pass. Questions of my colleagues have produced the answers that I would have solicited.
The Chair: You are not currying favour with me, Senator Angus. You are currying favour with your colleagues.
Senator Runciman: I have known Mr. Sullivan and his great work on behalf of victims of crime for many years inside and outside of government. I hate to see you departing. I hope you will continue to play some role in the future in ensuring the rights of victims of crime. I want to acknowledge the service you have provided. It is appreciated by many.
As you indicated, what is happening with this legislation is an effort to catch up with the Ontario legislation. The submission by the Privacy Commissioner this morning emphasized this lack of success and cited studies, upon which you have cast some doubt with regard to their application in respect of Canada and Ontario. I share that view. I think they were making the argument that this so-called lack of success opens up the potential for Charter challenges in terms of section 8(m) of the Privacy Act, where public interest and disclosure clearly outweighs privacy interests. I think that area is relevant here.
The Ontario legislation has been in effect for almost 10 years. What is your experience with that legislation? Is this concern a legitimate one from your perspective?
Mr. Sullivan: There will be Charter challenges on almost any legislation the house passes. I do not think that is surprising. In Ontario, a case that probably has not had its final adjudication yet is R. v. Dyck. Has it been in the Supreme Court of Canada?
Senator Baker: The Supreme Court refused, as I understand it. The original judgment stands, which is your point.
Mr. Sullivan: Yes, absolutely: To refer briefly to one of the comments by Justice Blair, he admitted that the reporting requirements of the law did infringe the liberty of sex offenders to some extent. He found these restrictions were relatively modest compared to the state interests being sought. He found they were limited, did not prohibit the appellant from going anywhere or doing anything, and were no more intrusive than other state-imposed registration requirements.
Are we imposing a requirement on convicted sex offenders that other individuals do not have? Absolutely, but it flows from their own behaviour. They have committed what we consider among the most serious crimes, so I do not believe that the Charter challenges that will ultimately come will be successful.
Senator Runciman: You mentioned Christopher's Law and the Stephenson family. As you will well recall with respect to the circumstances, a fellow by the name of Joseph Fredericks abducted Christopher and held him for 24 hours and repeatedly raped him, and lived only a few blocks from the mall where Christopher was abducted. Of course, the view is if there was a registry and Joseph Fredericks was registered, the police would have had an indication fairly quickly, and potentially could have saved Christopher's life.
You mentioned also in your submission about the Correctional Service of Canada and moving part way with respect to reporting releases. I have raised that point here, and Senator Boisvenu has as well. There is no obligation in this legislation on Corrections Canada. Do you have a view on why that particular approach seems to be an exception in the legislation? From your experience, what is happening here? Why is there not an obligation?
Mr. Sullivan: I am not sure. These orders are court imposed orders that flow from a sentencing procedure. I am not sure why Corrections Canada is exempt from notifying law enforcement when an offender is released and is subject to court imposed restrictions, so I am not sure why the government chose to make notification discretionary. It seems to me that CSC should be required to make those notifications.
Senator Runciman: From your experience, have you dealt directly with Corrections Canada on this issue and have you had resistance? Has there been any kind of perspective from their quarter?
Mr. Sullivan: When we made our original recommendations in 2008, my understanding is that they have gotten better at making those notifications, but we have not had any direct interaction with them since to see how it is working.
Briefly on your reference to Jim and Anna Stephenson, you are right, their son was literally walked to Mr. Fredericks apartment and on the way was sexual abused once and then was walked back to that field. Jim and Anna cannot help but wonder every night if their son would still be alive if this registry had existed.
The Chair: Given that the bill creates an obligation to report a change of residence when offenders move, when they get out of prison they are changing a residence so they have to go and report themselves. Would that not constitute, in effect, the notification?
Mr. Sullivan: It would if the offender went and notified police. The ones we want to catch are the ones who do not register. If someone walked out of prison and went somewhere else, it would be nice to see if that individual told the police.
[Translation]
Senator Boisvenu: Thank you, Madam Chair. Mr. Sullivan, I reiterate what Senator Runciman said. First, I congratulate you on your work for the four or five years we have been rubbing shoulders; I wish you every success in your future duties, hoping that you will keep working for victims of crime.
Mr. Sullivan, are you aware of the studies conducted by Mr. Philippe Bensimon, a distinguished researcher at the Department of Public Safety? He did a study on sexual predators, and the rate of recidivism is between 20 and 21 per cent, whether they take a program in prison or not. And to think that the federal government spends two billion dollars on these rehabilitation programs and 40 per cent is for sexual predators. We can assume that, in the years to come, 21 per cent of these criminals will create more victims.
In your view, should the proposals in this bill be retroactive, applying to all criminals who get out of prison starting today, regardless of when the bill will be passed?
Mr. Sullivan: I am not aware of Mr. Bensimon's research.
[English]
However, I am aware of similar evidence that says a number of sex offenders do not take treatment, and there are some debates among the experts, of which I am not one, about the effectiveness of treatment for some sex offenders.
I think in a perfect world we would have a sex offender registry that had every sex offender on it. Practically, going back to the Charter issues, I think it is much more difficult to defend the position to do that retroactively. Traditionally, our law does not go back and impose new restrictions on individuals.
In another practical sense, I am not sure how we would go back and find all these individuals to make sure they actually have a notice that they have to then order. We cannot say we have a new law and everybody who does not go down to the police station is in violation. Offenders have to know what their obligations are, so on a practical sense it would be difficult, but ideal, absolutely.
[Translation]
Senator Boisvenu: I have access to the reports of the parole board, which are given to families when a sexual predator is released at the end of the sentence. And in this report, when it is clearly written in black and white that this criminal is dangerous and there is a great probability that he will reoffend in the next months, should that not be the type of person to be included in the registry?
The Chair: Excluded?
Senator Boisvenu: Included.
Senator Carignan: Included.
Senator Boisvenu: Exclusively.
[English]
Mr. Sullivan: Ideally, yes. Offenders are released from prison every week who are deemed to be a high risk to reoffend, and many of them are sex offenders. They are the minority of sex offenders, which is a good thing, but a number of them return to our communities.
It would be difficult to justify a process automatically to impose conditions retroactively. The government could consider a process whereby the Crown, upon release of a high risk sex offender, like a section 810 order or peace bond, can go back and impose certain conditions. Perhaps as part of that kind of order, they say part of the conditions on the peace bond is to register now for the sex offender registry.
Senator Watt: You might be aware of where I come from. I am from the subarctic region of Northern Quebec. As an ombudsman, do you have information in regards to sex offenders that come from the North, let us say Nunavik and Nunavut?
Mr. Sullivan: I do not have specific information regarding sex offenders coming from anywhere. That is not information we would have. I have access to the same studies that anybody has at the Department of Public Safety, for example, but we do not have any information about sex offenders. I know the rates of sexual assault in the North, for example, are high.
Senator Watt: I know your office has been in existence since 2007.
Mr. Sullivan: Yes.
Senator Watt: I guess in due time you will organize your office to have more control over the sort of information that might be required for different purposes. It could be for the law enforcement people and things of that nature.
Will you go in the direction of compiling information in regard to the number of offenders that come from various sectors of the North?
Mr. Sullivan: First, I will say that it probably will not be me. It will be the new ombudsperson when he or she is appointed. On the structure of our office, we have no legislative basis. We are a program of injustice, so we cannot go and demand information from anybody. We do not have access, I think, to most of the information you are talking about to be able to say where sex offenders come from, other than information that is already available to the public. There might be a role for us to compile that information if that would be of use, but we do not have access to any information that is not already public.
Senator Watt: Do you know whether there is currently a data bank with that information from segments of the North?
Mr. Sullivan: The Correctional Service of Canada might have that kind of information for offenders who are sentenced to two years or more. However, keep in mind that most sex offenders are never reported. Of those that are reported, most are never convicted and they never go beyond that reporting.
I am not sure of a database beyond what the Correctional Service of Canada or the Department of Public Safety might have that will have that kind of information.
The Chair: Senator Watt, I have asked our library staff to find out what they can about the relevant data. Anything they cannot provide, we will try to pursue with Correctional Services of Canada, the Department of Justice, or whomever.
Senator Watt: Thank you.
I notice that how we help victims is under your responsibility. The brief states that you do not advocate on behalf of individual victims or provide legal advice. Then I see what seems to be a bit of a conflict on another page, and I want you to clarify this point for me.
It talks about how you address the complaints. You say that since every victim's situation is different, you address complaints on a case-by-case basis. In one place you say that you deal with individuals and in another place you say that you do not deal with individuals. Can you clarify this for me?
Mr. Sullivan: Part of our mandate is to accept and review complaints from victims about federal services. As an ombudsman's office, when we receive complaints, we cannot be an advocate. We are impartial and unbiased. We look at the complaints of the victim and the law, and try to determine impartially who is correct. We try to mediate a solution that is acceptable to the victim. However, we cannot advocate on behalf of an individual victim because we are an ombudsman's office.
However, we provide assistance. Many people who call our office have issues that are outside the federal jurisdiction, such as they did not receive compensation from the compensation board in their province, the Crown prosecutor is not listening or the police are not laying charges. We will help them find the appropriate place to bring their concerns. We will work with them on a case-by-case basis to find out how to solve their problem, but we cannot advocate on behalf of an individual victim.
Senator Baker: In the case of R. v. Dyck that was referenced by the witness, the Ontario Court of Appeal in 2008 Carswell Ontario 2291 says in the headnote:
Trial judge declared statute of no force or effect . . . Statue was declared intra vires legislature of province — Crown's appeal was allowed, and trial judge's finding of unconstitutionality was overturned — Accused appealed — Appeal dismissed — CL was valid provincial legislation enacted by Ontario under heads 13 and 14 of s. 92 of Constitution Act . . .
The final determination on that case was that it was not unconstitutional based upon its constitutionality as far as authority was concerned.
You are out of a job next week; is that correct?
Mr. Sullivan: That is right. Do you have something in mind?
Senator Baker: I cannot figure for the life of me why you were not reappointed. You must have been shocked.
Mr. Sullivan: I was surprised.
Senator Baker: You were surprised, to put it mildly. Let us move on.
Mr. Sullivan: So that is a ``no'' to my original question, senator, I take it.
Senator Baker: I wish we had known this yesterday when the minister was here. However, the minister praised you recently for the great work you have done.
Mr. Sullivan: I have known Minister Toews for a long time and I have always worked well with him.
Senator Baker: On the question raised by Senator Boisvenu, I will read you a sentence from the Court of Appeal of Nova Scotia, which was appealed to the Supreme Court of Canada and denied. It is 2006 Carswell Nova Scotia 9(1). It is paragraph 8 and is only one sentence.
On this appeal, counsel concede that the SOIRA legislation provides for an order in relation to certain offenders who were convicted prior to the coming into force of the Act. . .
Then it goes on to say that the courts concluded that the provisions were intended to operate retrospectively. The retrospective effect of that little section of the original act is said to flow by implication from the combined effects of two sections, section 490.012 and section 490.011 of the Criminal Code. The court then says it would be difficult to conceive of more complex wording to express a retrospective intent.
Senator Boisvenu is asking a legitimate question, because in this case the courts have looked at the retrospective nature of the original legislation in that it applied in cases of somebody being convicted prior to the coming into force of one section of the act. Some people call that retroactive. Of course, it is retrospective because the conviction was prior.
Senator Boisvenu's question is simple. It is not something that is contrary to the law, but this bill says clearly that the Crown prosecutor will no longer be required to bring an application for an order. This provision will apply prospectively only.
In other words, the legislation will not have that retrospective or retroactive application that Senator Boisvenu is asking for. Did you notice that? Nowhere in the bill does it explain it, but the backgrounder by the department says it will apply only to the future and not to the present. Did you have a chance to look at that wording?
Mr. Sullivan: Unfortunately I did not, and without looking at it I cannot speak authoritatively on it, but I would go back and look at whether that section remains in the law, although it is not automatic. I am only speculating, but maybe they have kept that provision for Crowns to bring an order retrospectively, but moving forward, the order is now automatic.
Senator Baker: No; the Department of Justice explained that it will apply only to somebody who was convicted after the coming into force of the act. They were clear before this committee. The minister expressed doubt that he was in agreement with the department's opinion and philosophy on this issue. Senator Boisvenu made the excellent point again, in agreement with the minister, but the department is clear that this bill is a prospective application of the law.
You have no further comment on that issue?
Mr. Sullivan: As I said to Senator Boisvenu, I can envision a process such as what exists now but might not later that in certain high-risk cases the Crown can have a process to go back and make an application. I cannot see it ever flying automatically, but I encourage the government, if that is the case, to bring that process back for specific cases so the Crown can have some discretion to go that route.
Senator Baker: For certain cases, that is, the really serious cases that we all abhor, Senator Boisvenu is requesting that the process be there, and the minister suggested that he will be in agreement if Senator Boisvenu were to move that amendment to the bill.
[Translation]
Senator Carignan: My question is somewhat along the same lines as that of Senator Baker and Senator Boisvenu. First of all, are you a lawyer?
[English]
Mr. Sullivan: No, I am not.
[Translation]
Senator Carignan: There is a distinction to be made between the retroactive, the retrospective, and the prospective effects. In 2009, the Quebec Court of Appeal made a distinction between the two. An act is not unconstitutional, by which I mean that nothing in common law prevents the retrospective effect of an act, which are future consequences for a past conviction; the retroactive effect, by contrast, would be to make past consequences to a past conviction.
I am not sure whether the translation is correct; just now, retrospective was translated by retroactive actually. Unlike your position, we could certainly support the constitutionality of an act with a retrospective effect. That is why, in the Thériault case, the Quebec Court of Appeal validated the provisions of the act that had some retrospective effects on the current registry.
I have the following specific question. As I understand it, you were consulted and gave your opinion on amendments to the registry act. We had asked for a presentation on that particular point.
Are there other aspects you mentioned to improve the registry that have not been adopted, and if so, what are they?
[English]
Mr. Sullivan: We did not wait to be consulted on these issues. We proactively informed the minister of areas we felt needed to be enhanced. They are all addressed in the legislation. I do not think what we would like to have seen was addressed fully in the area that Senator Runciman and I talked about with respect to what corrections' obligations are, as opposed to discretion. Those areas were the key areas we addressed. I know there was more specific evidence from law enforcement about specific areas, and they are the experts on those areas. We spoke more generally, and all the issues we raised were addressed to some extent.
The Chair: In your letter to Minister Day, you quoted Justice Hambly of the Ontario Superior Court of Justice, and I quote, in part, from what appears to have been a list of criticisms from the court:
The public does not have access to the registry. The Act prohibits the police from making public disclosure of the offender. . .
I gathered from what you said earlier that you did not think public disclosure was a good way to go. I want to clarify whether, in using that quotation, you were suggesting that public disclosure was one thing that should be included in a revision of the act.
Mr. Sullivan: No, we do not support public disclosure. My understanding of the justice's comments — and maybe the comment is not in context — is that he was pointing out the limitations of the law to say this is not an overburden on the offender. It is not public, it is for law enforcement only. I think that is what the justice was saying. I do not support public disclosure of the registry.
Senator Carstairs: I have been a legislator at the provincial and federal level now for 26 years, and my fear always is to oversell an expectation. You identified, I think partly as a result of my comment to Ms. Stoddart, that less than 10 per cent of sexual assaults are ever reported. We are creating, then, a registry for less than 10 per cent: 90 per cent will never find themselves on that registry because they will never be convicted.
What kind of programming do we need to address the 90 per cent?
Mr. Sullivan: This is an interesting question, because it is one I have thought a lot about lately in the context of why victims do not report. I have been involved in the victims' movement for a long time. I think one of the hopes of the victims' movement — at least one of my hopes — was that if we improve the system, if we make it easier for victims to come forward, if we make the system more friendly, that more victims will come forward, particularly victims of violent crime.
In fact, what we saw between 1999 and 2004, when we prepare our victimization surveys — so different than crime reported to the police, these are victims who are surveyed who reported crime to Statistics Canada — the reporting rate went down. In 2004, fewer people reported to police than in 1999. The next survey is due out this summer. Hopefully, that trend does not continue.
It causes us to look back and say, why is it that fewer victims trust our system or have faith? Many victims do not report because the crime is not serious enough, and for other reasons, but when a majority of violent crimes — and an overwhelming majority of sexual assault victims do not report — we have serious questions to ask ourselves.
With respect to sexual assault, those numbers have remained unchanged for over a decade. We are not getting any better at encouraging people to come forward, and I think in large part it is because our system still has not changed that much.
We have laws about impact statements and rape shield. We have laws about protection for witnesses during court. The system has not accepted victims' needs and concerns into that process. It is still an ugly place for victims to come forward.
When we talk about programs for offenders, I think one way to do that is to identify them. We will not do that unless we encourage victims to come forward.
On the issue of offenders, we hear or read articles from experts who say they have a small percentage of individuals — pedophiles, for example, who have never abused a child — who will become proactive before they have done something and try to address their situation.
It takes an incredible amount of courage for those individuals to take that step. If there are ways to encourage them to take that step — to say, come confidentially, before you do something to a child, and report it and you will receive the help you need — I do not have the solutions on how to do that, but I think how we communicate that message to people is an untapped area.
Senator Carstairs: I agree. The reality is that many victims do not come forward because they have been abused by members of their immediate family and they do not want to break down the whole family dynamic.
The other, frankly, is that there have not been sufficient resources. This piece of legislation is relatively easy. We can pass it, and I will support it. We will pass this legislation, but we will not address the issue of 90 per cent. We will not put into place the kind of programming that is essential to encourage other victims to report and, thereby, deal with the much broader issue and the much broader victimization.
Mr. Sullivan: I agree with you entirely. We know that research a couple of years ago by the Law Commission of Canada found that the annual costs to Canada for child abuse is $15 billion, and we know that most of those children will never, ever tell anybody. Some will tell and not be believed or supported.
We have so much work to do in those areas. Even if we take away the justice system, we have work to have those kids come forward and obtain help. What happens is they often go on to self-abuse, drugs, problems in school, low productivity, no trust in relationships and they abuse themselves or others in a smaller population.
There is a tremendous amount of work to be done. There has been a debate recently about crime rates — police- reported crime to victimization rates — and people are saying, look at these rates. The main question we should ask ourselves is why are those crimes unreported? Why are we not ticking away at them? Why are more people not coming forward to seek help? I do not have the answers to these questions. A lot of it is within family. I have read studies that say that the greater the consequences are for dad — if dad will go to jail for 10 years — then their son or daughter will not report because they do not want to see dad go to jail for 10 years. There are a number of answers. We have to start delving deeper into those questions.
Sorry to rant, chair.
Senator Carstairs: I will rant right along with you.
Senator Watt: I listened with a great deal of interest to points raised by Senator Carstairs. This could definitely have some bearing on people who are not coming forward. It is not only the fact that they are worried about breaking up the families and things of that nature, but I think a lot of it is also to do with the fact that they do not have a way to come up with the financing to fight for their own interests.
This is one of the big factors within our system that probably needs to be looked at carefully. Are we here as parliamentarians to help and provide a safety net for the general public of Canada?
If that is the case, and I think it is, it is our responsibility to seriously consider what we do in that area when people do not have a way of helping themselves because they do not have the necessary financing to move forward. I want to address that issue. It applies to the Inuit and the North.
The Chair: Often it is the most vulnerable who have the least resources.
Senator Watt: It is not even the Inuit; it is First Nations all across the country.
Senator Wallace: Senator Carstairs' thoughts about these programs to deal with the 90 per cent that are not coming forward, do you have any familiarity of any jurisdiction where this issue is being addressed other than the way we are dealing with it in Canada?
Mr. Sullivan: What we are seeing is that the numbers are not that different from our Western counterparts. This is a problem that most Western countries face. Canada might be higher or lower than some, but we have a huge problem. A lot of the problem, especially with sexual assault, is still the myths that exist about individuals, which is one of the reasons a law was passed so we would not identify victims. Publication bans are imposed virtually automatically on sexual assault complainants.
Senator Wallace: I do not want to cut you off, but perhaps my question was not clear enough. It was about programs. Are there programs out there somewhere that address the issue Senator Carstairs has raised? If there are, it would be interesting for us to see those programs.
Mr. Sullivan: I am not aware of any projects that encourage people to come forward. There are rape crisis centres, for example, but many of the experts in those fields encourage their clients not to come forward because the system can be so re-victimizing to them.
Senator Carstairs: The family court system implemented in Manitoba has resulted in more people coming forward.
Senator Rivest: At the provincial levels, I suppose we have social services.
Senator Joyal: I want to comment on that issue before making my other comments. Senator Carstairs mentioned that most of the cases are not reported, but one factor that this registry creates — I will not say misconception but a factor that sends us in a different direction — is that a large of proportion of sexual offences happen with family members and the close circuit of the neighbourhood. Most of those people will not be reported to the police for obvious reasons. I read that among the police-reported data, which includes victims of every age, in nearly one third of sexual offence incidents that came to the attention of law enforcement in 2007, the accused was a family member; in 10 per cent of the incidents it was extended family members; in 10 per cent of the cases it was the victim's parents; and in 7 per cent, it was another immediate family member.
In other words, the bill deals with a phenomenon that, in my opinion, is not make clear enough, which is that it focuses on strangers who happen to drop in to a neighbourhood and kidnap a kid and make a big case out of this incident. At the time of the incident, the media extend that awareness by giving the incident tremendous focus. In fact, the phenomenon of sex offences is most often about family, friends, uncles and relatives of some sort who happen to be in contact with children.
I think this bill, in a way, does not address that more common phenomenon. It addresses sex offences where we have a psychopath, a person who is a recidivist. It is scarier to think of someone who is a recidivist than to think of one who is accused of a sexual offence, goes to prison and is rehabilitated. It seems that 80 per cent of these offenders happen are in this category, according to the study quoted or a question we had this morning about the study of Philippe Bensimon who says that 20 per cent to 21 per cent of offenders are recidivists.
We focus on recidivism because we feel that is the danger, but the greatest danger lies somewhere else, in my opinion. That is not to say the bill is not good in itself but there is a distortion of perception that now we are much more secure because we know all the predators. We will not know all the predators with this bill.
What has happened in the Roman Catholic Church today worldwide is an expression of this danger. Why have those victims remained silent all those 20 or 30 years? It tells us that there is an element of shyness, shame, guilt or sin — call it what you want — that has prevented those people from coming forward. Now they feel they can come forward so many years later when most of them are now adults.
The way to address this issue, the way I understand it, is with more than one type of measure. The scarier incidents are in the media — the incidents make good movies and so forth and they scare people — but, as you said yourself, the real impact is limited. I do not mean the bill is not useful but its impact is limited, not demonstrated and might have the opposite impact of driving people underground. That distinction is an important element of the reality we are dealing with.
The Chair: I think we need to go to questions.
Senator Joyal: My comment is that in the Dyck case that you quoted in your letter, the way I read the summary of the judgment in the Court of Appeal, the case addressed a jurisdictional problem, which was essentially, was Ontario within the law to have a sex registry? It was on this basis that the decision was rendered at the appeal court. It left aside the constitutionality in some circumstances of a sex registry that was too invasive of privacy. I think as much as we can learn from the decision of the court, the issues of the constitutionality raised in this bill are still pending, in my opinion, following the witnesses we have heard this morning.
Mr. Sullivan: I agree. I was not aware the Supreme Court had turned down a request to go there, but ultimately someone will appeal and argue that point and it will be decided. I think the Ontario courts have given us an indication of where the courts might go in that area, and I think they are correct.
On your broader point, this registry is a tool for law enforcement to deal with part of the problem. One challenge of politics, and you all know more about this than I do, is that having debates and providing information to the public on complex issues is hard, especially in this day and age of the sound bites. The problem is that sex offenders are not the same. Some are high-risk, some are low-risk, some will do it again and some will not. The broader problem is we do not know who most of them are.
This tool can be effective and help law enforcement, but until we make it a safer place for victims to come forward, receive the help they need but also help us identify who these people are and hopefully give them the help they need, we are missing a huge part of the problem. Young girls and boys are on the street selling themselves for food and shelter because they were abused at home and have left. There is a whole part of this problem that we have not had an intelligent debate about yet.
The Chair: Mr. Sullivan, your information has been extremely helpful to us. I suspect this appearance will be your last before a parliamentary committee, or one of your last. Let me take the occasion to thank you for the help you have given to this committee but also for all the work you have done for the country.
Mr. Sullivan: Thank you, chair.
The Chair: We wish you well.
Colleagues, our next meeting will be on Wednesday, April 21, at 4:15 p.m. or when the Senate rises. We shall hearing from representatives of the RCMP and other police associations, and possibly other witnesses.
(The committee adjourned.)