JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 23, 1999

• 0911

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I would like to open this meeting of the Standing Committee on Justice and Human Rights.

Our guest presenters this morning include Mr. Steve Sullivan, executive director of the Canadian Resource Centre for Victims of Crime, and Mr. Gary Rosenfeldt, executive director for Victims of Violence Canadian Centre for Missing Children.

Gentlemen, the routine will be roughly a ten-minute presentation by yourselves, followed by a question-and-answer period from our members.

Mr. Rosenfeldt, would you like to open the meeting this morning.

Mr. Gary Rosenfeldt (Executive Director, Victims of Violence Canadian Centre for Missing Children): Thank you very much, Mr. Chairman. It's a pleasure to be here.

I'd like to thank the committee for allowing us to present this morning.

The subject of pardons has come up within our organization on a regular basis for the last number of years. It's a subject that's been discussed on a continuing basis because of the concern members of our organization have with regard to pardons being issued—period—for anyone who has been convicted of a sexual offence against a child.

Part of the mandate of our organization is the prevention of crimes against children and to provide support and assistance to victims of violent crime. Part of my work at Victims of Violence is meeting victims of crime on a regular, daily basis. I get phone calls from victims across Canada. Our office here at 211 Pretoria Avenue is virtually a drop-in centre for victims. It's not unusual for families of homicide victims or male victims of sexual assault—many, many victims—to drop into our office to discuss their concerns.

We put out a regular newsletter that goes to more than one thousand people across Canada who have subscriptions to it. One of the most major concerns with letters to our editor, and one of the major concerns talked about in our office on a regular, daily basis, is pedophiles. We have an extensive research department there, and part of our research has always been with regard to this issue of people who commit crimes against innocent children.

With that background, when Mr. Lowther's bill, Bill C-284, came to our attention, we were extremely pleased that, with his concern for the protection of children...and we have actually appreciated the Solicitor General's concern for the protection of children with a couple of previous bills that have gone through the House in the last few years. But our stand at Victims of Violence is, and always will be, that we simply do not believe a person who is convicted of a sex crime against a child should ever be given a pardon for that crime.

• 0915

The reason for this is quite clear. Our research, and the research of many other people, has continuously shown that the people who commit these crimes have, in most cases, no remorse for what they have done. They believe they're doing right, that it's proper, that it's a way of expressing their love towards a child.

In most Canadians' minds, I'm sure, it's an abhorrent subject. People don't want to talk about it. But these people really, sincerely believe this. It's a sexual preference, we believe, and we don't believe they can be changed. We don't believe any therapy, any system, is of any real value in dealing with these types of individuals.

The difficult part is, what do you do with these types of individuals? Well, in this country we have all sorts of ways of dealing with criminals. When you look at a person who steals money, for instance, we punish that person for life; that person may get a pardon five years down the road. We understand that when you apply to the National Parole Board, you have a 99% chance of getting a pardon, no matter what type of crime you've committed.

I would suggest that with those statistics, Paul Bernardo and Clifford Olson probably stand a good chance with the National Parole Board of getting a pardon some day.

The reality is, it's a rubber-stamp system. What they really do is pardon sex offenders, and put them back into an unsuspecting community.

On the other hand, let's draw a comparison with a person who steals money. Let's assume the person's an accountant, and he steals money from a trust fund. He may go to prison and in five years' time apply for a pardon. He may receive a pardon, but society will continue to punish him for life because he will never again work in his profession. He will not be allowed ever again to handle money. He probably will have a difficult time getting a job at Sears that gives him access to a cash register. The reason for that is very simple: we have a bonding system in Canada, and he has to be bonded to work with money.

A lawyer who is disbarred for stealing money from his employer is another example. We disbar him and take away his livelihood. We punish these people for life. He may get a pardon too, in five years, but that doesn't mean he'll ever be reinstated to the bar. He will carry it with him for the rest of his life. It will affect his life.

But what do we do with the people who harm our most valued possessions, our children? We put them into a revolving-door system that simply throws them back out on the streets in a very short period of time.

We had a prime case here in Ottawa last week, where a person convicted of molesting nine innocent young boys was given a one- or two-year conditional sentence. It doesn't matter; one year, two years, five years—what's the difference? It's a conditional sentence. He's not going to spend a day in jail. Beyond that, he can apply for a pardon. In fact, he already had a pardon. He was already pardoned from the last offence. Here he is before the courts again; he'll apply, get another pardon, and have access to children again. This is the difficult part in dealing with these individuals.

What we simply say is that maybe even prison is not the proper place for this type of person. A prime example is Joseph Fredericks, a mentally ill person. He had a long history of serious mental illness, and abducted and molested children.

• 0920

With an individual like him, we arrest him, and after we release him into the community, he abducts. He rapes. He murders young Christopher Stephenson. We turn around and arrest him. We put him in prison. We give him a life sentence in prison. He asks to be put in with the general population and he's murdered by other inmates within the institution.

We have to question whether putting pedophiles, sexual predators, into a prison system is even the proper place. They're despised by all other inmates within the institution. They have to be segregated. As we know, as in the case of Joseph Fredricks, segregation doesn't always work.

The bottom line is that maybe we need a special type of institution. Maybe we need more regional psychiatric centres, as they have in the city of Saskatoon. We're dealing with a difficult type of person, a person for whom there is no cure, a person who has serious mental problems. They don't conform to the norm of society, what we expect them to do, and they're extremely dangerous out there.

There was a study done in California a few years ago of non-incarcerated pedophiles. They found that the average non-incarcerated pedophile had over 200 victims in a lifetime.

We would like to express support as an organization for Eric Lowther's Bill C-284, if this committee would see fit to not do away with pardons for all sex offenders. That's about the bottom line. We'd rather see pardons simply done away with.

As far as the government's bill, Bill C-69, I've read the bill. I appreciate Mr. Scott Newark's comments. He is the counsel for the Ontario Office for Victims of Crime. He has sent a five- or six-page letter to all members of this committee with regard to Bill C-69.

I agree with him; it becomes a bureaucratic maze impossible to control. It's simply looking for mistakes to happen, and those mistakes will probably be innocent children.

Thank you very much.

The Chair: Thank you, Mr. Rosenfeldt.

Mr. Sullivan.

Mr. Steve Sullivan (Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Mr. Chairman.

I'd like to also express the support of my own organization for Bill C-284. The principle, I think we can all agree, is a good one. It has been supported by all parties. Recently, by the introduction of Bill C-69, I think the government has shown support for the principle, anyway. There are obviously differences between the procedures, but the principle's a sound one.

The purpose is also a simple one and a sound one—to ensure that childcare agencies, under Bill C-284, can retrieve relevant information about an individual's past sexual history, including offences against children.

I think it's important to recognize the target group we're talking about here, which is a relatively small one. There are two parts to it—those who have not only been convicted of sexual offences against children but who are also applying for positions of trust with children. So it's not just a convicted sex offender applying for any job. It's only those positions that would involve the care and control of children.

I suspect that during the question period we might get into the differences between the two bills, and certainly we'll entertain questions at that time, but from my brief examination of Bill C-69, the two biggest differences seem to be these: (a) more discretion for disclosure in Bill C-69 than in Bill C-284—Bill C-284 makes disclosure mandatory—and (b) the amendment to the Canadian Human Rights Act.

Bill C-284, as you know, amends that piece of legislation. From my understanding of the Human Rights Act, I guess I would wonder why the government's bill does not address that piece of legislation. It may be that it's not necessary, but I think it's something this committee certainly should look into.

One of the problems with either bill—and it was something identified by the Canadian Police Association last week—is that we have a big problem with our CPIC system. The Canadian Police Information Centre is on the verge of breaking down, and if we are asking now that more information be made available on that system but we are not putting the necessary resources into it, I think it's a recipe for disaster.

• 0925

I guess both bills deal with the issue of, in one sense, the rehabilitation of child molesters. What we do know from the research is that the recidivism rate doesn't accurately reflect the number of offences committed by child molesters. Certainly research done by the Solicitor General's department indicates that the longer you track a convicted child-sex offender, the more the likelihood of recidivism. In a 15- to 30-year follow-up period, there was a 42% reconviction rate of a sexual or violent offence. That is just a reconviction rate. It certainly doesn't take into consideration those offences that were never brought to the attention of the police or that didn't result in a conviction.

That same study goes on to say, under the policy implications section, that:

Special policies concerning pardons for child molesters may be needed, since child molesters remain at risk of recidivism for many years, and there appears to be no critical time period after which the risk is substantially reduced.

I think that's something you want to keep in mind as you review this bill and also the government's bill. We're dealing with a group of people here, a small group of people, who, despite our best efforts and best research, we really don't know if we have an impact on when we're trying to cure them. There is still debate, I think, among the experts on whether or not sex offender treatment actually works. Obviously it differs among the types of sex offenders you're talking about.

Mr. Rosenfeldt referred to a case here in Ottawa, where the individual who got a conditional sentence actually had a pardon. What struck me about that case was that it was the offender himself who brought it to the attention of the court that he actually had a pardon at the sentencing stage. If he had not done that, at least as reported in the newspaper, the judge would not have known the individual had a pardon.

That's something that surprised me, anyway. I'm not sure it's under the scope of this bill, but it's something to keep in mind about pardons, that even when someone has been reconvicted of an offence and is going for sentencing, it may not be brought to the attention of the court.

Again, I think it's important to remember who we're talking about, this small group of people. It's not just child-sex offenders who are applying for a job as window washer or garbage person. It's people who want to work directly with children. My understanding of the government's bill is that it goes a bit broader than that, but it's still a small percentage of people.

The purpose is to better protect our kids. It doesn't mean our kids are not at risk at all. It doesn't mean a child molester who's never been convicted of an offence can't apply for a position of trust. It's just one more piece of the puzzle. It's not the total solution to the puzzle, but it's one more piece.

I think this committee has already shown a willingness to work together to promote fairness in the system, as you did with the victims' rights report recently. I think you have another opportunity now to work together, as a committee should, with two pieces of legislation that have the same goal, although different approaches. It's not something that can't be worked out, and I think you have an opportunity to do that.

With that, I'll stop, and entertain any questions you may have.

The Chair: Thank you, Mr. Sullivan.

Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Mr. Chair.

I appreciate both testimonies. I certainly agree with the concern we have here today about the victims.

I understand you've compared both bills, and I think you made a comment, Mr. Sullivan, about the approach taken by Bill C-69, that it could lead to a “bureaucratic maze”. I think that's the term you used.

Can you explain why you see that problem in Bill C-69?

Mr. Steve Sullivan: Actually, I think it was Mr. Rosenfeldt who used the bureaucratic maze term, but I think the government's bill introduces more levels of decision-making, and certainly more discretion regarding disclosure. Bill C-284 makes it mandatory.

If the purpose at the end of the day is to make sure agencies working with children are informed about these types of offences, we would question why there's discretion in the government's bill. Certainly we would favour the approach taken in Bill C-284, that it be mandatory.

We believe these agencies are capable of making the decisions based on the information. If someone, for example, has been convicted of an offence 30 or 40 years ago, and there is reason to believe he or she may have changed their behaviour, then I think most of the agencies are responsible enough to give that person a chance to explain the situation and work with him to see if there is a spot.

• 0930

Mr. Eric Lowther: Where we know there is a conviction of pedophilia that's been pardoned, the individual has given consent to have his complete record checked, and we know he or she is applying to work for an organization that cares for children—those three conditions are met—can either of you gentlemen think of any situation where the Solicitor General may want to hold back that information, where we would need to have the discretion, where we wouldn't automatically, if those conditions are met, release the information? Can you think of any scenario where it might be justifiable not to do that?

Mr. Steve Sullivan: Personally, no, I can't. To me, the fact that you have a convicted child molester applying for a job to work with children raises serious alarm bells right there. That fact alone is I think worthy of some consideration.

But the person is consenting to have his record checked, and I don't see why there's necessarily a need for discretion at the level of the Solicitor General.

Mr. Eric Lowther: Did you see anywhere in Bill C-69 a specific type, or types, of offence mentioned that the bill would address? Does it say in there anywhere that you were able to see the specific type of pardoned offences that would be included?

Mr. Steve Sullivan: It doesn't say in the bill. My understanding is that it will be contained in the regulations. I think Mr. Saada mentioned last week that there are 26 offences, although we don't know what they are.

But, no, in the bill itself, I don't see where it's mentioned.

Mr. Eric Lowther: If you were a hiring organization and under Bill C-69 you were aware there was a pardon, told there was a pardon, but now you decide you're not going to hire that person because they've been pardoned, isn't there a possibility that you would be subject to prosecution by the individual because you violated his Canadian Human Rights Act rights? He has a pardon, therefore he has a clean record, and therefore, if you elect not to hire him, he can say, “Look, you're discriminating against me”, and now you, as the hiring institution, have to defend yourself on the decision not to hire the individual.

Mr. Steve Sullivan: Certainly from my reading of the Canadian Human Rights Act that would be a concern I would have for agencies who do choose to deny someone a position because of a pardon. I think it's something that certainly needs to be looked at, but the last thing we want is to give these agencies the information, have them use it in an appropriate way, and then be sued by the individual.

So I think it is certainly worthy of consideration and concern.

Mr. Gary Rosenfeldt: As a charitable organization, perhaps I can also respond to that.

We're always concerned about people we hire. We hire fundraisers and other people all across Canada all the time, on a regular basis. We also have volunteers who work with us. It's always, always of grave concern to us that a situation like this may arise. We've never been in this situation before.

As a volunteer organization, we have had people come to us who are attempting to use our organization as a means. We've been very fortunate over the years.

I can remember one case in Edmonton from a number of years ago. A police officer with the Edmonton city police came to me in my offices in the courthouse. He spent many hours with us. He talked about helping us with victims. In 1989 he was arrested and charged with sex crimes against children.

He used his position of trust with the Edmonton city police to gain access to abused children. His response in sentencing was that he felt he had to show these children love, because they weren't getting any at home. He only picked on the kids he felt were being abused at home.

So this is the type of individual you're dealing with. In that case, we were very fortunate. We did not allow him any contact with children, and we had quite a number of children working as volunteers in our offices at the time.

What's really difficult about this is that as a charitable organization, too, we really don't know. Now, there was a person who'd never had a conviction. There never would have been a way of checking on him.

Steve brought up a very good point about pardons. This individual last week did have a pardon. Our concern with the whole issue of pardons is that if there is some sort of flag there someplace, well, I don't have a lot of faith in flags. I'm sorry, but we're talking about the lives of innocent children here, and I'm not sure that's really the route to go.

• 0935

It's better than nothing. How's that?

Mr. Eric Lowther: One of the concerns that's been voiced is that if this information is disclosed, it might be used inappropriately, beyond just a hiring decision, put out into the public, or somehow used to damage this person who's been pardoned outside the context of the job he's applying for.

Bill C-284 specifically states some very stringent penalties for doing that type of thing, while Bill C-69 does not. Any comments on that?

Mr. Steve Sullivan: What we're talking about here in both bills is nothing new. These agencies already have the ability to go and get information about people's criminal records. We're simply expanding that information to include pardons for child-sex offences.

I don't know of any case so far where an agency has misused that information. Certainly we're provided that information for a purpose. If someone violates the trust we give them for that purpose, then they should be subject to certain punishment. It's not that it should be taken lightly. The information we're providing is for a specific purpose only.

So certainly I think it's fair to say, yes, we will give you this information for this purpose, but if you misuse that information, there's a problem.

It's similar, for example, to the DNA data bank legislation. There's very personal information in there. If police officers, for example, misuse that information, they're subject to criminal charges. I draw a parallel to that.

Mr. Eric Lowther: Thank you.

The Chair: Thank you, Mr. Lowther.

Mr. Marceau, I wonder, as a courtesy to Mr. McKay, whether we could just interrupt the questioning order so that he could perhaps...?

An hon. member: Anybody but John McKay.

Some hon. members: Oh, oh.

An hon. member: Do we need a motion for this?

Do you want to make a motion, John?

The Chair: Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): We'll give him a free shot on net.

Thank you, Mr. Chairman.

These two bills taken together are philosophical divides, if you will, as to how to approach what is an agreed-upon problem. There doesn't seem to be much argument about the base of your testimony—mainly, that pedophilia is something you don't get over.

On the one hand, we have a fairly narrow approach on Mr. Lowther's part—this is the particular kind of crime and this is the particular kind of issue. The minister “shall” disclose, with no discretion. It's a simple, straightforward thing, and it's job-related.

The minister, on the other hand, proposes a bit of a broader bill, with a hearing approach. If the minister proposes to refuse to not grant a pardon, then there will be a hearing. It's not related to the job. It can also apply to a lot more crimes than simply pedophilia.

I'm interested in your response to both the broad and the narrow. In some respects, the minister is capturing more of a population but preserving a hearing remedy, whereas this is a very narrow subset of issues and yet has a very simple mechanism.

I'd be curious as to your response in terms of, (a), the philosophy, and (b), how you would see it working practically.

Mr. Steve Sullivan: I think the answer is probably to take the best of both bills. I think the government's approach with regard to expanding those types of offences...and the victims, from my understanding, are not just children but vulnerable groups. I would take that to mean, for example, the disabled as well.

I think that's an excellent approach. So I think that part of the government's bill is—

Mr. John McKay: Stronger in some respects.

Mr. Steve Sullivan: Yes, stronger. But again, I go back to the discretion pieces of the government's bill, and the more simple approach, as you put it, in Mr. Lowther's bill. I prefer the simple approach. If the purpose of what we're doing is to say we want to give these agencies the information about someone's past history of abusing children, then we should give these agencies that information. If the person has consented to the criminal records check, and the pardon, then I don't see the need for any discretion with the minister.

Mr. John McKay: Could you see a system working whereby you could mix discretion and non-discretion? In other words, pick out two or three kinds of offences where there is no discretion—that information would in fact always be flagged on a record or whatever—and then have a discretionary set of offences whereby the minister could propose a hearing for those kinds of offences.

• 0940

Mr. Steve Sullivan: Theoretically, seeing the offences, that would be a preferable approach to the current scheme under the government's bill. It's tough to say. I guess we'd have to decide what types of offence would be automatic and which types would be discretionary. But it's a better approach.

Mr. John McKay: [Inaudible—Editor]...some respect with the DNA bill.

Mr. Steve Sullivan: True. Yes, the two lists. That would be preferable, I think, to the current approach under the government's bill.

Mr. John McKay: How do you see the hearing working if we went the hearing route? Do you see any onuses or presumptions in play that would be appropriate to work into the minister's bill?

Mr. Steve Sullivan: If you went the way of a hearing, I would think the onus would be on the individual with the pardon to justify why it shouldn't be released.

Mr. John McKay: The applicant, then.

Mr. Steve Sullivan: Yes. The applicant should have to justify why that information shouldn't be released.

Mr. John McKay: Okay.

The weakness I see, or one of the concerns I have, with Mr. Lowther's bill is the issue with respect to the person applying for the information. It seems to me that since the ministry, on some sort of wonderful search as to whether this is a responsible organization or group who is responsible for the welfare of one or more children.... That strikes me as a bit of a dubious area of inquiry. It's easy to tell that the boy scouts are interested in children. It's somewhat less easy with respect to a school board, and it's somewhat less easy again with respect to Magna parts, which has a daycare operation of some kind or another.

I wonder whether in some respects that part of the bill is a bit of a red herring.

Mr. Steve Sullivan: Defining who those groups are is difficult. For example, you can wonder whether people who are putting the care of their children in the hands of babysitters shouldn't have that kind of information. I mean, you could expand it quite broadly if you wanted. Philosophically, that would be the best thing—

Mr. John McKay: But in the broadening, you end up losing the point of Mr. Lowther's concern here.

Mr. Steve Sullivan: Exactly.

What I would do is look at the agencies currently doing these types of checks. There are groups now doing that. They don't have the information regarding the pardons, but the government brought in a screening process a couple of years ago that allowed childcare agencies to have someone go down and get a records check. This is really building on that process.

So I would look at what groups are doing it now, and maybe base your approach on that.

Mr. John McKay: Again, going to the attractiveness of the simplicity of the process, I wonder whether you could develop a schedule of organizations so that the police don't have to conduct an inquiry into each and every organization as it comes along. If the boy scouts apply, for instance, you don't need to go beyond that. You can punch it in the computer. That's a doable idea as well.

Mr. Steve Sullivan: Yes.

Mr. John McKay: Thank you, Mr. Chairman.

The Chair: Thank you, Mr. McKay.

Mr. Marceau, thank you for your....

Some hon. members: Hear, hear.

The Chair: You didn't win an Oscar.

Mr. Richard Marceau (Charlesbourg, BQ): Can I have my actor's fee now?

[Translation]

Thank you for being here today. I suppose you are getting used to appear before the Justice Committee. I would like to ask a few questions.

Mr. Rosenfeldt, I glanced at the document you gave us and I saw that, on page 2, you referred to your preference. Your said that Mr. Lowther's Bill would be your second choice and that you would prefer a national registry. Could you tell us a bit more about this?

I would also like you to tell me if you believe that that would be legal, especially in relation to the Charter.

[English]

Mr. Gary Rosenfeldt: I'm not a expert on the charter, and I'm not a lawyer, but I do know there are laws in place in the various states throughout the U.S. that allow for an actual registry of convicted child-sex offenders.

I'm not exactly sure of all the details of the law in the state of California, but from what I understand, in California, once you've been convicted of a sexual offence against a child, your name goes into a central registry in the state.

• 0945

If you live in Los Angeles and you move to San Diego, you have to go to the nearest police department and report in to that police department. You have to tell them who you are, that you're a registered sex offender, and that you've now moved to San Diego. As I understand it, the police must know their whereabouts at all times.

Considering the nature of the crime, and considering the harm done by these individuals to innocent children, I don't think this is too much to specifically ask of a person who has been convicted of these most serious of crimes.

As well, considering the fact that so many of these people have so many victims throughout a lifetime, I would really like to see some type of central repository or registration system in place where a list is maintained in the province of Ontario—or, for that matter, for the whole country of Canada.

As an organization, we differ from many victims' groups in that we don't believe that list should be made public. For awhile in the province of British Columbia there was a magazine out on the market. They had ads in there. I've seen the magazine. It's from Canada Safeway, promoting vegetables on one side when on the other side there are pictures and information on known pedophiles and their addresses in the city of Vancouver.

I think that's harassment. It's beyond all reason. I don't think we have to go that far.

As an organization, we have never taken steps to inform the public, for instance, as to the whereabouts of a pedophile in the community. We have spoken strongly against the publishing of lists and pictures of pedophiles in newspapers.

The reason for that is very simple: We don't think it's going to do anyone any good. It may alert one person who happens to be living next door to one pedophile, but he's going to move the next day anyway. I mean, it's all over with, so what's the point?

I think our frustration, though, in dealing with pedophiles is that there should be a master list available somewhere so that if a person moves from province to province, that list would be available should a person decide to open a daycare, for instance.

What's really frustrating is that we talk about “employers” in these bills. The truth of the matter is, here in the province of Ontario, when you talk about organizations—and we've been talking about different organizations and their requirements to screen a possible applicant who may have a desire to work with children—the reality is that anybody in this country can start a charitable organization that works with children. They don't have to—believe me; they don't have to—go through any test whatsoever, any check, to see if they have the credentials.

Four or five years ago in London, here in the province of Ontario, a known pedophile who had just been released from prison opened a daycare. Well, he didn't have to worry about an employer check on him because he owned the daycare with another pedophile he had met in prison. They ran a daycare. I don't know; to this day they might still be running a daycare in the province of Ontario.

[Translation]

Mr. Richard Marceau: According to you, Mr. Lowther' Bill, by dealing only with the release of the record, is not going far enough because it does not refer to applicants and does not cover, for instance, people who could open a childcare centre. Is that your position?

[English]

Mr. Gary Rosenfeldt: That's right. Actually, we believe there has to be a better system in place. We're really here today to speak on behalf and in support of Mr. Lowther's bill. It's another finger in the dike, so to speak. But the thing is, there are a lot more little holes out there within the system. There are an awful lot more of them. I'm not so sure what's best here, in the best interests of children.

Our concern is the protection of children. We're not going to speak against Mr. Lowther's bill, because it's going to prevent the victimization of children, or even Bill C-69, although it will probably end up as a bureaucratic nightmare, with so many steps and processes and people that you have to go through. I don't think it's going to work. It's as simple as that.

• 0950

Even if a combination of Bill C-69 and Mr. Lowther's bill were approved by the House, we would still be sending you all letters about the protection of children, asking why these people are being allowed to open a daycare in the province of Ontario.

[Translation]

Mr. Richard Marceau: You said a while ago, Mr. Sullivan, that the Bill applied to a small group of people. If I remember correctly, you mentioned that three times. How many people are we talking about, roughly?

[English]

Mr. Steve Sullivan: To be honest, I don't have an answer. You'd have to look at, (a), how many child-sex offenders are getting pardons, and (b), if there's a way of tracking how many of those are actually applying—

[Translation]

Mr. Richard Marceau: But you did not research this matter. You do not know how many there are. You mentioned a small number but you don't know how many.

Mr. Steve Sullivan: No.

Mr. Richard Marceau: It might be interesting, Mr. Chairman, that our friend Mr. Rosenfeldt find the answer to that question, if at all possible.

[English]

The Chair: We'll have to look into that.

Mr. Lowther, can you address that?

Mr. Eric Lowther: We provided the committee with some information on this at a previous hearing. I'd be glad to pass this on to the member.

[Translation]

Mr. Richard Marceau: Yes, please.

I have a final question. A while ago, while discussing with my colleague, Mr. Lowther, you referred to the Canadian Human Rights Act where clause 2 deals with non-discrimination in the field of employment. There cannot be any discrimination against a person who has been pardoned.

Do you think that Mr. Lowther's Bill would mean that this right is violated?

A problem we have in this country is that there are too many lawyers. I know because I'm one of them. People pay us to go to the courts. That's how we earn a living. It may be regrettable but that is a fact.

Since I have so far been in favour of this Bill, I have absolutely no reluctance in asking the following question: Don't you think it would be a bad idea to have a Bill that would go as far as that one? There might be nasty lawyers who would decide to challenge this Act et we could en up with a paralyzed system.

Mr. Rosenfeldt fears that Bill C-69 will create a bureaucratic maze. With Bill C-284, we might end up with a legal problem: our courts would be full of challenges based on the Charter.

[English]

Mr. Steve Sullivan: Whatever bill is passed, I think there will be charter challenges. Lawyers will apply their trade and claim that both bills violate their client's rights. That's the way our system works.

I think Mr. Lowther's, though, specifically attempts to circumvent that problem in that it amends the Canadian Human Rights Act. Whether that clause is necessary, I honestly don't know. I don't know a whole lot about the act. But I think it certainly recognizes that there may be a problem, and it attempts to address it.

To be blunt, if either bill is passed, I think you're going to have legal challenges.

The Chair: Thank you, Mr. Marceau.

Round two, with three-minute periods.

Mr. Lowther.

Mr. Eric Lowther: Thank you.

I want to go back to something Mr. McKay brought up. I don't know who he asked, exactly, but he made the point that with certain organizations, it may be unclear as to whether or not it's really a children's organization, etc., whether there needs to be this investigation, and whether it may be best to leave those types of determinations to the minister or the ministry, if I understood him correctly.

Bill C-284 talks about providing these checks for a person who is:

responsible for or represents an individual, organization or group who is responsible for the welfare of one or more children

• 0955

It also allows that:

the Minister has received an undertaking in writing, in a form prescribed by the Minister,

—and I would just underline that last phrase—

from the person, individual, organization or group, as the Minister may require

Just to paraphrase, the minister can set the rules as far as the form he may require to do the check for an individual or an organization or a group.

The thrust of my question here is whether you, representing victims, are really comfortable with the minister saying to somebody who is hiring someone to care for their children—a nanny, say—that they cannot have access to the record, but if they were the boy scouts, they could have access to the record, leaving those types of determinations in the hands of the minister as opposed to saying, look, if you're hiring someone to care for children, and you've met the terms defined by the minister, you should have access to the information, fait accompli, with no discretion.

If I understood correctly what you said to Mr. McKay, you felt maybe it was okay to let the minister decide that, yes, in this situation this person can have it, but in this other situation, they can't.

Mr. Steve Sullivan: Either way, I think, you're really giving the discretion to the minister. In one sense, you're giving it to them maybe before the fact; they set the conditions.

What I took from our exchange was that there are some groups who are obvious. The boy scouts, for example, is an obvious group. Every time the boy scouts go, they don't need to be checked, but perhaps there are other groups. You mentioned nannies. I'm not trying to say that those people shouldn't have access to the information, but does it make sense to provide that information? I think it's not quite as obvious.

I mean, either way you're asking the minister to set the rules. Your way certainly would do it at the front end. I'm not going to debate which way is better, but certainly I take your point. The more people we can give this information to who are caring for children, the better.

Mr. Eric Lowther: That's a good answer. I think you've nailed it on the head, that it's the front end. We all understand that if these parameters are met as laid down by the minister, there is no discretion about disclosure. If the parameters are met, boom, it's disclosed. It's a done deal as opposed to we're not really sure what's going to be disclosed.

The Chair: Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Merci, monsieur le président.

I'm trying to see if this whole business of discretion is not actually a myth. Chief Fantino of the ACP specifically argued in favour of discretion at the police level. At the present time, we have discretion at the Solicitor General level, and I understand, according to the figures that have been passed on to me, that in 80% of the cases of requests for unsealing, the Solicitor General agrees to that.

In your recommendation—and correct me if I'm wrong—you would like this discretion to remain in the hands of the potential employer of the group. They do have to exercise certain discretion once they have the file facts before them.

So saying that we should remove discretion from the Solicitor General because discretion is a bad thing, generally speaking, is, it seems to me, a myth, because someone will have to, eventually, exercise some discretion somewhere.

The point I'm making, on which I would like to hear your comments, is that if we do have to have some discretion at any level, whatever it is, I would rather have this discretion at the level of someone who is elected and therefore has responsibility before the public for the decision he or she makes.

Am I off track here? Am I making sense?

Mr. Gary Rosenfeldt: What's really difficult here is that we're talking about specific instances. As I mentioned before, we talked about an employer. Well, what if a convicted pedophile becomes the employee? Then there's no....

When we're talking about either bill here, or specifically Bill C-284, we're talking about an employer.

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Mr. Jacques Saada: I understand that. I do not deny the fact that this bill doesn't address the concern you have expressed concerning the actual pedophile being an employer himself, creating his own job and so on.

Mr. Gary Rosenfeldt: Or organization.

Mr. Jacques Saada: Okay. But I'm not trying to cover more. I'm just putting the fundamental question of discretion here.

Honestly, I've heard many, if not all, presentations, and yet no one has been able to convince me—and I'm sure if we talk with Mr. Lowther we'll have some grounds here for understanding—that discretion is going to disappear. We simply suggest, in one way or the other, to displace it.

Mr. Steve Sullivan: You're right. At some point in the system there's going to be discretion. I mean, the government says it should be with the minister, and Chief Fantino, I believe, said it should be with the police, and we're saying it should be with the agency. So you're right, there's discretion to be given.

Mr. Jacques Saada: One thing that is quite interesting is that if we follow the process of Bill C-69, there is discretion also exercised by the job applicant. Because once the organization has asked him to go back and have something revealed or unsealed, he has to make a decision. Do they unseal it? Do they go on with the process and authorize unsealing or do they simply apply somewhere else, and just forget about the application? So they have discretion.

It's a very important tool, because if the guy doesn't want to reveal it, to unseal his record, the employer knows he doesn't want to co-operate in clearing the air in terms of this part of his application. If he decides not to apply, we have resolved the problem in this specific case.

So if you talk about efficient discretion instead of blind discretion—if these two words can go together; they might be antonymous—I think Bill C-69 does propose something that makes a lot of sense in this regard.

Mr. Steve Sullivan: I guess the debate then is on who has the discretion, really.

Mr. Jacques Saada: That's correct.

Mr. Steve Sullivan: I would stand by the fact that I think the discretion should lie with the agency itself. The agencies we're talking about are responsible enough to make those decisions.

But you're right; the discretion is there whatever bill you pass. There is always going to be discretion. It's just a question of who has it.

Mr. Jacques Saada: Do I have still some time?

The Chair: No, you're finished.

Mr. Jacques Saada: Will I have another chance?

The Chair: No.

Mr. Marceau? Mr. Cadman, then.

Mr. Chuck Cadman (Surrey North, Ref.): On the issue of discretion, I would argue, well, where does the accountability lie, then? If, as Mr. Saada says, we're going to have the discretion with the Solicitor General, and the Solicitor General decides not to disclose, the agency hires, and then something happens, is the Solicitor General accountable? If the agency actually shows the discretion and chooses to hire and something happens, I would say it's their butt that's on the line.

Mr. Gary Rosenfeldt: Chuck, I think what would actually happen here is that for those agencies that do have children in their care, those agencies that do specifically make the checks and enforce the checks and this type of thing would be promoting it. In other words, if it was a daycare or a charitable organization, I'm sure they would promote the fact that they do the checks and that the process is in place.

Mr. Chuck Cadman: But my point is that they become liable. I would suggest that if they choose not to disclose and hire somebody who they know was convicted or had a pardon, and that person offends, that agency is at risk, real risk, but I don't think the Solicitor General is if he chooses not to disclose.

Mr. Jacques Saada: If the Solicitor General refuses to unseal it?

Mr. Chuck Cadman: Yes.

Mr. Jacques Saada: If the Solicitor General refuses to unseal it, which leads the organization to feel confident they can hire this person, and this person is hired and commits an offence, the organization can say, “We have applied the system. We have asked the Solicitor General for unsealing.”

Mr. Chuck Cadman: But how liable is the Solicitor General at that point for making that decision? That's my point.

Mr. Jacques Saada: I'm sure it's a question for the House.

The Chair: Thanks for your testimony, Mr. Saada.

Some hon. members: Oh, oh.

The Chair: Mr. Cadman, do you wish to continue?

Mr. Chuck Cadman: No, that's fine.

The Chair: We're still within time before we have to go.

Ms. Bakopanos.

Mrs. Eleni Bakopanos (Ahuntsic, Lib.): Thank you—unless Mr. Saada want to continue.

Mr. Jacques Saada: No, please go ahead.

Mrs. Eleni Bakopanos: Thank you.

I was fascinated by the story you told of the two pedophiles who started their own daycare centre. Was it in Ontario?

Mr. Gary Rosenfeldt: It was in London, Ontario, actually.

Mrs. Eleni Bakopanos: We therefore have knowledge of these two being pedophiles?

Mr. Gary Rosenfeldt: Oh, yes.

Mrs. Eleni Bakopanos: It's known in the community?

Mr. Gary Rosenfeldt: Oh, yes.

• 1005

Mrs. Eleni Bakopanos: And parents are sending their children to this daycare?

Mr. Gary Rosenfeldt: I'm not sure. I'll tell you, the London Free Press newspaper did a major story on it. It was in most Ontario newspapers. It was only the media that created a furor over it. There are no laws in this place to prevent anyone from opening a childcare centre in the province of Ontario or anywhere else in Canada, or not that I am aware of.

Mrs. Eleni Bakopanos: They don't apply for a licence?

Mr. Gary Rosenfeldt: Oh, yes.

Mrs. Eleni Bakopanos: So their records are not checked if they apply for a licence?

Mr. Gary Rosenfeldt: No, or not as far as I know.

The point is, even if they're checked, I don't think there's anything in place that can stop them from getting a licence.

When they opened that daycare in London, Ontario, about four or five years ago—I don't have the exact dates and the names, but I can provide that for you—the reality is, it was in all the newspapers. The best that could happen was that the London Free Press could put out a warning to parents in the community that it was probably not a good place to take their children.

That's the most that could be done.

Mrs. Eleni Bakopanos: I raise that issue for the reason that through the newspapers, or through public opinion, there is knowledge in the community that this offender or criminal has been let out of penitentiary. That knowledge does exist in a community, in fact—

Mr. Gary Rosenfeldt: But it's sporadic.

Mrs. Eleni Bakopanos: —unless they've changed provinces and so forth.

Mr. Gary Rosenfeldt: But it also depends on a newspaper reporter. I'm not sure we want to leave the protection of our children to the whims of a newspaper reporter or editor.

Mrs. Eleni Bakopanos: No, but I can tell you, as a responsible parent—and I have had my children in daycare—that I make sure I know where I'm going to place my children. I do a check on the daycare before I put my child in the hands of anyone. So I think the responsibility also has to be taken by both the community and the parents. That's why I found your case very fascinating.

In terms of discretion, I'd like to take on that issue too. I think most ministers, no matter what decision they make, are in fact accountable to the public. If it is shown that the minister refused to divulge the information, and that does get out in the media, of course the media plays that role. That's the accountability we have as elected officials, or as ministers.

So there is an accountability, Mr. Cadman, in the end, in my opinion, and that accountability is to the public. Of course it doesn't whitewash what would have happened, I agree; we put the children at risk.

Thank you.

The Chair: We still have time, if there are more questions.

Mr. Lowther.

Mr. Eric Lowther: We've perhaps been a little unfair to these witnesses. Their expertise is in victims of violence and violence issues, and we're getting them into the nuances of two bills and all that. I appreciate their efforts to answer those questions.

I want to bring it back to their area of expertise and maybe underline for the whole committee the need to actually do something here and not play games with bills but actually get something done for the victims.

You have front-line contact with victims. I've heard it termed a life sentence to have these things happen to you.

Mr. Gary Rosenfeldt: That's very close to the truth, Mr. Lowther. We can sit around, as you say, and discuss bills, but what's difficult for crime victims is that many of them suffer a lifetime as a result of the crime that's been committed against them. With male victims especially, it's very difficult for many of them to come forward and talk about it, and to take it through the courts.

As we're all aware, in some cases, even here in the province of Ontario in the last few years, it's not unusual for there to be suicides and attempted suicides. It affects the person for a lifetime. It's as simple as that.

• 1010

What's really difficult for many victims is the decision of whether to talk about what's happened to them. Most victims don't. We deal with many victims of crime who come to us and talk about it. They want to meet other victims who have been in a similar situation, but they simply won't, or can't, carry it through the system. They won't go to the police with it.

The only thing that really encourages them, in many cases, to go to the authorities and to lay charges, especially with male victims of sexual assault, is the concern they have that he's continuing to do it to other kids.

Mr. Eric Lowther: So in terms of the bottom line out of this process, what we're going through here today and these bills and this issue, what do your two groups want to see? What's the bottom line here?

Mr. Gary Rosenfeldt: Our group sincerely appreciates the fact that Bill C-284 has been brought before this committee. I think it can do some good. I think it can prevent the victimization of some children in care.

Again, though, I would repeat that I think that a great deal more needs to be done. If this is the beginning of many stages of tightening up the system, I think that would be great.

We're not lawyers, we're not experts, but from what we see, Bill C-69 is more of a bureaucratic maze than Bill C-284. To our minds, Bill C-284 makes an awful lot more sense.

Not only that, but Bill C-69 just came out this week, and Bill C-284 has been around for a long period of time. If it went through the system faster....

So there's no question about it. It would prevent the victimization of some children, and prevent harm being done to children.

Mr. Eric Lowther: Steve, do you have anything to add?

Mr. Steve Sullivan: I guess the bottom line for us, as I think Gary mentioned, is that we want to see all kids protected from abuse. Neither bill is going to do that, but I think they can protect some kids.

We were here last week or the week before talking about another bill, and we've been here before saying, you know, if this piece of legislation can save one kid, then it's worth it.

I guess that's the bottom line. You have two bills with a similar goal. We have faith in this process or we wouldn't be here. We wouldn't come to you continually and be part of it. You have a responsibility to your constituents and to Canadians to work together.

I think you can do it. We've seen it before. We saw it with the victims' report. You can work together. Whether it's parts of this bill and parts of that bill, the bottom line is to protect the kids.

Mr. Eric Lowther: Yes.

The Chair: Thank you, Mr. Lowther.

Mr. John McKay.

Mr. John McKay: I was just thinking about your London example. I don't think either of these bills would address that example. I was thinking about the process you'd go through to set up a daycare centre. Really, the only licensing requirement, I take it, would be a municipal licence to operate a business in that particular zoned area. That'd be it.

Mr. Gary Rosenfeldt: That's right.

Mr. John McKay: I wonder whether it should be part of our reporting by this committee to urge municipalities to be included, if you will, in a list in either Bill C-69 or Bill C-284 such that municipalities be required to do a check with respect to the issuance of a daycare licence.

Mr. Gary Rosenfeldt: I think that's a very good idea, Mr. McKay, when you consider the alternative of what we have today. The fact that convicted pedophiles are owning and operating daycare centres is ludicrous.

Mr. John McKay: You rightly point out an anomaly that neither of these bills addresses, really.

Going back to Mr. Saada's “location of discretion”, shall we say—

Mr. Jacques Saada: Questions only.

Mr. John McKay: —in discretion locus; there used to be a concept of in loco parentis, but that went by the boards—the minister's bill starts off by saying that if the board proposes to refuse to grant a pardon—so in some respects it casts the net more broadly—and then sets up a hearing process, it can be initiated by an organization such as Mr. Lowther's concerned organization, or it could be initiated by the convicted person himself or herself.

I'm just wondering whether in that area of the bill we might do something in terms of restricting, shall we say, the minister's discretion to issue a pardon on the kind of concern that Mr. Lowther is addressing here—namely, those kinds of offences? Would that be where we would...?

• 1015

I guess you have choices here. You can put the discretion in the hands of the police or you can put it in the hands of the minister. Somehow or another, I feel more comfortable with the minister having the discretion, because the police ultimately have no accountability—well, it's not “no” accountability but a “remote” accountability—whereas in theory, the minister's accountability is much more tangible, and there's a system here.

If there is going to be discretion, then is that where we should locate it?

Mr. Steve Sullivan: I'm not all that familiar with the government's bill, so if I'm misunderstanding you, please forgive me.

Mr. John McKay: Neither are we. We're the same.

Mr. Steve Sullivan: In the section you're referring to, as I read it, it's to grant a pardon in the first place.

Mr. John McKay: That's right.

Mr. Steve Sullivan: So five years after the offence, the person applies. Are you saying we should limit those types of offences where people can get pardons?

Mr. John McKay: If I'm convicted of the kind of concern that Mr. Lowther is concerned about, should that be where the flag drops, at the initial instance? It doesn't even matter that I'm applying for any job related to children. It's irrelevant. I'm simply applying for a pardon.

Is that where the flag should drop?

Mr. Steve Sullivan: Mr. Rosenfeldt in his opening remarks talked about no pardons for child-sex offenders, and certainly you have to define which offences. The Solicitor General's research and other research shows that there are special policy concerns for child molesters.

The simple answer might be that you just don't give pardons to certain types of child molesters.

Mr. Gary Rosenfeldt: I think part of the problem right now is that police agencies really don't know where to go with this. Every community is screaming for information with regard to pedophiles who are getting released from prison, moving into their community and everything else.

If there was a system or a set of guidelines, I think the community might feel more at ease with the systems that might be in place for checking employment and this type of thing.

There's a lot of grave concern out there right now, and rightfully so, I think, because they hear stories of convicted pedophiles moving next door to them and getting jobs in their community.

I know in some communities in the U.S. there have been attacks on these pedophiles. Someone in Los Angeles, California, was beaten to death a number of years ago. It was the wrong person. This is the sort of thing we could run into too.

So we're not suggesting all of these processes be in place only for the protection of children, but if the processes are in place, if a family in a community can feel relatively safe in sending their child to a daycare and having their child attend organizations where there are people who they know are responsible and who don't molest children in their charge, there'd be a lot less fear from the community.

We see an awful lot of fear being expressed by parents. We try to promote education, but there's a great deal of undue fear, in a lot of cases, that we see coming from parents, where they're obsessed with every possible avenue of where their children might be. They're afraid to send their kids to a swimming pool without being there 100% of the time. With teenagers, that's difficult. It restricts family life. It restricts so many things for many parents. But we also regularly are in contact with many other groups who promote picketing outside pedophiles' homes and this type of thing. We're really not into that. It's not a solution to the problem. Many of them call us, looking for support, and we don't lend the support because it's not going to solve the problem.

The Chair: Thank you, Mr. Rosenfeldt.

Peter MacKay, do you have a question?

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I want to thank the witnesses. Once again you've provided us with some very helpful information.

Mr. Rosenfeldt, you were talking about some of the actions that communities take in response to this fear, real or perceived. I've seen that happen as well.

• 1020

In my part of Nova Scotia, there was a man who was known to be an offender and had been convicted several times both in the immediate community he lived in and outside the community. As a result, several people in the community, including several police officers, took part in a sign campaign. That is, they put up bulletins and notices around the neighbourhood with this man's picture. This was done pretrial, even.

So this fear you talk of is an important aspect of this, as is the information sharing. I noticed that in your comments about the bill, in your letter, you talk again of the need for a national registry in Canada.

Do you see that this might be an opportunity—and Mr. Sullivan touched on this as well—for perhaps bringing out the positive elements of both Mr. Lowther's private member's bill and the bill that has been tabled by the Solicitor General, and somehow including a national sex offender registry?

Mr. Gary Rosenfeldt: I'm hoping that this would come about. That's why we're promoting it and talking about it here.

Our concern is the protection of children. You stated a case in Nova Scotia where even the police took part in picketing and that sort of thing. I find this whole process really frustrating. It makes me angry.

I'm not out to protect pedophiles, but what I'm saying is...and I can understand the concern and the fear that's being expressed from within the community.

There was a news story on Global last night—I don't know if any of you caught it—on a convicted pedophile who was wanted on charges of sexually assaulting a 16-year-old girl in Prince Edward Island. He subsequently moved to Moncton, New Brunswick, and there was a warrant for his arrest in Prince Edward Island. Absolutely nobody bothered to drive across the bridge, pick him up, and take him back for the charges on the assault of the 16-year-old girl back in Prince Edward Island. They didn't want to send two officers to Moncton, New Brunswick, to pick this guy up.

He subsequently moved on out to North Bay, Ontario. They ran him out of town with pickets and signs, because they found out he moved into their community. After that, because he was forced to leave North Bay, Ontario, he moved down to Toronto, where the police were pre-warned that he was on his way to Toronto.

Upon hitting Toronto, he visited an arcade and a park, where kids played. The Toronto Metro Police were able at that point to pick him up. They spent $4,000 taking him back to Prince Edward Island. Nobody in Prince Edward Island wanted him.

You talk about where you put the discretion, and in the hands of whom. They interviewed the police chief in Summerside, P.E.I., on television last night. He said, well, the guy's family lived there, so he assumed he'd go back there sometime. The 16-year-old girl he was charged with sexually assaulting lives in that town.

So where does the public's confidence come from with regard to the police, to the Solicitor General, or to our whole justice system? Can you blame Canadians for getting signs and picketing some guy? At least they got him out of North Bay with the pickets.

But this is not the way to do it. Nobody wins in a situation like that. What we need is a carefully-thought-out sex offender registry in this country that operates from coast to coast to alleviate the concern of parents when they place their child in a childcare situation or in an organization or wherever.

That's the bottom line as far as our organization is concerned.

The Chair: The 15-minute bell has started.

Perhaps one quick question, Mr. MacKay, and then I'll have to conclude the session.

Mr. Peter MacKay: I guess this is more of a comment to say that I totally agree with what you're saying. I agree with the principle of what Mr. Lowther and in fact the Solicitor General are both trying to accomplish. What we have to do is get on with the business of protecting these children in any fashion we can, legislatively and otherwise.

Thank you.

The Chair: Thank you, Mr. MacKay.

Thank you, Mr. Rosenfeldt and Mr. Sullivan. We appreciate your testimony once again.

Mr. Jacques Saada: I have a piece of information that will take five seconds.

The Chair: Five seconds? Go ahead, Mr. Saada, you have the floor.

Mr. Jacques Saada: The criteria for the Solicitor General to unseal the records will be made part of Bill C-69 regulations. They will be submitted to a process of consultation, such as the one we have here, to make sure these criteria are reflective of our concerns.

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I just wanted everybody to know that this is really what is envisaged.

The Chair: Thank you, Mr. Saada.

Mr. Lowther, I understand the information Mr. Marceau wanted was given to you by the research people down the line. If you can provide that to the clerk, we'll circulate it to everybody again.

Mr. Eric Lowther: Good. Thank you, sir.

The Chair: Thank you.

If the witnesses from the next panel are in the room, we apologize. We have a vote now, and it will take us maybe 45 minutes to get back here. Unfortunately, it's part of our job to vote once in awhile.

Thank you.

• 1026

• 1106

The Chair: We have with us the second panel this morning. The members are: from Volunteer Canada, Paddy Bowen, executive director; from Churchill Park Family Care Society, Noreen Murphy; and from Canada Family Action Coalition, Peter Stock.

Is Kim Pate with us?

Yes, there she is.

Paddy Bowen, thank you very much for being with us. I understand you are under some time constraints because of our vote this morning. We'll ask you to make your presentation. Then, unfortunately for you, we'll have to hear all presenters, and then start the questioning.

Ms. Paddy Bowen (Executive Director, Volunteer Canada): If I leave during the questioning, please forgive me.

The Chair: If anyone has any questions specifically for Ms. Bowen, I would ask that they perhaps be directed to her at the beginning. Thank you.

Ms. Paddy Bowen: Thank you. I'm going to make a very brief presentation today, prefaced, perhaps, by a comment of a more personal nature. As I thought about these issues, I have to confess to strong feelings of ambivalence.

The parent in me, at a deeply emotional level, would like to think that I live in a country that would never give a pardon to a person who has had sex with a child. I notice from the statistics provided by the Solicitor General that 700 pardons given to sex offenders of children were revoked in the last 25 years or so, and I think that's probably 700 too many reoffences for most parents.

The civil libertarian in me believes strongly in a system of pardon: the right and the possibility that an individual can reclaim their life, can reform, can re-enter their society without a stigma. I believe in that really strongly.

However, I'm here primarily as the executive director of Volunteer Canada and the national spokesperson on screening through our leadership on the national education campaign on screening. In that regard, I would like to make two points.

The first is sort of an oblique point, I suppose, or is maybe not directly to the issues at hand. For me, the whole debate and discussion occurring here highlights the need for us to continually stress how relatively unimportant police record checks are in the process of protecting children from harm from sex abusers.

Proper screening requires vigilance over time: a series of steps that will be taken to protect children, from assessing the risk in a position through to an appropriate hiring process that may or may not include doing a police record check, right through to providing proper supervision and evaluation and checking up with the people, with the children, who are in care.

A police record check is in fact an extremely minor aspect of appropriate screening because the vast majority who will cause harm to children have never been convicted of anything. When we look at our recent cause célèbre in Canada, Sheldon Kennedy, abused by Graham James, or at Gordon Stuckless and his horrific cases of abuse at Maple Leaf Gardens, and at all the many cases that we hear about bubbling up from the voluntary sector, in the vast majority of cases there has never been a conviction. You would never have caught that person through a police record check.

• 1110

An overemphasis on police record checks, whether or not there is a flagged pardon, creates a storm of interest and activity around something that then deflects our proper interest from appropriate screening that would protect children.

I can obviously speak lengthily and maybe over-passionately on issues related to screening. I won't subject you to that, but please don't hesitate to get in touch with Volunteer Canada if you're interested in the national education campaign on screening, which is an initiative of the Solicitor General, Health Canada and the Department of Justice.

The second point I would like to make is directly relevant to the matter at hand. That is the issue of flagging the pardons of individuals who have been convicted of sex abuse.

I believe that where the time and effort has been made to invest in an appropriate, properly managed system and process that awards pardons, we need to safeguard the right of the individual to that pardon. If there are concerns, if the person represents a risk, they shouldn't be pardoned in the first place.

If the pardon system is working and an individual is given a pardon, we undermine the system, I think, by flagging them in the first place. I do strongly believe it's the thin edge of the wedge. Next we'll be flagging people who have committed murder and individuals who have engaged in hate crimes. After a while, it becomes a little odd to think about what a pardon is in the first place.

If the government and the legislature go forward with a bill that will flag a pardoned individual, I believe strongly that with respect to the issue of discretion, which was discussed in the previous session, the discretion should be held at the highest level possible.

I've worked in the voluntary sector for a long time. There are 175,000 charities and not-for-profits in Canada in more than 6,000 communities. No matter how much we trust our police forces and no matter how much we trust voluntary organizations, they are, in effect, communities, and they are subject to all the vagaries of human nature, prurient interest and ineffective management. What we may create when we release confidential information to the lowest common denominator is a kind of witch-hunt mentality.

I believe, then, that if this bill were to go forward, the highest level possible that can be achieved for decisions to be made about releasing records should be where that aspect occurs. I feel this strongly, because one of the things we've seen, even with screening and with the introduction of volunteer screening, is that one of the primary questions that happens in the community is, “Won't this discourage people from wanting to volunteer with us?”

The Toronto school board was on the front page of The Globe and Mail when the board introduced mandatory screening for parent volunteers. The parent groups were up in arms. “How can you question us? How could you do this?”, they asked. There's a lot of fear around the checking, the screening and the determining of who is right and who is not right. If we open that up and make it possible for local groups or even local police forces to have access to this kind of confidential information, I think we are creating the opportunity or the potential for a frightening aura around the whole volunteer screening process, which could ultimately be detrimental to our recruitment and effective management of volunteers in Canada.

I'd like to finish my remarks on the basis that if I'm lucky you'll remember one thing out of what I've said today. I'm going to take this opportunity to give you a very short lesson on volunteerism, if I may, even though it's not directly apropos, and that is, if there's one thing that I want everyone to know, it's that screening individuals does not mean checking a police record or checking a registry or a big list somewhere. In fact, if we imply, either overtly or covertly, that by checking a police record or checking a list we have done our duty by children, we are seriously misleading individuals who have the responsibility to care for children, we are misleading the public and, more importantly, we're endangering children.

I can't speak strongly enough against a national registry of sex abusers, not because there's anything inherently wrong with a registry, but because it won't work and it will cost a lot of money to create a false sense of security within communities, where people will think, “I checked the list.” If somebody had checked the list, Graham James wouldn't have been on it and Sheldon Kennedy would still have been a victim, like all of the other thousands of children who are the victims of clever, hidden pedophiles.

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I would like to see this government and all governments put their resources and their energies into educating and preparing voluntary sector organizations to appropriately carry out their duty of care and not create a storm in a teacup around pardons and flags.

Thank you.

The Chair: Thank you, Ms. Bowen.

Ms. Murphy.

Ms. Noreen Murphy (Executive Director, Churchill Park Family Care Society): I'm representing the early childhood educators in Alberta. I'd like to talk to you about how Bill C-284 will protect the children entrusted to the thousands of early childhood educators and caregivers in Canada.

The families of Canada leave their children with early childhood educators and caregivers daily. Early childhood educators and caregivers are responsible for children in daycares, family daycare, one-to-one situations, play therapy sessions, hospital situations, nursery schools, preschools, school-age programs and with nannies. There are many more examples.

In our profession, we encourage small group situations in which children have a primary caregiver. Hugging, holding, stroking and cuddling are supported and encouraged because we know that's what children need. Children embrace learning and develop positive social skills when they are involved in an appropriate physical relationship with caring adults. Think about what you would want to have happen to your very young child when you aren't with them. You would want them to be held, to be picked up, to be cuddled.

Early childhood educators and caregivers are in fact sometimes surrogate parents. Children are in daycare centres eight to twelve hours a day. Parents don't spend that much time with their children if they're working. These early childhood educators and caregivers are involved in diapering, toilet training, dressing and undressing, settling children for naps—and a lot of times they're alone in the room when they're doing that—comforting and emergency medical treatments. They are the one adult outside of the family who usually knows those children best.

Early childhood educators and caregivers are role models and mentors for parents, students, children and other staff. In a child-care setting, the parents, administrators and the public depend on the fact that individuals with the personalities, education and attributes most suitable for the nurturing and educating of young children are the ones chosen to perform these duties.

When a child is abused by a sexual predator, the child's trust of the world is forever changed. Some say it's broken—and forever. These insidious, silent and devastating crimes have a lasting negative impact on the child, the parents, other staff, the centre, the child-care profession and the public.

Child-care settings are perfect places for a predator of this type to attempt to become employed in. These individuals are masters at deception and manipulation. With their charm and their lies, they are able to circumvent any safeguards we have in place. They are able to deal on an intimate level with vulnerable children immediately upon employment, because a high-quality child-care setting is organized to enhance the trust relationship between children and early childhood educators and caregivers. Consequently, a potential perpetrator is easily integrated into the environment and is able to do harm to children very easily.

When we hire someone to fill these roles, our children and families deserve our best assessment possible. I must agree with the previous speaker: assessment is the key issue. Child care is not a sophisticated business. Sophisticated screening practices are not well known or well understood within the child-care sector.

Just think about that daycare centre down the street that's run by the lady who lives in the upstairs of the house. Her ability to determine the background of an individual is very compromised, according to how much she knows about the law and about legal practices.

I come from Alberta. There is a requirement in licensing that we in fact do a criminal records check. People like that lady down the street assume that because the criminal records check comes back clear there's absolutely nothing wrong with that individual.

Having a flag, a way for me as an administrator to know that there is possibly something wrong with the character or the past of that individual, gives me the ability to ask the right questions. If I don't even know the flag is there I can't ask the questions.

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When we hire somebody to fill these kinds of roles, children and families deserve our best. We must be able to screen out those who have hurt children in the past. We do not feel that the success of rehabilitation should be tested on our most vulnerable citizens.

Right now in Canada, there are probably hundreds of individuals who have committed sexual crimes against children, interacting with very young children on the most intimate levels possible for eight to twelve hours every day. However, we do not know who they are, because pardons seal that information from child-care administrators. We are unable to do our best for our children.

Please provide us with a way to know when a person who has committed a sexual crime against children has applied to work in an early childhood setting. Thank you.

The Chair: Thank you Ms. Murphy. Ms. Pate.

Ms. Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies): Thank you very much for inviting us to appear.

I'd like to talk a bit about the significance of pardons to us and to those who receive pardons, as well as giving you our comments on the bill.

For those who are convicted of criminal offences, once they've completed the sentence that has been meted out to them by the courts, the sentence that was deemed to be the appropriate penalty for the offence they committed, and once they attempt to show that they have become law-abiding citizens, that they have integrated into the community successfully, it's important to realize that a pardon allows them to have their record sealed so that they may continue on that path of integration without it being interfered with unduly. It serves to relieve individuals who have paid their debt to society in that way of the continued stigma of criminal records.

It's very important to remind ourselves that this is the purpose of the pardon, and I think it's also important to remind ourselves that the Solicitor General already has a fair degree of discretion. In this, I would agree with my colleague from Volunteer Canada. In fact, we need to ensure that we provide the discretion at the highest possible level in terms of who can and can't interfere with a pardon.

Currently it is our view that under subsection 6(3) of of the Criminal Records Act the minister already has the ability to disclose information about records. Basically he can satisfy himself that it is desirable to release that information. He can and has the authority to do so. In our view, the discretion is certainly extremely broad; the language states very clearly that it's where it's “in the interests of the administration of justice or for any purpose related to the safety or security of Canada”. Obviously the safety and security of our children would be one of those examples. The Solicitor General already has that broad power.

Our view of Bill C-284 is that it merely provides some fettering of that discretion and that in a such a manner it may in fact therefore interfere with the minister's ability to impose. Also, Bill C-284 provides some limitations in terms of when the flagging and the fettering of discretion would occur. Our concern is that, one, it's inappropriate to fetter that discretion in the first place, and two, there is no clear evidence that there's a need to fetter that discretion.

In fact, according to the Solicitor General's own ministry data—we inquired as to how often they've been asked to exercise their authority and reopen pardon cases—we were advised that there are 12 to 15 cases per year. The minister generally chooses to disclose the record in approximately 80% of those cases. Approximately half of the annual requests received are from prospective employers who are seeking access to a record for which an individual has received a pardon. They've been notified that there is a pardon, by the individual, presumably, or by some other screening mechanism or by a police record check, or they're merely seeking that information themselves. As we mentioned, in only 20% of those cases has the minister chosen not to disclose the record. So obviously he uses that discretion fairly regularly in the limited number of cases that are brought to him per year.

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Our view is that by imposing the flagging system proposed in Bill C-284 we may also see an increase in the number of cases brought forth. It may create an expensive system that creates, as has been already articulated, a false sense of security amongst prospective employers, when we know that in fact it may very well deflect attention away from the very real need to ensure that prospective employers, particularly of employees who are going to be working with our most vulnerable, whether it's our children or mentally handicapped and so on, other groups not necessarily addressed in Bill C-284.... We would prefer, in fact, that attention not be deflected away from that and that instead sufficient attention be paid to the sorts of activities that Ms. Bowen and her colleagues are working on in terms of screening practices, training practices, supervisory approaches and evaluative approaches.

If I may speak personally for a moment, having been on the board of directors of a child-care centre and being the mother of two young children, I can say that when the issue of screening arises, there are many who believe that it in fact will be the panacea, that it is the way to determine who would be a danger to our children in our child-care centre. In fact, quite the opposite, as we know, is very clear. As Ms. Bowen has articulated, many of those who are committing offences against children and others who are most vulnerable in our communities are not identified to the police or to the courts and don't have pardons.

We would argue that a screening mechanism, whether it's a police record check, a pardon check or a flagging system, is not going to increase the safety of our children—possibly at all and certainly not by any great margin. We would certainly prefer to see far more attention paid to the source of education activities that the Solicitor General is engaging in with groups like Volunteer Canada, whereby additional screening mechanisms, training mechanisms and evaluative mechanisms are being introduced so that people can look to what some of the behaviours are that they need to be cognizant of, to what some of the practices are and to what some of the issues are they need to be aware of.

It's very clear from both my perspective and that of the Canadian Association of Elizabeth Fry Societies that at this point our view is that there is no need for this kind of flagging system. The minister already has the discretion to reopen a file if he deems it appropriate and necessary.

The information provided by the ministry itself also underscores that the incident rate of subsequent commission of sexual offences is in fact very low. Obviously any subsequent commission is too high for anybody's liking, but the reality is that this is an issue that has evoked a lot of emotion and a lot of attention and, in our view, is deflecting and detracting from the very real attention that needs to be paid to some of the broader issues that Ms. Bowen and I have now echoed.

Thank you very much.

The Chair: Thank you Ms. Pate. Mr. Stock.

Mr. Peter Stock (National Affairs Director, Canada Family Action Coalition): Thank you, Mr. Chairman. Thank you for inviting Canada Family Action Coalition here today to speak to you on this important issue.

First of all, we'd like to congratulate the member for Calgary Centre on jumping what is probably the greatest hurdle any member does jump in introducing legislation in the House: getting it past second reading and bringing it before this committee. We'd also like to congratulate the Solicitor General and the members of the government on recognizing the seriousness of this issue and making it plain that they're willing to address this in the form of government legislation.

What got Canada Family Action Coalition interested in this whole issue area of sexual exploitation of children were the stories of the child pornography busts that started to come to light a couple of years ago. Day after day in the media, there were stories of tens of thousands of pictures being seized, all of naked prepubescent children being sexually exploited and abused. We recognized that this was a problem that went far beyond simple questions of sentences and corrections and so on. We recognized that something needed to be done to protect children, so we started to research this issue.

When you think about these child pornography busts, for example, you're talking about, let's say, 10,000 or 20,000 children. That's the number of children living in any one of your ridings. To think that there are that many children out there who've been abused by pedophiles.... Some are in Canada, some are in the United States, perhaps, and maybe around the world, but that any one person would have so much material, so much filth, on hand is just absolutely shocking.

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We started to research this issue and went to the Ottawa-Carleton police, where they have a child pornography investigations unit. We also went to Project P and took a look at what the OPP is doing in Ontario. They have probably the most advanced and developed unit in the country for dealing with this particular issue area.

I brought a couple of pictures with me, actual child pornography from a bust of child pornography, a seizure that the police made in Toronto. I would be willing to pass these around later if you're interested in seeing them. There were thousands of magazines and tens of thousands of pictures on a computer hard drive and disks. It is absolutely unbelievable.

Of course we went and talked to the people who are dealing with pedophiles who have been convicted and incarcerated in the riding of the member from Simcoe North, in Penetang. There's a treatment centre and a ward for the criminally insane pedophiles. We talked to the people who treat these individuals. We talked to the pedophiles themselves.

There is one thing that we became totally convinced of as we did this research, and that is, the majority of these individuals are at high risk to reoffend. They will reoffend if they get the opportunity, so anything that Parliament can do, anything that the justice committee can do, to protect our children.... It's not a partisan issue, it really isn't.

Of course there is a partisan issue to some extent in that there are two bills. One is a private member's bill and one is a government bill and we're all aware of that. They have a similar intention. There's no question about that. In fact, I would suggest that they have the same intention. But there are some key differences, and there are just some particular questions we'd like to raise.

I believe we really do have to consider both bills before this committee—although Bill C-284 is the subject of these hearings—by maybe looking at what the different bills offer, at which might prove to be the ultimate or at least partial solution to this larger problem. There are a couple of questions we have about Bill C-69 in particular.

The private member's bill, Bill C-284, raises the question of the Canadian Human Rights Act and what happens when a record is unsealed and released to an agency that's hiring. The past offender has agreed to that release. We're all aware that's how the bill works. Let's say the agency decides not to hire the individual because of a past conviction from 20 years ago or whenever the actual conviction was because they become aware of that through the legal process that this bill entails.

Yet, when the agency makes a decision not to hire, the person who was not hired goes off to the Human Rights Commission and says, “I was discriminated against on the basis of a pardon.” I see that the private member's bill addresses that possibility and amends the Human Rights Act to deal with that possibility. The government bill does not—at this point. I wonder if that is something that perhaps the government and the Solicitor General should consider as we move through this process.

The second thing, again with Bill C-69, is the question of flagging. It's quite clear in both bills, the private member's bill and the government bill, that a record will be flagged if there is an offence as listed in the regulations. That's great. However, it appears that under the government bill there is a small question about what I might call liability of some sort. That is, let us say that the police find a flag on a record, take it to the Solicitor General and say, “We have this flag. Please release some information to us.” Let us say that for whatever reason—we don't know what those reasons are because we haven't been told at this point—the Solicitor General says no, they're not going to release that information. There might be completely justifiable reasons. Then the police go back to the agency and say, “What do they say? Do they say we can't release any information to you? Do they indicate that there's a flag?”

There's a question there as to whether or not they can even acknowledge that there is a flag on that record. If they do so, are they breaking the law? If they don't do so and that offender does offend and it comes to light later that there was a record that had not been unsealed, are the police responsible for not indicating that there was a flag on that record? That's a question that to this point I don't believe has been answered. I think it's something that we very seriously need to consider. Are we putting the police in a situation of liability? I'll leave that question for you.

The final question has to do with the Solicitor General examining these records and making what appears to be a subjective decision about whether or not an individual record should be released. Should it not be that a set of regulations are laid down that indicate what grounds there are for denying access to a record? That would be standard. That would be objective rather than subjective on a case-by-case basis. Why do we have that extra layer of bureaucracy? Will that not slow down the process of applying for records? Those are some questions that need answers. I'm not certain that they can't be overcome, but I do believe they need to be addressed.

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The final thing concerns the list of offences that will be considered in the regulations. Of course, at this point, that has not been made public on the government side. I assume that at some point it will be. We'll wait to hear what that is. One thing that we would highly encourage the Solicitor General and the committee to consider is that the child pornography sections of the Criminal Code be included in that list, that is, section 163.1, subsections 1 through 4, possession, distribution and production of child pornography, etc.

I don't know whether those are included or considered to be included at this point, but it is clear that child pornography offences are directly related to pedophiliac activities, to the sexual exploitation of children. Therefore, we would strongly encourage the government and the committee to include those offences on their list of offences in order to help the police and agencies deal with this serious problem. There is more to this issue than just flagging of records. As some of the agencies have pointed out, this is not the total solution to the problem.

Very briefly, there are some other things that we would like to see happen over time. We believe that the committee is going down the right road with these issues and is trying to address it in a very mature and responsible way.

Of course there are mandatory minimum sentences. We had a situation here in Ottawa very recently, on March 12 of this year, with an individual named Paul Gervais, a 52-year-old man who lives here in Ottawa, who had pleaded guilty on December 16 to seven counts of sexual exploitation, one count of sexual assault and one count of committing an indecent act. The charges involved nine young men between the ages of 14 and 20 who were assaulted in his upholstery store in the last couple of years. Charges were laid last year after a 14-year-old boy complained. At his sentencing, it was heard that Mr. Gervais had been convicted of a similar assault more than 20 years ago. He has since received a pardon for that offence. That's fair enough.

The interesting thing is that when the Crown and the defence attorney were arguing on the issue of sentencing, the Crown argued that the lesson should be a jail term of between 12 and 18 months, and Judge Ryan, the judge in this case, told the court he had first thought that a jail sentence would be appropriate, that he knew the community was “crying out for long-term sentences for such offences”.

But then Judge Ryan said that Mr. Gervais would return to society at some point in time so it was best for the public that he receive regular treatment and be with his family. There was no consideration for the protection of society there. He gave Mr. Gervais a conditional sentence of two years less a day along with three years' probation. From the judge again:

If the legislatures have seen fit to offer the courts the use of conditional sentences, then should not the courts avail themselves of its use?

So my question for Parliament—it's the question that the judge raised—is, why do we have conditional sentences for sex offences against children? This is something else that I believe the committee might be wise to consider.

We have three other points, very quickly: raising the age of consent, which would be a very useful tool for the police when dealing with child prostitution; banning the sale of adult materials to children, things like Playboy or Hustler, which can be legally sold to little children in Canada; and finally—and this is something that the government has offered leadership on and we're encouraged by—a nationally co-ordinated enforcement strategy to deal with the sexual exploitation of children.

The RCMP and CISC have been working on developing this enforcement strategy, as you know, for the last couple of years, and it's about to go into place. The one thing I would encourage the committee and the government to look at is additional funding for this. They're spending an awful lot of money on some other areas of policing that I don't think bear quite the same returns. A few million dollars spent in this area could really help deal with this problem of pedophilia and sexual exploitation of children in our society.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Stock. Mr. Lowther.

Mr. Eric Lowther: Thank you, Mr. Chairman.

To Paddy Bowen, if I may: close to 40 different volunteer groups—the YMCA, Scouts, daycare, school boards, Big Brothers, disabled care groups, etc.—have strongly endorsed Bill C-284. Does Volunteer Canada speak for these groups?

Ms. Paddy Bowen: No. We speak for ourselves.

Mr. Eric Lowther: Does Volunteer Canada get any government funding?

Ms. Paddy Bowen: Yes.

Mr. Eric Lowther: From the federal government?

Ms. Paddy Bowen: Yes.

Mr. Eric Lowther: Your position seems to suggest “don't check because it gives a false sense of security”. Are you aware that there are 12,000 pardoned sexual offenders who are currently out?

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Ms. Paddy Bowen: Yes. You're misrepresenting my remarks by saying “don't check”. I'm saying “don't depend solely on a police record check”. There are a lot of other ways to check.

Mr. Eric Lowther: Right.

Ms. Paddy Bowen: In fact, the groups that you've mentioned—Scouts Canada, the YMCA, the Canadian Parks and Recreation Association—are national partners of ours in the national education campaign on screening and they embrace this same message.

Mr. Eric Lowther: I quoted your exact words: “don't check because it gives a false sense of security”.

Ms. Paddy Bowen: I think you've written down my remarks wrong. I'm sorry.

Mr. Eric Lowther: Okay. Are you saying now, then, that it would be worthwhile to check?

Ms. Paddy Bowen: A police record check is one of ten steps of screening. The first step of screening is to assess the risk in a position. The second step is to create a position that mediates risk. For example, in T-ball, 400 coaches enter in May and leave in October. You don't need to do all ten steps for all 400 coaches if you create volunteer positions that mediate risk, i.e., you're never alone with a kid, you never pick up a child and you don't have any contact with them. But as soon as a coach is going to go on the road to a tournament with a child or with a group of children, you do a more intensive screening, which may include a police record check.

What we're recommending, though, is that there not be an overemphasis on police record checks, because that won't catch most offenders. Other screening initiatives, such as being vigilant, watching the individuals as they interact with children, doing a reference check, properly training and orienting them and speaking to children are going to do a much better job.

Mr. Eric Lowther: I appreciate that clarification. What you're really saying is that doing a record check of a pardon or anything else is not the panacea, not the whole picture.

Ms. Paddy Bowen: It's a very small piece of the puzzle.

Mr. Eric Lowther: It's a small piece of the whole puzzle.

I think you also said that perhaps we should be questioning giving pardons in the first place in order to catch this at the front end for certain individuals. That said, knowing that there are 12,000 pardoned sexual offenders out there, according to the Solicitor General's own study, with 700 of them having reoffended even after the pardon, I find it hard to understand why you wouldn't want to at least add the additional step.

Not that it's a panacea, but if someone is applying for a position of trust involving children, we know we have the pardoned records out there and we know we have the information on the pardon, so why wouldn't we want to provide that information to the people making the decision, not as a panacea or to give a false sense of security, but to do all we possibly can? You seem to be opposed to that. Do I have that wrong?

Ms. Paddy Bowen: Yes, you do have it wrong. I'm opposed to an overemphasis on that as the panacea, which you've correctly identified. I have said that if the decision is made to go forward, my preference would be to see the discretion—which all of us have referred to at some point in our presentations—for release of the information staying with the Solicitor General.

However, I do note that I think the 700 and the 12,000 individuals you talk about won't be captured by Bill C-284 because the system would only be put in place now, in my understanding, and we wouldn't begin to see records for a period of three years. In fact—and this is more a personal comment than a Volunteer Canada comment and it was how I opened my remarks—I wouldn't mind seeing a reassessment of the pardon system to assess how pardons and the pardoning of sex offenders of children is carried out.

For example, in Canada, if you are convicted of first-degree murder you are not eligible for a pardon. There's a decision that's been made in the history of our country. I think we're seeing a growing interest in a similar kind of decision being made, subject to a lot of review by experts like yourselves as to where the line in the sand would be drawn: should we be pardoning the individual who is interested in having sex with children?

But once a pardon is in place, these are fairly refined measures in terms of catching the majority of sexual offenders.

Mr. Eric Lowther: I will just submit to you that we have 12,000 pardons out there now for which that process wasn't very defined. It was pretty much automatic. Bill C-284 doesn't preclude it from being retroactive. It could be applied to those pardons as well.

But I appreciate your comments. I think you're saying that you're not opposed to the check, but you just don't want it to be seen as the panacea. I understand that. That makes a lot of sense.

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Could I also ask you a question or two, Ms. Pate? You mentioned the continued stigma that could be attached to these individuals in the community. I just want to point out that Bill C-284 only discloses the record when the person is applying for a position of trust over children. It never discloses the record if they're applying for any other kind of position. You also point out that the Solicitor General today has the ability to disclose this information. One of the problems we're wrestling with is that often people aren't aware there's a pardon so they don't think to ask. That's part of the reason there are so few requests.

The fact that there's no evidence suggesting that we need to fetter the Solicitor General is more, I think, a side issue, perhaps—unless I misunderstood you—because today people don't know to request it. They assume the criminal record check is complete. There's nothing there. Nothing shows up—no flag, no pardon—therefore they don't ask. You also spoke to the false sense of security that doing a pardon check would give. With the comments that Ms. Bowen and I have had, are you still at that point or do you think it's worthwhile doing this check within the context of what I brought to light?

Ms. Kim Pate: To go back to your first question, part of our concern is that this will be the narrow edge of the wedge in terms of access to reopening pardons. Therefore, the question that begs to be asked is, at some point, what will be the point of having a pardon? That overarches some of our concerns.

Certainly there are the realities that some people may have dealt with issues and moved on in terms of their past histories. Our concern is not that you shouldn't be able to screen at all, but that you can screen now and oftentimes in the cases where individuals are already known to the system, they're known beyond the record checks and the pardons, and they're often well known within the community.

Our concern is that we already have mechanisms for checking. In fact, if someone asks about a criminal record, with the exception of those who are protected by virtue of the Canadian human rights provisions—not all provincial human rights acts provide protection for people with records—technically their records could still be accessible, if it's known or if it's still in the area.

The Chair: Mr. Peter MacKay, are you ready?

Mr. Peter MacKay: Yes. If I may, I will just follow up on a few of those similar questions. I'm not sure I follow you when you say that a lot of this information is known beyond the criminal record checks.

That does happen in some instances, but I know that in my part of the country, Atlantic Canada, people are very transient. People are constantly leaving for parts unknown. Obviously, for a person who has a criminal record and has pedophiliac and predatory instincts, it's in their interests not to have any identification. They're going to go to great lengths to avoid detection.

In fact, when it comes to applications for jobs, if they have been granted a pardon, to use Mr. Lowther's example, on most of these forms they use, if it's a pardon it's not specified. The forms just ask, “Do you have a criminal record?” Technically under the law that record has been purged, so they don't have a criminal record.

So if there's a great deal of emphasis being put on the offenders to identify themselves, which they're not going to do, I wonder how you would respond to those comments.

Ms. Kim Pate: Thank you for the clarification, because I was thinking that we were talking about some of the smaller communities and some of the smaller groups. In fact, in many of those communities, if someone has been convicted of an offence and is well known within that community, that person, whether pardoned 20 years from now or not, is still known.

In terms of the records, in our experience with people who have been convicted of offences, when they're asked if they have a record, even if they've received a pardon and they are told that their records are sealed, many of them still believe they have a record. That's some—not all—of what I was referring to.

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Your point gets at exactly the issue I was raising with respect to it not being a panacea. In fact, if someone is that transient and is moving all around, whether they have a pardon or not, especially if they've never been convicted, which many haven't.... We know that the reality is that most people who are risks to our children have not even been apprehended, much less convicted or jailed or ultimately pardoned for an offence. The sense that we're creating this and therefore addressing an issue is, for us, part of the concern that it's creating a false sense of security, both in terms of individual employers who might rely on such a registry and in terms of the public at large, who will think that their children will now be safer as a result. In fact, just the converse may be true. In fact, there may be even more intricate ways of hiding.

Mr. Peter MacKay: I follow that line of thinking, but ultimately it's about prevention. Legislation isn't going to solve the problem. I will give you that. I totally accept that as a reality. But as we've seen with other bills, for example, like the gun registry bill, which is all about giving police officers knowledge—or this was the intent, this was how it was sold to the general public.... To use your line of reasoning is to say that because this system is subject to flaw, that is, the information that is going to be in that system isn't going to be perfect, the police therefore shouldn't rely on it to any great extent because it may or may not be accurate. Sometimes inaccurate information can be worse than no information. In most cases it would be. It could be deadly.

So if we can move towards a system that will give some information to police officers, it's not going to be a perfect net that'll catch everybody, but if this is a step towards giving some information.... I think what many people eventually envision is a national sex offender registry that would be fairly accurate, at least to the extent that for those who have gone through the system, have been given due process, have had their trial and have been convicted, that information then would be part of this greater panacea that we're discussing and part of the checks and the education that are required. Do you not see that as the eventual goal?

Ms. Kim Pate: It may be your eventual goal—and with the greatest respect, I certainly admire the objectives and find them laudable—but I don't think that's what will be achieved. If we talk about the gun registry, some of the concern that many of us have with the gun registry as well is that it's aimed at and sold as something that's going to solve and prevent much crime, when in fact we know that the greatest risk is of people harming themselves, of suicide and accidental injury, not criminal injury. It also may create some false sense.

The spinoff of that is that what people want is more of the same, because they believe it's just not stringent enough. That tends to be the approach that is taken as opposed to the approach of really seeing this as just one small piece of an overarching public education campaign or overarching approach to dealing with volunteers and those working with children.

Our concern is that in fact the more this is seen as dealing with the issue, the less emphasis and the fewer resources we'll see put in place in terms of the real preventative work. For example, this sort of registry will be very expensive to maintain, relatively speaking—relative to the public education work that Volunteer Canada does with its membership.

Obviously there are still many people out there—your colleague mentions the fact that there are some 40 groups who have applied—saying that they support this. I'm not surprised, because people are searching for ways, for mechanisms. What I fear is that by you providing this sort of bill and this sort of flagging system, they will see that as a very inexpensive quick fix from their perspective, not necessarily from—

Mr. Peter MacKay: And relax other efforts.

Ms. Kim Pate: And relax other efforts.

The reason that I related my own experience on the child-care centre board was that it was that precisely. We were talking about what would be seen as a more complex or complicated way of ensuring our children's safety. Then, when individuals felt that just by a record check we could deal with that, clearly they were being led to believe that we had most of those individuals in custody or that they had been convicted.

• 1155

Too, I'd also like to address a question you may want to ask the government and the Solicitor General. Just how many sex offenders are currently being pardoned? I recognize that numbers have been put forth before in terms of the past. The reality, however, is that over the last decade or so we've seen an increased focus on sex offences and sexual offending. In fact, I would be surprised to hear that as many are being provided with pardons currently as they were in the past. I don't know.

Mr. Peter MacKay: I have a very quick specific question along that line to yourself, Ms. Pate, or to Ms. Bowen. Would you then favour a scheduled approach in the Criminal Code that says, “for the following list of offences no pardon shall be granted”, those being sex offences against children? That would take away any misunderstanding. It would be very clear.

Ms. Paddy Bowen: This isn't a position that Volunteer Canada necessarily takes. Our position has been articulated wonderfully by Kim—I'll have to take you to lunch, Kim—with respect to the importance of the national education campaign on screening. Speaking as a citizen, it's counterintuitive to me to pardon somebody who offends in that way. In fact, I think it makes more sense to pardon the individual who once killed somebody and is a rehabilitated individual rather than it does to pardon a sex offender, because we know from all of the research that there are all sorts of problems in terms of recidivism, etc.

I really agree with Kim's point that the pardon system has to have integrity. When you begin to mess with it and flag a pardoned person, are they pardoned or are they flagged? If they're flagged, isn't that same thing as showing up their conviction? I think it's sort of the wrong answer to the right question and the right intent.

So yes, I would say that a long-term goal would be to determine to tighten up the pardon system so that when a pardon is granted, it is a pardon. If an individual is deemed to represent a risk to any individual, they shouldn't be pardoned. I think that just makes intuitive sense, but I also understand that legislatively it's a complicated process that needs much study.

The Chair: Thank you, Mr. MacKay. Mr. John McKay.

Mr. John McKay: Mr. MacKay has started to get into an area which is of considerable interest to me, because your comment, Ms. Pate, about this being the thin edge of the wedge as far as the pardon system goes is probably a very accurate comment. I just want to push that a little bit further, but let me back up first. We have a pool of 100%, who are people who are convicted. Do you know offhand how many people actually apply for a pardon?

Ms. Kim Pate: I don't know offhand. I know that it's relatively small and that the timeframe is generally, on average, 11 years after the end of the sentence with respect to when people apply. I'm sorry, but I don't know the actual percentage.

Mr. John McKay: Would it be fair to work on the presumption that out of all the criminal convictions that are entered in this country, 10% would ask for pardons?

Ms. Kim Pate: I hesitate to go further down this road. Of those that I'm aware of, certainly the process of the pardon and the length of time it takes to get a pardon are features that have certainly prohibited some people from applying. I don't know the actual percentages, though.

Mr. Eric Lowther: Mr. Chairman, on a point of order, we have already submitted this information to all the committee members at a previous hearing. Of the pardons that are granted, of the numbers that are submitted, the fact is that 99% of those that are applied for are given. So with respect to this line of questioning, we already have provided this.

The Chair: Mr. Lowther—

Mr. John McKay: With great respect, that's not responsive.

The Chair: —this is a committee meeting and I think he is entitled to the right to ask whatever questions he wants.

Mr. Eric Lowther: Fair enough. It's just a point of information.

The Chair: If it's redundant, then he's wasting his own time. Go ahead, Mr. McKay.

Mr. John McKay: I'm going to work on some presumptions here, because I want to deal with the subset that is applying for pardons. The people applying for pardons at present seem to have a fairly high success rate in obtaining pardons, and I'll cut to Mr. Lowther's issue, which is essentially that the public is losing confidence in the pardon system, particularly with respect to these kinds of offences.

Ms. Bowen made the point that we don't pardon people convicted of first-degree murder. In your mind, would we be—how shall we say it—hitting that thin edge of the wedge with respect to not pardoning people convicted of these pedophiliac kinds of offences?

• 1200

Ms. Kim Pate: Sorry, but just to make sure I have your question right, are you saying that if we don't have a flagging system this would be increasing?

Mr. John McKay: No. I'm saying that a person with this kind of particular schedule offence would not be entitled to apply for pardon.

Ms. Kim Pate: My own view and our organization's view is that we support the pardon process. Of course it's unfortunate that lifers, people convicted of murder, can't apply. Part of the reason is that they never complete their sentence. Their sentence continues until they die.

Mr. John McKay: It's life. That's right.

Ms. Kim Pate: Our view would not be that we should limit it more in regard to who receives pardons. That doesn't mean, however, that the process of looking at pardons shouldn't be reviewed. In fact, our view is that the pardoning process has become more difficult over the years. For some, it is because of the finances; there's now a fee attached to applying for a pardon. For some, it's because of the long process involved.

Mr. John McKay: But in some respects, we're hitting the philosophical edge here, that is, that on the basis of the evidence, these people never get over their particular addition or predilection or whatever it is. They never recover, in which case the granting of a pardon seems to be contradictory and in which case we've hit the edge of a philosophical wall, if you will, in the pardon system with respect to this kind of offence.

Ms. Kim Pate: I recognize that the research currently is showing that very few sex offenders are ever rehabilitated or stop their predilection in terms of sexual activity, particularly pedophiles.

We also recognize, though, that there's been relatively little work done on what interventions could be done, so our view is.... As much as I would never in any way want to be seen to be encouraging letting up on our vigilance or letting up on our surveillance of those who are involved in sexual activity—for instance, anybody who is at risk in the community—the reality is that I don't think we can close the door yet on any interventions.

Mr. John McKay: We really wouldn't be tinkering, shall we say, greatly with the pardon system if we in fact established a schedule of kinds of offences for which pardons could never be granted.

Ms. Kim Pate: With respect, I think that we would be. I think it would fetter the discretion of the minister in terms of what it could look at.

Mr. John McKay: Yes, that would be the idea. We would fetter the discretion of the minister.

Ms. Kim Pate: That's right. Our concern would be—again in terms of the narrow edge of the wedge—that this year it may be sex offences and that next year it might be something else, like drug offences. Basically our concern is that it will be the issues that become the flashpoints for communities, and this is not—

Mr. John McKay: But then the real question becomes, whose code is this anyway? Whose criminal justice system is this anyway? Is this the public's or is it the experts', the people who occupy the system, namely, the participants, the lawyers, the judges, etc.?

I said I was going to apologize for pushing you to the edge, but I'm intentionally pushing you to the edge to see whether you believe that there is a case to be made, that for these kinds of offences a pardon system should not be in place.

Ms. Kim Pate: If I were confident that the offences categorized the behaviour accurately, then I might be willing to be pushed to that point. I'm not certain that they do. We know that in fact the offences don't show clearly what the behaviour is. There is no such offence as a sex offence, for instance, or a sex offence against a child. There are a series of—

Mr. John McKay: That's true. We are dealing with convictions.

Ms. Kim Pate: That's right. Our concern would be how you would then determine what the behaviour is and whether it's likely to reoccur. That's why we have the pardon as an individualized process, in my opinion. We're looking at the individual in their circumstances in the context of the charges they're convicted of.

To push the other way a bit on this issue, our concern would be that as we see the penalties become greater we see and hear about more bargaining away at other parts of the system, and I would hate to see a situation whereby someone who could be or should be tried and convicted of a certain offence is tried and convicted of something that isn't in the schedule.

Mr. John McKay: In order to avoid the pardon system altogether. It's a bit of a remote argument, though.

Ms. Kim Pate: I agree, but I believe it's certainly part of the issues that need to be weighed.

The Chair: Thank you, Mr. McKay.

Mr. Lowther, three minutes.

• 1205

Mr. Eric Lowther: Thank you, Mr. Chairman.

I'm hearing Ms. Bowen and Ms. Pate say that they're open to considering that maybe we shouldn't be granting these pardons to these people at all if we could define for sure that we have the behaviours nailed. Yet, Bill C-284 just says that we just want to give people information about the fact that there is a pardon.

If we hadn't granted a pardon to these people in the first place, you'd still have full access to the fact that there's a criminal record. You would see it if you hadn't granted the pardon. Yet, you seem opposed to allowing people to get access to that information when they're going into a situation of trust and care over children, a high-risk situation for that person.

Are you suggesting, then, that Bill C-284 doesn't go far enough and that you'd rather go back to these 12,000 pardoned sex offenders we have today and perhaps review those cases and revoke those pardons? If you're in favour of not pardoning them, maybe we should revoke some of the pardons we've already given.

Ms. Paddy Bowen: I'd like to state for the record that I'm not opposed to Bill C-284. I think it has some flaws. My general point, which I think I've made already, is one of education around not overemphasizing this aspect of screening.

Through my work in the voluntary sector, I know full well the great fear of engaging a pedophile. It is rife in our communities—and for all the right reasons. My comments are made to hopefully bring to you a perspective as you try to decide the best way to achieve your end, your goal of protecting children.

I think there are some flaws in the bill before us. On a larger philosophical level, I do think it has a sort of inconsistency. If a pardon is a pardon, then why aren't they pardoned? If there's a flag on it.... One would need to determine how to go back.

The second point I made in my presentation was with respect to how to release the information that there is a flag on a record. I believe the release of that information should not be directly to community groups, because I think that system can become highly arbitrary as a local community level. I don't have a lot of faith in the local police community in some cases. I've seen botching of discussions about people and their records.

If the decision is made to go forward, my recommendation would be that the discretion lie at the highest level possible.

Mr. Eric Lowther: For the sake of time, Ms. Bowen—and I know my time is brief here—either bill, mine or Bill C-69, would still eventually release this information to hiring groups, we would hope.

Ms. Paddy Bowen: Yes, but the decision as to whether—

Mr. Eric Lowther: —to release it or not is okay.

Ms. Paddy Bowen: Yes, that's right.

Ms. Kim Pate: If I may—

Mr. Eric Lowther: Can I ask one question, though? Would you be in favour, either you or Ms. Pate, in favour of examining the current pardons to see if some of them should be revoked?

Ms. Paddy Bowen: I wouldn't have a position on that one way or the other, but it would not be at odds with the message in the national education campaign on screening, which is around protecting children.

Ms. Kim Pate: Our concern would be that if there is no reason other than the fact that you're wanting to review the cases that have been pardoned. We would certainly be opposed to that kind of revisiting. If there were some issue around the individuals involved as to why the cases need to be revisited, that's another issue, and the minister already has that discretion.

In the event that I've not been clear in my presentation, I would like to say that we are not supportive of not providing pardons to any certain individuals. We believe that all who have gone through the system should have access and should be eligible to apply for a pardon.

The issue we're raising is that with the increased sensitivity, whether it's with respect to violence against women and children, to sexual assaults or to pedophilia, there are and should be more stringent screening processes, in fact, but it should not be that someone should never be able to get a pardon. I'm going back to some of the points I was perhaps not very clearly articulating when your colleague was asking me some questions. I believe there is much need to look at certain sectors of the jail population that have not had a great deal of work done with them, and perhaps then we'll look at means that can address this. I'm not saying that we can or can't—but perhaps.

We're not willing to close the door at this point. Again, we would state very clearly that in the process, instead of drawing attention away from the need to do public education and instead of creating an expensive registry that will create a false sense of security, more emphasis should be placed on broader education and measures so that we can actually see a greater human investment and better and more efficient use of our resources.

• 1210

I think we will see people relying very much on a registry as opposed to doing some of the other work they need to, particularly when they are small groups that have limited resources.

The Chair: Thank you, Mr. Lowther. Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

I'll get on my favourite hobby horse again. In my estimation, we're tinkering with something here. If we're going to give pardons to sex offenders, especially pedophiles, I agree with you that we shouldn't be doing it.

If we're going to flag their pardons, then, these in effect are not pardons. The person with an ordinary pardon can say on an employment application that they have no criminal record. If the flagged sex offender does that, on checking we can see that he has a flagged pardon. I don't see why we're getting into two classes of pardon. I'd be completely in favour of tagging pardons of present sex offenders. In the same bill, why don't we put in that we'll stop giving them pardons? We're not giving them the same pardons as everyone else's anyway. We're tinkering. Let's stop the tinkering. Then there's no argument about it at all.

What's your opinion on that? Obviously, I think, you would agree with me.

Ms. Kim Pate: My concern is what the impact of that would be, what the ramifications would be for the rest of the system. We do see the system adapting, whether it's to length of sentence or to the use of minimum mandatory sentences, and while I haven't seen it because of pardons, it's conceivable that we'd see it as a result of the use of pardons as well.

We see other parts of the system adjust to compensate, if you will, for deficits in other parts. If someone is going to be convicted of one offence that is scheduled but there is a possibility of them being convicted of an offence that isn't scheduled, my fear is that we may see people getting around it that way.

Again, we're still acting as though that addresses who we or our children are at most risk from, and it doesn't. We know that fully 90%—the figure that's often used—of those who commit offences against women and children in this country are never prosecuted. They're never even reported, much less prosecuted. The reality is, if that's the case, what will any of these measures do to really increase public safety or to increase the safety of children who may be subject to this?

Mr. Ivan Grose: Okay. I'll get to my final solution to everything. It seems that I use this so often.

The ultimate solution is that with a sex offender it's a mental problem, and it should be under a mental health act, not in the justice system. Justice has nothing to do with it. Justice can't reform them and justice can't punish them because it doesn't make any difference. Why are they in the justice system at all?

If they were out of the justice system, I'd have no problem with your pardons. The pardons would work the way they're supposed to. But they don't work, or at least we're trying to make them not work the way they're supposed to for sexual offenders. What we're trying to do is to adjust to people that shouldn't be in the system in the first place. My problem with it is that we're tinkering. We keep on tinkering with things like this and, as a result, we never get it right.

Ms. Noreen Murphy: On behalf of child care, we're at the bottom of the food chain, so to speak, when it comes to acknowledgement of the work that we do, when it comes to the resources available to do the work.

My fear is that if we don't do something to tinker, the wonderful education campaigns that are launched nationally or even provincially will not get.... In Alberta specifically, 80% of our child-care delivery is through privately owned daycare centres. They are not going to avail themselves of those training programs, those assessment programs. They're interested specifically in the lowest-paid, cheapest staff they can find. That's 80% of the children who are cared for in daycare centres in the province of Alberta who will not have that one more piece of protection.

I agree completely that it's not the be-all and end-all, but it's one more small piece of the puzzle that we can have. Because we are required to do a criminal record check in Alberta, it would avail people of that information that there's something wrong.

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Mr. Ivan Grose: I can assure you that I would vote for either one of these bills, reluctantly, because they're not the final solution, and I'll keep on working towards my final solution. I hope I live long enough to see it.

The Chair: Thanks, Mr. Grose. Mr. Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair. I'm still reflecting on this.

Your basic premise seems to be that you're concerned there will be too much emphasis and too much reliance put on this approach, that this might somehow denigrate—for lack of a better word—the other efforts. The approach that Ms. Murphy is referring to is that these should be working in lockstep with all of the approaches. Further information sharing has to be seen as a good thing. As for the stigma that attaches to a sex offender, I guess that's part of the price. Whether this is a criminal or a mental problem, as Mr. Grose referred to it, at the end of the day those who are tasked with protecting children have to be given every available tool with which to protect them.

Ms. Paddy Bowen: I would agree with you, which is why, when push comes to shove, I would agree with Mr. Grose too. This isn't the best answer to the right question, but it's a partial answer. There may be ways to tighten it. I agree with you that something like this needs to be done to address an immediate question.

But when we look at Noreen's example, it would be as effective to inform those thousands of child-care organizations in Alberta that they can now check a police record check and get that small percentage of people who are pardoned sex offenders in Alberta. In addition, the people who license them shouldn't license them unless they have a full screening initiative in place. That would be a much more powerful statement by governments, along with whatever expenditure that entails, than the power in this relatively minor incursion into the protection of children. That also puts at risk the integrity of the pardon system.

It's a matter of balance. Where's your biggest payoff versus the cost and the gains of the intervention? It's not that there's anything wrong with this. It's just not perfectly right.

Mr. Peter MacKay: I guess you're asking what our biggest priority is—

Ms. Paddy Bowen: Yes.

Mr. Peter MacKay: —and with governments, whatever level that's the bottom line is what seems to be coming forward so often now.

Ms. Paddy Bowen: Should we be tinkering with an issue of this level of importance?

Ms. Kim Pate: I differ somewhat from Paddy on this point. I think it's also a question of—we're talking beyond hypotheticals—what is happening and what will happen. The reality is that the more we pour resources into this type of mechanism, we don't have the same impetus to apply the resources at another point, on public education. We're not just talking about balancing interests. We're talking about the reality of it. These aren't hypothetical situations. We know that each time we take this step we tend not to take the other step in tandem. That's one piece.

In terms of the issue around mental health, I would say absolutely, that if there were more resources in the mental health system, we could see a vastly different situation.

If I talk just about the women, we looked at the issue of women who were in for sex offences. There were some four who could be identified. All four had mental health issues, but three of them had significant mental capacity issues as well, so we're talking about another system.

The reality is that there is a stigma if in fact that person commits an offence in a certain context and perhaps in another doesn't. You can supervise, screen and support and ensure that it doesn't happen again.

From my perspective, it is not just about balancing interests in a hypothetical situation; it is about some other areas. I would respectfully submit that if also we had a national child-care program many of these issues might be addressed.

The Chair: Your last question, Mr. MacKay.

Mr. Peter MacKay: So it's about enlarging the pool of money as opposed to saying that we have this fixed pool, where taking so much out for this program might result in less funding in other necessary areas. If the pool itself were bigger, if we used a more holistic approach.... I guess that's another way of putting it.

Ms. Paddy Bowen: You would feel that your work is done.

Ms. Kim Pate: If there isn't a bigger pool of money, if that's the argument, why place it in this sector, where you'll have far fewer positive results?

The Chair: Thank you. Mr. Saada.

Mr. Jacques Saada: Thank you, Mr. Chairman.

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First of all, I would like to congratulate Ms. Pate's baby for respecting our deliberations.

Some hon. members: Hear, hear.

Mr. Jacques Saada: Mr. Stock, first of all, you mentioned that the employer should have knowledge of a flagging. Our proposal is that the police do, not the employer. If the employer knows there is a flag from the outset, what's the merit of evaluating whether or not it should be unsealed?

The second thing is the criteria for unsealing that you referred to. At the present time, there are criteria for the unsealing, which are in the law as it stands. These criteria were established after consultation with a number of people. I would certainly expect the criteria that would apply under Bill C-69 to also be the results not only of consultation but also.... Let me put it this way. There will be consultations and then we will understand all the detail and what it entails.

To reassure you, there is, in the preliminary version of the offences that would be covered—here I'm saying preliminary, as I was saying to Mr. Lowther a few minutes ago—a tentative list, but it's very close to the final list that we'll have. Section 163.1 would be covered.

I have a question for Ms. Murphy. I'm not too sure how to phrase it not to be.... I'm going to phrase it anyways. In your presentation you used the word “unsophisticated” for daycare centres. I understand the nature of the structure and so on and so forth. It's of course nothing derogatory in any way, shape or form to anyone. I read your paper, and I drew the conclusion that you would be equally in support of Bill C-69, because your paper aims at the objective and not necessarily at the tools or the ways to achieve this. Am I correct in understanding that?

Ms. Noreen Murphy: You're absolutely correct. The only thing that I have a difficulty with.... Bill C-69 wasn't even public when I wrote this. My first concern is that our industry, and me in particular, did not know that we currently have the option to have records unsealed. That's news to me, and I've been managing child-care organizations for almost 30 years. I didn't know that, and if I don't know that there are a lot of people who don't know that. That's my first point.

My second point is with regard to having to go through the process of requesting things to be sealed or unsealed. In most cases, child care has child-staff ratios that have to be attended to minute by minute. It's not a case of saying that we have this project we want to engage in or this sports team that we want to get started so let's go find some coaches. We have children there, and if someone doesn't show up for work we have to be able to put someone in place—now. Or if someone leaves to do something that's more lucrative than working in child care, we have to be able to replace them with someone very quickly.

I'm very concerned. If I don't have the information and I have to wait for another bureaucratic body to go through its process, I'm not going to be able to have qualified staff in place.

The Chair: Mr. Stock has a comment, Mr. Saada.

Mr. Peter Stock: Thank you for your comments, Mr. Saada. We're very encouraged, of course, that section 163.1 is included in that list. That's a load off our minds for sure.

On the issue of the flagging—the records being flagged and the police being aware of that—the question I raised was not so much about the record itself and what it contained. If the police are aware that a record has been flagged, are they in fact able to release that information—the fact that a record is flagged—to the agency?

Mr. Jacques Saada: No. My understanding is that it's not in the spirit of Bill C-69. The point is the following. Someone has been pardoned. There is an application made with an organization, which then asks for this criminal thing and so on. If the organization knows from the outset that there is a flag, whether ultimately the Solicitor General has discretion—or whoever, because that was my line of questioning that I was are going to come to—if the decision is not to unseal, for a very valid reason and according to criteria that are very solid and established at great length and so on, by the simple fact of saying that there is a flag he would just simply kill the whole thing.

• 1225

Mr. Peter Stock: My concern is that it really isn't stated clearly in the bill. Maybe that can be done through regulations. I'm not sure. It seems to me that's something that may need to be addressed. We don't want to create a situation where the police are potentially liable because they were legally able to release the information that a flag was on the record but did not do so and then an offender gets a position of trust and offends and they find out the police knew there was a flag. Do you see what I'm saying?

Mr. Jacques Saada: Yes. But the police—

The Chair: Mr. Saada, this is your last question.

Mr. Jacques Saada: Okay.

I think the logic of the thing flows by itself here. The police role is not to inform the potential employer that there is a flag. The police job in this case is to support the Solicitor General's decision to unseal or not. That's really what it boils down to. I'm saying it in simplistic terms.

The problem of discretion at this point is not the discretion of the police. The CPA, yesterday, wanted to have discretion at the police level.

My question to Ms. Murphy concerns the following. If we give access to the potential employers or organizations, they have the ultimate discretion. If they had the discretion that you removed from the Solicitor General, you still exercise some discretion somewhere. The point I'm trying to make, and the question I'm putting to you is this: are we really hitting the right problem by displacing the discretion that presently exists?

Ms. Noreen Murphy: We currently have discretion within child care. If someone has a criminal record, it's flagged for us, period, except for the pardoned ones. Those individuals have the option to go and get the information and bring it to us. It doesn't mean that we'd never hire someone with a criminal record. We have discretionary use of that information already.

The Chair: Thank you, Mr. Saada.

I very much appreciate the panel being with us this morning. We very much appreciate your testimony. It will certainly help us with our deliberations.