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, May 4, 1999

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[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I would like to call the meeting to order.

In consideration of Bill C-69, we have from the department Ms. Mary Campbell and Mr. Richard Zubrycki.

Welcome. The floor is yours.

Mr. Richard Zubrycki (Director General, Corrections Directorate, Department of the Solicitor General): Thank you, Mr. Chair. With your indulgence, I'll just make a few remarks to introduce the bill. I'm sure members are anxious to ask some questions, so we'll get into that as quickly as we can.

As you know, Bill C-69 is an act to amend the Criminal Records Act, which is essentially the piece of legislation that administers pardons to offenders under certain conditions. The bill has 10 clauses, but I won't deal with each of those clauses.

The first five clauses in the bill are largely technical in nature. They clarify language. For example, they introduce the term to “issue” a pardon, as well as to “grant” a pardon, because these two terms refer to the way summary conviction offences and indictable offences are dealt with. So this is to be sure that the language is comprehensive. There are some issues of French-English concordance and they're hopefully cleaned up. There's a clarification of some of the terminology, particularly with regard to the effect of a pardon, and the rather archaic language of “vacates a conviction” is replaced by an actual description of what the pardon does. This is consistent with the current French version of the act.

Also, it introduces certain efficiencies and tightens up some of the procedures, for example, by providing that appeals from denials of pardons by the Parole Board or revocations of pardons would normally be in writing only, and that applicants cannot reapply for a further year after a denial.

Clause 6 really is the heart of the bill. It deals with issues that I've discussed with this committee in the past. I'm referring to the issue of providing access to sealed pardon records for purposes of screening individuals applying for positions of trust with children and other vulnerable persons.

As you know, right now the automated record system usually known as CPIC—Canadian Police Information Centre—contains records of virtually all indictable offence convictions and of some summary convictions, particularly if they're supported by fingerprints.

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As I've explained in the past, in 1994, in partnership with the police community and the voluntary sector, the government introduced a national screening program. That national screening system provides access to those CPIC records for organizations that are screening individuals who are seeking positions of trust.

But as you can appreciate, I think, when a pardon is received pursuant to the Criminal Records Act, those records are removed from the CPIC information system and placed in a sealed and separate database. When the CPIC system is queried by an officer in the field, in fact, they find no record. It would be just the same as if no record existed at all, although those records do exist in the sealed database. That clearly is a gap in the screening system. It could happen that an organization screening an applicant could be misled by believing there is no record when in fact there is one.

Clause 6, amending section 6 of the Criminal Records Act, provides for a system that will flag those cases when a record is removed from CPIC. A flag—or to use the language of the act, a “notation”—will be left in its place. With that notation, when a screening search is done, that flag or notation will be seen and will indicate to the officer doing the screening search that there is such a record, which can then be requested. When it's requested, the RCMP staff at CPIC headquarters will bring that record to the minister's attention and the Solicitor General will decide whether or not it should be disclosed.

That scheme generally is outlined in proposed section 6.3 of the bill. Some of the further details are in the proposed regulations to the act, which are in draft form and have been shared with the committee. Further details ultimately reflecting the act and the regulations will be placed in the CPIC policy manual—that's a guideline for all police officers in the field—as to how to use that system.

Quickly running through proposed section 6.3, first of all, as I said, it provides that a notation or a flag can be placed on the CPIC system when a pardon is granted to an offender who has been convicted of one of a list sex offences. That list will appear in the regulations; it contains 27 sex offences and 11 old offences that are comparable to current offences but have been changed over time. So for anyone who has been convicted of one of those sex offences, when a pardon is received a notion will be placed on the CPIC record.

Proposed subsections 6.3(2) and 6.3(3) provide that police or an authorized person would be empowered to search for that flag and verify whether or not there is a flag on that file, with the consent of the applicant, that is, the individual on who the search is being conducted. It's not stated in the bill, but this will be accomplished by the screening officer entering a code on CPIC. Only when that code is entered, which signifies that this a screening search, will the flag be viewable for verification purposes.

With regard to the purpose of the screening search, when screening is conducted for a person who is seeking a position of trust with a child or a vulnerable person, regulations contain a definition of “child” and a definition of “vulnerable person”.

Proposed subsection 6.3(4) provides that when such a flag is recognized and a request is made for the record, the RCMP at CPIC headquarters can bring that file forward to the Solicitor General for review to consider its unsealing and disclosure. Proposed subsection 6.3(5) provides that the Solicitor General could disclose that record. In making that decision, certain factors are considered by the minister. Those factors will also be set out in regulations and are contained in the draft regulations that you've received.

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Proposed subsection 6.3(6) provides that consent is required from the person on whom the screening search is being conducted. That person's consent is required to verify, in the first instance, whether or not there is a flag on the record. Secondly, consent would be required if that record were to be disclosed to any third party. Without that consent, the record would be disclosed to that individual. The individual would receive a copy of their own record and it would be up to them, then, to bring that record to the agency they're applying to and to discuss that record with them.

Proposed subsection 6.3(7) restricts use of the record for any purpose except the review of an application of a person to a screening agency.

Proposed section 6.4 provides for retroactivity. This scheme will apply to all of the records currently in the criminal history database, approximately 4,500 records.

Moving on from clause 6, clause 7 is another measure that in some way tightens up the act and provides for automatic revocation for hybrid offences. Right now, if a person who has received a pardon is re-convicted of a new indictable offence, the pardon is automatically revoked or ceases to have effect. That same automatic revocation will now apply to hybrid offences as well, that is, offences that are punishable both as indictable or as summary conviction offences.

Clause 8 refers to a regulation-making authority, which provides for the regulations that you have received in draft. Clause 9 makes a similarly technical adjustment to the Criminal Code by adding the words “or issued” in that particular clause. Clause 10, of course, provides for the coming into force of the bill.

In conclusion, I would say that clause 6 certainly is the heart of this bill, but the bill does a variety of other things. I should say that this whole process started over two years ago with a Criminal Records Act review that began with a discussion paper and very broad consultations with our provincial and territorial partners, interested public sector groups, and professional groups.

As well as that consultation being conducted, there was separate consultation at the request of ministers of justice of federal, provincial, and territorial jurisdictions. A federal-provincial working group looked carefully at the whole question of information systems and how they could best be used for the protection of young people and vulnerable people. One of the 10 recommendations of that working group—all 10 were accepted by federal, provincial, and territorial ministers—recommendation 7, is given effect in clause 6.

So there is broad-scale agreement that these are worthwhile and needed amendments to the Criminal Records Act, bringing into effect some needed changes. Certainly this follows a long period of study and consideration. With that, I'll end my remarks.

Mary Campbell is not anxious to make an opening statement, I think; she thinks she's going to sit silently by my side. I'm sure she's going to be surprised.

We're open to your questions.

The Chair: Thank you, Mr. Zubrycki.

Mr. Lowther.

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

I'll go right into the regulations, Mr. Zubrycki. They are something new. We haven't had this before. I know that one of the things the committee asked for was an opportunity to see the regulations so that there could be some comparisons to Bill C-284 and so we would have a better understanding of what this bill was doing—because it made so many references to regulations.

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I would like to focus on the part of the regulations that deals with considerations relating to the disclosure of information. That is on page 5 of the regulations.

What strikes me here—and maybe you can speak to some of my concerns—is how wide open this is. If I were working in the ministry or working for the minister, per se, trying to determine when I release a record and when do I not release a record... When I look at these sections, I see that there's some sort of question about whether or not the pardoned record is relevant to the position being applied for.

There's this three-point test, and I don't know whether they're mutually exclusive or whether they all have to be met at once: the violence test, the test of whether children or vulnerable persons were involved, and the test of whether there was some breach of trust. Are you looking for any one of those or for all three of those at one time? There are also tests with regard to the length of time since the person has committed the offence and the age of the person.

Those are are interesting tests, but what I'd like to see is more along the lines of “the record shall be disclosed unless”. Then I would have some criteria, like “the length of time since the conviction is x” or “the age of the person was such-and-such and now it's such-and-such”, or some test or more clarification on whether or not there was violence, whether children were involved, and whether there was a breach of trust. “Breach of trust” is a very broad term. I think that in just about all of the offences listed in the regulations you could say that there has been some sort of breach of trust.

These regulations don't give me a good sense of when you're going to release and when you're not going to release. Is there no way—you said that these are in draft form—to tighten these up?

Mr. Richard Zubrycki: Obviously this sort of thing is always open to amendments. I think we have to keep in mind, first of all, that they are regulations. It's not a policy manual. There can be additional amplification in other policy instruments or documents if a minister so wishes. These actually are illustrative. There can certainly be other factors that would have relevance.

These are basically the same factors that the minister now considers and has considered for many years, I think, in making these decisions. I have to say that in the three fairly extensive consultation processes that we've conducted we have never heard any complaint about the application of the minister's discretion, and that is while following those factors as informal policies not written in law or regulations.

So they have served the test of time, at least. I'm sure there can always be missteps. I don't think there is any way we could comprehensively cover all of the permutations of situations that exist among combinations of offences, circumstances of the offences, and the current situations of the individuals. These are very complex patterns. To some extent, that's why discretion has to be applied. I would be doubtful that we could improve very much by trying to apply a stricter test. I think that the stricter the test is, the more open it would be to challenge and to anomalies that were unintended.

Mr. Eric Lowther: Can I ask who is actually making these decisions operationally? If this were implemented now... It's not actually percolating up to the minister, is it?

Mr. Richard Zubrycki: Yes indeed.

Mr. Eric Lowther: So he or she is going to make a conscious decision on every one of these applications?

Mr. Richard Zubrycki: Yes. That's the practice now. I don't know of any reason why it would change.

Mr. Eric Lowther: Well, I submit to you that when people have the ability to go through this process and there's flagging involved and there's public awareness on it, I think he's going to be a very busy man trying to sift through all the various applications that will now come to him. I wonder how operationally feasible this is.

Again, I wonder why we can't set some criteria that says “the record shall be disclosed unless” it falls outside some set of criteria. Then he's only looking at exceptions rather than at every single one.

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Mr. Richard Zubrycki: In our estimation, the workload won't be that great. Of course, if it is overwhelming, obviously some adjustment might be required. We know that there are about 4,500 records in the system. These are records that cover a 20- or 30-year period. So to begin with, there aren't that many records of pardoned sex offenders, and some smaller set of those will be applying for positions of trust. Our best judgment right now is that the numbers will not be overwhelming. It's our view that they deserve that level of scrutiny. Generally speaking, we think this system will continue to work.

Mr. Eric Lowther: Let's shift to another question, if I may, Mr. Chairman. Nowhere in Bill C-69 or in the regulations is there any consideration that I've been able to see—unless I've missed it—of the spot that we put the hiring institution in. When they do find out through this process, should the minister deem to disclose it, that there is a pardoned record out there, now when they have this information, they say, “Well, gee, we liked you until we found this out, but now we don't want to hire you.” The individual then says that if they're not hiring him based on his pardoned record, that's a violation of his human rights, according to the act, and he's taking them to court, he's suing them for it.

Then this organization has the joy of going to court over this and arguing that their reason for not hiring is justifiable in this case. One of the components that Bill C-284, this other bill, which I believe the committee members are familiar with, did address was that it protected those agencies from that kind of risk, from being put on the spot when they deem not to hire someone because of a pardoned record. This is not covered off in Bill C-69. Can you speak to that issue, please?

Mr. Richard Zubrycki: The legal advice that we've received on this question has been looked at quite carefully. The legal advice we received is that the bill as it's structured, with appropriate safeguards and fairly narrowly targeted, would comply with the Canadian Human Rights Act and the charter.

As I've mentioned once before at this committee, section 15 of the Canadian Human Rights Act provides a reasonableness test. The legal advice we have is that this scheme would be seen as a reasonable intervention in the civil liberties of such individuals when they put themselves in a position where they're applying for a position of trust and have previously been convicted of a sex offence. That is one line of consideration.

The other is that the Canadian Human Rights Act applies primarily to federal agencies and organizations that are agents of the government or licensed by the government or whatever. Most of the organizations we're talking about are provincially regulated and are not directly controlled, although most of them, I have to say, respect the Canadian Human Rights Act and do comply with it. They're not regulated by it directly, so if a person did have a legitimate complaint of that nature, that complaint would probably be levelled against the federal level for disclosing that record rather than against the agency for the use of it by the agency—at least this is my understanding of how it will work. In any event, I think the Canadian Human Rights Act provides ample room for this kind of scheme.

Ms. Mary Campbell (Director, Corrections Policy, Department of the Solicitor General): If I could just add to that, our analysis is that the problem is probably not so much with the Canadian Human Rights Act, as Mr. Zubrycki has noted, because it applies to federal bodies and not to the organizations that would primarily be doing the hiring or non-hiring.

The bigger question is probably the charter and the section 7 protection. That's why Bill C-69 has been fairly carefully written to try to provide a process that will not ultimately be held to be a section 7 violation or would at least be a defensible violation if it is one. That's why Bill C-69 lists the specific offences. They're quite carefully crafted to be quite focused on sex offences. It defines the “vulnerable” group, it defines “child”, it links the disclosure to the position that's being applied for, and it retains discretion. All of these things are not in neon lights saying “section 7 compliance”, but that's what they're intended to do: to set up a process throughout the screening that will ensure compliance with the charter.

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Mr. Eric Lowther: Along those lines, then, may I ask why some sections have been left out, sections that I would have thought would have been left in with this broadening that you've done with Bill C-69? Section 273, aggravated sexual assault, is not included. I see that sexual assault is, but aggravated sexual assault isn't. It's part of section 273. Or there's section 163, distributing obscene materials. Nudity in a public place is another one. Keeping a common bawdy house is another. These are sort of in keeping with some of the ones you have included, but for some reason they haven't been included on the list. I have about four or five others here that I can reference. Is there any reason why some of these have been left out? They're still sort of within the purview of sex-related crimes.

Ms. Mary Campbell: Certainly if the committee feels they should be added and they do fall within this category, I think we would be open to having a look at those. I can't just say off the top the ones that you've listed; they may be buried in here somewhere.

The Chair: Thank you, Mr. Lowther.

Mr. Marceau.

Mr. Richard Zubrycki: Sorry, Mr. Chairman, if I can just amplify that a little, that list of offences—just for clarification—was reviewed a number of times with the federal-provincial-territorial working group, which was comprised primarily of senior crown prosecutors or officials on the prosecution side within all of the provinces and territories. A number of offences were on, were taken off... This was based on their experience and understanding of what those offences normally represent.

In some cases, they felt that even though it's sex related, it's not relevant to this sort of situation. In other cases, they may have felt that it's subsumed in another offence. But it's been carefully reviewed. That's not to say that there's no belly to amend it further, but I'm just saying that I think it shouldn't simply be done in any... well, I was going to say “cavalier fashion”, but I know that's nobody's intention. It should be done only after careful consideration, so that we don't run the risk of losing a charter test and losing the scheme.

The Chair: Thank you, Mr. Zubrycki.

Mr. Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): Thank you for appearing before the committee. I appreciate the brevity and relevance of your comments.

You mentioned that clause 6 is the heart of bill C-69. I'd like to discuss some of its provisions.

Sub-clause 6.3(2) reads:

(2) At the request of any person or organization responsible for the well-being of one or more children or vulnerable persons and to whom or to which an application is made for a paid or volunteer position, a member of a police force or authorized body may verify whether the applicant...

So we are granting discretion to a police force. Right?

Proposed sub-clause 6.3(4) reads:

(4) A police force or other authorized body that identifies an applicant for a position referred to in paragraph (2)(a) as being a person subject of a notation made in accordance with subsection (1) may request the Commissioner to provide the minister...

This is a second discretionary power.

The last part of the same sub-clause reads as follows:

...and the Commissioner may transmit any such record to the minister.

Here is a third discretionary power.

Then proposed sub-clause 6.3(5) reads:

(5) The minister may disclose to the police force...

This is a fourth discretionary power.

And sub-clause 6.3(6) reads:

(6) A police force or other authorized body may disclose the information...

So we're granting five different discretionary powers.

In that process that you set up, there are five situations where, even in cases involving violence as serious as those described by Mr. Lowther, a person can refuse to disclose the record. Don't you think that this is too much?

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[English]

Mr. Richard Zubrycki: Possibly in just a second I'll ask Mary Campbell to respond to one of our favourite questions: “may” and “shall”.

First of all, we really can't regulate police operational behaviour. For the most part in this country, even though the RCMP are the police of local jurisdiction in about 70% of the country, most policing is the responsibility of provincial jurisdictions, provincial authorities.

It's certainly conceivable that a police force might say, no, we won't or we don't participate in this scheme, or we don't follow every particular detail of it. That is conceivable. I have to say that until now, with the national screening system we put in place, the level of compliance is very high. We have the co-operation of all police. This is basically a co-operative system rather than a system that's imposed on our various partners, so that is one of the reasons why.

Secondly, I think the word “may” is meant to authorize these activities rather than to compel them.

[Translation]

Mr. Richard Marceau: I would like to revert back to the first point where you said that you cannot regulate a police force. Don't you think it would have been better to use “shall” instead of “may” in this bill? I agree that there are some things that you cannot control but when we are talking about things that this bill can control, shouldn't we do everything possible to make them do it? We are not talking about minor offences, these are fairly serious crimes. Being a recent father, I have to admit that I would like to be assured as much as possible that there are no dangerous criminals working at the daycare centre where I am thinking of sending my kids. I understand the problems associated with the Canadian Charter of Rights and Freedom but it seems to me that in some cases, we should remove this discretion.

[English]

Mr. Richard Zubrycki: We certainly will take that under consideration and discuss it internally with the minister, but I think it may be that in some cases—not in every one of the cases cited—there might be room for some stronger language, particularly the language that refers to the RCMP on how they handle the dossier when it is brought to their attention. We'll have to look at that a little more carefully. It certainly has merit. We'll consider what can be done.

[Translation]

Mr. Richard Marceau: Okay. I suppose one of the goals of this bill is to protect people who have been granted or issued a pardon. We want these people to live as normally as possible. We all agree on that.

How long do you think it takes to handle a request for information from the time it is made until a decision is handed down, while it goes through the police force, the Commissioner and the minister?

[English]

Ms. Mary Campbell: It varies. If there is a situation of some urgency, it can be and has been done within 24 hours. That's from the time the request is received until the decision is made to seal or unseal.

[Translation]

Mr. Richard Marceau: This is the turnaround time in case of an emergency. How long does it take under normal circumstances?

[English]

Mr. Richard Zubrycki: About 30 days is usual, I think.

[Translation]

Mr. Richard Marceau: Do you think we're really serving a pardoned person who is applying for a job in a school or daycare centre if he or she must wait 30 days for the request to go to the minister and back? Doesn't this 30-day wait take away any chance the person has of being hired? If I'm hiring an employee, I would not wait 30 days for him to start working. I would wait a day or maybe a week at the most after the interview. As an employer, I would refuse to wait that long and I would just drop that person from the list of candidates. I do not think we are serving a pardoned person with a 30-day turnaround time.

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[English]

Mr. Richard Zubrycki: Certainly if organizations require this level of screening, I think in many and most cases they'll be prepared for what that entails and will be prepared to accommodate it.

But if I can just draw a comparison, in the federal government, just as in many places, a security classification is required before certain duties can be taken on. That doesn't prevent people from being hired, but in some cases it prevents them from assuming all of their duties until they've been security cleared. Maybe this isn't the best analogy, but if we can draw that analogy, I think that many organizations, if they're reasonably certain that they have the person they want for the job, could certainly take them on conditionally. There usually is an orientation period at the beginning and some gradual assumption of duties, which might be accommodated.

In the end, I suppose, if you have to choose between two candidates, one of whom has a record and for whom a further delay is required, and someone who has no record whatsoever, it may be that the judgment in that case goes to the person without any record. Possibly this is just an unfortunate fact of life.

The Chair: Mr. MacKay.

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

I must admit that I as well am concerned by some of the issues that have been raised by both my colleagues, particularly the use of the language “shall”.

Further to some of the questions that have already been posed, with respect to the retroactivity of the bill, can you again speak to this issue of the potential charter implication, I guess, of it coming to light after the fact? A person has been hired and it comes to the attention of an inquiry from an investigation or an inquiry through the minister that in fact the person who has been hired to head up the Cub Scouts or the Big Brothers organization does have a record that is under this listed classification. In your opinion, what will the result be if that organization then takes action?

Ms. Mary Campbell: The retroactivity attaches to the flagging of the records on CPIC. By that, the bill would allow for going in and, where there's a pardoned record right now for the specified offences, attaching a flag. There's no jeopardy to the person unless or until some event happens such that the flag is activated, if you like. It's not retroactivity in the sense that you're suggesting, I think, where someone who currently is a volunteer, for example, would now be screened retroactively. That's a decision that's up to an organization. If they haven't had screening practices in the past, it's up to them as to what they do with their current volunteers or employees.

Mr. Peter MacKay: With respect, I suggest to you that simply the publicity of this bill coming into effect may trigger these types of inquiries for existing employees or volunteers for an organization. They may in fact say that this is now a potential screening device that they have at their disposal, so why wouldn't they do that? Do you see any difficulty arising from that?

Mr. Richard Zubrycki: It's difficult to say in terms of the charter, but—

Mr. Peter MacKay: I know it's—

Mr. Richard Zubrycki: —sure, there will be difficulties. When this became public, one of the first calls we got was from someone who is highly placed in a childcare organization, has been there for many years, had committed—in his terms—an indiscretion 35 years ago, and was quite concerned that his record might be dredged up. His question was, will it? I think the honest answer is that it could happen. It probably won't, but if his organization institutes a retroactive screening policy, sure it could. Again, I guess this is part of the price we have to pay.

Hopefully people will approach this in a reasonable fashion. Just as I explained that case to you... That's a very superficial explanation, but if those are basically the facts, hopefully his organization would say that they know this person and that they can rely on their judgment about him and not sort of automatically use this as a bar to his further employment.

Mr. Peter MacKay: Just to go back to another topic, which was raised, I believe, by Mr. Lowther and Mr. Marceau, there is the issue of this discretion on the part of the minister. Is there any merit, do you think, in having sort of an A list and a B list, with the A list being “must” disclose versus “shall” disclose?

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I see quite a significant difference in terms of the potential threat posed by a person with a criminal record for an indecent phone call versus a criminal record for sexual intercourse with a female under the age of 14. Taking away that discretion and saying that this “shall” be disclosed, I suggest to you, would close off some potential harm where, for a person with this type of serious criminal record, for one reason or another that information isn't made available.

Mr. Richard Zubrycki: Probably the worst basis for making these kinds of decisions is the conviction that has been registered against the person. It could well be that because of evidentiary problems, like charges laid that don't at all reflect the gravity of the circumstances, and vice versa... There are convictions that probably overstate the seriousness but technically are the correct ones or are easy enough to prove. The more rigid the system is, the more anomalous situations arise—in both directions.

We certainly have considered this. Again, part of the charter question, I think, is to have enough discretion and safeguards to protect the unwarranted disclosure of records. In our experience, the minister discloses the majority of requests that come before him. But given a situation where that shouldn't happen, the minister, I think, should not feel that his or her hands are tied, that he or she is forced to make the wrong decision.

Ms. Mary Campbell: Just to pick up on that, if you look at an offence and you don't look at the sentence, you don't look at when it happened, you don't look at the age of the person... If you're looking at the sentence, with respect to sentencing in Canada, manslaughter, as you know, for example, can have sentences anywhere from a conditional sentence to life in prison.

It may be easy to sort of categorize this list at the two extremes, but not so easy in the middle. As Mr. Zubrycki said, by focusing just on the offence... There will be some easy cases in that list, but there will be many where you need to look at the other factors surrounding them in order to make the decision to disclose or not disclose.

Mr. Peter MacKay: It's interesting that you raise the issue of conditional sentences, because I believe that there are a lot of offences involving violence and sexual assault that should just absolutely not be considered for conditional sentences, but that's an issue for another day.

With respect to disclosure, will disclosure in all cases be documented, or will there be indications... I was just reading the legislation again, where it says that it will be “orally” transmitted and there won't be any actual documentation.

Mr. Richard Zubrycki: No. There would always be a documented process there.

Mr. Peter MacKay: Okay.

I have one final question, if I may, Mr. Chair.

You may not be able to answer this, but with respect to the ability of the current CPIC system to handle this further burden—for lack of a better word—upon it, are there going to be technical problems that result by adding this system to the current CPIC? We've heard a great deal about the current load that's on the CPIC system, and I know that's currently being looked at as well.

Mr. Richard Zubrycki: In developing this, we've worked very carefully with the RCMP and with the police community in general. They have every confidence that the current system would handle this quite well, but of course, as you know, the Solicitor General has recently announced a $115 million upgrade to that total system. Of course that'll give us the opportunity to take this scheme into account in that redesign and to make sure that it's fully accommodated and no corners have to be cut.

Mr. Peter MacKay: Great. Thank you.

The Chair: Thank you.

John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

Like the previous questioners, I too am fairly concerned with the amount of discretion that's built into this system. If you will, the cumulative level of discretion and the points of decision-making add up to an entire area where justice may well not be served.

• 0950

Going to proposed subsection 6.3(2), a request has been submitted by a responsible organization concerning children or vulnerable persons, and “a member of the police force or other authorized body may verify” that the applicant is the subject of a notation. I'm curious as to why there would be a “may” at that point. That's question number one.

My number two question is this: is there any obligation on the part of the minister to even set up a flagging system? I think we're working on the presumption that this system is going to be in place, but there's nothing in the bill—that I can see—that requires the minister to set up a system.

The third question is with respect to proposed subsection 6.3(4): “a police force or other authorized body”, once they've verified this individual, “may request the Commissioner to provide the Minister with a record of a conviction”. This is just kind of a curiosity; I'm not quite sure why the police “may” request as opposed to may not request. The commissioner “may” or may not transmit the record. Then the minister “may” or may not disclose the information to the police.

If you look at it individually and you look at it cumulatively, that's a lot of decision-making by a lot of people who have no accountability to each other or to anyone else, save and except, I suppose, a fairly remote accountability on the part of the minister. It exposes the Canadian public and, certainly in this particular instance, the organization or the children or the vulnerable persons—the people we always want to protect—to a lot of in-house decision-making processes, which leaves one questioning as to why the “mays” were made at any given point in the process.

Working on the principle that simple is always better, why not the reverse? Define a narrow set of categories of offences and say “shall”, and then have a subset where you could say “may”.

Mr. Richard Zubrycki: I don't think that would be a simpler system. I think it would be far more complex to try, then, to always make the distinctions on how to proceed in one case versus another.

But I don't think that's the most important point. First of all, we've said that we will reconsider that language throughout. In some cases, we may be able to make it more imperative, but I say again that, first of all, we can't really impose this system on police forces. That's number one.

But secondly—

Mr. John McKay: Why can't you?

Mr. Richard Zubrycki: The federal government does not legislate police procedure and—

Mr. John McKay: Let me just question this. I heard you respond that way before and I couldn't quite understand that. If the Boy Scouts come in to the police and ask for a record check, why is it that the legislation can't say the police “shall” verify? That's within your legislative purview, isn't it?

Mr. Richard Zubrycki: No, I don't believe so. I'm no expert on that and possibly someone else could answer, but the basic point is that this is a co-operative, collaborative system. It was developed in full co-operation with the police community, and the police do respect it and do comply with it. Of their own volition they do ascribe to it, and certain policies are set out in the CPIC policy manual that gives guidance to all police forces. They follow those policies. That's the basis of the system. The “may”, the language here, is meant to empower them to do these things without any fear of recrimination or litigation or whatever.

Mr. John McKay: But similarly, if you put “shall” in there they're certainly not going to be in fear of any litigation, recrimination, etc.

Mr. Richard Zubrycki: No, but—

Mr. John McKay: That answers that question.

Mr. Richard Zubrycki: Nor must they follow that direction.

Mr. John McKay: The police that were here before us on Bill C-284 seemed to like Bill C-284 and its—how shall I say it?—elegant simplicity; some might say elegant simple-mindedness. Nevertheless, it certainly had a simplicity to it that the police seemed to like. Again, I'm questioning you on the empowering aspect.

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Mr. Richard Zubrycki: I believe the police will follow this direction completely. I personally have no concern that there's a problem, that we need to try to force them to do what this bill sets out. Secondly, if we tried to force them, I don't think we could. Those are the two elements of it.

There may be some places here... As I say, we will look at all of this language and we will make it more imperative, to the extent that we can, and particularly, I think, with regard to how we do business within our own domain, the CPIC system and the RCMP and how we—

Mr. John McKay: Once it leaves the police, it's within your purview, isn't it?

Mr. Richard Zubrycki: That's right.

Mr. John McKay: It's basically from...

[Editor's Note: Inaudible]

...on.

Mr. Richard Zubrycki: Yes.

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

The Chair: Thank you.

Three-minute rounds, Mr. Lowther.

Mr. Eric Lowther: Thank you.

I am appreciative of my colleagues who have pressed in on the “shall” versus “may” issue. I'm on side with that, so I don't really want to explore that too much more, with maybe one exception, as Mr. Cadman has mentioned to me here.

Let's paint a scenario. Somebody comes in and makes the application. It's a flagged record, the requests are made, it gets up to the minister, the minister says yes, releases the record to the police, and the police force gets it. That particular police person who gets it says, “Gee, I'm just not going to release this record. It says I `may', so I'm not going to.” We find out that later this information gets out.

What are the potential ramifications for that police person who has elected not to release that record? What kind of liability does that person now carry? That's just food for thought, and it underlines, I think, this whole “shall” versus “may” issue, which makes it really complex.

Mr. Richard Zubrycki: The police of course are accountable within their own police organization. If it's the policy of that police force to follow the law and to follow the regulations and respect the CPIC policy manual, if that's their internal direction, then that individual would be accountable within his own force for not complying. I think that to the extent the system will be imposed on anyone, it'll be done with that sort of internal authority.

Mr. Eric Lowther: If I understand you correctly, even though it says “may”, he's obligated to follow the law; even though it says “may”, if he chooses not to, he's in trouble.

Mr. Richard Zubrycki: He certainly will be in trouble with his own chief of police if he's not following the policies of that police force, and I would expect that those policies would always be consistent with the law and with CPIC policy.

Mr. Eric Lowther: Let's back up a bit and explore this question of “shall” a little more. Some of the members may not have in front of them the regulations that have been drafted.

The regulations do include a form or an outline for a form that requires the applicant to sign for, first of all, permission to have his record sent to him personally. Then there's a separate signature, a second-step check, to have his record sent to the hiring organization or the volunteer organization, as the case may be. So he has already personally signed off twice to say, “Yes, I'm okay with my record going to these people.” So he's on side—or she.

Yet we're still caught up in this “shall” versus “may”. If the applicant himself is okay with a record being released, why are we still in the “may” mode for the minister and all the various people involved?

Mr. Richard Zubrycki: Again, we will look at that language throughout. The “may”, in my view, certainly is sufficient, because the process is quite clear. At that point, the expectation is that the record will be provided to whoever the consent directs it to. It'll be up to individual police forces to decide how to enforce that. In some cases, they'll feel they really don't need to make much effort; in other cases, they may have more elaborate policies and procedures.

Mr. Eric Lowther: Now, you do—

The Chair: Thank you, Mr. Lowther. We have to move on.

Mr. Alcock.

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Mr. Reg Alcock (Winnipeg South, Lib.): Thank you, Mr. Chairman. I'm taking your advice, given that we have two bills that will be before us, this and Bill C-79, which both have an impact on victims' rights.

I've spoken to Mr. MacKay about this particular case. This is a real-life situation: a young woman, sexually abused as a child, discloses at age 16 that she has been the subject of long-standing abuse by her stepfather. Subsequently he is charged and sentenced, and she moves away. Ten or eleven years later, he re-emerges. He has served his time, has a pardon, re-engages with her, and starts harassing her. She goes to the police. There's no record of anything. So basically she has to start a civil action on her own, bear the costs of it, go through all the work again of redefining the fact that...

In this case, there are no grey areas in what actually happened. It was adjudicated and the person was found guilty. But because of the sealing of the record, she is placed in the position, I would argue, of being victimized one more time. My question is this: is there a solution to that and, if so, where would it be best fixed, in Bill C-69 or in Bill C-79?

Ms. Mary Campbell: Just to clarify the current practice, as Mr. Zubrycki said, a pardon record is not destroyed; it's sealed and kept apart. In most cases, police will have other records of their own, which do follow the spirit of the Criminal Records Act, even though the act does not bind those other records, the records that are not held by federal authorities.

An application can be made under the current act to unseal the record where there is some knowledge that a pardon record exists. The difficulty in screening, as Mr. Zubrycki has said, is that of course in most cases, without fingerprints being submitted, there is no knowledge that there is a pardon record. In a case such as you have suggested, it seems to me that there is some knowledge that there is a pardon record somewhere. That's sufficient knowledge to then, under the act, initiate a request to the minister to unseal that record—if there's a particular reason for the unsealing.

Mr. Reg Alcock: That's within current legislation.

Ms. Mary Campbell: That's right. Currently, section 6 allows for that.

Mr. Reg Alcock: Who initiates that request?

Ms. Mary Campbell: That would normally come through the police to the minister.

Mr. Reg Alcock: So the person raising the concern, in this case, the young woman who's involved...

Mr. Richard Zubrycki: If she's dealing with a police force with regard to this behaviour, the police force could request that record themselves. She or her legal counsel could request it by making a request to the RCMP in CPIC headquarters—if they know there is a pardoned record. Indeed, this kind of behaviour could well result in the pardon being revoked if it is brought to the parole board's attention. Certainly if he's reconvicted of a new offence, it would automatically be revoked.

Mr. Reg Alcock: But until such time, all the onus is on her to solve this problem.

Mr. Richard Zubrycki: I'm not quite certain for what purpose that record would be required in those circumstances, but she would obviously have to initiate the process in some way. I would expect that the police would be helpful; I'd be surprised if they were not. If she gave that account, it would be quite obvious. If they can't find a record and she's convinced...

First of all, those records probably continue to exist in the courthouse where that conviction took place. Those records are not necessarily sealed. Sometimes they are, but not necessarily. There are newspaper accounts and other kinds of records. Local police may have their own investigation files that still exist. There are indications. If police say that there has to be a record there, that he must have been pardoned, normally, then, I would expect them to be helpful in seeking to unseal that record.

The Chair: Thank you, Mr. Alcock.

Mr. Reg Alcock: That isn't the case, however. In reality, that's not the case.

Mr. Richard Zubrycki: Yes, well—

Mr. Reg Alcock: In reality, this young woman is left on her own. We spoke to the family violence people and the child abuse people in Manitoba—the case took place in British Columbia—and the onus is entirely on her. The police simply won't act without any evidence. It just seems to me that she is being victimized one more time, by us in this case, who refuse to offer her any assistance.

The Chair: Thank you, Mr. Alcock.

Mr. Marceau.

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[Translation]

Mr. Richard Marceau: Ms. Campbell, you mentioned some things I am not sure I understood. I hope I can understand them.

Bill C-69 applies to offences listed in the regulations: sexual interference with a person under 14, incest, bestiality in the presence of a person under 14 or incitement of a person under 14 to commit bestiality. There are many other examples.

You mentioned that what is important is not only the fact of being convicted of one of these offences but also the circumstances, the sentence and so on. When a person is found guilty of bestiality, incest or sexual interference with children under 14, circumstances or the length of the sentence do not really matter. If a parent can think independently, he would not want that person to have any contact with his child. So I cannot understand your comment.

[English]

Ms. Mary Campbell: I appreciate your concern. I think the discretion is important in that every offence is not identical. You can easily think of circumstances in which the person committed the offence—and I'm not minimizing any of these offences—one of the offences that you've mentioned, a single time when he was 19 years old, 20 years ago, and he was pardoned along the way.

My advice is that it is important to retain some discretion for situations where, in light of all the circumstances, the record should remain sealed.

[Translation]

Mr. Richard Marceau: Let's suppose the offender was 19 or 20 when he committed the crime. If he had sexual contacts with an 8 or 10-year old child, it means he was sexually attracted to children of that age.

I'm not an expert psychiatrist, I just think like an average person does. If I were thrown in jail for 25 years, I know that I would still like women when I get out. Don't you think someone who was sexually attracted to 8 or 10-year old children will feel an even stronger attraction when he gets out because he had no chance to satisfy his desire for 20 years? Since you cannot give any guarantee—because there are no guarantees in real life—can't we protect a child from sexual interference by an adult?

[English]

Ms. Mary Campbell: Again, I think you have to look at the whole context. If it's an offence that happened once 20 years ago, the person possibly received a fine or a very short sentence of imprisonment as the penalty. They have been pardoned in the intervening period, and I think we shouldn't lose sight of that. There has been an investigation of this person—and where it has been a sex offence, a thorough investigation—and the granting of a pardon, so there has been an intervening event that has looked at this person's behaviour.

Is there a guarantee? No. I don't think there are many guarantees in life. But there is quite a thorough process along the way. As an adviser to the minister, you take these things very seriously.

[Translation]

Mr. Richard Marceau: Instead of thinking of yourself as an advisor to the minister or to the member or whatever, shouldn't you draft this bill as an average person, as a parent, a mother or a father? I do not know if you have children but would you feel comfortable if someone who committed such an offence, even 20 years ago, is in contact with your children or grandchildren?

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[English]

Mr. Richard Zubrycki: Again, the fact of a conviction, by itself, doesn't really tell the whole story. You need to know what the larger picture is. Volunteer Canada, for example, which is leading a national campaign on screening and is training organizations to screen, advocates, of course, a 10-step process. Every time they speak to this, they insist that the criminal record check is only one part of that 10-step process. In some cases, where the risk posed by the position is low, a criminal record check might not even be done. But this is only one part of it. You have to look at all the circumstances.

I think it's a difficult... Speaking as someone who has children and who has consulted in this process with victims, with community members, with childcare agencies, and with school systems and that sort of thing, I know that of course there's a lot of concern. But there's also a recognition that you have to look far beyond the offence itself.

Really, I think, it's an impossible question to answer. How would one feel knowing about an offence? It would have to be in the context of everything else you knew. If someone was a family friend for 20 years, engaged in social activities with you, had responsibility for your children all that time, and you had absolute confidence in them, and some day you learn that there is this offence in their background, would that completely change your opinion about that person? Sometimes it might, but I think that this is a very difficult question to answer.

The Chair: Thank you, Mr. Marceau.

Mr. Derek Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

On the “may” and “shall” issue, as an aside, I seem to recall that when we implemented the DNA legislation we used the permissive word “may”. In this case, we're putting in place a system to protect vulnerable children. I realize that there are other dynamics that cause the system to work out there, but when you're reviewing it, I'd like to ask you to make sure that there isn't the absence of a dynamic that would cause an optional response to occur and allow the system to break down. I'm sure you'll do that when you review all the “mays”.

Clause 5 of the bill contains an amendment to subsection 6(1). It looks like a simple cleanup section. It authorizes the minister to require someone having custody of a record or a record document to deliver it up. I was curious. It looks pretty inane, but it does involve a minister ordering, so can I assume that it applies to anyone in the country that would have custody of a record, including judges and court clerks in provincial courts?

Ms. Mary Campbell: Certainly the language, “any person”, should suggest that. That section has been in the act since the beginning. I am not aware of it ever having been used.

Mr. Derek Lee: But it does allow the minister to mop up pretty well, if the minister can locate wherever these pieces of records might be. Is that the intention?

Ms. Mary Campbell: Any traditional record.

Mr. Derek Lee: I see. The only amendment to it is the words “or issued”, so I guess... Anyway, my take on it is about right, is it? Its purpose, its intention, even though it may not have been used very much... I just regard it as quite sweeping, like a big vacuum cleaner.

Mr. Richard Zubrycki: It provides, probably, for unusual situations, in which such records might exist in a place where you wouldn't normally find them, so there wouldn't be some automatic procedure for sealing them. This refers primarily to federal government agencies. For instance, in a provincial courthouse, that record of conviction and those court records would not necessarily come under this authority, although on the other hand, in many cases—

Mr. Derek Lee: Why would you say it wouldn't? Why wouldn't a provincial or a municipal authority be subject to this provision? The way I read it, it looks like “any person”—

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Mr. Richard Zubrycki: Well, this is an issue that we didn't really address directly in preparing the bill.

Mr. Derek Lee: Okay.

Mr. Richard Zubrycki: It's my understanding that in many cases, for instance, provincial authorities will actually destroy those records or bundle them up and ship them off to CPIC headquarters—and it becomes a bit of a problem as to what they will do with them—but others won't. My understanding is that as federal legislation it's not binding on those provincial authorities, although there is, again, compliance with the spirit of the law.

Mr. Derek Lee: It's an interesting point. It may be moot in terms of this bill at the moment.

May I ask—

The Chair: Last question, Mr. Lee.

Mr. Derek Lee: —if there are penalties in the Criminal Records Act? I assume there are.

Mr. Richard Zubrycki: Yes.

Mr. Derek Lee: Can you just articulate for me what the penalties are for misuse of the system? Here we're talking about government officials and police officers operating a system. What are the penalties for a wilful or, let's say, inadvertent misuse of the information in the system?

Ms. Mary Campbell: Advertent or inadvertent, the penalty section is in the current section 10, which reads: “Any person who contravenes any provision of this Act is guilty of an offence punishable on summary conviction.” Under the Criminal Code, for an individual that's a maximum of a $2,000 fine or six months in jail or both. If it's a corporation that contravenes the act, it's a fine of up to $25,000.

The Chair: Thank you.

Mr. Peter MacKay.

Mr. Peter MacKay: Briefly, with respect to the example that was given by my colleague, Mr. Alcock, and your response, Mr. Zubrycki, about there being newspaper accounts and certainly a community memory of that event, I think of a case that I was involved in prosecuting. After the fact, three years down the road, the person who had been convicted—it involved serious molestation of a bunch of children—moved back to the area, and parents put up notices in the neighbourhood. They posted this man's picture, the criminal conviction information, and information about him and where he was living.

I can't see any court, under the Criminal Records Act, ever convicting family members for doing that—or any other prosecution or any other means. So sometimes what we're talking about here is quite an anomaly, because a pardon is a forgiveness by the system, but it doesn't negate the fact that it happened.

Mr. Richard Zubrycki: That's right.

Mr. Peter MacKay: It will never negate the fact that the criminal act took place—the human or moral indiscretion.

Mr. Richard Zubrycki: Yes.

Mr. Peter MacKay: I hate to dwell on this, but with respect to the “shall” and “may” issue again, I was handed a quote that came from Mr. David Griffin, the executive director of the Canadian Police Association. I can't personally envision any occasion—very limited occasions—when a police officer would say he is not going to disclose the information if an inquiry is made. But Mr. Griffin had this to say:

From the moment that you exercise or introduce the discretion, then the focus will often shift, not on the information but on whether or not the individual officer or member of a police force exercised the appropriate discretion under the circumstances. We will then be preoccupied with what that officer did or did not do with respect to the information they received, as opposed to what we're really trying to do here, which is the putting of the information on the table for the agency.

Again, it appears that—coming from the head of the Canadian Police Association—they certainly have no difficulty with being ordered to disclose. Taking that discretion away from the officers and putting them in a very morally reprehensible position of having to decide whether to disclose this information—not to take anything away from the police and their ability to make that type of judgment call... There are a lot of police officers, I think, who have a real respect—in fact, most do—for the individual rights of offenders. I still have a real problem with the “shall” versus “may” when it comes to some of these extremely serious offences.

I have just one last point. With respect to whether your opinion of your friend, your colleague, or even a family member, would change, you're right that it's an individual call. But as to whether you would decide to let that same person babysit your 8-year-old daughter... Yes, I think your opinion would definitely change if you heard that something had happened—even 25 years ago—with respect to a criminal offence.

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Mr. Richard Zubrycki: On the “shall” and “may” issue, the quote that you read, under the best of circumstances, I think, would have to be regarded as speculative. Under the national screening system we have now, which in effect provides a process similar to this for non-pardoned records, for all of those records that now exist in the CPIC database, there isn't even any “may” or “shall” question, because there is no law on this, although there is CPIC policy. Under that system, police have conducted somewhere close to a million screenings in the past few years since it was introduced.

Again, I am not aware of any problems. I'm not saying that there are no problems with this system; obviously there are operational problems. But I'm not aware that this has become an issue, that police are somehow befuddled by what they should do, by when they should do it, by whether they should disclose a record, or by what position would it leave them in. I'm not aware that this is a problem.

Even in regard to the issue of public notification, most provinces now either have laws or strong policies that provide a scheme for public notification of records. These things are being dealt with, I think, again in a very co-operative, collaborative way—rather than trying to impose a scheme from the top.

Mr. Peter MacKay: With respect, isn't that a bit of a cop-out? Are we not creating confusion by now handing down legislation that says “may” rather than “shall”? Is that not sending out to them what I think is a very mixed message? It's serious enough to legislate but it's not serious enough to hand down the order that you “shall” disclose this information.

Ms. Mary Campbell: As Mr. Zubrycki mentioned earlier—and he wasn't exaggerating—I know it's hard to believe, but volumes have been written about this issue of “may” versus “shall”. I know that it should be quite straightforward, but in the drafting world it is quite complex.

Having said that, we have said we'll look in particular at proposed subsections 6.3(2), 6.3(4), and 6.3(6) to see if that wording can be changed to “shall”, but I must say on behalf of my drafting colleagues that it's a much larger issue than one would ever guess.

The Chair: Thank you, Mr. MacKay.

Mr. Paul DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Mr. Chair.

On the “may” and “shall” issue, I'm a little concerned that we're really talking about not the exercise of a discretion to disclose but the derogation from the original discretion to grant the pardon. If we subscribe to the argument that for this category of offences it will be an automatic disclosure, then haven't we undone the discretion of issuing the pardon in the first place? I just would like you to tell me what the process is and how that discretion is issued in granting the pardon in the first place.

Mr. Richard Zubrycki: I'm not certain if I fully understand the question. When a pardon is granted or issued, this is a direction to all persons that are affected by that legislation. There is this difference between federal and provincial jurisdictions, but to all people who are governed by that legislation, it's a direction that the record should be no longer disclosed, for any purpose. It only—

Mr. Paul DeVillers: But that's a discretion that's exercised at that point, is it not?

Mr. Richard Zubrycki: There's no discretion beyond that except for the minister's. Subclause 6(2) says that the record shall not be disclosed except on the authority of the Solicitor General.

Mr. Paul DeVillers: But when the Solicitor General takes the decision to grant or issue a pardon, is that as of right or is there a discretion granted at that point?

Ms. Mary Campbell: The wording of the current subsection 4.1(1)—“Grant of a Pardon, Indictable Offences”—is: “The Board may grant a pardon...”.

Mr. Paul DeVillers: “May”.

Ms. Mary Campbell: Then it lists the criteria that need to be met, but it still says “may grant a pardon”.

Mr. Paul DeVillers: But the board deliberates on the circumstances of the case and determines whether or not it will grant the pardon, right? Then the Solicitor General signs.

Ms. Mary Campbell: The Solicitor General actually doesn't have a role in this. It's the board that grants the pardon.

Mr. Paul DeVillers: Okay. The board does it entirely, but my point is that there's a discretion exercised by the board in that case at that point.

Ms. Mary Campbell: Exactly. The wording is, “The Board may grant a pardon...”.

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Mr. Paul DeVillers: If we now pass legislation saying that for this category of offences there will be automatic disclosure, are we not undoing that board discretion? That's where I'm confused.

Mr. Eric Lowther: It's only when they're applying for one kind of job, though.

Mr. Paul DeVillers: Yes, in that circumstance.

Mr. Eric Lowther: If they're applying in a circumstance that doesn't involve children, it's not disclosed.

Mr. Paul DeVillers: I think I understand now.

Mr. Richard Zubrycki: I certainly think you're right in principle. The authority, the discretion at that point, that's applied by the board is somewhat limited by this. On the other hand, given the facts that the individual has the discretion to grant or not grant their consent and that the minister has discretion in regard to whether or not to unseal the record, there are controls on that. It's certainly not freewheeling.

Mr. Paul DeVillers: My last point is on the applicant granting consent in proposed subsection 6.3(6), where it says “a police force or authorized body may disclose”, and then says “if the applicant for the position has consented...”. What happens in a case when the applicant does not consent?

Mr. Richard Zubrycki: That refers particularly to the situation in which the record might be transmitted by the police directly to the agency that is asking for the screening. In that case, the individual has to consent specifically to that. If not, the police will deliver that record to the individual. That individual then decides, because there would already be a request from that agency to bring that record to them to discuss it—if there is one. The individual can decide whether to take that record to the agency and discuss it or simply screen themselves out of the process and say that they don't want to bring their record forward, that they're just not going to be...

Mr. Paul DeVillers: In that event, the agency would know there's a record but they wouldn't know what it is.

Mr. Richard Zubrycki: They certainly would have every reason to suspect.

Mr. Paul DeVillers: Yes.

The Chair: Thank you.

Mr. Saada, final round.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I would like to make a couple of points very briefly.

It is obvious when considering a bill like C-69 that you tend to focus on drafting and wording. However, you tend to forget the screening process applied by voluntary organizations. They use a much more elaborate process, very different from the identification process used in the case of criminal records. For instance, Volunteer Canada is actively training all kinds of organizations to apply an applicant screening process that goes far beyond verification of the criminal record.

I would not want to minimize the holistic aspect of the hiring process. This is a matter that I talked about not so long ago with some people who are very active in this field. They shared Mr. Marceau's concerns about the waiting period which can be as long as 30 days in some cases. It is not uncommon for the whole process to take as long. Obviously this is not perceived as a major problem. If that were the case, it would have been possible to decrease the waiting time by speeding some parts of the process.

I would like to express not the view of a lawyer, but that of a very practical man. When reading the bill, I feel that it can meet our needs and constraints and that it must include three discretions: the discretion of the applicant when requesting disclosure of his record; the discretion of the potential employer who can without penalty require the applicant to take that action; and the discretion of the Solicitor General who ultimately must decide whether or not to disclose the record.

I would be happy—perhaps I already am—if the bill contained this discretion and none else. I think we are all using the same language because we agree that there is a difference between “shall” and “may” and so on. In French, the problem is much worse because in both cases, the translation is “peut”. I hope you'll have fun with the drafting. Nonetheless, I suppose the word “may” in the bill means that these three discretions and only these three discretions are granted. I would like to be sure that any interpretation of “may” will be exclusively focussed on these three discretions.

If I may have another moment, I would ask a very short question. I would tell you what I would basically like to see in this bill.

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I would like to know if the two “peut” in the French version of proposed sub-clauses 6.3(2) and 6.3(3) are complementary. Am I right to think that the term “may” in the phrase “a member of a police force or other authorized body may” must be read in conjunction with proposed sub-clause 6.3(3) which states that in the French version “nul ne peut vérifier”? Does that mean that the constraints are complementary? Am I right to think that this is not a discretion but rather a binding relationship between the two?

[English]

Ms. Mary Campbell: As Mr. Zubrycki said earlier, I think the “may” is in the sense of authorizing, as opposed to “may or may not”. It's very difficult to explain.

The “may” in proposed subsection 6.3(2) is “authorized”, and therefore in proposed subsection 6.3(3) it is, and no one else is authorized, so they are complementary in that sense, as you point out. I think that's what we've tried to get at with the use of “may”. It's an authorization; where there's an authorization, other people are not authorized. But certainly, as we've said, we'll look at the “may” in proposed subsection 6.3(2), at whether changing it to “shall” would do damage to the other clauses or would require other adjustments. We'll look at that.

The Chair: Thank you. This concludes our questioning.

Ms. Campbell and Mr. Zubrycki, thank you very much for being with us here this morning and for addressing the issues that we've put forward to you.

We'll adjourn now.

Yes, Mr. Saada?

Mr. Jacques Saada: In terms of timing here, when are we going to look at these bills, whatever they are, Bill C-284, Bill C-69, Bill C-69 modified or whatever, and do we have enough time before whatever date will be set?

The Chair: Are you talking about clause-by-clause?

Mr. Jacques Saada: Yes, in order to have a thorough look at a follow-up to the comments made today, I think it's quite important that we do leave ourselves a chance to really work on that.

The Chair: The tentative schedule has us doing clause-by-clause on Thursday morning, on both Bill C-284 and—

Mr. Jacques Saada: Is everything okay so that we can address all of these questions before Thursday morning?

The Chair: Everything should be okay.

Mr. Jacques Saada: Thank you. I was just trying to do my job.

The Chair: Thank you.

We'll adjourn for five minutes while we reconvene for the impaired driving legislation.

[Editor's Note: Proceedings continue in camera]