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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, May 29, 2003

0905

The Chair (Hon. Andy Scott (Fredericton, Lib.))

The Honourable Wayne Easter (Solicitor General of Canada)

0910

The Chair

0915

Mr. Randy White (Langley—Abbotsford, Canadian Alliance)

Hon. Wayne Easter

Mr. Randy White

Hon. Wayne Easter

0920

Mr. Randy White

Hon. Wayne Easter

Mr. Randy White

Hon. Wayne Easter

The Chair

Mr. Robert Lanctôt (Châteauguay, BQ)

Hon. Wayne Easter

0925

Mr. Robert Lanctôt

Hon. Wayne Easter

Mr. Robert Lanctôt

The Chair

Mr. Robert Lanctôt

The Chair

0930

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Hon. Wayne Easter

Assistant Commissioner Tim Killam (Technical Operations, Royal Canadian Mounted Police)

Mr. Lorne Nystrom

Hon. Wayne Easter

Mr. Richard Zubrycki (Director General, Corrections Directorate, Department of the Solicitor General)

Mr. Lorne Nystrom

Hon. Wayne Easter

Mr. Richard Zubrycki

0935

Mr. Lorne Nystrom

Hon. Wayne Easter

The Chair

Mr. John McKay (Scarborough East, Lib.)

0940

Hon. Wayne Easter

Mr. John McKay

Hon. Wayne Easter

Mr. Richard Zubrycki

Mr. John McKay

Mr. Richard Zubrycki

Mr. John McKay

Mr. Richard Zubrycki

Mr. John McKay

Mr. Richard Zubrycki

Mr. John McKay

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

0945

Hon. Wayne Easter

Mr. Kevin Sorenson

Hon. Wayne Easter

Mr. Kevin Sorenson

Hon. Wayne Easter

0950

The Chair

Mr. Pat O'Brien (London—Fanshawe, Lib.)

Hon. Wayne Easter

Mr. Richard Zubrycki

Mr. Pat O'Brien

Mr. Richard Mosley

Mr. Pat O'Brien

Hon. Wayne Easter

0955

Mr. Richard Zubrycki

The Chair

Mr. Robert Lanctôt

Hon. Wayne Easter

1000

Mr. Richard Mosley

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

1005

Hon. Wayne Easter

Mr. Richard Zubrycki

Hon. Wayne Easter

1010

The Chair

Hon. Wayne Easter

Mr. Richard Mosley

The Chair

Mr. Lorne Nystrom

Hon. Wayne Easter

A/Comm Tim Killam

Mr. Lorne Nystrom

The Chair

1015

Mr. John Maloney (Erie—Lincoln, Lib.)

Hon. Wayne Easter

Mr. John Maloney

Hon. Wayne Easter

Mr. John Maloney

Hon. Wayne Easter

Mr. Richard Mosley

Mr. John Maloney

1020

The Chair

Mr. Richard Mosley (Assistant Deputy Minister, Department of Justice)

The Chair

Hon. Wayne Easter

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Hon. Wayne Easter

1025

Mr. Richard Zubrycki

Mr. Chuck Cadman

The Chair

Mrs. Marlene Jennings

Hon. Wayne Easter

Mrs. Marlene Jennings

Hon. Wayne Easter

Mr. Richard Zubrycki

1030

The Chair

Mr. Robert Lanctôt

Hon. Wayne Easter

Mr. Richard Mosley

The Chair

Mr. John McKay

1035

Hon. Wayne Easter

Mr. John McKay

Hon. Wayne Easter

Mr. Richard Zubrycki

The Chair

Mr. Lorne Nystrom

1040

Hon. Wayne Easter

Mr. Richard Mosley

Hon. Wayne Easter

The Chair

Mr. John Maloney

Hon. Wayne Easter

Mr. Richard Zubrycki

Hon. Wayne Easter

Mr. Richard Mosley

Mr. John Maloney

Mr. Richard Zubrycki

1045

Mr. John Maloney

The Chair

Mr. Randy White

Hon. Wayne Easter

Mr. Randy White

1050

Hon. Wayne Easter

Mr. Randy White

The Chair

Hon. Wayne Easter

The Chair

Mr. John McKay

Hon. Wayne Easter

Mr. Richard Mosley

Mr. John McKay

Hon. Wayne Easter

1055

The Chair

Hon. Wayne Easter

The Chair

Mr. Robert Lanctôt

Hon. Wayne Easter

Mr. Richard Mosley

1100

The Chair

Mrs. Marlene Jennings

Hon. Wayne Easter

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 050

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 29, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 50th meeting of the Standing Committee on Justice and Human Rights.

Today we are looking at Bill C-23, an act respecting the registration of information relating to sex offenders, to amend the Criminal Code, and to make consequential amendments to other acts.

To open this up for the committee, we have today the Honourable Wayne Easter, the Solicitor General of Canada. Welcome back, Mr. Minister. I will leave it to the minister to introduce the other members of his panel. I presume, Mr. Minister, you have a presentation. Do you have any idea how long that might be?

The Honourable Wayne Easter (Solicitor General of Canada): I know people would like to go to discussion, Mr. Chair, so I will try to keep it fairly short. There are a number of key points, though, that I want to make first.

Thank you, Mr. Chair and members of the standing committee. I appreciate the opportunity to speak to you today regarding the government's Bill C-23.

With me are Tim Killam, Assistant Commissioner of the RCMP; Richard Mosley, Assistant Deputy Minister from Justice Canada; and Richard Zubrycki, Director General, Corrections Directorate, from my department.

This bill will provide a new tool to police in investigating crimes of a sexual nature, particularly those that victimize children. With the recent tragic death of a young girl in Toronto, I am sure we are all aware of the critical importance and urgency of this legislation. Bill C-23 will create the Sex Offender Information Registration Act and it will make key amendments to the Criminal Code of Canada. Together these provisions will bring into being a national sex offender registry for use by all our provincial and territorial partners.

Bill C-23 responds to a unanimous request from all provincial and territorial governments for federal action to create a national system of sex offender registration for their use. Agreement was reached on this system after extensive federal, provincial, and territorial consultations over a relatively short period of time. Indeed, in less than one year we have achieved national consensus on the legislation before us, including consensus that it should be enacted as soon as possible. This is an excellent example, I believe, of all jurisdictions working together to achieve a shared purpose. While not all jurisdictions have achieved all their objectives, compromise has been essential for finding a model that is acceptable to all, and I commend all our provincial and territorial partners for their cooperative spirit.

The registration system that is being proposed will be comprised of three components: the federal legislative framework that is before us today, an electronic sex offender database maintained by the RCMP, and administration and enforcement of the legislation by all police agencies in their areas of jurisdiction. These three elements combine to create a new tool to assist police in their investigation of sexual offences by allowing them to quickly consult the registry, search its contents using established criteria, and develop possible suspects in the vicinity of the crime.

When a sexual offence is committed, the burden is on the police to respond quickly. In addition to evidence that may be gathered at the scene of the offence, the investigating officer will make use of the data available in the Canadian Police Information Centre. As we know, CPIC provides extensive information on all persons convicted of criminal offences and is available as a database to all police officers in Canada, but these data searches take time, and time is often of the essence in these cases. Moreover, CPIC does not contain address information for each offender. This system will be quicker and more effective if the investigation officer can search a specific sex offender database for the most recent addresses of sex offenders living in the area of the crime. This is the thinking behind the registration scheme in Bill C-23 and it is precisely what the new sex offender database created by the RCMP will add to the CPIC data retrieval system for use by local police.

Bill C-23 also ensures that the profile of the offender in this database is kept up to date. Otherwise, the information in the database would be of little value. Clause 4 of the bill requires that a person convicted of a certain designated sex offence must report to a registration centre within 15 days of being sentenced or released from custody. They will have to re-register annually or after any change in address. Clause 5 lays out the information the individual must provide when he reports to a registration centre. The most important piece of data in the system is the offender's current address. He must provide his home address, any secondary address, and the address of his place of employment.

¿ (0910)

To complete the link between the offender providing this information and the new sex offender database in CPIC, Bill C-23 provides for provincial authorities to designate registration centres. In effect, this is likely to mean a police station, and the authorities who enter the data will be police officers. Thus the connection is made between the obligation on the offender to provide accurate data and the police agencies that will be collecting and using the information.

While the registry will be an important tool for police, it will also be important to ensure that this tool is used appropriately. The potential for unintended negative consequences and for misuse must be avoided. Therefore, access to registry data except by authorized persons for authorized purposes is prohibited. Public protection, which is the central purpose of the registration scheme, will be provided by police use of the information.

The safeguards provided in Bill C-23 have been carefully crafted in collaboration with our provincial and territorial partners and in consideration of the rights guaranteed to all Canadians by the Charter of Rights and Freedoms. They will provide a system that is fair and equitable while effective and efficient. Police will have access to personal information about past sex offenders for at least 10 years, and in many cases during their natural life. At the same time, controlled use of the data will prevent unfairness towards those who have returned to a law-abiding lifestyle. Measures are included in Bill C-23 to allow registrants to defend themselves against registration or to apply for relief after 5, 10, or 20 years have elapsed. In many United States states such measures have been imposed by the courts when they were not initially provided.

Since Bill C-23 was tabled on December 11, 2002, I am pleased to note that my officials have undertaken further consultations with the provinces and territories and police representatives. This has resulted in a number of important amendments the government will be recommending to this standing committee, we believe to improve the bill. Included in these proposals will be a scheme to harmonize the Ontario sex offender registry with the national sex offender registry created by Bill C-23. In this regard, I am pleased to note that Ontario has very recently indicated its agreement with this approach.

In conclusion, Mr. Chair, the development of Bill C-23 was a cooperative effort between federal and provincial governments and territories. This is important, since the legislation should anticipate the role of the provinces in administration and enforcement of the system. This is a national system, unlike that in the United States, which suffers the confusion of many different state-level registration schemes. Bill C-23 sets out a common, national approach, through both federal enabling legislation and the nationally available CPIC system. At the same time, it respects the provincial role in the administration of the system and the need to tailor its implementation to their diverse needs and characteristics. This legislation respects both the needs of the police and the civil liberties of Canadians.

Mr. Chair, the government has moved quickly to bring forward this legislative framework in collaboration with provincial and territorial partners. It already has the support of the governments of all jurisdictions within Canada. I trust this committee will add its support to Bill C-23 and move it quickly forward, so that it may take effect at the earliest possible moment.

Thank you, Mr. Chair. I look forward to your questions.

The Chair: Thank you very much, Mr. Minister.

Randy White, seven minutes.

¿ (0915)

Mr. Randy White (Langley—Abbotsford, Canadian Alliance): Thank you, Mr. Chair.

Mr. Easter, would you say the sex offender registry is an essential tool in the effective management of sex offenders and their offences?

Hon. Wayne Easter: Yes.

Mr. Randy White: Are you aware that I wrote a private member's bill modelled on Christopher's law in the year 2000? It was turned down, by Liberal members in particular, as a votable item. We brought it into the House on several motions. There was a commitment to get on with the development of that, but there was really nothing but procrastination for about two years on this issue. It is just amazing to me that since we tabled that in the House of Commons originally there have been thousands of sexual offences committed in this country, and here you are today mentioning one case in Toronto. It really is quite unfortunate that you would focus on that one, because since this has come into the House of Commons, there have been a lot more than that. I just want to express my displeasure that it has taken so long; it has not been a rush. I can recall standing in the House day after day trying to get the previous Solicitor General to even acknowledge there was a need for a sex offender registry. He kept insisting that CPIC was it, which it was not.

I had to get that off my chest, because to come in here and take credit that you jumped onto this thing and got it done in a rush is not right.

I want to know whether this is going to be retroactive. Will all those currently incarcerated in federal and provincial institutions be on this registry on the day it becomes law and is ready to be implemented? If not, how do you really propose to harmonize with Ontario's registry, which actually was retroactive and does have thousands of sex offenders on it?

Hon. Wayne Easter: Yes, I am aware of the legislation, and I understand it was turned down by members in the House of Commons. I do congratulate you, Mr. White, for all your work. I know you've worked hard on this over the years, and you need to be congratulated on that.

The fact of the matter is that when you bring forward legislation of this magnitude, if it is going to work and work effectively, you do have to work with the provinces and other jurisdictions to get it in place. We have been very proactive within the RCMP. The CPIC system will be able to handle this sex offender registry. There has been a lot of work done on that, and they will be able to handle the sex offender registry as soon as it becomes law, and I encourage the committee to move quickly on that.

We are not making it retroactive, with the exception, as I indicated in my opening remarks, of the agreement we have with the Province of Ontario. There are certainly a number of reasons, mainly legal ones, for not doing that. And I beg to differ with you; in Ontario's case the legislation was not retroactive in the same way you're trying to suggest this legislation would be. When this legislation is enacted, we want it to stand up to the test of the courts, and therefore we do not want to raise the charter risk. In fact, on the retroactivity in Ontario, in that limited sense of about 300 in custody upon proclamation, there is a charter challenge pending, and we are not willing to put this legislation and its good work at risk.

¿ (0920)

Mr. Randy White: If I may, that is the most preposterous situation I have ever heard. Why would you put currently incarcerated sex offenders from Ontario on a national registry and leave out British Columbia, Nova Scotia, Alberta, and the rest of the provinces? That is absurd and an insult to the whole system. Why the fear of a charter challenge? Why don't you just put them all in, and if a charter challenge occurs, you deal with that later? You can take them off. Under the circumstances, would you not agree that a sex offender is a sex offender, and those in Ontario are just as much sex offenders as those in Alberta?

Hon. Wayne Easter: The fact of the matter is that we look at the reality. We're not fearful; we're realistic about what can be accomplished. Being realistic, we recognize that there is a sex offender registry in Ontario. We have negotiated an agreement where we believe we can put in the people who are on that sex offender registry without facing undue challenges within the court system. When we bring it in, we want the system to work effectively, and that's what we're working towards here. We just can't wave a wand and take everything back to ten years ago. That's not possible. And there are certain rights.

Mr. Randy White: There are rights for Ontario sex offenders and there are rights for other provinces. That's an absurd position.

Hon. Wayne Easter: The legislation is national in scope. We have a consensus from the provinces, we have brought them on side, but some provinces do not want to move forward with retroactivity. When we bring this in, we want it to work in coordination and cooperation with the provinces. The consensus is established, and we believe it's a huge step forward as another tool for police.

The Chair: Thank you.

Monsieur Lanctôt, seven minutes.

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Thank you, Mr. Chairman.

Mr. Minister, gentlemen, it was high time for such a bill to be introduced in order to protect the public and have a sexual offender registry. It seems we are going in the right direction since we have a controversy relating to the lack of retroactivity. I believe this is a good thing. We should not forget paragraph 11g) of the Charter. But in my view there is another issue, that of section 7 and dangerousness, which has been swept aside by the bill.

I do not understand the explanation you gave to Mr. White. You said that in order not to endanger the retroactivity of the bill, you only take into account the nature of the offence and not the danger the offender poses to society. I believe this might open the door even more to a charter challenge.

I heard it said that we should not put all our eggs into one basket in order to avoid having the bill struck down as unconstitutional. However, there is another very important aspect to it. Not all sexual offenders should be targeted. We need to assess their dangerousness. Statistics show that the rate of recidivism is low for such offences but high for the most serious offences. We, at the Bloc, believe that this could expose the bill, which is really needed in order to establish the sexual offender registry, to a challenge at the outset.

You say that you do not include the offenders Mr. White talked about because of the charter risk, but you do not deal at all with this necessary distinction that should be made. This needs to be changed. Would you be open to such amendments in clause-by-clause?

[English]

Hon. Wayne Easter: We're certainly open to hearing the committee's view on those points, but it's our view that basically all sex offences should be on the registry. We believe we have balanced the bill in several ways. In respect of your concern that maybe someone with a less violent sex offence or whatever shouldn't be on there, we believe we have balanced it with the protection of their rights.

The database is only accessible to police officers and those involved within the registry system. There are very severe penalties should any of that information be misused. So we believe we have protected those individuals in that way, and we believe it's necessary to have all individuals convicted of sex offences on the registry. As I indicated earlier, and as you know by going through the bill, they can make an argument that they not be on, and there's the review at 5, 10, or 20 years.

¿ (0925)

[Translation]

Mr. Robert Lanctôt: It is a start. I think you are going into the right direction regarding confidentiality and protection of the information. We do not want to launch witch hunts against these people. These offenders are also entitled to some protection. However, the danger a person may present to society is fundamental to the laying of charges and the treatment of people judged guilty.

Section 7 of the Charter is very clear in this regard. I know you have tried to ensure confidentiality. However, section 7 says that the means used must not be out of proportion with the objectives pursued. When you have a person who is not considered dangerous, there could have been a misunderstanding that led to the conviction. There have been many such cases. These offenders are not dangerous to society.

Your answer gave assurances regarding confidentiality and that is very well, but it will never meet the test of section 7. The device is much to strenuous to have only the nature of the offence as a criteria. Do you understand? Do you have any other arguments than that of confidentiality? What did your lawyers say? Did they say it would pass the test of section 7? I do not see how it could.

[English]

Hon. Wayne Easter: I would accept that there is some risk there, but from the discussions we have had, we believe it is an acceptable risk; it can be defended through the court system if necessary and through a free and democratic society. From our perspective, it's an acceptable risk in moving forward.

I want to come back to the line I didn't have before me earlier. Persons whose conviction would normally lead to registration will have an opportunity to defend themselves against this in court. Upon application by a crown attorney, the individual can argue that placing their information on a registry would be “grossly disproportionate to the public interest in protecting society”. So there is certainly an avenue to pursue there. And as I indicated earlier, they would be given further opportunities to apply this defence after 5, 10, or 20 years of registration have lapsed.

[Translation]

Mr. Robert Lanctôt: To conclude, I would like to talk about reversing the burden of proof.

[English]

The Chair: No, Mr. Lanctôt. We'll be back.

[Translation]

Mr. Robert Lanctôt: Very well.

[English]

The Chair: Mr. Nystrom.

¿ (0930)

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): I want to welcome the minister here and ask questions in two or three different areas. I think it's important that we're in a televised hearing.

You've just explained to us how this improves the situation compared to what's available now on CPIC. The government did make the argument in the past that CPIC was sufficient, and now they obviously say it is not sufficient. What is the improvement?

Hon. Wayne Easter: CPIC is there for a lot of criminal offences and does a good job in being accessible to local police forces across the country in many areas. The sex offender registry is specific to sex offences and is different from the regular CPIC system in that it has the current addresses, addresses at work, and secondary addresses of people who have been convicted of sex offences in the past. There are provisions whereby those addresses have to be kept up to date. There will be some amendments coming forward as well, which I'll talk about later, but there are provisions for other characteristics to be added later on.

I guess the bottom line, Mr. Nystrom, is that it allows the police in their investigations to move more quickly through having those current addresses and the list available, which weren't available on the previous CPIC system. I don't know if Tim wants to add anything more on that.

Assistant Commissioner Tim Killam (Technical Operations, Royal Canadian Mounted Police): I believe the minister has answered that very well. The CPIC system will be the framework through which the query would be channelled to the sex offender registry. Of course, as the minister says, it will have much more information with regard to the location, and it will allow us, as an investigating agency, to hone in on sex offenders in the geographic area where an offence has occurred that you are investigating. So for that reason, it would be more useful than the information that is now on CPIC.

Mr. Lorne Nystrom: I want to ask the minister if he can give us an estimate of the cost of establishing the registry across the country. There has been another example of a national registry that has been controversial in regard to cost. I assume this will not be the case.

Hon. Wayne Easter: No, this will not be the case, and we're bringing the controversial registry under control in respect of costs as well. I believe the initial cost for the total system was about $2 million, and it is about $400,000 to operate annually.

Mr. Richard Zubrycki (Director General, Corrections Directorate, Department of the Solicitor General): It could be less than that in both cases, but those are our estimates.

Mr. Lorne Nystrom: I want to ask some questions about the system in the U.K. What have you learned from what the British have done, Mr. Minister? They have had it now, I think, since 1997. Also, they are now considering including a foreign offence as part of the sex registry, so-called sex tourists. I wonder if you are considering such an amendment in this country as well.

Hon. Wayne Easter: I will ask Richard to help out on that one, but in the preparation of Bill C-23 there was a lot of examination of systems in place elsewhere around the world. We tried to bring what we felt were all the good components into this one that would fit within our Charter of Rights and Freedoms and within our laws and our values.

Richard.

Mr. Richard Zubrycki: The U.K. system is still fairly young, and they're going through a number of growing pains. England, of course, is a very different situation from Canada. It is a much smaller territory, has a much more compressed population, and has much more immigration and emigration for work purposes, commercial purposes, and that sort of thing with a variety of countries. That's why they're exploring the exchange of information with other databases. I'm sorry, I am not certain what stage of development that is at.

In the U.K. they have had a number of high-profile cases where the registry has not been very effective. As a result, they have called for changes to that system already. Some of those changes are modelled on Canada actually, changes that are similar to the dangerous offender provisions of the Criminal Code, things that can be done at the front end of a sentence to prevent further crime down the road, by sentencing sex offenders in different ways. So I don't know that they are directly comparable. They are looking at us for some ideas, and of course we will constantly monitor what is going on there and in other jurisdictions to see if there are significant improvements that could be brought in.

¿ (0935)

Mr. Lorne Nystrom: My last question would go back to the minister again. What can you say to the ordinary citizen in Regina to show how this system will be more effective than CPIC? You answered a bit of that question before, but why should ordinary citizens feel this system is going to be more effective than CPIC? What does it really mean to the person on Montague Street in Regina, Saskatchewan?

Hon. Wayne Easter: I think we have to understand that this is another tool for police in their investigations, and it has a preventive aspect to it regarding potential sex offences in the fact that people are on the registry, know they are on the registry, and know there is potential for their investigation. But keep in mind that it is another tool among many that police have with which to prevent but perhaps more to investigate sex crimes. You have a base that can be searched by address as well as by name, so if an event happens in a certain area, you can search by the addresses in that area.

The Chair: Thanks very much.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Chair, and thank you, Minister.

This is obviously an area of significant controversy. If you spend any time on this committee, you realize that bad facts can make bad law. We tend to react to high-profile issues, what's going on in Toronto currently, and things of that nature. Unfortunately, criminal law is far more garden variety. The day-to-day business of criminal courts is not nearly as high-profile in leading one into a lot of moral ambiguities that create some difficulties.

I want to put it to you, Minister, that this will also cover a situation in which a stepfather gets into relational difficulties with a stepdaughter. One thing leads to another, which leads to another, and they both find themselves in court over something that is a real difficulty in the family. For the sake of peace and restoring relationships in the family, the stepfather pleads guilty in some fashion or another to some minor offence and gets an absolute discharge. There is no record, no history, and then there is an order to provide information. The order to provide information means that for the next 10 years he is basically on an automatic suspect list whenever anything goes wrong in his neighbourhood. The way that will play out in a family is extremely difficult, but that is quite a realistic set of facts and will affect families in unintended ways. We have basically taken something that is a domestic difficulty, something that possibly could have been solved in other ways, and created a 10-year information sentence for this family. I would be interested in knowing how you can assure the people of Canada that these incidents will not make it more onerous for this family, rather than less onerous.

¿ (0940)

Hon. Wayne Easter: In fact, absolute discharges are not required to register. Through the examination of the American systems and problems that have arisen there, just like the one you raise, we have tried to develop the legislation in such a way that the concerns you raise would not be a problem. Proposed subsection 490.03(4) of the Criminal Code, we believe, is a provision to handle the potential situation you are talking about:

The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society

We believe we have managed, by looking at the other systems, to cover off the protection of individuals in the situations of which you speak.

Mr. John McKay: I appreciate the answer. It is, however, if I'm reading paragraph 4(1)(b) correctly, possible to be ordered into the system even though you've received an absolute discharge from the offence. You then go to a discretionary system to see whether the judge orders the information. I just want to make sure I'm reading this correctly.

Hon. Wayne Easter: That is referring to those not criminally responsible or mentally ill, as I understand it.

Richard, do you want to explain that further?

Mr. Richard Zubrycki: Well, as you may know, when a person is found not criminally responsible, they're not convicted of the offence and are in that sense not subject to a lot of disabilities that might apply. But the same conditional or absolute discharge is used for persons who are not criminally responsible but require detention in a mental health facility and supervision for some period of time.

The reference here is to those so-called NCR cases--“not criminally responsible” cases.

Mr. John McKay: Help me here. Under “Obligations of Sex Offenders”, subclause 4(1) says:

A sex offender shall report for the first time under an order, in person, to the registration centre nearest to their home address, within 15 days after

(b) they receive an absolute or conditional discharge for the offence

Am I reading that correctly?

Mr. Richard Zubrycki: I'm sorry, are you referring to paragraph 4(1)(b)?

Mr. John McKay: Yes.

Mr. Richard Zubrycki: As you read on, it says:

in connection with which the order is made if they are found not criminally responsible

Mr. John McKay: Then an absolute discharge is only applied to people who are not convicted by reason that they have a mental disorder?

Mr. Richard Zubrycki: Yes.

Mr. John McKay: So it's limited to that pool of people? Okay. That's helpful.

The Chair: Thank you. That's helpful to all of us.

Mr. Sorenson.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Minister, for appearing today and for having all your colleagues with you.

This is a bill that has frustrated our party in a major way. We've called for years for this to be brought down.

Reading a part of the bill here, proposed section 490.09 in clause 20, I quote: “Every person who knowingly contravenes an order”--that is, an order to register--

¿ (0945)

Hon. Wayne Easter: Tell me what page you're on.

Mr. Kevin Sorenson: It's page 21.

Hon. Wayne Easter: Thanks.

Mr. Kevin Sorenson: It reads:

Every person who knowingly contravenes an order—

--that's an order to register--

is guilty of an offence and liable,

(a) in the case of a first offence, on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both

Under clause 17 of the bill, a sex offender who knowingly provides false information--who is misleading, who is trying to deceive, who is trying to confuse someone by giving false information--is liable for a fine up to $10,000 and six months in jail.

Let's compare that with your other registry that you've already said today has been very controversial and has been not very cost-effective--the firearms registry.

The firearm owner who knowingly provides false information in that registry--which, Mr. Minister, you are now in charge of--if he provides false information to procure a registration or licence and is found guilty, he is liable for imprisonment up to five years in jail.

Let's go to another one. A sex offender who.... Or let's go back to Bill C-68, to that registry. They're liable to a term of imprisonment for up to ten years for failing to register their firearm. Someone who fails to register on the sex offender registry is liable, again, for up to five or six months, I think that one is, if they don't register their whereabouts.

On one hand, we have the firearm registry that's retroactive. I think whoever designed that registry felt it was important to get all those from 30, 40, 50 years ago who had a firearm on this registry. In fact, the Minister of Justice says it's all about public safety.

This registration is all about public safety, and yet you haven't addressed the retroactivity here.

On one hand, when a sex offender comes out of prison, he's not automatically even put on that registry; it has to go through an appeal or an application process for a prosecutor.

I guess my basic question is, why do you believe someone who has never broken the law once is more of a threat to Canadians or to public safety than someone who has been convicted of a sex offence, who has a victim who is scarred perhaps for the rest of her or his life, and who, given the recidivism rates of sex offences, is high-risk to offend again? Why is it that you weigh the firearm owner and put him in a category that's a much grosser position than that for the sex offender?

Hon. Wayne Easter: First, I just want to point out on the recidivism rates, Mr. Chair, that recidivism rates are not the same for all sex offences. The majority are first-time offenders and the majority never commit another sex offence. There are some for whom, yes, the recidivism rates are in fact higher.

You can certainly draw all kinds of comparisons, but keep in mind what the intent of the gun registry law was. The intent was not to criminalize so-called legitimate gun owners. The intent was for public safety, believing that legitimate gun owners out there would register. If they would register, it helps us in being able to find illegal weapons within the country, and it helps us in terms of public safety.

We don't want to take the time here now to debate the gun control issue, Mr. Chair. In terms of this legislation and retroactivity, all I can really say on it is that some of us around this table came here about 10 years ago, but you always learn lessons around this place as you bring in new laws. Certainly I think we learned some lessons in the case of Bill C-68. The provinces weren't onside.

We have a consensus with the provinces. Mr. White talked about the good work he did two years ago, but we now have a consensus with the provinces; we have them onside. They don't want this law to be retroactive--in terms of that consensus.

We believe, because we have that now, we're making better laws. We're doing a better job of communicating with the provinces, so we don't run into the same roadblocks we ran into with firearms, in which provinces were offside and there were challenges under the charter. We don't want to get into that; we want this to work, and work effectively from the beginning.

We have learned some lessons over the last ten years, Mr. Chair.

¿ (0950)

The Chair: Thank you.

Mr. O'Brien.

Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chairman. Thank you, Minister, for being here.

On the larger issue of sex offenders, how are we treating a situation where a sex offender is also a young offender? What opportunity is there, or what strategy is there, to track that individual?

Hon. Wayne Easter: I'll ask Richard to take that question, Mr. Chair.

Mr. Richard Zubrycki: Young offenders will be treated as adults if they're sentenced to an adult sentence in an adult court, or in a youth court to an adult sentence, and they'll be treated as adults on the registry.

If they're dealt with in the youth court as youth and given a youth sentence, then they won't be on the registry.

Mr. Pat O'Brien: That concerns me, Mr. Chairman. I imagine it would be possible to create a registry specific to young offenders who committed sexual offences, and I think the public would like to have as much protection as possible. My question is, has there been consideration of such a registry, and if we're not going forward with it, why not?

Mr. Richard Mosley: Yes, certainly there was consideration of this point. One of the difficulties when dealing with offences committed by young persons is that the general approach of the Youth Criminal Justice Act, and also of the international conventions to which Canada has adhered, is to accept the principle that young persons can reform and rehabilitate and to give them the greatest opportunities for that to happen.

Generally speaking, records relating to youth are kept close. They are not generally accessible, except in the circumstances in which they have committed very serious offences. In those circumstances, normally there would be access to an adult sentence. Clearly, where a young person has committed a very serious sexual offence and an adult sentence has been imposed, they will be on the registry.

That will continue beyond the point at which they become adults. Similarly, their records for those offences would be accessible after the point at which they have become adults.

Generally, Canada, along with most nations, has attempted to draw a distinction between the treatment afforded young persons and that afforded adults.

Mr. Pat O'Brien: Thank you.

Mr. Minister, I want to raise the issue of immigrants to Canada. What is the strategy to try to ascertain whether people moving to this country have any kind of record of sexual offences? What opportunity is there to ascertain that information and, assuming that person is going to be allowed into the country, to get them under our registry, even though they may have offended in another country? Well, they've obviously offended in another country if they're moving to Canada. Can you help me with that one?

Hon. Wayne Easter: That would mainly fall under the interview during immigration while coming into the country and establishing the right to be in this country, as I understand it. Maybe Richard can.... What we're talking about here in this bill is basically offences within our own country. There are certain criteria for people who want to come to work and contribute to our economy in Canada, which fall under other jurisdictions or departments. Maybe Richard could add further to that.

¿ (0955)

Mr. Richard Zubrycki: In fact there is no provision to add immigrants to the registry. Keeping in mind that just the evidentiary basis you'd have to establish to do so would be very difficult in a lot of cases, and there are different standards from country to country, and keeping in mind the sorts of charter protections and guarantees that are provided to Canadians who are placed on the registry, it would be virtually impossible to duplicate those. I'm certainly not the charter expert here, but I think this would be a very high-risk operation if we attempted it. But I'm sure it's taken into account in the immigration process and in terms of criminal investigation. If there are outstanding warrants or charges, this would be dealt with.

The Chair: Thank you very much.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Mr. Chairman, Mr. McKay raised by using an example the issue I raised regarding the danger posed by various offenders and the constitutionality of these provisions. You gave him the same answer as to me: the burden of proof will rest on the offender who will have to show that registration is an excessive imposition.

You say that the bill will meet the test of section 1 of the Charter. I find this incredible. In a free and democratic society, you do not have to demonstrate that you are not a danger. It is up to the Crown to demonstrate that I am potentially dangerous and not up to me to prove that I am not. Your answer says clearly that you are aware of a very high charter risk. I want you to take into consideration this very simple example.

The second example of Mr. O'Brien is just as simple. What do we do with young offenders? It will be up to the minor to demonstrate that he is not a danger to society and that registration is an excessive measure. This will never pass the test of section 1. In a free and democratic society, and especially when dealing with a young person, a minor, would it not be normal for the Crown to have to prove that the person is a danger to society? An ordinary citizen should not have to prove in court he or she is not a danger to society.

We have been given two very clear examples within 30 seconds. As you say yourself, this bill is very necessary and it must be passed as soon as possible, but you are ensuring that the bill we pass will be challenged.

Somebody mentioned the cost. People were wondering if it would cost only two million dollars to set up and 400 000 dollars a year to maintain. That is impossible! You also need to account for the cost of future challenges. It is obvious that the very first court case will go all the way to the Supreme Court. I think the risk assessment is faulty. Why not put the ... on the Crown? The result would be the same. Right now, the burden of proof is on the citizen. Why not place it on the Crown? The result would be the same but you would prevent the risk of a charter challenge resulting in the act being struck down.

[English]

Hon. Wayne Easter: I am going to ask Mr. Mosley to come in, in a minute.

As I said earlier, we believe there is an acceptable risk here to challenges to the court system. One of the difficulties, especially with a law of this type, is there is no question in my mind that the public in Canada wants us to find other tools to protect society and to assist in investigations about protecting from sexual predators and investigating those crimes. That's why we are putting forward this particular law.

Having said that, when coming forward with a law of this nature, we have tried to find the balance between where society wants to go and the protection of civil liberties and rights under the charter and all of those factors. We believe, with the consensus we have gained with the provinces, that this legislation will meet the test of time and any tests that may be applied to it through the court system.

I will ask Mr. Mosley to come in to expand on that.

À (1000)

Mr. Richard Mosley: Thank you, Mr. Chair.

Mr. Lanctôt is quite correct that in the usual context of the definition of offences, placing a reverse onus on the accused, the defendant, the subject of proceedings, does create a very high risk under the charter that the provision would be found invalid. In fact, the courts have struck down such provisions where the accused was required to disprove an element of the offence with which the accused was charged.

But in this context we are talking about a different situation, and one in which it would be extraordinarily difficult for the Crown to meet a standard of proof in relation to the concept of dangerousness respecting any one individual person before the court.

Moreover, the subject of the application.... And don't forget that the Crown does bear the initial onus of bringing the application and establishing the points in subclause 4(3) to the satisfaction of the court. But it would be extraordinarily difficult for the Crown then to move to proof of dangerousness of that particular individual simply based on the information available to the Crown, which would rarely go much beyond the fact of the conviction of the particular designated offence that qualifies the person for the registry.

No one is better situated to meet the standard that is set out in subclause 4(4) than the person against whom the application has been brought. They are in possession of the information and evidence that can be brought forward to the court to satisfy a court in the appropriate circumstances that in this particular case it would be grossly disproportionate to the public interest.

So in our view, although there remains some risk that a court would reach the conclusion Mr. Lanctôt has suggested, it's an acceptable risk, as Minister Easter has pointed out to the committee.

The Chair: Thank you very much.

Ms. Jennings, you have three minutes.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you. Some of my colleagues have raised some interesting points, some of which you've answered. I want to hit on the governing principles that have guided the federal government, and it's my understanding the provincial governments, on how the sex offender registry was to be conceived and actually built.

It's my understanding, and you mentioned, Minister, that it was to be effective, efficient, and enforceable.

So when one looks at the issue of whether it in fact should be the government through the Crown that carries the burden of showing that each and every sex offender should be included on the basis of a risk assessment, a risk of recidivism, of dangerousness, would that requirement meet the principles that guided the federal government, with the provinces, in how to build a sex offender registry, i.e., that it be effective, efficient, and enforceable? That's my first question.

The second question is in regard to what we have heard a lot about in the newspapers and from some colleagues on how effective, efficient, and enforceable the American system is, that it is in fact retroactive, etc. I would like you to address this. What is in fact the American system? Is it one system, as our registry would be? Is it retroactive, is it efficient, is it enforceable, and is it effective?

À (1005)

Hon. Wayne Easter: I'll turn to Richard for the first part of your question because Richard has been involved in much of the discussions with the provinces, and certainly we had agreement at the political level at the FPT meeting last fall.

I will ask Richard to answer with more details on the effective, efficient, and enforceable points you raised, Marlene.

In the U.S., in those states that allow public access to registry information, more than 20 have been ordered by the courts to either cease operation or to introduce elaborate safeguards to prevent abuse in the system. In a number of cases, boards and tribunals have been ordered to be established. They must individually assess each case to justify inclusion on the registry, and there is quite a mix within the U.S. because it's done at the state level.

As we indicated earlier, this is a national sex offender registry. It would be coordinated with the Ontario sex offender registry that's in place. We have that agreement now, but it is national, tapped into the CPIC system, which has a tremendous record in terms of its accessibility by police forces across the country. It has been established very much as a very credible national system.

So I think we have some advantages over the U.S. in that we do tend to operate more nationally in these kinds of cases.

Richard, perhaps you could elaborate on the first point.

Mr. Richard Zubrycki: As Minister Easter has already said, it was in response to a request from all provinces, a unanimous resolution passed at a premiers' conference, that we assist in developing a national registry. They all said they wanted to have access to registries and they understood they could create their own, but a national system would be much more effective. That's when that collaboration began, which was only in November of the year before, and we introduced the legislation then in December. So we had about a year that we worked together.

We discussed all the various models and different approaches and other systems. There was consensus on a couple of things--not unanimous; there were differences of view. First of all, the provinces said, once a person has committed any clear sex offence, they cross a threshold where even though the risk may be very low, they should be on a system. So that was one conclusion we came to.

Another one is that it must be offence-based rather than risk-based. A person who is convicted of a particular kind of offence, which is on a list that's in the Criminal Code, about 30 offences, should go on the registry, irrespective of risk. We know that for the vast majority of these offenders, the risk is quite low, but nobody can predict human behaviour; nobody can see the future.

The view was that it should be quite a comprehensive system. It should include all levels of risk in quite a comprehensive fashion. Of course, that does raise some questions of efficiency and effectiveness because there's more data to be poured through. Of course, one advantage of this system is that it's searchable. One of the problems with CPIC is it's not searchable. Even if you had addresses, you couldn't ask for the addresses all in one place. So we've built in measures technologically that hopefully will make it effective and efficient.

In terms of being enforceable, of course, this goes to the charter, and I'm not the charter expert. This is a high-risk system when you're including all levels of risk. As Mr. Lanctôt has said, this is problematic. There has to be a lot of protection so individuals can defend themselves against some improper application, and that's why you'll see all those provisions there.

Hon. Wayne Easter: Mr. Chair, could Mr. Mosley introduce one more point on the U.S. experience?

À (1010)

The Chair: Mr. Mosley certainly can.

Hon. Wayne Easter: I see you fidgeting on time, I believe.

Mr. Richard Mosley: Thank you, Mr. Chairman.

I would like to say that we have learned a great deal from the U.S. experience, from the legal perspective, and from our understanding of the constitutional issues that arise in this context. As I expect members of the committee are aware, the U.S. Supreme Court recently upheld state registry systems in the face of challenges, including a challenge based on the issue that Mr. Lanctôt has put on the table, that of individualized assessments of dangerousness.

Although we don't rely on American jurisprudence, and it certainly is not binding in this country, and our courts can and have parted company with the approach taken by the American courts in the constitutional area, it does assist us in understanding the issues. It also lends support to the proposition that a Canadian statute that may be challenged under the charter is defensible under section 1 as being a reasonable limit on the rights of the individual in a free and democratic society. In making that argument, pointing to the U.S. experience of upholding similar provisions can be of assistance to us in defending the legislation.

The Chair: Thank you very much.

Mr. Nystrom.

Mr. Lorne Nystrom: I want to go back to CPIC one more time with the minister. I understand that the federal-provincial-territorial working group on high-risk offenders concluded that there is no pressing need for a new database. There was already a substantial basis for achieving public protection with the existing database. I'd like to know how you respond to that.

The working group recommended enhancing and modernizing CPIC. Since that was a recommendation of the working group, which is a federal-provincial-territorial working group, and you're talking here about cooperation with the provinces, and going on what the provinces want, along with the federal government, why did you choose to set up a new registry instead of enhancing CPIC?

Hon. Wayne Easter: In order to be able to gain what we felt was the necessary information...I believe, in Richard's answer, when you assess CPIC, yes, there's certain information on there, but with the sex offender registry, and given the nature of that crime, there are other characteristics you need within the system, like the address.

As I indicated earlier, there will be some further amendments that we will be bringing forward in which we will be able to add more information to the sex offender registry under CPIC other than just the address.

We saw that as important, and we proposed the sex offender registry at the meeting with federal-provincial-territorial leaders in November. It was felt we had the consensus to move ahead and go beyond what the working group had seen at the time of the report you're talking about.

So we see it as perhaps more progressive legislation in dealing effectively, from an investigative point of view, with a problem society has.

I don't know if Mr. Killam wants to add anything more in terms of how the system works.

The system is ready to roll, basically.

A/Comm Tim Killam: As I said before, the CPIC system is already being renewed. As we know, it received a fair amount of money in the last number of years to be renewed.

The sex offender database is a separate database from CPIC, but it uses CPIC to do the queries. The queries are going to be what we would call “smart” queries. They would allow us to do much more with the data so that you could get through the information and centre on a geographic area and perhaps on some distinguishable characteristics, on some of the information that was put into the database that you wouldn't have on the CPIC system.

Mr. Lorne Nystrom: My next question is to the Solicitor General, in his capacity--

The Chair: Mr. Nystrom, you'll have to save your next question for the next round. That's three minutes.

Mr. Maloney.

À (1015)

Mr. John Maloney (Erie—Lincoln, Lib.): Minister, I'd like to discuss retroactivity again.

This legislation, as proposed, will not be retroactive because of concerns about charter challenges. Notwithstanding this, you're prepared to harmonize or coordinate the Ontario system, which is existing in this legislation or will be covered by it, and that is an element of retroactivity.

Further, as I understand it, the Ontario legislation itself was retroactive in that it was to cover those offenders who were serving a sentence for a sexual offence on the day the legislation was proclaimed, which is another element of retroactivity.

How do you reconcile those elements of retroactivity with the position that it cannot have retroactive application per se across the country?

Hon. Wayne Easter: First, keep in mind that in terms of the Ontario experience it wasn't made retroactive in a broad sense either, and there is a challenge before that aspect of retroactivity that hasn't been determined yet on the Ontario sex offender registry. So we know that challenge is there.

I think the words Mr. Mosley used earlier was that there is “acceptable risk” in terms of going back to those names, in the Ontario experience, that are on their registry. We believe there's acceptable risk there, and that has been negotiated with the Province of Ontario.

Mr. John Maloney: What is the status of that challenge? Is it before the Court of Appeal in Ontario?

Hon. Wayne Easter: To the best of my knowledge, John, it's supposed to be heard in September.

Mr. John Maloney: Now, if we did make this retroactive and there was a challenge and it was struck down, they would just strike out this clause and not the whole bill, correct?

Hon. Wayne Easter: The question is, if they did challenge on retroactivity, would they just challenge that clause and not the whole bill, if you lost a challenge?

Mr. Richard Mosley: Well, that's possible. I would like to clarify that. I understand the case is before the Ontario Superior Court, not the Court of Appeal, so it hasn't gone through the first stage of the challenge proceedings as yet.

They could challenge just the individual portion of the scheme that affected that individual. They could challenge the entire scheme as being inherently flawed by applying to persons who had been sentenced and who had substantially served their sentence. The issue all comes down to this. Is it double punishment for someone who has been convicted and sentenced previously and who may well be near the end of their sentence when they're required to register?

That risk is lessened with those on the Ontario registry, and as Minister Easter has pointed out, it's not truly a retroactive scheme. They applied it to those who were in custody as of the day the law came into effect. So for anyone who might still be serving a sentence, the law, on its face, says it would appear to apply to anyone serving a sentence, but if they were out of custody, practically, I understand, it didn't apply to those persons.

So the risk is increased the broader you spread the net. For those who are on a registry, it would be more difficult for them to argue that being moved from the Ontario registry to the federal registry materially alters their circumstances in any way. But that argument would remain, of course, open to anyone who was previously convicted and who was not on any registry at the time this comes into effect.

Mr. John Maloney: Are you prepared to even consider following or mimicking the Ontario situation insofar as it would apply to individuals who are in custody at the time the legislation is proclaimed?

À (1020)

The Chair: Mr. Mosley.

Mr. Richard Mosley (Assistant Deputy Minister, Department of Justice): This question would require some further consultations with the provinces. From the outset, this has not been exclusively a charter or a legal issue. It has involved other considerations. And as already noted, not all of the provinces were supportive of the application of the statute retroactively. We'd have to go back and discuss with them whether or not that would be a feasible avenue to pursue.

The Chair: Mr. Minister.

Hon. Wayne Easter: Again, Mr. Chair, based on my discussions with ministers, I know there are some who are certainly in favour of going to retroactivity. There are some who are very strongly opposed. We have built a consensus here for a piece of legislation, I believe, that will work. And if we were to get into that kind of discussion, to go back to the provinces, we would be looking at, I think, delaying what would be an important tool for police in terms of their work, with little likelihood, in my view, of gaining the consensus of some provinces on it.

The Chair: Thank you very much, Mr. Minister.

Mr. Cadman, for three minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

First of all, I want to be on the record to register my disappointment on how long it took us to get here.

Minister, you alluded to the ongoing case in Toronto. Of course, we're all concerned with that.

I must point out there was a case in B.C., in my city, in the year 2000, when a young girl named Heather Thomas was murdered. People were clamouring for a registry at that time, to the extent that the Liberal candidate in that riding, in the federal election of 2000, actually had this in his platform. He said he had the support of the Prime Minister to bring this whole issue forward.

So, again, I'm concerned about how long it took us to get here.

My other concern is, as Mr. O'Brien has raised, the treatment of young offenders under this particular legislation. I go back to a case where we had a sixteen-year-old in British Columbia who was on probation in 1992 for child molestation and a year later murdered a six-year-old girl, after raping her. I'm extremely concerned about the fact that at 17 years and 11 months a person will not get on the registry and at 18 years plus one day they will, for the same offence.

My question goes to the issue that the Crown must make the application to get these people onto this registry. Certainly, for some designated offences, there appears to be an almost automatic...but they're all appealable, they're all challengeable, under the exception provision.

I wonder if you've anticipated how many of these offenders or these people who have been convicted are going to be challenging this. I would anticipate that every single one of them is going to challenge and clog up the system.

Hon. Wayne Easter: I'll ask Richard to come in on the specifics of your point, but Mr. Cadman, I want to point out again that yes, I think we all recognize your concerns. This is not, as you know, based on the most recent tragic and violent incident in Toronto. This is based on a previous history of a number of incidents, including the one in B.C.

What we are trying to do here is progressively move forward and add another tool for police to do their work, so we are here now and the legislation is before us.

But this is not the only tool related to high-risk sex offenders. There are others. For those high-risk sex offenders who are known to be in the community and are of concern, there are many other tools for the police and others to use. There are the dangerous offender and long-term offender procedures. There are section 810.01 orders, which can include conditions to treat and control behaviour. There is community notification, and there's the national screening system, among others.

I just want to emphasize this is not the only tool that's out there, and although we're talking about sex offences here, we've also tightened up the laws as they relate to child pornography. So I think in the last year we've made some fairly major steps forward.

On the specifics of the question, in terms of numbers, I'll turn to Richard.

À (1025)

Mr. Richard Zubrycki: We really have no way of knowing what the workload will be. I think in the experience in other jurisdictions in the U.S., litigation based on the day-to-day cases is not very high. I think for a lot of sex offenders, once they get through the initial process, they would like to submerge their situation rather than raise their profile.

The way the process will work is that upon the Crown applying for an order, the subject of that order would have the opportunity to rebut that application by demonstrating that it would be grossly disproportionate, as Mr. Mosley has said. So that's really not a separate proceeding. It probably would be all part of the same proceeding and wouldn't take a lot of time.

There is also provision for appeals. Those appeals, of course, could be more time consuming. Again, we don't anticipate a heavy workload, but we really won't know until we're into that situation.

As has been said, there's only one charter challenge to the Ontario system. That's the first challenge that has been brought forward in two or three years.

Mr. Chuck Cadman: Thank you.

The Chair: Ms. Jennings.

Mrs. Marlene Jennings: I had to be absent for a few minutes, so I'm not sure if this question has been asked.

There are a number of individuals in Canada who have called not only for a sex offender registry, but one that has access for the public so that any individual would be able to go into the site and check up on their neighbours to see if they are on it, or go by address, etc.

I would like to know if this sex offender registry is going to be publicly accessible. If it is, why? If it is not, why?

Hon. Wayne Easter: No, it is definitely not going to be publicly accessible. As you go through the bill you will see the various protections we have placed in the bill to ensure that when people who have, to a great extent, paid the price in the criminal justice system for a sex offence and are now back to being law-abiding citizens, while their name may be on the registry, it is the hope that those people will never be heard of again. It is to be used only as an investigative tool by police and those who are designated to use the registry system.

There are very strong protections in the act to ensure that those individuals' identities, the names on the registry, are not violated, and there are very severe penalties should that information be made public. It is there for the police services in the country to use in terms of the investigation of a crime, basically for that purpose.

Is there anything you want to add, Richard?

Mrs. Marlene Jennings: Are there any sex offender registries that are open to the public? And to what extent?

Hon. Wayne Easter: Go ahead, Richard.

Mr. Richard Zubrycki: There are quite a few in the States that provide Internet access, so you can input a query and get information, photographs, and that sort of thing. This is the subject, as has been said, of much of the litigation addressed to those systems. In many cases, the courts are intervening and saying either stop providing public access or set up a whole series of safeguards for people who are placed on the registry--special tribunals, appeal processes, and that sort of thing.

I would just remind people that every province does have a community notification process to notify the community about high-risk cases. Those can be targeted to nearby schools, the apartment building where the person lives, the block, the community. This is entirely up to police to decide what is appropriate and to get approval through the process that exists.

So where it's truly a matter of community concern, there are provisions to do that.

À (1030)

The Chair: Thank you very much.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Thank you. I have two questions.

We are talking about a sexual offender registry. How come we are talking in proposed paragraph 490.02(1)a) of clause 20 of the bill, page 14, about a list of offences which have absolutely nothing to do with sexual offences? These deal simply with circumstances that lend themselves to the simultaneous commission of a sexual offence. Could you explain why this whole list of offences other than sexual offences has been included in this bill that purports to deal with a sexual offender registry.

Secondly, in the definitions clause it says:

“young person“ has the same meaning as in subsection 2(1) of the Young Offenders Act.

Further down, on page 16, in proposed subsection 490.02(2), it reads:

(2) For the purpose of subsections 490.03 to 490.09, “person“ includes a young person if the young person is convicted of or found not criminally responsible on account of a mental disorder for the offence in question in ordinary court.

It has been mentioned several times here that young people are not included under this bill but they are specifically referred to in the bill. Could you provide some clarification? Thank you.

[English]

Hon. Wayne Easter: I'll ask Mr. Mosley to come in on this as well, or Richard.

I think you'd understand why they are listed in that section of the act. The Crown would have to prove that those events happened as a result of the carrying out or the intent to carry out a sexual offence.

Mr. Mosley, do you want to explain it with more legalese than me?

Mr. Richard Mosley: Perhaps not in legalese, but just in these terms, Minister.

For example, in the offence of breaking and entering a dwelling house with intent to commit an indictable offence, that offence is complete as described, but the offence the person intended to commit on breaking into the premises may well have been a sexual assault. The Crown has to establish that.

Similarly, with the next offence on the list, having broken in and committing an indictable offence--all of these may well relate to the commission of a sexual offence. On their face, on the offender's record, that may not be clear.

We've had some experience with this in the context of the DNA data bank. Initially it started with a fairly small list of offences, where clear bodily substances would be left on the scene of the crime. That list has been expanded, and I expect it will be expanded even further, because in the reality of today, you can find DNA samples in a much broader range of circumstances.

Many of these offences may well have been committed in the context of the commission of a sexual act, but on the face of the offence for which the offender is convicted, that's not self-evident, nor would it necessarily be self-evident on the record of the conviction that is held in the CPIC system.

The Chair: Mr. McKay.

Mr. John McKay: There is a bit of a bizarre irony to this sex offender registry system. If I break into a house with an intent to just simply create mayhem and take things and destroy the house, I may not end up on the sex offender registry, but if I still do all of the same stuff and commit an incidental sexual offence, I do end up on the registry system. I don't know how that's going to be perceived as a philosophical or logical equality, let alone equality before the law.

Again, to use another bizarre example, if I do an incidental sexual offence against one of my children, I will not only be sentenced but I will end up on this registry. But if I commit a very serious assault against that same child, possibly with far greater trauma than any minor sexual touching may incur, then all I'm going to be exposed to is the normal Criminal Code offences.

Help me here. How is that equal treatment before the law? Why wouldn't my very serious assault on my own child be of far greater interest to the police and to the community at large than a rather minor sexual offence? It seems to me that the police are interested in all that information regardless. Why wouldn't this system simply be an expanded CPIC as opposed to a sex offender registry?

À (1035)

Hon. Wayne Easter: Mr. Mosley may want to come in, but both would apply, as I understand it, Mr. McKay, and it is a sex offender registry. That is its whole purpose. If there's been an infraction of a sexual offence with all the other factors that may or may not go with it, that's the whole purpose. If it's related to a sexual offence, then people are put on the registry, with or without the other conditions.

Mr. John McKay: You have to appreciate the bizarre irony here, Minister, that a far more serious Criminal Code offence just occurred in my home and the results of that will not occur in the registry system, yet a relatively minor sexual offence occurs in the same home and it does attract this registration.

Is there not something philosophically amiss about it?

Hon. Wayne Easter: Mr. Zubrycki.

Mr. Richard Zubrycki: As I said before, the system is not risk-based; it is offence-based. That was a conscious decision that was taken, so discriminating between greater and lesser degrees of harm or risk is really not a part of the system. It really is based on the act and it's meant to keep track of sex offenders.

But the committee that studied this issue was comprised of senior prosecutors or senior executives in the prosecutorial chain of command. They discussed at great length what the list should be like and how it should be constructed, and they were speaking from a great deal of experience, that there are cases like these that clearly are sexual in nature but you would never know it from the offence that is actually charged and convicted.

As Mr. Mosley said, the Crown would certainly have to lead evidence to demonstrate that the intention, the motivation, was sexual. But if that's the case, if someone's convicted of trespass by night and they're really stalking somebody, well, that should be demonstrated and it should go on the registry. If it's simply a matter of harming another person, that is really not relevant to this particular tool.

The Chair: Thank you, Mr. McKay.

Mr. Nystrom.

Mr. Lorne Nystrom: I have a question for the minister, drawing on his considerable background in the interpretation of the law. Proposed section 490.06 will allow a court to terminate an order to register if the court is satisfied that the sex offender has established that the impact on him or her would be disproportionate to the public interest. In other words, if it's disproportionate to the public interest, they can get off the list.

My question then, Mr. Chair, would be this. What threshold would the court use in that test? What is the threshold in terms of the offender on the list being disproportionate to the public interest, and what assurances can the minister make that the courts would interpret this clause in a narrow and strict manner?

À (1040)

Hon. Wayne Easter: I'll ask Mr. Mosley to come in. It really relates to the balance of probabilities, but Mr. Mosley can maybe give more detail.

Mr. Richard Mosley: It's a point I should have perhaps made earlier in response to Mr. Lanctôt's question about the reverse onus, because this is another variant, although clearly not the classic reverse onus in the context of pre-conviction. This is post-conviction--a person who has been found guilty, convicted, and sentenced of the crime. Usually when the language, if it is satisfied, is employed in our criminal statutes, that means it is done on a balance of probabilities, i.e., it's more likely than not that the test has been satisfied.

Hon. Wayne Easter: As to the second part of your question, Mr. Nystrom, I think there has to be a certain trust in the court system that the intent of the law in those cases is to do as we've outlined in the document. That's the intent of the law--to provide that option to people if they can justify that option in their own individual case.

The Chair: Thank you very much, Mr. Nystrom.

Mr. Maloney.

Mr. John Maloney: Following up on Mr. Nystrom's question and your response, Mr. Zubrycki has said it's not a risk-based system. But on the arguments in Mr. Nystrom's question of what the courts would look at and whether an individual could challenge, is that not risk-based?

Hon. Wayne Easter: As I understand it--and I'll ask either of the Richards to come in--the registry itself and the various conditions that Mr. McKay was talking about earlier are based on the offence. What we're talking about here in Lorne's question is, yes, the offence has occurred, but the court would have to determine some of its decision based on risk, I would expect, in terms of that challenge.

Richard or Richard?

Mr. Richard Zubrycki: Here again, it's not so much a question of risk as it is a question of balancing the interests of the subject of the application or the subject of the appeal. We use the grossly disproportionate test in a number of places. It's a question of whether the intervention in that person's life is warranted for the protection of the public. If a court decides yes--and keep in mind that the purpose of the act is to include virtually all manner of sexual offenders, but if the court says it just goes too far, then they would be able to make that decision.

Hon. Wayne Easter: I think Mr. Mosley wants to add to that.

Mr. Richard Mosley: As to your point in your question, Mr. Maloney, there is an element of risk assessment when you get to the question of what would be grossly disproportionate to the public interest and the protection of society. I would expect that an offender who is applying under this provision for termination would argue, would advance evidence, that they are not in fact a risk to the public in those circumstances.

We have had some experience with the application of this test in the DNA context, and my colleague just provided me with a series of cases that have arisen under the comparable provisions in that area, and the courts have had not much difficulty dealing with this issue in that context. We would expect similarly that when they're asked to apply their minds to this standard, they would be able to work it out fairly easily.

Mr. John Maloney: A final question. Are the criteria offences under the federal statutes the same as the criteria offences under the Ontario statute?

Mr. Richard Zubrycki: There are about three times as many in this statute. I think in Ontario there are something like 11 or 12, and there are more like 30 on the list of primary offences.

À (1045)

Mr. John Maloney: Would this--

The Chair: Mr. Maloney, I'm going to have to move on. I have a long list and very little time.

Mr. White.

Mr. Randy White: Thank you, Mr. Chairman.

I want to summarize what I'm hearing here in trying to understand the difference between the original model of Christopher's bill and what we have before us today. Correct me if I'm wrong in these facts.

We will have a sex offender registry in this country that on opening day will have no one on it except for sex offenders who are currently incarcerated in Ontario. We'll have a sex offender registry that gives less of a penalty than one would get for not registering on the gun registry, for instance. We'll have a registry that will not record people under the age of 18, unless convicted as adults. We'll have a registry that it is not mandatory to be on--it has a schedule of offences but it's not mandatory--and registration is dependent upon Crown counsel applying for that individual. We'll have a registry that allows a sex offender to stay off the list by appealing in court. We'll have a registry that will not record sex offenders from other countries immigrating to Canada--the United States, for example. I must tell you that we have those individuals in this country today. We will have a registry that will leave all of these problems of sex offences up to a judge in the final day who will finally decide if the privacy and liberty of an offender is impacting them so much that they should not be on the registry in the first place.

Am I factually incorrect in anything I've said?

Hon. Wayne Easter: In my view, there are a number of areas where I would argue very considerably differently. The fact of the matter is, Mr. Chair, what we have here is a national sex offender registry that will be another tool for the police to be able to use in terms of their investigations. We have not made it retroactive, and that is based on the consensus we have with the provinces. We do believe that yes, you have to start somewhere.

Is the member suggesting that we not come forward with a sex offender registry at all, or is he suggesting we come forward with one that will spend all its time in the courts? I would hope not.

I see it as a progressive piece of legislation that will add to the tools the police have at their disposal to be able to do their job better in terms of investigating sex offences.

As to the penalties, Mr. White leaves the impression that anybody convicted of a sexual offence, no matter how serious, will be able to appeal to the court and he'll get off scot-free. That's not the case, Mr. Chair. Those individuals will be upheld by the court, in fact, to be on the list. It will be a valuable tool.

Mr. Randy White: I really wasn't interested in that kind of response. I'm trying for the committee, for the nation, to understand seven specific points in here, so that my colleagues on all sides can understand. I don't really want a rhetorical answer. I want to know if any of these are factually incorrect. I am not trying to give the impression one way or another. I am attempting to clarify in my own mind whether we have a sex offender registry coming at us that has so many flaws in it that I have to either vote against it or try to get the government to change its mind, or that I'm incorrectly making some assumptions here and I could support the registry. That's all I'm trying to do, and I'd like some answers specifically to these questions.

À (1050)

Hon. Wayne Easter: Mr. Chair, I think we do, on Mr. White's points, get into some different interpretations on how the sex offender registry would operate. I'm saying that I believe what we will have at the end of the day is a sex offender registry that will be an important tool for police, that will have, over time, people on that list who--

Mr. Randy White: That's not the question.

The Chair: Your time is up.

Mr. Easter.

Hon. Wayne Easter: I think Mr. White is trying to use this to blow the issue out of proportion, in terms of his criticism of this particular act.

As I said in the beginning, Mr. Chair, as a government, and as the Solicitor General, we have to deal within the realm of reality, of what's possible. We're putting forward a piece of legislation that will improve the system. I believe it is possible to put people on that list, to make our communities safer, and to give the police the tools to keep those communities safer, give them the investigative tools to be able to investigate sexual offences within the communities.

The Chair: Thank you, Mr. Easter.

Mr. McKay, very quickly.

Mr. John McKay: Thank you, Chair.

I was thinking about the response to my last question, the logical and legal inconsistencies in the response, and the bizarre situation that would necessarily occur when--if we use the Richards again--Mr. Mosley is a well-known assaulter who has many assaults, living beside Mr. Zubrycki, who has a minor sexual offence. One will end up on the system and the other won't, when possibly Mr. Mosley is a far greater harm to society.

Why isn't this a violent offender registry as opposed to a sex offender registry? It seems to me almost too narrow in that respect, that really the protection Canadians need to be afforded here is on the basis of violence rather than on the basis of sexual issues.

Hon. Wayne Easter: If Mr. Mosley wants to come in and add further, he's entitled to do that, but the fact is, Mr. McKay, we already have under CPIC a violent offender registry. Those people who have been convicted of certain violent crimes are on that system. That information is there.

As I said earlier, in terms of these kinds of crimes, there are the dangerous offender and long-term offender procedures. There's community notification in terms of some serious sex offender crimes.

Mr. Mosley, do you want to add further?

Mr. Richard Mosley: Well, I would suggest that the person who's described, Mr. McKay, is well-known to the local police, may well be still under the supervision of the authorities, serving sentence under probation--the long-term offender scheme that the minister has referred to.

The advantage of the sex offender information registry is that you may be dealing with somebody who has been convicted just once and has moved out of that community, whereas the person who has a long history of violent assaults is likely very well known to the local police.

Mr. John McKay: That's something of a cold comfort. What this will end up as is a kind of enhanced CPIC. Why not just simply create this information for the use of police officers on all violent offences, instead of narrowing it, if you will, to offences with respect to a sexual nature?

Hon. Wayne Easter: I think, Mr. McKay, if I could answer that, it's in part based on the requests coming forward from the provinces, but I believe also the general community. There is a view, not only within Canada but around the world, that there need to be specific efforts made to protect society from sexual offenders. Also, there need to be tools put in place to assist police in terms of those investigations of sexual offences, should they occur.

I think what we're doing as a government is responding to the wants and desires of society to come forward with that kind of legislation. That's why it's specifically targeted as a sex offender registry.

I see your hand is up, Mr. Chair, but there's one other point I want to make.

À (1055)

The Chair: Go ahead, Mr. Minister.

Hon. Wayne Easter: I'd hoped to be able to do this earlier, but we will be proposing some substantive motions, and I'll mention perhaps the most...I guess they're all important, Mr. Chair. But I know there were concerns within the legislation in terms of reasonable grounds to believe. We're looking at proposing a motion to change it to reasonable grounds to “suspect” instead of “believe”. We believe that would lower the threshold test so that police access to the national SOR would be broad enough to ensure the quick use of the registry in incidents where a sexual component is not immediately evident.

We're also looking at trying to provide additional information about sex offenders--there's the possibility of photographs in the future--eye and hair colour, etc., fingerprints. Another amendment we propose will be to add the date and place of the commission of the offence to give a little more information.

Those are some concerns I know committee members have had and others in the community want us to address. I'm putting that on the table so members have that information. They're not prepared yet; they're proposed. When we have them prepared...I just wanted to give you a heads-up, in fairness to committee members.

The Chair: Thank you very much.

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: Mr. Chairman, I would like to follow up on one of the seven points raised by Mr. White. I did not get an answer in the last round to my question regarding young offenders. So I will try my luck once more.

I understood that minors under age 18 are not included in the register, except if they have been sentenced to an adult sentence. However, this is not what I read in the bill and I would like to have an explanation.

On page 12, in proposed section 490.02, there is a definition of “young person“ that refers to the Young Offenders Act. Since this Act has been replaced by another, this may require an amendment.

“young person“ has the same meaning as in subsection 2(1) of the Young Offenders Act.

This needs to be corrected, but I understand what is meant by young person.

So now, let us turn to page 16. Under proposed subsection 490.02(2), it says:

(2) For the purpose of sections 490.03 to 490.09, “person“ includes a young person if the young person is convicted of, or found not criminally responsible on account of a mental disorder for the offence in question in ordinary court.

So this refers to the young person.

Next we see in proposed section 490.03:

490.03 (1) A court shall, on application of the prosecutor,... as soon as possible after it imposes a sentence on the person...

Nowhere does it say that the sentence needs to be an adult sentence. So this means that young people are covered under your bill. This is contrary to what I have heard here. So I would like to have an explanation because this is not what the bill says. I hope I will get a clearer answer than that given to Mr. White.

[English]

Hon. Wayne Easter: I'll turn to Mr. Mosley and then maybe Mr. Zubrycki.

Mr. Richard Mosley: Just to aid in the interpretation Mr. Lanctôt referred to, I'd also note page 25, paragraph 24(c), which would amend subsection 490.02(2) of the Criminal Code by providing for the purpose of that section and sections 490.03 to 490.09, that “person” includes a young person, if the young person is liable to an adult sentence for the offence in question.

In the context of the provisions Mr. Lanctôt has referred to, it would be a young person found not criminally responsible on account of a mental disorder if the offence for which they are found not criminally responsible is an offence for which they could be liable to an adult penalty.

Á (1100)

The Chair: I'll now go to Ms. Jennings.

Mrs. Marlene Jennings: The issue is whether or not people coming to Canada as landed immigrants who have previously been convicted of a sex offence that we would find in the offences listed under Bill C-23 would be listed in the registry.

I'm not an expert on immigration, but it seems to me from the little I do know about it that when someone applies to immigrate to Canada, there is a security check done to determine whether or not that person has been convicted of an offence that in Canada would be tried or charged as summary or indictable. It seems to me under the legislation that person would fall under an inadmissible class.

If you're not sure about that, you can always provide the information through the chair in writing. But it seems to me then that the issue that was raised by some of my colleagues on this is in fact a false issue.

Hon. Wayne Easter: Well, Mr. Chair, we can get back to the committee on that when we check with Immigration and others. We'll get back to you on it.

The Chair: Thank you very much.

I want to thank the panel, in particular the minister, and members of the committee for the thorough exploration of the issue.

I'm going to adjourn, and I would ask the next panel to please come forward.