I call the meeting to order.
This is meeting number 49 of the Standing Committee on Justice and Human Rights, and for the record, today is Wednesday, February 16, 2011. This meeting is being televised.
You have before you the agenda for today. We're continuing our review of Bill . After we hear three witnesses who are before us right now, we'll move to clause-by-clause consideration of the bill.
Before we move forward, there are two items.
We received a communication from a witness who testified at last Wednesday's meeting with a clarification of his status. Mr. Randall Fletcher was shown on the meeting agenda as representing the Office of the Attorney General of Prince Edward Island. You may recall that the chair sought to confirm his representation of the AG during Mr. Fletcher's testimony, at which time Mr. Fletcher appeared to confirm that he understood his presentation had been reviewed by the minister. Last Thursday, Mr. Fletcher sent a clarifying note to the clerk. I'll read it verbatim:
Prior to my videoconference presentation to the Standing Committee on Justice and Human Rights yesterday I advised the person I report to about the request to present. I was not certain if this was being passed on to the minister and had not had a chance to pursue the matter before the presentation. When I was introduced as representing the Department of the Attorney General for P.E.I., I thought perhaps there had been some communication to that effect, as I had not represented myself as doing so in my own communications. As of this morning I believe that the matter was not put before the minister and would like to clarify that the opinions I expressed in the session may, or may not, represent those of the department. I will attempt to get further clarification on this but do not want any current misunderstanding to continue.
That's the end of his quote. That's just for the record. He wanted us to ensure that it was on the record.
The second item, before we move to our witnesses, is that you have before you the eighth report of our Subcommittee on Agenda and Procedure of the Standing Committee on Justice and Human Rights. At that meeting we decided to move to Bill next, meaning the Youth Criminal Justice Act amendments, and it was agreed that we were going to ask approximately 21 witnesses to either come for a first time or to return for further testimony. We've agreed that the panels will consist of no more than three groups apiece per hour. That's your eighth report. I believe it accurately reflects what we settled on there.
Do we have a mover for that report? It is Monsieur Lemay.
(Motion agreed to)
The Chair: Moving to our witnesses, we have with us Julie McAuley, Craig Grimes, and Mia Dauvergne. They are representing Statistics Canada and are all coming back to testify.
You know the process. I don't know if you've prepared remarks. Would you like to start? Then we'll open the floor to questions from the members.
Thank you very much, and thank you for the opportunity to present to the committee on the act to protect children from sexual predators.
Statistics Canada does not take a position on the bill.
The presentation we have prepared contains our most recent data on the sexual offences committed against children that are the subject of this bill. They include only the sexual offences against children that have come to the attention of the police and the courts.
The version we are presenting to you today differs slightly from the advance copy you received. During the verification process we noticed an anomaly with data received from Quebec; that anomaly has been corrected. Slides 4, 5, and 6 of the presentation were affected.
All data sources used are clearly indicated on the slides, as are any pertinent data notes. My colleagues, Ms. Mia Dauvergne and Mr. Craig Grimes, will help answer any questions.
Please turn to slide 2 in the presentation.
Using data received from police services across Canada, we can examine trends in police-reported incidents of sexual offences committed against children. Over the last ten years, the rate of overall police-reported sexual offences committed against children has remained relatively stable.
Sexual offences committed against children can be grouped into two categories: sexual assault and other sexual offences.
The rate of police-reported sexual assaults committed against children has been generally declining since 2005, while the rate of other sexual offences committed against children has increased in the last two years.
On slide 3, we can examine the geographical variation in the rates and number of victims of police-reported sexual offences against children.
In 2009, the highest rates of these offences in Canada were in the north. While rates were used to ensure that trends are not biased by variations in populations, it is important to note that the number of incidents of these offences in the north is considerably lower than in most provinces.
Slide 4 provides an overview of the ages of police-reported sexual assaults against children. In general, for police-reported sexual offences committed against children and youth, we know that females are more likely than males to be the victims and that teenage girls are the most at risk. This finding holds true for victims of police-reported offences of child sexual assault.
In 2009, more young females than males were victims of police-reported—
Slide 5 provides an overview of the ages of victims of police-reported other sexual offences committed against children. While females are more likely than males to be victims, the distribution of the victim's age is different from what we saw on slide 4 for sexual assaults. While the number of incidents for boys remains relatively stable regardless of age, the risk of victimization for girls peaked at age 13.
The next three slides show 2009 police-reported data on the relationship between victims and those accused of committing a sexual offence against a child. As you will see, as children age, the accused-victim relationship generally shifts from parents and other family members being the most frequent perpetrators to acquaintances being the most frequent.
Slide 6 focuses on children aged 0-5 years. Here we see that parents and other family members comprise the majority of accused persons. In 2009, almost 6 in 10 boys and close to 7 in 10 girls were victimized by a family member.
On slide 7 we look at the accused-victim relationship for reported sex offences involving children 6 to 11 years old. As you can see, while boys and girls in this age range were still most likely to be victimized by a parent or other family member, the proportions were less than those for younger children. In contrast, 6- to 11-year-olds, particularly boys, were more likely than younger children to be victimized by an acquaintance. In other words, the relationship is beginning to shift from family members to acquaintances.
Slide 8 shows the accused-victim relationship for police-reported sex offences involving children 12 to 17 years old. Here we see an even greater drop in the proportion of children who were victimized by a family member and an increase in those victimized by acquaintances and strangers. These data also show that teenage boys are about three times more likely than teenage girls to be victimized by an authority figure such as a teacher or a coach.
During the teenage years we also see a substantial increase in the proportion of sexual victimizations committed by strangers to about 10% for boys and 14% for girls.
The number of sexual assault and other sexual offence cases completed in adult criminal courts in Canada has remained relatively stable during the last five years. In 2008-2009, there were approximately 7,400 sexual assault charges in Canada, which were contained in approximately 5,000 court cases.
Sexual assault data collected from criminal courts does not permit us to differentiate between those committed against children and youth and those committed against adults. As a result, it is not possible to identify the ages of the victims in sexual assault cases using data collected from adult criminal courts. However, we know from police-reported data that approximately half of sexual assaults committed in Canada in 2009 were committed against children. The vast majority of these were sexual assaults level 1.
In 2008-2009, there were approximately 7,200 charges of other sexual offences, contained in approximately 3,300 court cases.
Cases involving child sexual offences often include charges for other offences as well. Slide 10 shows the proportion of guilty findings for charges of both sexual assault and other sexual offences, regardless of whether this was the most serious offence in the case.
In 2008-2009, 32% of cases contained a charge of sexual assault and 48% of cases contained a charge of other sexual offences resulting in a finding of guilt. These proportions have remained relatively stable since 2000-2001.
Slide 11 shows the difference in the types of sentences imposed for cases of sexual assault. In 2008-2009, custody was the most serious sentence imposed in approximately 55% of cases involving sexual assault. This represents a slight increase from the year prior. While the proportion of conditional sentencing has remained relatively stable since 2000-2001, the use of probation has been decreasing.
As we can see from the next slide, most custody sentences imposed in cases with a guilty sexual assault charge were for a term longer than three months but less than two years. The median length of custody for these cases was approximately one year.
Since 2000-2001, between 23% and 27% of cases with guilty sexual assault charges involved sentencing to custody for two years or more—which is federal custody—compared with only 4% of adult guilty cases in general. These longer custody lengths may indicate the seriousness with which the courts treat these cases.
Slide 13 shows the difference in the types of sentences imposed for cases of other sexual offences. In 2008-2009, custody was the most serious sentence imposed in approximately 65% of cases involving other sexual offences. This is an increase over the year prior and a continuation of the upward trend seen since 2003-2004. The use of probation has declined since 2003-2004, and in 2008-2009 it was the most serious sentence in approximately 18% of cases involving other sexual offences. The use of conditional sentencing has also decreased over the last four years.
On slide 14 we see that the distribution of custody sentences for other sexual offences has been changing since 2005. There has been an increase in the use of custody with a term of three months or less and a decrease in the use of custody of longer than three months but less than two years. This change began in 2005 and coincides with the introduction of mandatory minimum penalties for several of the offences in this category.
Once again, thank you for the opportunity to present to the committee. This ends my presentation.
First of all, my apologies for being late. I did my utmost, but after question period, I had to meet with reporters who were intent upon obtaining explanations about what took place yesterday evening in committee, as well as with people who worked on the issue.
I would also like to emphasize that I saw this information for the first time here. Even if I had had knowledge of it earlier, it would nevertheless be impossible to have a good understanding of the meaning of these statistics. I do however attach a tremendous importance to them. I am familiar with Statistics Canada and I am convinced that it is one of the best organizations in the world, overall. I often read the publications it puts out.
However, statistics such as these do not read out in the way you have just read them out. One must study them; otherwise, one only retains a few aspects. I had asked that we be provided with this document a little bit ahead of time. I do not know when it was provided, but I believe that my assistant received it yesterday, whereas I sat in committee until 10:30 p.m. Therefore, when we ask you to forward documentation within a certain timeframe, I would be grateful if this could be done a little sooner.
I do not see how this will assist me with the votes that we are going to have this very afternoon, and it is very unfortunate.
Defence lawyers have told us, during the course of our hearings, that the courts had established, as a matter of principle in cases of sexual offences against children, that the rule would be jail time. My impression is that this is not what is reflected in your statistics.
Could you enlighten my in this regard?
I would prefer to be very clear at the outset. The study I did and the evidence I have heard have convinced me that this bill, overall, is a good bill. I am, exceptionally, prepared to recognize that the minimum sentences set out are in pursuit of a legitimate objective, because we are talking here of children, and these are the most vulnerable victims. These are also victims for whom sexual offences, or even offences overall, have the gravest and most long-lasting consequences.
It is also because I accept that, in all cases where there are minimum sentences, the need to denounce the crime and to impose a punishment and deliver a shock to the individual having committed the offences is important, despite the fact that we know that, in some cases, there will be no impact, in the end, on their recidivism rate. It should be noted that, in those cases, the punishment is even more justified.
Clearly, and I have said so in the context of the study of a good many other bills, I have a bias against minimum sentences. Previously, in other circumstances, I have shown what an awful direction that can lead us in, what that has brought about in countries that have systematically adopted minimum sentences. As I have said, we have no doctrinarian position here. We are prepared to recognize minimum sentences when they are justified. In this case, we consider that they are.
Furthermore, I did a detailed study of the bill and did see that it was carefully drafted and that there is a clear rationale as to the minimums for indictments and summary convictions based upon the seriousness of the offence committed. There is a very broad spectrum. The sentence varies between 15 days and five years. When the sentence is set at five years, it is for offences of armed sexual assault with violence and incest involving a child aged less than 16 years. There again, we heard evidence Monday last, as well as previously. I accept the reasoning of those witnesses, namely that of Mr. Van Gijseghem, who stated that, even if it is strange, there are children who recover.
Lastly, I would like to say that the risk of recidivism in cases of incest is not very high. However, the consequences for the victims are generally crushing, such that, in many cases, minimum sentences are very appropriate in dealing with the risk of re-offending and based on the seriousness of the crimes.
However, there is one thing that always concerns me with regard to minimum sentences. Based on my experience in the practice of criminal law since 1966 and on the experience of other countries where such minimum sentences are enforced, in certain circumstances, this leads to judges not imposing the sentence that they would consider fair and equitable. This is why, in the end, we see cases which, if you think about it long enough, might have justified or not justified the minimum sentence that the judge must impose.
Other Commonwealth countries, as well as certain American states, have provisions such that, when the judge considers that there are compelling circumstances, he or she is not required to impose the minimum sentence on condition, however, of establishing and explaining the compelling circumstances that in his or her view justify the decision.
This obviously has the advantage of not forcing a judge to impose a sentence that he or she considers unfair, as well as the advantage, when one studies the use made of this clause, of determining if the minimum sentences are properly justified or not. This allows for an examination, as is the case in other jurisdictions where such provisions are in place. These are exceptional cases that are difficult to predict.
If there is one context where there is a risk of this arising, it is in the case of the clause that we are presently studying. I understand full well the minimum sentences outlined in subsections 151(a) and (b) and I know what the aim is. What is clearly targeted here is sexual touching involving children. Most of the time, as a matter of fact, when such touching comes to light, it has been continuous and will have obviously been important in the evolution of the child, in the suffering the child will endure during a good portion of his or her life.
It is however impossible to describe this offence without including — and this is what we are doing — occasional touching in specific circumstances. You will have observed that the expert witnesses that appeared are those who have devoted their lives to the study of this issue. I am speaking here of Mr. Van Gijseghem and Mr. Quinsey, who corrected some of our impressions. They told us that sexual offences against children are committed by pedophiles in 20% of cases. In 15% of cases, these offences are those of psychopaths. There therefore are such tendencies present in individuals who do not have these characteristics. The law is important to punish these individuals and to discourage them from re-offending. That is what the law is there for.
Clearly, an individual who begins touching children with a sexual intent during a certain period of time or who decides to indulge in such behaviour deserves a minimum sentence.
However, one can imagine that an individual who had never presented such inclinations or had never acted upon them might do so during the course of some celebration, under the influence of alcohol or for some other reason. Other circumstances could be at play. Such occurrences could involve individuals of approximately the same age. Just one touching incident could not justify sending such a person to prison.
There could be other circumstances as well that might be presented to the judge, but what I am thinking to myself is that, among all of the offences that I have examined, there is just that one case for which I see a real possibility that a judge might consider a jail sentence to be unfair and unproductive.
I put forward my amendment only for those cases where there is touching. In cases where one invites a young person to touch his or herself, this is a criminal act that is more serious than some touching which might just be a very quick gesture.
In drafting my amendment, I asked the law clerk to rely upon various laws containing similar provisions. This is why it is formulated in this way, and I quote:
[...] the court may impose a sentence of detention of lesser duration than the minimum punishment of imprisonment if it is of the opinion that compelling circumstances relating to the offender or the nature of the offence warrant it. If the court does impose a sentence of lesser duration, it shall provide a written statement of its reasons at the time of sentencing and include it in the record of the hearing.
I will bring up another element, a little later on, to justify that. In this case, exceptionally, my party and myself deem and accept that this is one of the rare cases where minimum sentences are justified. It is at both extremes that we presently have minimums that I find acceptable. First of all, we have murder cases, because this is the most serious offence, that which has the greatest impact on victims. At the other extreme, there are short minimum sentences for repeat offenders. These individuals can indeed, in the case of crimes that are not solely committed by people with a criminal past or who are habitual criminals, be threatened with short minimum sentences, which could really have an impact on their risk of re-offending. Such is the case with driving under the influence. The minimum for a first offence is 15 days, and for a second offence, it is 90 days. The criminology studies that I have seen over the last thirty years demonstrate that this can have an impact. Among other things, at sentencing for the first offence, the individual must be advised that, the next time, there will be another minimum sentence.
In this case, it is really because of the impact on the victims and of the fact that it is children that are involved.
We have learned something else: whether or not there is a prison sentence, whether or not there is treatment, it is at the outset extremely difficult to establish those treatments that offer a real chance of bringing people to not re-offend. Whether or not there is an effect is very much hit and miss, which is why, in this area, the offender must endure condemnation and shock. This can prove beneficial and prevent the individual from re-offending. Furthermore, it is generally recognized by the society in which we live, and by all societies in the world, that the protection of children from this type of crime is nearly as important as the protection of life.
I'll begin by saying that I'm very heartened and hopeful as a result of the comments that Mr. Ménard has made and what appears to be a sincere expression of the fact that his heart has been touched by the pleas of the victims we so often hear at this committee who support mandatory minimum penalties, and at least that his heart has been touched by the pleas of victims of child sexual assault.
I am very grateful to him if he has now seen his way clear, as he says he does, to support a mandatory minimum penalty and even to use his considerable powers of persuasion to convince the rest of his caucus to support him. However, I believe that his pen has betrayed his heart, and that somewhere between his resolve to accept mandatory minimum penalties to protect the victims of child sexual assault and the drafting of this clause, his pen lost its way, because this clause would not be a mandatory minimum penalty. A mandatory minimum penalty that is not mandatory is not a mandatory minimum penalty. I wish I could say that in French to be sure that the translation is clear.
I was happy that Mr. Comartin clarified for Mr. Ménard that the close-in-age exception will protect perpetrators that Mr. Ménard was concerned about. As well, I was happy that the Department of Justice official clarified for Mr. Ménard that in fact this is a specific intent section, meaning that an accidental touching does not need any protection from a mandatory minimum penalty. There will be no conviction.
I hope that Mr. Ménard will vote with his heart and accept the clause as a real and true mandatory minimum penalty. I have a great admiration for les gens du Québec and their intelligence. I'm certain that the people of Quebec will know that a mandatory minimum penalty that is not mandatory is not really a mandatory minimum penalty.
I respect their intelligence enough to see through that. I'm sure that Mr. Ménard will too.
This particular dual amendment increases the mandatory minimum penalty under proposed paragraph 151(a) from 45 days to one year, and proposed paragraph 151(b) increases it upon summary conviction from 14 days to 90 days.
My question is to government officials. I'm bearing in mind that the Statistics Canada data we just got show that we have, over the last 10 years, some 7,000 convictions for sexual interference. Each of these convictions, in which the mandatory minimum would be used by the court, would send a person to a provincial institution, not a federal institution, by definition. Sentences of one year or 90 days are served provincially, not federally, so there's a full imposition of the cost of this on the provinces.
My question is this: has the department done a workup on what this might cost provincially? Second, has there been any consultation with provincial counterparts in relation to these costs before we go ahead and impose the measure on them?
If Ms. Morency or Mr. Villetorte can't answer that, perhaps Mr. Dechert can.
Well, to clarify in terms of the statistics we just heard about, we obviously have access to the same statistics that the committee has heard. We have access to older reports as well.
The committee heard that there is a difficulty for adult criminal court survey data in breaking down the number of general sexual assault offences that involve child victims as distinct from adult victims, and that's a challenge that I have little control over in terms of trying to provide better information to this committee.
However, as part of one of my undertakings from my last appearance, I did provide the committee with the report “Child and Youth Victims of Police-reported Violent Crime, 2008”. It was released in 2010. This is a document produced by the Canadian Centre for Justice Statistics. Vis-à-vis the three general sexual assault offences—sections 271, 272, and 273—they did provide a number here that broke it down, showing that 80% of the cases that proceeded involving child victims proceeded under those three general sexual assault offences.
I'm not able to provide any further breakdown to the committee, and neither is CCJS, but in terms of how many child victims there are, it does give some sense of, for example, the implications of proceeding under section 271. The minister made reference to that same statistic when he appeared.
With regard to the other statistics that CCJS just provided to the committee, when dealing with a child-specific offence, it's very easy to identify that this is clearly affecting a child, because you have an age criterion. The challenge from one of the questions was on how you get the age of the offender. We look at the number of offences—incidents reported—the number of offenders who are convicted of a particular offence, and perhaps what data exist in terms of the average length or the median for the different penalties or sentences that are imposed. We do look at that.
The committee could look at, for example, the presentation you had just before this, which is before you right now. In it you see the number of incidents reported by the different child-specific offences. That would give the committee an indication of what kind of change we have seen over that number of years and how many offenders are being charged or processed under these different offences. You have some parameters from that data, which we use as well.
Of course, federal corrections can look, as would provincial corrections, to their own inmate population and do calculations based on their own actual numbers, but that's not for me.