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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, June 12, 2003

0905

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

Ms. Kathy Collins (Solicitor General Department, Government of Alberta)

0910

The Chair

Mr. Irv Yaverbaum (Department of Justice, Government of Alberta)

0915

The Chair

Mr. Jeffrey Schnoor (Executive Director, Policy Development and Analysis Division, Department of Justice, Government of Manitoba)

0920

The Chair

Mr. Peter Cuthbert (Executive Director, Canadian Association of Chiefs of Police)

Mr. Vincent Westwick (Chair, Law Amendments Committee, Canadian Association of Chiefs of Police)

0925

0930

The Chair

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

0935

Mr. Irv Yaverbaum

Mr. Randy White

Mr. Irv Yaverbaum

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

0940

The Chair

Mr. Jeffrey Schnoor

Mr. Réal Ménard

Mr. Jeffrey Schnoor

0945

Mr. Réal Ménard

Mr. Jeffrey Schnoor

Mr. Réal Ménard

Mr. Irv Yaverbaum

The Chair

Mr. Vincent Westwick

0950

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Irv Yaverbaum

Mr. John McKay

Mr. Irv Yaverbaum

Mr. John McKay

Mr. Irv Yaverbaum

Mr. John McKay

Mr. Irv Yaverbaum

Mr. John McKay

Mr. Jeffrey Schnoor

0955

Mr. John McKay

Mr. Jeffrey Schnoor

Mr. Vincent Westwick

Mr. John McKay

Mr. Vincent Westwick

Mr. John McKay

Mr. Vincent Westwick

The Chair

Ms. Kathy Collins

The Chair

1000

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Irv Yaverbaum

The Chair

Mr. Jeffrey Schnoor

Mr. Vincent Westwick

The Chair

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

Mr. Jeffrey Schnoor

1005

Mrs. Marlene Jennings

Mr. Jeffrey Schnoor

Mrs. Marlene Jennings

Mr. Irv Yaverbaum

Mrs. Marlene Jennings

Ms. Kathy Collins

Mrs. Marlene Jennings

The Chair

Mr. Jeffrey Schnoor

1010

The Chair

Mr. Réal Ménard

Mr. Jeffrey Schnoor

Mr. Vincent Westwick

Mr. Réal Ménard

Mr. Vincent Westwick

The Chair

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Jeffrey Schnoor

1015

Mr. Irv Yaverbaum

Mr. John Maloney

Mr. Irv Yaverbaum

Mr. John Maloney

Mr. Irv Yaverbaum

1020

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mr. Randy White

Mr. Jeffrey Schnoor

The Vice-Chair (Mr. John McKay)

Mrs. Marlene Jennings

Mr. Vincent Westwick

1025

Mrs. Marlene Jennings

Mr. Vincent Westwick

The Vice-Chair (Mr. John McKay)

Mr. Randy White

Mr. Jeffrey Schnoor

Mr. Randy White

Mr. Irv Yaverbaum

1030

The Vice-Chair (Mr. John McKay)

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

The Vice-Chair (Mr. John McKay)

Mr. Pat O'Brien

The Vice-Chair (Mr. John McKay)

Mr. Pat O'Brien

Mr. Irv Yaverbaum

Mr. Pat O'Brien

Mr. Irv Yaverbaum

1035

The Vice-Chair (Mr. John McKay)

Mr. Jeffrey Schnoor

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman

Mr. Irv Yaverbaum

Mr. Chuck Cadman

Mr. Irv Yaverbaum

The Vice-Chair (Mr. John McKay)

Mr. Jeffrey Schnoor

The Vice-Chair (Mr. John McKay)

Mrs. Marlene Jennings

1040

The Vice-Chair (Mr. John McKay)

Mr. Jeffrey Schnoor

1045

The Chair

Mr. Vincent Westwick

The Chair

Ms. Kathy Collins

The Chair

Mr. Randy White

Mr. Vincent Westwick

Mr. Randy White

Mr. Vincent Westwick

The Chair

Mr. Randy White

1050

Mr. Irv Yaverbaum

Mr. Randy White

Mr. Irv Yaverbaum

The Chair

Mr. Pat O'Brien

Mr. Irv Yaverbaum

Mr. Pat O'Brien

Ms. Kathy Collins

Mr. Pat O'Brien

Ms. Kathy Collins

Mr. Pat O'Brien

1055

Mr. Irv Yaverbaum

Mr. Pat O'Brien

Mr. Irv Yaverbaum

Mr. Pat O'Brien

The Chair

Mr. Randy White

The Chair

Mr. Randy White

The Chair

Mr. John McKay

Mr. Vincent Westwick

Mr. John McKay

Mr. Vincent Westwick

Mr. John McKay

Mr. Peter Cuthbert

Mr. John McKay

The Chair

Mr. Jeffrey Schnoor

Mr. John McKay

The Chair

Mr. Vincent Westwick

1100

The Chair

Mrs. Marlene Jennings

Mr. Irv Yaverbaum

1105

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 060

l

2nd SESSION

l

37th PARLIAMENT

EVIDENCE

Thursday, June 12, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 60th meeting of the Standing Committee on Justice and Human Rights. Today we are doing Bill C-23, An Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts.

Today as witnesses from 9 until 11 o'clock we have from the Government of Alberta, Irv Yaverbaum and Kathy Collins; from the Government of Manitoba, Jeffrey Schnoor; and from the Canadian Association of Chiefs of Police, Vincent Westwick and Peter Cuthbert.

I presume you are aware that you have 10 minutes to make a presentation. After those presentations have finished, we will have some discussion with members of the committee.

I'm going to go in the order as presented on our agenda today, so we're going to the Government of Alberta first.

Ms. Kathy Collins (Solicitor General Department, Government of Alberta): Thank you for the opportunity to appear before this committee to comment on Bill C-23, the Sex Offender Information Registration Act and amendments to the Criminal Code.

On behalf of the Alberta Solicitor General, I commend the federal government on its efforts to reach consensus on the establishment of a national sex offender registry.

Alberta participated in the working committee that developed the proposed registry. This working committee reached consensus on many of the elements included in the bill. Some issues, however, remain outstanding. Today I would like to discuss Alberta's position on these outstanding issues. My comments will be from the perspective of the usefulness of the proposed registry as a police investigative tool. My colleague Mr. Irv Yaverbaum of Alberta Justice will speak to the corresponding legal issues.

The Alberta government believes that the national sex offender registry is a valuable tool for police investigating sex crimes. It should be noted that there are many interconnected initiatives designed to manage sex offenders. The national sex offender registry is viewed as another tool that will enhance activities undertaken by the police.

While we agree with several areas of the bill, we believe that in its current form the bill does not go far enough to protect the community from the most serious sex offenders. It also will not assist the police in their investigation of crimes of a sexual nature for some time. This is because only offenders convicted on or following the proclamation of the bill will be subject to registration. Alberta would like at the very least a mechanism to allow for application to be made to include some of the most serious and violent sex offenders on the national registry. Both law enforcement and correctional officials are aware of who many of these offenders are. It is Alberta's position that they should not be overlooked when registration commences.

I would like to draw on the example of motor vehicle registration to assist in illustrating this point. We register motor vehicles as a matter of public safety. Because of this, motor vehicle owners must register their vehicles. They must provide identifying information, including their address. If they move, they must provide the new address. Registered owners of vehicles must renew their registration and revise information every year. We do this to enhance public safety. Imagine if we were to propose a new motor vehicle registration scheme that only required those who purchased motor vehicles on or after proclamation of the legislation to register their vehicles. I think we would realize that by not including the vehicles currently on our roadways in the system, the legislation would do little to improve public safety.

If Bill C-23 is passed without retroactivity, we could have a situation where it would be easier to send the most serious sex offenders traffic tickets than to locate them on the national registry in a sex crime related police investigation. This gap in the legislation limits the value as a police investigative tool.

With regard to the operational components of CPIC as they relate to the national sex offender registry, Alberta is pleased with the enhancements made so far. We have always believed that the registry should have photographic and geomapping capabilities in order for it to be effective in police investigations. We would ask that the addition of the elements be given due consideration.

Alberta in no way wants to delay this legislation. What we are asking is that consideration be given to allow broader application of registration as soon as possible. Alberta supports a national approach to the registration of sex offenders, federal legislation, and the uniform application of this legislation across the country. We think this is the key to closing those gaps that serious sex offenders can use to their advantage. We support the position of both Ontario and Manitoba in terms of the need to include a larger range of offenders on the registry than the bill in its current form calls for.

Thank you.

¿ (0910)

The Chair: Thank you very much.

Mr. Yaverbaum.

Mr. Irv Yaverbaum (Department of Justice, Government of Alberta): Thank you.

By way of introduction, I'm the senior policy counsel with the Criminal Justice Division of Alberta Justice. Like my friend Mr. Schnoor, who will be speaking after me, I'm a member of a number of federal/provincial/territorial working groups, including the high-risk offenders working group, which considered the sex offender registry. Prior to that I was for many years a crown prosecutor in the Edmonton office.

What I've come to say to you today is that the Alberta government is a strong supporter of the creation of a national sex offender registry. We see this as a very useful tool to allow police to more effectively investigate sex offences.

We support Bill C-23, but there is a problem. In a nutshell the proposed registry doesn't adequately cover all sex offenders. It will only cover those who are sentenced after the registry comes into force. This means that there are dangerous people who because of this lack of retroactivity will not be on the national sex offender registry. The registry is intended as a tool to provide for better police investigations, but as it stands in Bill C-23, it is seriously hamstrung from the very beginning in carrying out this purpose.

The Government of Alberta asks that you consider an amendment to Bill C-23 to make the national sex offender registry retroactive. But let it be clear that Alberta is not asking that every person who ever committed a sexual assault be required to register. What we are asking for is very reasonable. We ask that there be an ability to apply to the court and have a court decide on the basis of dangerousness for sex offenders who are serving a sentence or have completed their sentence. In other words, someone who is still dangerous should be on the registry. For Alberta this is an issue of protection of the public, which Bill C-23 does not address. There have been indications from the federal government that it has charter concerns with regard to retroactivity. Alberta believes that if a clause dealing with retroactivity is crafted properly, it will not offend the Canadian Charter of Rights and Freedoms. If retroactivity were crafted in the way suggested, this would allow a court to make orders for still dangerous sex offenders. It would not mean that every person who has ever been convicted of a sexual offence would end up on the registry, but those who very clearly should be on the registry. The court would come to a decision on whether it was satisfied that the person was dangerous and that it would be in the interest of the protection of the public that the person be placed on the national sex offender registry. If this is done, then the time periods for that person should be the same as those in Bill C-23.

In the unlikely situation that the court found that this procedure was a violation of a section of the charter, it's the position of the Province of Alberta that such a violation would be demonstratively justified under section 1. It would be a reasonable limit prescribed by law, as can be demonstrably justified in a free and democratic society. The intrusion on personal privacy is far outweighed by the increase in protection to the public by providing the police with a better ability to investigate sex offences. Nevertheless, should you continue to have charter concerns, it would be fairly easy to craft a clause, which would be severable from the remainder of Bill C-23, should a court find that a charter violation did exist that was not saved by section 1. In other words, adding this limited retroactivity that Alberta proposes would not place the remainder of the regime in jeopardy.

In conclusion, Alberta is advocating a limited amendment at least to Bill C-23 that would allow for an application by the Crown to establish that a convicted sex offender is dangerous and should be on the registry. This is not an unreasonable request. This is a request that the public can readily understand. What they will not understand is why dangerous persons who have committed sex offences would not be on the registry.

Alberta strongly supports the creation of a national sex offender registry and does not want to see any serious delay in the implementation of such a regime. But it also seeks an effective national sex offender registry to provide the greatest level of protection for the Canadian public.

Thank you.

¿ (0915)

The Chair: I'll go now to Mr. Schnoor.

Mr. Jeffrey Schnoor (Executive Director, Policy Development and Analysis Division, Department of Justice, Government of Manitoba): Thank you.

Good morning. As you indicated, my name is Jeffrey Schnoor. I am the executive director of the Policy Development and Analysis Division of the Manitoba Department of Justice. As Mr. Yaverbaum has indicated, I am also an active member of the group of federal/provincial/territorial officials that has worked for the last several years on developing the framework for a national sex offender registry. I'm very grateful for the opportunity to appear here today and speak about Bill C-23, which will enact the Sex Offender Information Registration Act and make amendments to the Criminal Code.

The Government of Manitoba has for a number of years urged the federal government to establish a national sex offender registry. It is Manitoba's view that such a registry will be an important investigative tool for police services, providing them with instant access to current information about individuals who may be of interest to them in the urgent investigation of sex offences. The registry will therefore make an important contribution to the safety of all Canadians. The Manitoba government seeks the establishment of a sex offender registry that is effective in meeting this objective. Therefore, we have consistently urged that the registry should be national in scope, should cover the widest possible range of offenders, and should provide as much information as possible to police.

We commend the federal government for introducing Bill C-23 and urge that it be passed and implemented as quickly as possible. However, we are concerned that the bill falls short of its objective in at least two ways: the range of individuals about whom information will be collected and the absence of photos of these individuals. A national sex offender registry should provide to police current information about all individuals who within a reasonable period in the past have committed a sex offence. However, Bill C-23 does not do this. Bill C-23 will only provide to police information about individuals who are sentenced after it comes into effect. It will not provide police with information about individuals who are serving a sentence at the time the legislation comes into force. This means that the registry will provide police with information about a person who was sentenced the day after the effective date of the legislation but not the day before. The registry will also not provide police with information about individuals who have served a sentence in the past for a sex offence. This means that the registry will not provide police with information about a person who completes a sentence for a sex offence the day before the effective date of the legislation. In our view these are very serious omissions, which will limit the effectiveness of the national sex offender registry for years to come.

There can be no question that the inclusion of persons currently under sentence and persons who have served a sentence in the past would result in an infinitely more effective registry. The only possible objection, I would submit, would have to be based on constitutionality. The Constitutional Law Branch of the Manitoba Department of Justice has carefully reviewed this issue and has concluded that there is no meaningful constitutional difference between those offenders and those currently covered by Bill C-23. The bill has been carefully designed to balance the privacy interests of offenders against the need of police for information, and these protections are equally adequate for offenders currently under sentence and offenders who've completed their sentence. We also note that the United States Supreme Court has recently come to the same conclusion with regard to the Alaska sex offender registry and its inclusion of all sex offenders, whenever convicted.

Let me summarize our view of the constitutionality of including more offenders. First, the obligation to provide information is a minimal intrusion into the privacy of offenders and serves the legitimate state interest of assisting police with urgent investigations of serious offences. Even if the intrusion were found to be more than minimal, it clearly takes place within the principles of fundamental justice. Therefore, including more offenders does not offend section 7 of the charter. Second, the obligation to provide information arises only after a court has adjudicated the question and made an order. Therefore, including more offenders does not offend section 8 of the charter. Third, the obligation to provide information to the registry is not punishment. Therefore, including more offenders does not offend paragraph 11(i) of the charter.

¿ (0920)

We urge that Bill C-23 be amended to include persons currently under sentence for a sex offence and persons who have served a sentence for a sex offence in the past.

The Government of Manitoba has also been urging for some time that it is essential that offenders be required to have their photo taken and that the photo be available to police through the national sex offender registry. Federal officials have advised us that the inclusion of photos will require an upgrade to the registry's software and that this will be done at some point as part of ongoing improvements to CPIC, the Canadian Police Information Centre. We urge that the upgrades necessary to include photos in the sex offender registry be fast-tracked and given the highest priority. We also urge that Bill C-23 be amended now so that it is ready to take advantage of this future upgrade. The bill should be amended to require offenders to have their photos taken and to allow for those photos to be stored on the registry. Those provisions should be proclaimed as soon as the technological upgrade has been completed.

The national sex offender registry will be a collaborative effort between the federal government and the provincial and territorial governments. The federal government will provide the legislative basis for the registry, maintain its software, and provide notice to offenders under its jurisdiction. But it is the provinces and territories that will effectively operate the registry on the ground. Our prosecutors will make application to our courts to have individuals included in the registry. Our courts and correctional services will provide notices to offenders about their obligation to register. Our police will receive information from offenders and enter it into the registry. Our police will consult the registry when a young child is abducted. We, the provinces, have a very real interest in a registry that is national in scope and that provides useful information to police. We are your partners, and the registry must be responsive to our needs.

We urge that Bill C-23 be passed and implemented as quickly as possible. At the same time we urge that the bill be amended so that information about the full range of sex offenders is included and photos of offenders are included in the registry as soon as possible.

Thank you again for allowing me to share the concerns of the Manitoba government.

The Chair: Thank you very much.

I'll go now to the Canadian Association of Chiefs of Police, Mr. Westwick and Mr. Cuthbert.

Mr. Peter Cuthbert (Executive Director, Canadian Association of Chiefs of Police): Thank you very much, sir.

On behalf of Commissioner Gwen Boniface, president of the CACP, and the board of directors, thank you for this opportunity. We are grateful to the parliamentary secretary to the Solicitor General of Canada for seeking the views of the CACP and for facilitating our appearance at this session today.

My name is Peter Cuthbert, and I am the executive director of the Canadian Association of Chiefs of Police.

By advocating legislative reform, innovative solutions for crime and public issues, as well as promoting community partnerships and high professional standards, the CACP is dedicated to leading progressive change in policing.

We are pleased to be here today to discuss this important piece of legislation.

Because we are pressed for time, I will ask the co-chair of the Law Amendments Committee of the CACP, Mr. Vince Westwick, to present the views of the CACP.

[Translation]

Mr. Vincent Westwick (Chair, Law Amendments Committee, Canadian Association of Chiefs of Police): Mr. Chairman, my name is Vince Westwick and I am the Co-chair of the Law Amendments Committee of the Canadian Association of Chiefs of Police. Alan Bodechon, Assistant Chief of Police of the city of Saint John, New Brunswick, is the member of our committee responsible for this issue. Unfortunately, Assistant Chief Bodechon is unable to be here today for this presentation.

[English]

We are very grateful to the parliamentary secretary to the Solicitor General of Canada for seeking the views of the CACP and for facilitating our appearance here this morning.

Mr. Chair, our submission to the committee is very straightforward, and our request to you is to please get it right. In order to get it right we believe that the registry must be a workable investigative tool. The provisions must be preventive and proactive, and it must be meaningful. This tool will be important to our community only if its provisions are realistic and meaningful. While lawyers and police can argue about the details of the legislation, we must carefully guard against creating a process that might, however unintentionally, create a false sense of security with parents and in schools and day care centres in our communities across Canada.

While there is much within the legislation on which to comment positively, including the fact that a national system is being created, police chiefs want to ensure that the registry will have the investigative utility to meet the legislative intention and the expectation of our communities.

I would like to focus on those areas where we feel there is a need for enhancement. These suggestions are strictly from a police operational standpoint and deal with the practical realities of investigation. We have three points, which are interconnected, and then two modest suggestions. Under principles in subparagraph 2(2)(c)(i) it says “the information be collected only to enable police services to investigate crimes that they have reasonable grounds to believe are of a sexual nature”. We understand that there is an amendment being discussed that would change that to “reasonable suspicion”. This may still preclude police access to registry information until they know they are dealing with a crime and then are reasonably suspicious that it is a sexual crime. In these kinds of investigations time is critical. We would therefore recommend wording along the following lines: that the information be collected only to enable police services to investigate where they have reasonable suspicion to believe that a crime of a sexual nature has been or may be committed. This is not about threshold but rather about ensuring that the registry is a meaningful investigative aid and that the police have access to the registry in a timely fashion before a tragedy occurs.

With regard to the scope of the information, clause 5 outlines the information that can be collected for the registry. In order for police to be investigatively effective, they must make smart inquiries. This means that police must be able to tailor their inquiry to the situation in order to obtain a focused result, identifying the most likely rather than all possible suspects. This is clearly advantageous to the police, but it's also advantageous to those whose information is in the system, and it's clearly advantageous to the public. The system must therefore be able to collect and retrieve by photograph. I note that my friends from both Manitoba and Alberta have identified that.

We would go a bit beyond that and suggest that the parameters for offender characteristics be expanded, and we would go farther to suggest that offence characteristics, which is often referred to in the television world as MO, or modus operandi, also be included. This latter information might cause you to react at first, but you must remember that all of this information has been made public at the trial in which the offender was a subject.

Next is the scope of data matching. This is not actually asking for a change. Subclause 16(3) limits the type of data matching that can be done with information from the registry. We understand that this is an attempt to eliminate data matching with data registries within the federal and provincial jurisdictions, including motor vehicles and social assistance, those kinds of things. We are advised that this was not intended for, nor would it preclude, data matching with such existing police investigative systems as VICLAS or Rigel, which is the geographic profiling. While the drafters may dispute this, we feel that a court may adopt a restrictive interpretation of this subclause, which would seriously limit the investigative capability of the registry. We would ask, therefore, that the wording be clarified.

¿ (0925)

We would also request that consideration be given to two smaller points. Firstly, a person leaving the jurisdiction should be required to notify prior to leaving, not 15 days after returning, as is currently the case in the legislation. Secondly, a matter that's important from the standpoint of police costs, we would ask that there be provision included within the bill to allow for evidence to be presented by certificate, thereby reducing the necessity of police officer attendance merely to confirm the contents of the registry. This is similar to situations with drug cases, breathalizer evidence, and that sort of thing.

In conclusion, we applaud the Solicitor General for bringing forward this important initiative and the committee for the work it has done to date in enhancing the bill. We seek your indulgence to consider the further enhancements we have suggested to ensure that the registry is meaningful and that it meets the reasonable expectations of the communities across Canada.

Thank you, Mr. Chair.

¿ (0930)

The Chair: Thank you very much.

I'll now go to Mr. White for seven minutes.

Mr. Randy White (Langley—Abbotsford, Canadian Alliance): I would like to applaud the Solicitor General for doing this, but having written the original bill myself in the year 2000 and having tried to get this through the House of Commons with victims groups, police, and provinces, I'm afraid I'm not one of the people who applauds the government on this one.

In fact, I'm very much concerned that this could very well be the second last day before the House closes, and this is not going to go through until the fall at the very least, if indeed it does then. So this could be, in my opinion, a year off at least. I just open with that.

I was under the impression that there was significant consultation with the provinces on this. If there was consultation throughout on this, I'm surprised that we're facing here today several significant issues, one of which is the retroactivity. Retroactivity, according to the Solicitor General, is not going to happen. I have a recent quote from him, which I'll read. It's on its way here. But, basically, it says we don't want to get caught up in all of these charter issues that may come. Mr. Yaverbaum, I do appreciate your comments on the necessary amendment. I'm working on one myself for the committee to try to get some sense into this. But I don't think there's going to be retroactivity. We went through this with the DNA registry as well, and that never did occur. So I think that's falling on deaf ears here.

I was surprised, actually, a couple of weeks ago to hear the Canadian Bar Association so opposed to a lot of the issues within this registry, how much of an affront this is to the offender, more than anything.

I just wanted to bring you up to date with that retroactivity. That ain't going to happen, folks, unless there's some kind of major miracle in this House of Commons.

There are some other things, and I don't know if you're aware of them or you just haven't brought them up. Correct me if I'm wrong, but I have heard that for prison transfers from other countries, offenders will not be on that registry. That's not in here. I also understand that young sex offenders will not be on this registry unless they are charged through adult court, which again is a problem because you have that information among you to be registered. Also, I find it of interest that the penalty is heavier for not registering your gun. You can get up to 10 years in prison for that, and for not registering as a sex offender you can get up to six months, which doesn't say much for the law-abiding Canadian citizen, in my opinion.

If some of the things you talk about are not put in the registry, what do we have on opening day? Can you truly call this a registry, or is it a law that eventually will register some people? Given the fact that there's the discretion of crown counsel to apply, the discretion of the judge to turn it down if it's an affront to the sex offender, and the ability of the offender to appeal, what on earth does Canada have on the opening day of this thing?

Mr. Yaverbaum.

¿ (0935)

Mr. Irv Yaverbaum: I tried to think of an analogy that would starkly set out what we're going to have on opening day. If we were a bunch of engineers designing a dam, what we'd have on opening day is half a dam. In other words, we have sex offenders, but a very small proportion of the sex offenders, those who on that particular day happened to commit a sex offence and were subsequently sentenced. In other words, everybody prior to that date isn't. You built a dam in a river, and 90% of the water is going by your dam, and you're catching 10% of the water. So that's your answer in terms of the effectiveness of the sex offender registry.

Eventually, everybody will be on the sex offender registry. But that will occur long after everybody in this room is well and truly dead, because, of course, everybody who had committed an offence prior to the sex offender registry coming into effect would not be on the registry. You're quite correct that the bill also does not capture persons who commit sexual assaults in other countries and then come back to Canada.

You talked about the FPT process and the issue of consensus. When we sit around the table as representatives of the provinces and we arrive at a consensus, that does not mean that everybody in the room from the provinces thinks that this is all that should be in the bill. There are differences of opinions that are expressed.

You've very clearly heard from the Provinces of Manitoba and Alberta that we think there should be more in this bill. The bill is not retroactive at all. You said that the federal government won't go into this because of charter concerns. There are other examples of retroactivity where they have gone into this. The DNA scheme in the Criminal Code does have limited retroactivity in it. The firearms registration scheme is retroactive. In other words, it didn't mean that if you owned a firearm prior to the scheme coming in you didn't have to register it. If you owned a firearm at any time you had to register it. If you register a firearm, you have to provide the federal government with an indication of where the gun is being kept and the address of your residence where it's being kept, and if you move, you are required to notify the federal government. The Alberta government, like the Province of Manitoba, has the legal opinion that if you bring in retroactivity in the proper way, it will not create a charter violation. If you don't bring in retroactivity, what you will have is an ineffective national sex offender registry.

Mr. Randy White: You said that eventually everybody will be on the registry. That is not the case because there is the ability to appeal, the discretion of crown counsel, and the discretion of the judge. So I am not sure that everybody will be on this. I have gone to a number of dangerous sex offender hearings in courtrooms where the DSO should have been applied but was not applied or was not even applied for.

Ontario for some reason gets retroactivity because their offenders happen to be on a registry. That isn't a charter issue. But Alberta and Manitoba and the rest of the provinces seem to have a charter issue. Why is that?

Mr. Irv Yaverbaum: I don't understand that either, quite frankly, how you could retroactively put people on the Ontario registry and not have a charter issue, but if you put people from other provinces, it would be a charter issue. The Government of Alberta was considering, as you may have noticed from some of the public statements, creating a sex offender registry like Ontario has done. Perhaps we're sorry we didn't do it because maybe then we would have gotten the same treatment Ontario is receiving, with the persons on their registry being included. If we had put in a registry, maybe we would have had our people retroactively put on as well.

The Chair: Mr. Menard.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I was a member of the subcommittee on combating organized crime. You may remember that in the mid-1990s there was a great deal of concern in large cities about the gang wars between different groups of criminal motorcycle gangs. As you know, there was a great deal of legislation: Bills C-24 and C-36. A new offence of gangsterism was created. There were mandatory statements in relation to currency. The $1,000 bill was withdrawn from circulation.

The laws against organized crime were never retroactive. Correct me if I am wrong, but these different acts that were adopted, C-24 and C-36, were not retroactive even though they did deal with quite serious issues and people who were well-known to the police and who did constitute a real threat for our society. I am not saying that sexual offenders do not constitute a threat. Obviously, it is at a different level.

I am attempting to understand because I tend to share the prudence of the Solicitor General in considering that the law should not be retroactive. It is a basic legal principle and we cannot make a comparison with the retroactivity of the Firearms Act. The Firearms Act is not linked to a particular condition but rather the possession of a good which one already had and which one continued to possess in the present and in the future.

So I would like you to give me some convincing arguments both with respect to the law itself and the fact that the two most important pieces of legislation that we adopted in our fight against organized crime were not retroactive. Why should there be an exceptional case in this instance? I am open to any arguments. I just want to understand the matter better. My question is for all the witnesses.

¿ (0940)

[English]

The Chair: Mr. Schnoor.

Mr. Jeffrey Schnoor: I'm happy to try to answer that. First of all, you speak of the measures against organized crime and that those contain new offences. I think it's quite clear that the charter says you cannot create new offences and punish people retroactively. That's because new offences are punishment. The sex offender registry does not create any punishment in respect of the offender's obligation to register. Punishment involves some deprivation of liberty, some fine, some confinement. That is not what is happening here. It is because it's not punishment that it's possible to go retroactive.

I confess quite honestly that in making my presentation I didn't use the word “retroactive” because it invites exactly this sort of apples-and-oranges comparison. This is simply a matter of ensuring that the registry has information in it that will be useful to police. If the registry opens on day one with nobody in it other than the Ontario offenders, we are not providing police with a useful set of information, and it won't be useful to them for years and years to come.

I'd like to give an example of that using two individuals. Person X commits a number of serious sexual assaults in 1984. He evades detection until 2002. He is tried and convicted in 2003 and is sentenced just after the national sex offender registry comes into force. Under Bill C-23 that person will be included in the registry. Person Y commits a number of serious sexual assaults in 2002. He is tried and convicted in 2003 and sentenced just before the national sex offender registry comes into force. That person will not be in the sex offender registry. How is that a rational scheme? How does that provide useful information to police?

[Translation]

Mr. Réal Ménard: Before listening to your colleagues, I must say that I do not agree with you when you say that this bill does not result in any deprivation of liberty. I think that clauses 4 to 7 of the bill do impose obligations on sex offenders that do in fact restrict their freedom. I agree on that point but I do not share your view when you say that it is not at all a deprivation of freedom and that one should not make a comparison with organized crime.

But I would like to listen to what your colleagues have to say on this matter.

[English]

Mr. Jeffrey Schnoor: If I could just briefly respond to that--

¿ (0945)

Mr. Réal Ménard: I challenge you.

Mr. Jeffrey Schnoor: I understand. That's all right. We're all entitled to our different opinions.

From a charter point of view, section 11 speaks of punishment and section 7 is where we look at the issue of privacy interests. First of all, with regard to section 11, punishment, I think it's quite clear that this is not punishment. I have a quote from the Nova Scotia Court of Appeal when looking at the DNA act, and this has to do with taking DNA samples, where they say “Its impact on the offender is not comparable to the control central to imprisonment, house arrest or even reporting. It does not constitute a deprivation or hardship such as that which accompanies a restitution order, a fine or even a firearms prohibition.” This isn't punishment. I'm not saying that they don't have obligations. Of course they do. But it is not punishment for the purposes of section 11 of the charter.

Looking at section 7, we're talking there about privacy interests and liberty interests. The individual is free to live anywhere he wants. He can move anywhere he wants as often as he wants. His obligation is to let the government know what that address is, in the way that individuals have to do with motor vehicles and in the way that every one of us has to do with regard to our income tax returns. That is not a meaningful intrusion into liberty interests and privacy interests. Even if one could say it is, section 7 makes it clear that can be done by government as long as it is done within the confines of the principles of fundamental justice. We have here a scheme that requires judicial authorization and that has appeals and discretion, and because of that, section 7 is not offended.

I don't know if I've persuaded you, but we can agree to disagree.

Mr. Réal Ménard: I appreciate your effort.

Mr. Irv Yaverbaum: Since you've asked to hear from the rest of the panel, I'll just add that sections 11 and 7 are two of the sections that have been mentioned in terms of charter concerns. With regard to paragraph 11(h), the issue of double punishment, although the decision of the Supreme Court of the United States is, of course, not binding on a Canadian court, it is a decision of a very important court, and it's the type of decision the Supreme Court of Canada would look at very seriously in doing an analysis. It essentially indicates that registration is not punishment. Of course, if registration were punishment, every time you registered a motor vehicle you would be punished. But you're not.

Section 7 says “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Sometimes when the first portion of section 7 is mentioned, the second portion is forgotten. What does this mean, this fundamental justice? You can look at the decision in the Winko case from the Supreme Court of Canada, which I think has previously been cited in testimony before this committee. This dealt with the mental disorder provisions of the Criminal Code of Canada. You look at whether the individual's interests are balanced with society's interests. In this case you have someone who is a convicted sex offender. Is there a societal interest such that you can invoke fundamental justice and such that the minor deprivation of liberty that you're arguing exists is far more balanced by the benefit to society by allowing the police to better investigate sexual assaults? You must understand what this registry is aimed it. It's aimed at the situation where the police believe a sexual assault may have occurred but they don't know who has committed it. They need to identify who may have committed the sexual assault, and sometimes they have to be able to do that very quickly. For example, the context that must cross everybody's mind in this committee is if a child disappears and you're worried that the child has been kidnapped and there may be a sexual assault element. The deprivation of liberty of persons who have committed sexual assaults is far better balanced by the interests of society in the police being able to investigate these types of offences.

The Chair: Thank you very much.

One more response, if you would like, and then I'm going to go to Mr. McKay.

Mr. Vincent Westwick: Mr. Ménard, we would be happy to leave the debate to the constitutional lawyers. We went through this matter in some detail for the DNA data bank. It was in fact the police community, if my history serves me correctly, that encouraged the Department of Justice to seek the outside opinion of three eminent jurists on the point. Unfortunately, they carried the day.

I don't think I share the pessimistic view of Mr. Yaverbaum in terms of our life expectancy. While I appreciate that the committee is very concerned about retroactivity, I've been representing the CACP long enough that I'm now appearing on the reviews of legislation that I had the privilege of appearing on before, and my experience is that legislation moves along and life moves along. While I think the retroactivity issue is an important one, I encourage you not to lose sight of some of the issues we have put before you. I don't mean for that to sound merely competitive. Some of the issues we've put forward also deal with the scope of the information and the scope that the police have to deal with. Five, six, or some years down the road that will be a very big issue, and retroactivity may not appear to be as significant as it is today.

¿ (0950)

The Chair: I'll now go to Mr. McKay for seven minutes.

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

First of all, to Mr. Yaverbaum, on the issue of the Ontario registry, that's almost a no-brainer. They're already on a registry, some would argue a superior form of registry to the one that's being proposed by the Solicitor General. The application from a provincial registry to a national registry is not increased punishment in any way, shape, or form. Surely, that's the argument for including the Ontario folks in the registry system.

Mr. Irv Yaverbaum: As I understand the concept, the concern about the charter is that persons who have previously been sentenced are forced to be on the registry. I'm not sure that you can equate apples and oranges, being on a provincial registry and being on a federal registry, where the--

Mr. John McKay: This is just two different kinds of apples, not apples and oranges.

Mr. Irv Yaverbaum: Failure to register for the provincial registry would result in being convicted of a provincial offence, which is not a criminal offence. Failure to register for the federal registry is a ratcheting up in the sense that if you fail to continue to register, then you are now guilty of a criminal offence. To that extent, if you accept the federal position that there is a charter argument that you must go only for those persons who are sentenced after the registry comes into effect, I fail to see how the Ontario registry would not also raise charter concerns. I don't agree with the analysis, by the way, of the federal government.

Mr. John McKay: So a pure retroactivity argument would say keep the Ontario folks out.

Mr. Irv Yaverbaum: My retroactivity argument was put everybody in.

Mr. John McKay: I know what yours is, but to argue it from the other side, if you're a real purist on retroactivity, you keep those folks out.

Mr. Irv Yaverbaum: Yes, if you were absolutely adamant that retroactivity in any way, shape, or form would offend the charter, you'd keep the Ontario people out.

Mr. John McKay: The next question really becomes, is this registration an additional form of punishment? I'd be interested in all of your views on whether it is or isn't. That really goes to the essence of the system. I realize that analogies have been put forward. For example, if I fail to file my income tax, then something happens to me. If I fail to register my motor vehicle, something else happens to me. In this particular case, though, if I fail to register, something very bad will happen to me, and that is I'll go to jail. The bar argued that this in effect adds significantly to the current sentencing regime, “subjecting certain offenders to what may be lifelong supervision and vulnerability to further charges for breaching conditions of that supervision.” So the real issue here is, is this an additional punishment that is retroactively applied to a certain group of offenders? I'd be interested in hearing your views.

Mr. Jeffrey Schnoor: I'd like to answer that in two parts. On the question of pure retroactivity, pure retroactivity--or the absence, rather, of pure retroactivity--would be not including people who committed an offence before the coming into force of this legislation. We already have in this legislation recognition that if you committed an offence at some point in the past, whether it was yesterday or in 1984, if you are sentenced after the coming into force of this legislation, you are obliged to register. So we already have a form of retroactivity. So even this legislation is not purely retroactive--

¿ (0955)

Mr. John McKay: Would you use the charge date or the conviction date? Surely, you would have to use the conviction date.

Mr. Jeffrey Schnoor: The charter speaks in terms of punishment of the offence being varied between the time of commission of the offence and the time of sentencing. If that section were to apply, then we wouldn't be able to deal with anyone who has committed an offence prior to the coming into force of the legislation. Luckily, Bill C-23 doesn't do that. Bill C-23 does recognize that it is possible to create new obligations for persons who have already committed offences. Therefore, to us it makes no difference when you're sentenced. What's important is that you've committed an offence.

So that's just to address the earlier question about pure retroactivity. I think it's important to look at what the legislation is already doing and compare that to section 11 of the charter.

On the question of punishment, the operative question is not what consequences flow if you don't do something. The operative question as to whether or not something is punishment is what you're obliged to do. This registry does not oblige you to spend more time in prison, to pay a fine, or to curtail your daily activities in any way whatsoever. It obliges you to do nothing more than apprise the police of your whereabouts. In our view that is not punishment. I previously read an extract from a DNA decision of the Nova Scotia Court of Appeal in which they talk about the indicia of punishment. Having to tell the police where you live is not punishment in our view.

Mr. Vincent Westwick: If I may add briefly to that, I would endorse what Mr. Schnoor is saying. We certainly don't take the view that this is an additional punishment. You must remember that much of this information is already in the hands of police. Criminal records and whatnot are already in the hands of police. Some of the more current information that this registry will capture, the current address and so on, is additional, but the meat and potatoes part of it is already kept by police. So I'm not sure that updating it constitutes a punishment. It certainly doesn't in our view. What is being done is this information is being kept in one place with certain mechanisms for retrieval and so on.

Mr. John McKay: I might well agree with you that providing your whereabouts doesn't on the face of it appear to be punishment. It's not something that any other discrete group of offenders or non-offenders have to do. It certainly has a consequence if you don't do it.

Mr. Vincent Westwick: I'm not sure I agree. All sorts of offenders post-sentence are subject to various types of reporting provisions and whatnot depending upon the terms of the sentence and the terms of their release.

Mr. John McKay: But doesn't that just make it like an additional parole provision?

Mr. Vincent Westwick: I wouldn't say that. I'm simply saying that there is an array of people who are already involved in a greater imposition, if you will.

The Chair: Thank you.

I think Ms. Collins wants to respond, and then I am going to go back to this side.

Ms. Kathy Collins: Mr. McKay, I don't know if this is active supervision as such. I think it's registration. I also think that what we are trying to achieve here is assimilating information about those offenders who are of concern to the public. I think it's also important to remember that the police will often use the information we house in the registry to rule out offenders, not just to investigate all offenders in that area, for example, but to rule out those whose past behaviour doesn't match what they're looking for. So using the term “supervision” when you register, it's not as intrusive as that.

The Chair: Thank you.

Mr. Cadman for three minutes.

À (1000)

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

I'd like to have the witnesses comment on the proposed registry's failure to include young offenders. Where I come from, and you may be aware in your jurisdictions, some very serious sexual offences have been committed by young offenders who were not dealt with in the adult system. So they would not appear in this registry. We're not talking about publishing identities. We're not talking about making their names or their photographs public. We're talking about investigative tools for police. I just wondered where the sense is that we would not include a serious sex offender who is 17 years and 11 months, but we would include somebody who is 18 years and one day. I'd just like to hear your comments on that.

Mr. Irv Yaverbaum: As I indicated earlier when I discussed FPT discussions, consensus doesn't necessarily mean unanimity among all provinces. I think what we arrived at was something based on the fact that the Youth Criminal Justice Act, which succeeded the Young Offenders Act, is clearly a system that differentiates itself from the adult system. The whole point of the Youth Criminal Justice Act is a differentiation between how youths and adults are treated. The consensus we could arrive at in our group was that young persons who are sentenced as adults should be subject to this. But there are arguments, of course, that by treating young persons who are sentenced as young persons the same as adult sexual offenders, you're in some ways violating the spirit of the Youth Criminal Justice Act. That may be one of the differentiations in the mind of the federal government for why young persons are not included in the bill.

The Chair: Mr. Schnoor or Ms. Collins.

Mr. Jeffrey Schnoor: I'm not sure how much I can really add to what Mr. Yaverbaum has said. You raise a very difficult question, there's no doubt about it, and it's one that the FPT working group struggled with. As Mr. Yaverbaum has indicated, it was possible to reach a consensus in the group to include young offenders who are sentenced as adults. It may be that the working group could and should have more discussion on the issue of young offenders. At this point our government hasn't taken a position on that. So I can't really go beyond indicating that was the nature of the consensus we were able to reach.

Mr. Vincent Westwick: I must confess, Mr. Cadman, that I did not consult on that point within our organization, so I'm not in a position to offer an answer, other than to say that we would take the position, I think, of the broadest scope of information. Perhaps the better approach would be for us to get back to you. We could perhaps follow up with correspondence to the chair on the point.

The Chair: Ms. Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I'm pretty interested in the fact that you said there wasn't consensus reached in the working group on [Editor's Note: Technical difficulty] offenders. While you say that possibly the group should have continued working on that, you seem to be more or less okay with it. Yet it's my understanding that there was a consensus, no retroactivity unless specific provisions could be designed to be able to bring in the Ontario registry with sufficient confidence that it would be charter proof, and that there was no consensus on retroactivity. Am I correct that there was no general consensus within the working group, the FPT, to have retroactivity? There was no consensus on that. Am I correct? It's easy, yes or no. Either there was consensus for retroactivity or there was no consensus for retroactivity.

Mr. Jeffrey Schnoor: The existence of Bill C-23 in its current form is obvious proof that the federal government doesn't believe in the viability of--

À (1005)

Mrs. Marlene Jennings: No, that's not my question.

Mr. Jeffrey Schnoor: They're a member of--

Mrs. Marlene Jennings: Was there consensus amongst the FPT for retroactivity?

Mr. Irv Yaverbaum: FPT is federal/provincial/territorial, so if the federal government says no, you obviously don't have a consensus.

Mrs. Marlene Jennings: Am I incorrect in thinking that not only did the federal government say no but also the Quebec government, the New Brunswick government, the Newfoundland government, the P.E.I. government, the Nunavut government, the Northwest Territories government, and the Yukon government? Am I incorrect in stating that? Yes or no. It's easy enough to answer.

Ms. Kathy Collins: All I can say on that from my recollection of what transpired in the committee is that consensus was reached based on what was presented to us as the charter implications from the federal government. It was when we reviewed with our own constitutional people what the charter implications would be that our position became clear. There was always an indication from our province, and we made it clear to FPT, that we would be raising this issue over and over again. Being that this is the opinion of our constitutional law people at the federal government level and this is our opinion later on at a provincial level, I don't know if that amounts to consensus. For the provinces you mentioned, Ms. Jennings, my understanding was that they didn't agree with retroactivity.

Mrs. Marlene Jennings: And they only agreed to consider including the Ontario sex offender registry if the federal government was able to design specific mechanisms to ensure that it would withstand charter challenge, including a number of provisions on due process and procedural safeguards that are not available and will not be available to people convicted of the sex offences listed on the schedule on the day of or after the royal proclamation. The provincial and territorial governments that I just mentioned were presented with the same arguments on the issue of retroactivity. They agreed with the federal government, and that's where a consensus is. It's clear that Alberta and Manitoba and possibly Ontario did not agree with that position. But there was consensus on that. There was no consensus for retroactivity. So it's not surprising that Alberta continues to push for this retroactivity. I'm not surprised that the Manitoba government is as well. Your position is that you went back and examined the charter challenge arguments presented by the federal government and that you now disagree. I am assuming that all of those other governments also went back and examined the charter challenge arguments presented by the federal government during the meetings of this FPT working group, and they're still comfortable with the position that was presented by the federal government and legal experts on that specific issue because they're not here asking for retroactivity. They're still in support of the scheme where there was that general consensus, no retroactivity except if special provisions could be agreed upon with the Ontario government to include their registry in the federal system.

The Chair: Thank you, Ms. Jennings.

Mr. Schnoor.

Mr. Jeffrey Schnoor: I'm not privy to the inner workings of the other jurisdictions so I can't say what investigations they have or haven't done. I can say, though, that the FPT process is a dynamic one. As I look back over the process that has resulted in the legislation we see here today, jurisdictions changed positions throughout as new information came forward. As new proposals and suggestions came forward, that made it possible for some jurisdictions that were at first resistant to go along with particular proposals. I don't believe that our working group has had a full discussion of the issue of retroactivity. I do believe that such a discussion would result in very different positions than were expressed in earlier meetings.

À (1010)

The Chair: Thank you very much.

Monsieur Ménard.

[Translation]

Mr. Réal Ménard: I think that Ms. Jennings raised an important point with respect to the position of different provinces. Personally speaking, I was familiar with the position of the previous government, but I did not know that this position was shared by 8 out of the 10 provinces, if I have understood Ms. Jennings correctly.

I do not remember which one of you talked about the need to make use of the photographs of the different banks. I would like to have more information about the rationale and once again, arguments to convince me that such a proposal is justified. I imagine that you will be the first to speak, much to your credit.

[English]

Mr. Jeffrey Schnoor: If it's a question of why photos should be included in the registry, I actually think that's a question best answered by the police. From our perspective it's a matter of providing as much information as possible to police to assist them in the urgent investigation of offences. It seems to me intuitive that having a picture of an offender would make it easier to locate and question the individual. Perhaps the police representatives would be in a better position to answer that.

Mr. Vincent Westwick: I think Mr. Schnoor states it very well. There are high-tech investigative procedures and low-tech investigative procedures. A photograph is a low-tech investigative procedure. Its investigative advantages are many, particularly--and I stress this--in the time-sensitive nature of the kinds of investigations where the registry can be most valuable, in those situations where there is still the opportunity to prevent a tragedy and for police intervention to prevent something from going in a particular direction. The use of a photograph in canvassing neighbourhoods and in identifying or, as my friends suggested earlier, in excluding possible suspects is very valuable. I don't want to miss that point. One of the reasons the police are so anxious to see this is that yes, it identifies suspects, but it's the likely suspect that the police are most interested in, not all the suspects. So eliminating suspects is a hugely important aspect of this so that the investigation can become focused in the best area.

[Translation]

Mr. Réal Ménard: I do not know if my colleague wants to add something; if not, I will do so myself.

At the present time, the Canadian Police Information Centre does have a national database that is accessible to all policemen with a photo identifying the main information being held. Is that correct?

[English]

Mr. Vincent Westwick: Yes and no. As I understand it, CPIC does not have the technological capability to deal with photographs. It can deal with a range of other information. Other investigative databases do. CPIC at this point does not. CPIC, as I understand it, is going to be the database from which the registry will operate. So, as my friend pointed out, there will be the need for technological upgrades. That's the reason the photographic issue is so important.

The Chair: Merci.

Next is Mr. Maloney for three minutes.

Mr. John Maloney (Erie—Lincoln, Lib.): When Mr. Westwick made his presentation, he made a recommendation that notice for change of address should take place prior to the actual change of address, not 15 days after. You didn't make any mention of that in your presentation. What do you think of that proposal? Why didn't you reference it yourself?

Mr. Jeffrey Schnoor: We only had 10 minutes. That's the first reason I wouldn't have mentioned that.

There are a couple of other things in the bill that, given enough time, I could go on about. For instance, I have concerns about the requirement for written reasons by judges when making these orders, although I understand, and I hope, that a motion to amend is going to be made to correct that problem.

The issue of when an individual should be registering when leaving the jurisdiction was the subject of a lot of discussion in the working group, and that was another very difficult issue. The concern of the Manitoba government is that the legislation be as useful to police as possible. As a result, if that is the view of the CACP, it is one that we would want to look at very carefully.

À (1015)

Mr. Irv Yaverbaum: Essentially, we share the same views expressed by Manitoba.

Mr. John Maloney: Does our current long-term offender legislation bolster your position on retroactivity? Can we draw parallel arguments?

Mr. Irv Yaverbaum: Persons who are dangerous offenders or long-term offenders will not be required to be on the registry as it sits right now. These were the types of things that came through the high-risk offender working group that Mr. Schnoor and I are on. They are a different kettle of fish because they're part of sentencing of a particular offender, where very clearly the registration requirement here is not part of sentencing. The bill makes it quite clear that it takes place after sentencing. The purpose of the dangerous offender provisions and the long-term offender provisions is not primarily to serve as a police tool for investigation of offences, which is the purpose of the national sex offender registry.

Mr. John Maloney: You have indicated that a properly crafted clause might prevent charter challenges. Have you drafted something that you feel might fly?

Mr. Irv Yaverbaum: We wouldn't presume to do drafting for the federal government. I have enough problems getting my own legislative drafters to accept what I put forward for Alberta legislation.

The test of dangerousness is not a test unknown in the Criminal Code. As I mentioned, the Winko case was decided by the Supreme Court of Canada, and the Supreme Court of Canada is accepting a test of dangerousness as not offending the charter for mentally disordered accused. If the person represents a danger to society, then there are valid reasons the charter is not violated. The societal interests more than balance any restrictions that are placed upon the individual.

What I want to indicate, as I did in my speech--and, unlike Manitoba, we had 10 minutes split two ways--is that what Alberta is proposing is a very reasonable proposal. We weren't asking that every prior sex offender who ever committed a sex offence end up on the registry. But take, for example, the fellow coming out of prison who has refused any treatment or counselling for sex offender related problems and the sentence has expired entirely and there's a strong case to be made that the person is still dangerous. We can't put him on the registry. We can't apply to the court to say, this person is still dangerous so he should be on the registry. In the opinion of the Government of Alberta that is a serious lapse of the registry. Dangerous persons won't be on it.

What liberty interest is being protected? They have to notify the police of where they're living and if they change their address notify the police of that. When you register a motor vehicle, you have to give them your address. If you change your address, you have to notify the registrar of motor vehicles. There is no liberty interest at stake. This is not a public access registry. It's a limited police access registry. It's much easier to get registration data than it is to get this type of data. It's much easier to find out where somebody lives to give them a photo radar ticket than it is to find out where a sex offender is located.

À (1020)

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): Mr. White, three minutes.

Mr. Randy White: It's pretty clear that this is falling on deaf ears. I have a quote from The Globe & Mail:

Solicitor-General Wayne Easter said yesterday he has no plans to make the bill retroactive. “I want this legislation to come in and to work effectively and not spend all our time in court cases,” he said.

It took us three years to get this to where it is, and we're not about to give up on that issue. So I'll get off of it now.

I would like some explanation of the impact of this exception clause in the bill itself. It's on page 17, if you have the bill there. It reads:

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

To me that is saying that after all is said and done, we have a sex offender in the courtroom, he's convicted, and we got lucky enough for crown counsel to say, we want him on the registry. Whether or not he appeals, I don't know. But then the judge says, I have to look at how this impacts your privacy and liberty and whether that is grossly disproportionate to the public interest by putting you on here. If I find that it is, I'm not going to allow your name to go on a registry. Is that your interpretation of what this is saying?

Mr. Jeffrey Schnoor: The legislation does require the judge to engage in a balancing of interests. He has to balance the privacy and liberty interests of the offender against the state interest of providing police with information to be used in the urgent investigation of serious offences. That's in recognition of the fact that under section 7 of the charter individuals do have privacy and liberty interests. However, I think the test of grossly disproportionate strongly weighs the balance in favour of the public interest. I think it would be the rare situation indeed where an individual would not be included. Of course, there are also rights of appeal. I'm not sure if that answers the question.

The Vice-Chair (Mr. John McKay): Thank you, Mr. White.

Ms. Jennings.

Mrs. Marlene Jennings: I'm pleased that you're [Editor's Note: Technical difficulty] grossly disproportionate test, that you in fact approve of it.

Mr. Westwick, some of the issues you raised in your presentation had to do with the offence characteristics, what police would call the modus operandi. The CACP would like amendments brought to Bill C-23 in order to allow for the inclusion of more of this information. You state that it's already public because it was put into evidence at trial. Could you give a couple of examples of the kind of information that under Bill C-23 as it's now written would not be included and the information we would like to see included that has already been made public or proven at trial?

Mr. Vincent Westwick: When we talk about offence characteristics, we are not asking for a transcript of the trial or anything as comprehensive as that. For example, if the offence you are investigating involves a potential offence against a six-year-old female and the pattern of behaviour of the offender deals with teenaged males, the police don't need to spend a lot of time in the critical period dealing with that. They may at some point want to canvas that. What they want to be able to find quickly--and I emphasize the time sensitivity of this--are people who may have demonstrated that type of criminal behaviour in the past. There are certain patterns that these crimes follow, and it would be that general kind of pattern, so that the police are in a position, as I indicated earlier, to make what we would refer to as smart inquiries. We can focus our inquiry and therefore focus the investigation based on the information.

À (1025)

Mrs. Marlene Jennings: So that would include some information about the victim, but, obviously, not information that would allow identification of the victim.

Mr. Vincent Westwick: Not identifiable information at all, obviously, but the kind of information that would be simple: male, female, teenage as opposed to non-teenage, that kind of thing, or adult. We tend to think in terms of children, but it may be that the history is with regard to offences against adults. That clearly is a parameter that's critically important in an investigation, so that you're not looking at hundreds of suspects but perhaps looking at a much smaller number. When you combine that with the ability of geographic profiling and so on, it allows police to then take meaningful action.

The Vice-Chair (Mr. John McKay): Thank you, Ms. Jennings.

Mr. White.

Mr. Randy White: I apologize for that comment. I don't think you did give approval to anything. You were merely explaining the article. It's unfortunate that you were misunderstood like that.

I want to go to page 13, the schedule of offences; for instance, aggravated sexual assault, use of a firearm. To put this into common practice, let's say that a person has just been convicted of that. Where under this exception would a judge say, I think this is grossly disproportionate to public interest? Your privacy and your liberty interests, by placing you on a registry for this offence, would be disproportionate to public interest. How do you get any one of those offences to be disproportionate if you're merely placing them on an information registry for police to use? Why would a judge say, I don't think you should be on the registry?

Mr. Jeffrey Schnoor: I would say that for the particular offence you selected from the list it's highly unlikely that a judge would ever say that the privacy rights of the individual outweighed the public interest in having that person's name on the registry.

Mr. Randy White: I wish I could agree. But there was the case of a fellow by the name of Armbruster, who had 65 convictions, including raping his grandmother, and today he is not designated as a dangerous sex offender because it wasn't even applied for by the Crown. I think these things happen in the courtrooms, and I'm afraid that what we're doing here is giving discretion to judges that we ought not to be giving.

Mr. Irv Yaverbaum: The grossly disproportionate test is the same one that's used for the DNA orders, and I strongly suspect that it's part of the federal government's concerns with regard to the Canadian Charter of Rights and Freedoms. It would have been possible to have designed a registration system that was automatic. In other words, if the person commits the offence on the schedule, the person is on the registry. You mentioned the dangerous offender situation. The test on that type of situation is quite high--for the Crown to establish that the person is a dangerous offender. To justify the scheme here, the test that is proposed in Bill C-23 is one in which the onus is on the accused to establish that it would be grossly disproportionate. For the case that you gave, I'd be very comfortable going in as a crown prosecutor and arguing to the court that for somebody who puts a firearm to some woman's head and sexually assaults her, it's very clear that there is no liberty interest for the accused that would in any way be proportionate to the public interest of having him on the registry. I think an extremely strong case could be made for the Crown with the current test that's in the legislation.

À (1030)

The Vice-Chair (Mr. John McKay): Thank you, Mr. White.

Mr. O'Brien.

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

To the witnesses, I'm sorry I couldn't be here for the presentations. I just flew back from my riding for these meetings. But I appreciate your being here.

I have two points, which we have heard from other witnesses and I gather were raised as well today. We have with us representatives of two of the provinces. We've been told by the minister that the provinces were not for having retroactivity in the bill. I know that the Solicitor General is a man of his word, so we take that at face value. But it continues to be raised as a weakness in the bill. Are we wasting time? Are the provinces of that mind? I commend my colleagues opposite who have continued to raise this issue. It has taken way too long to achieve what we are trying to achieve here, in my view. But I am getting tired of hearing opposition members raise the retroactivity card if there's no point to it and if the provinces are indeed opposed to retroactivity. I'd like to hear from both of the provincial representatives on that.

I heard the issue raised about it's easier to find somebody to give them a ticket than it is to find a sex offender. That would be highly ludicrous and of great concern to me.

Mr. Chair, I hope that a list is being compiled by the researchers of the various weaknesses in this proposed legislation that the various witnesses have raised. I would like to have this committee meet again with the officials at the end of the witness process and hopefully the minister as well and say, here they are. Here is the enunciation of the weaknesses we heard. Here are the ones we think are valid. Here are the ones we think are overstated. Maybe the retroactivity is one of the ones that's overstated. I want to hear that. I'm not prepared to support legislation that has obvious flaws that could be easily corrected. That's what I am saying, Mr. Chairman.

The Vice-Chair (Mr. John McKay): Were you directing that to somebody in particular?

Mr. Pat O'Brien: I'd like to hear from the witnesses on the retroactivity point.

I'd like to hear from the researchers, if I might, on whether we're compiling such a list, or maybe our colleague is doing that as a parliamentary secretary. I remember doing that for my minister.

The Vice-Chair (Mr. John McKay): Let's isolate our questions to the witnesses--

Mr. Pat O'Brien: The provinces on the retroactivity question, please.

Mr. Irv Yaverbaum: To address the comment about the ticket because I mentioned it, it is literally true. A photo radar ticket is given to the owner of the motor vehicle. Somebody takes a photograph of the licence plate of the motor vehicle, and then they go back to the registrar of motor vehicles and find out who owns that motor vehicle. One of your obligations when you own a motor vehicle is that you have to give them your current address, and if you change your address, you are legally required to notify the registrar of motor vehicles that you changed your address. I'm sure that must be the case in every province. So if they snap a picture of your car, it doesn't take very long to find out who owns the motor vehicle and whom the ticket should go to. On the other hand, if you are a convicted sex offender and you have been convicted prior to this bill coming in with no obligation to register, it's far more difficult to locate you as a sex offender than it is to locate you to give you a photo radar ticket.

Mr. Pat O'Brien: Will that be the case after the legislation?

Mr. Irv Yaverbaum: If the legislation comes in and the person registers, then you are able to locate that individual very easily by consulting the registry. That's the whole purpose of the registry. Of course, if they had been convicted prior to the registry coming into effect, they won't have any legal obligation to register no matter how dangerous they are. They could be a raving lunatic who has consistently refused to take any treatment and who is ready to sexually assault the next person, and there's no obligation for them to be on the registry.

With regard to retroactivity, you have to understand that the discussions that take place in FPT are predicated on us getting a legal opinion from Justice Canada as to charter implications. I use the phrase “legal opinion”. If you get three lawyers in the room, you might end up with four different opinions.

Manitoba and Alberta have done their legal analysis with our constitutional law sections. We are convinced that retroactivity will not offend the Charter of Rights and Freedoms, and that's one of the reasons we're taking the position we are. I won't speak for the Province of Manitoba, but what Alberta is asking for is a very limited retroactivity. I want to continue to stress this. We weren't saying that every single offender had to go on this. If we could go to a court of law and establish that the person was dangerous, why would they not be on the registry? How would we ever explain to the public that dangerous persons who might commit sex offences again don't have to be on the registry, whereas a minor sex offender might end up on the registry simply because of the time that the offence was committed?

À (1035)

The Vice-Chair (Mr. John McKay): Did Manitoba want to weigh in on this issue, or are we being repetitive here?

Mr. Jeffrey Schnoor: I don't know if I can be the judge of that. I'll try to be brief, and if I turn out to be repetitive, I apologize.

On the question of retroactivity, I think we have to look at the purpose of the legislation, which is well set out in clause 2. It is to help police services investigate crimes of a sexual nature. That's the purpose of this legislation. But on day one of that registry, other than the Ontario people who apparently can be brought in, the registry will be empty. Over a period of a number of years we'll start having some names put in there. How is that effective? How does that provide police with the information they require? It will not provide that for years to come. If you're looking for flaws in the legislation to correct in committee, it seems to me that is flaw number one. It seems to me that it would not be overly difficult to craft an amendment that allowed prosecutors to apply to bring additional offenders into the registry.

The Vice-Chair (Mr. John McKay): Thank you.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

If I understand it, every order to register is appealable. Some are automatic and others require a hearing to get the order, but every one is appealable. I'm not asking you to gaze into a crystal ball here. I think it's pretty well understood that sex offenders, especially those that offend against children, are very manipulative people. Do you have a sense that possibly every order is going to be appealed to the maximum and that's going to clog up the system?

Mr. Irv Yaverbaum: Not every sexual offence sentence is appealed, of course.

Mr. Chuck Cadman: No, I mean the order to register.

Mr. Irv Yaverbaum: The way the process is set up in the bill is that the order for the person to be on the registry takes place after sentencing has occurred. I strongly suspect that you'll find these appeals of being on the registry tied into the same people who are appealing the sentence as well. They'll probably wrap it up in one appeal. I think it rather unlikely that somebody would not appeal their sentence but would appeal being on the registry given the grossly disproportionate test that is in the registry. As I said, it's not automatically being on the registry. There is a fairly high standard that the sex offender has to meet before the sex offender is not on the registry. That may discourage appeals.

The Vice-Chair (Mr. John McKay): Mr. Schnoor.

Mr. Jeffrey Schnoor: I would essentially agree with Mr. Yaverbaum on that. It may well be that, as with any piece of legislation that's new, there may be an initial flurry of appeals, but it won't take long for courts of appeal to establish principles as to how they will adjudicate those. Once those are established, I would think that the number of appeals would fall back to the number of appeals on sentence that we now have.

The Vice-Chair (Mr. John McKay): Ms. Jennings.

Mrs. Marlene Jennings: In all your presentations, the three sets of witnesses, you mentioned that in order for the registry to be effective, it should have the capability of including photos and other information. Obviously, the more information that's included in the registry or the higher the capability of the registry, the more costly it is. Who is going to pay for those costs? For instance, Alberta and Manitoba, are your jurisdictions prepared to pay the costs for photo capabilities, or are you expecting the federal government to pick up the costs for an expanded registry with IT capability? That's my first question.

My second question comes back to the retroactivity. The high-risk offender working group, if I'm not mistaken, started with the clear directive that a national sex offender registry should be efficient, effective, and enforceable. They did look at the possibility that it be retroactive and were unable to come to a consensus. For any kind of retroactivity some provinces said it had to go on the basis of risk and dangerousness rather than on the basis of offence. There was a consensus that in order to move to retroactivity and for all provinces to buy in, it would not be offence based but be based on the level of risk. A registry that would have that capability would be much more costly and intricate than simply an offence-based one. That was one of the primary reasons there was consensus for an offence-based registry rather than a risk-based one, which could have allowed for retroactivity. You continue to use examples of extremely dangerous offenders. So if you plead for retroactivity, are you then saying that if the government and the other provinces that did not agree to retroactivity would be prepared to look at it again, it should only include extremely dangerous, high-risk offenders? Is that what you are saying? Or are you saying no, just include everyone we can include, which means 100,000 convicted sex offenders over the last 40 years?

À (1040)

The Vice-Chair (Mr. John McKay): You have 13 seconds.

Mr. Jeffrey Schnoor: I'll try to answer quickly. On the question of photos, my understanding is that the Solicitor General has in the past undertaken that CPIC would be upgraded to include photos. I believe that's an undertaking that has already been made. The federal government is responsible for the cost of the maintenance and upgrades to CPIC. So I believe that question has already been answered.

I don't know if I can answer your second question in 13 seconds. I referred earlier to the dynamic process. You're certainly right, and that's an example of it. Some jurisdictions came at this issue initially wanting to take a risk-based approach. I must say that I was one of the officials who argued very strongly against a risk-based approach for a couple of reasons. One is a practical reason. We were talking then about long and difficult court hearings, which we don't want here. Secondly, this registry is not about risk and it's not about recidivism. It's about providing useful information to police. So I don't see risk as being relevant at all, quite honestly.

With regard to retroactivity, Manitoba would be content if retroactivity merely addressed prior offenders who were demonstrably at high risk to offend. However, it seems to me that as a matter of principle we have an offence-based model now and retroactivity can and should proceed on an offence-based model as well. We would not be talking about looking at offenders going back 40 or 50 years. We would be talking about individuals and looking at the same time periods for registration as we now have. So we're not going to go back 40 years, with the rarest of exceptions, if at all. We would be looking at a system, as Bill C-23 does, that is based on a prosecutor application. So in a sense there is a risk assessment that prosecutors might be doing in deciding against whom they would be bringing their applications and the order in which those applications would be brought. But I myself would advocate an offence-based system even as it applies to retroactivity.

À (1045)

The Chair: Thank you very much.

Mr. Westwick.

Mr. Vincent Westwick: If I could address the point you raised about costs, costs are very important to police chiefs across Canada. I think you would have them say that they would express no reluctance whatsoever in going to their governing body, whether it be a municipality, a province, or indeed the federal government, and asking for more money to participate in this program so long as it meets the investigative utility that they feel is so important and the legislative intent that is stated to investigate crimes. That's why we put forward the strong argument in favour of the scope. I won't repeat all of that. But that's why we're very concerned. They will have no hesitation to go and make those financial requests that are needed, because there will be resource implications for municipalities and provinces and indeed the RCMP. But they want to make sure that it has that investigative utility.

The Chair: Thank you.

Ms. Collins.

Ms. Kathy Collins: Ms. Jennings, I just wanted to comment on the serious part we talk about, the serious offenders. One of the gaps we see is with those warrant expiry offenders released to jurisdictions in Alberta. Correctional Service Canada notifies our police services that those offenders are coming, and quite often those are the serious untreated sex offenders. One of the problems our police have is finding out where those people are going to live. Often when they come to our jurisdiction the police are notified. The police will visit them and tell them, if you come to this jurisdiction, we are going to apply for an 810.1 or an 810.2. The offender may change his mind and move somewhere else where that program isn't available so that we never know where these people are. That's the gap we see, that those people will not be registered. This will not be an additional tool to assist our police in keeping track of those most serious people.

The Chair: Thank you very much.

Mr. White.

Mr. Randy White: I want to catch up on some further quotes out of this article that I was originally reading from. “Mr. Easter has said he will include the 5,000 sex offenders already listed in a police database in the Ontario registry because it is the only one of its kind in the country.” So it is unfortunate that the rest of us didn't put in a sex offender registry as we had intended. I happen to know that the reason some of the provinces did not do it was because there was some far-sightedness in saying there will be a national one so maybe we'll hold off. So it's really unfortunate.

I want to go to the association. I just want to make sure that I haven't missed this. You mentioned that one of the amendments should be, if I got it right, that it shouldn't be a 15-day wait if you're changing your address. You should know that ahead of time, so don't wait 15 days. Do it now, or do it at the same time you're advising other people you're changing your address. Is that correct?

Mr. Vincent Westwick: That's exactly right. I think that for self-evident reasons we would prefer that notification be before. If someone goes out of the jurisdiction and commits a crime, it's highly unlikely that they're going to then come back and advise the registry that they were in the jurisdiction where the crime was committed.

Mr. Randy White: You also mentioned the pictures.

There was one other recommendation. I did not get it written down. You were reading fairly quickly. I just want to make sure I didn't miss it.

Mr. Vincent Westwick: We'd like to see the pictures, offender characteristics, offence characteristics, and the certificate for evidentiary purposes. We would also like to see clarification with regard to data matching with police databases, as opposed to other databases that may be in the hands of government. Also, there's the very important one at the first in terms of that it apply where an offence may have been committed, as opposed to having to wait for the crime to have been committed and perhaps a tragedy already in place.

The Chair: Five minutes, Mr. White. Don't feel that you need to come up with a question.

Mr. Randy White: I'm not. I'm just checking off my little list here.

I mentioned that the fines are heavier for not registering in the gun registry. Is the fine of six months disproportionate to not registering in other registries? Is it reasonable?

À (1050)

Mr. Irv Yaverbaum: As I understand it, there's a sliding scale for the first offence and second offence. I believe that for the first offence it's $10,000 or six months or both, and for the second offence it's $10,000 or six months or both if the Crown proceeds summarily. If the Crown proceeds by indictment, I believe it's up to a maximum of two years incarceration. The thought that probably went into that is presumably the same type of thought that goes into the differentiation in penalties between, say, a first time impaired driver and a second time impaired driver. The second time you do it the penalties are more severe. In this case there's a logical reason for that. It must be brought home to the offender after the first conviction by a court that you must comply with the order of the court. You have to remember that not only is this an offence against the registry, it's an offence against justice because the whole idea of being on this registry is that you have been ordered by the court to be on the registry. It's not an automatic system. So when you are violating your requirement to be on the registry, you're also violating the order of the court. So it's necessary that the second time you do it you have an increased penalty so that the integrity of the justice system is maintained.

Mr. Randy White: So you would agree that the fines are reasonable.

Mr. Irv Yaverbaum: Yes.

The Chair: Mr. O'Brien.

Mr. Pat O'Brien: Thank you, Mr. Chairman.

The research staff did confirm for me that, as I hoped and suspected, a good list is being kept of concerns raised by witnesses. I think there are some problems with the legislation, and I think there are some ways this committee can do some good work in suggesting improvements. I just wanted to put that on the record.

I have a question for the two provincial spokespeople. I don't know if you were involved in all the negotiations, but do you have any sense of how many other provinces share this concern of retroactivity? It's a little different picture than perhaps what we have heard so far.

Mr. Irv Yaverbaum: It's hard to dig out the crystal ball and for us to see what other provinces think. One of the--

Mr. Pat O'Brien: Sorry, with all due respect, I'm not asking you to use a crystal ball. Negotiations have taken place. I'm asking you to recall, if you can, what other provinces expressed concerns about it.

Ms. Kathy Collins: From my notes of the November 2 meeting, an interest in retroactivity was expressed by Manitoba, Saskatchewan, Alberta, Nova Scotia, and Ontario.

Mr. Pat O'Brien: So fully five of the provinces....

Ms. Kathy Collins: Expressed an interest in retroactivity.

Mr. Pat O'Brien: I appreciate your sharing that.

Both of you mentioned the charter challenge, which you see as being overblown. Do you recall whether that's a view shared by other provincial spokespeople?

À (1055)

Mr. Irv Yaverbaum: We were presented with the federal view that there was a charter concern. I don't know if other provinces have had a chance to reflect on the fairly recent decision of the United States Supreme Court on the issue. I think the Supreme Court decision occurred in March 2003, and much of our deliberations took place prior to that. So I don't know what effect that would have on the other provinces. Their view on retroactivity may be tinged with the opinion expressed by the federal government with regard to charter concerns. That might be ameliorated by the recent U.S. Supreme Court decision.

Mr. Pat O'Brien: We do know, Mr. Chairman, that any minister is severely constrained in bringing legislation forward where he or she has gotten very good advice that it would offend the charter.

Having said that, I for one am getting a little tired of hearing around here that we know what the Supreme Court is going to say on things. Some people have a crystal ball, and they know what the nine judges are going to say before they've even been asked to speak on various topics. So that's why I raised the issue.

Mr. Irv Yaverbaum: On that last point, you are absolutely right. Occasionally, the lawyer's opinion on an issue is not what the Supreme Court of Canada says. There was one situation, I believe it's the Finlay case, where Parliament went so far as to actually pass new legislation, which turned out to be totally unnecessary because the Supreme Court of Canada upheld the prior legislation instead of striking it down. They reversed the decision of the Saskatchewan Court of Appeal and upheld the legislation. So the view that the Saskatchewan Court of Appeal was correct was shown to be wrong, and the Supreme Court of Canada decision came in and reversed the Saskatchewan Court of Appeal.

Mr. Pat O'Brien: So it's not a bad idea to actually let them speak for themselves.

Thank you very much.

The Chair: Mr. White.

Mr. Randy White: Just for the record, Mr. Chairman, British Columbia also wants the retroactivity.

The Chair: Is that it, Mr. White?

Mr. Randy White: Yes.

The Chair: Mr. McKay.

Mr. John McKay: I want to address this question to the police department. I don't know a great deal about how CPIC operates. What's the threshold test for an officer accessing anything in CPIC? Is there any restriction on an officer accessing anything in CPIC?

Mr. Vincent Westwick: I'm not sure what you mean by threshold.

Mr. John McKay: Let's just back that question up. If I'm a police officer sitting in my car and I want to access CPIC, is there any test that precludes me from accessing CPIC?

Mr. Vincent Westwick: I'm not sure I know what you're getting at. Obviously, it has to be duty related, police related. In fact, there are internal provisions and disciplinary measures if police officers use the CPIC system or any of the other databases for improper purposes. Is that what you're getting at?

Mr. John McKay: No, what I'm getting at is, do I have to have reasonable grounds to suspect or believe something is happening in order to access CPIC?

Mr. Peter Cuthbert: No, sir. An officer on the road can enter CPIC to make an inquiry as long as it's duty related, police related.

Mr. John McKay: So it's duty related. I'm doing my duty, and I want to access CPIC. This sex offender registry material is on CPIC. I don't understand the point of the threshold test if I can access that anyway.

The Chair: Mr. Schnoor first, and then back to Mr. Westwick.

Mr. Schnoor.

Mr. Jeffrey Schnoor: As I understand it, this is going to be a separate database within CPIC, and therefore it's accessed in a different way.

Mr. John McKay: Okay. That's what I was getting at. I thought it was all merged into one. That answers that.

But let me just finish off that question. I'm this officer, and I have this ridiculously low test, which is reasonable grounds to suspect or believe, if we went that way. Who's going to say that I didn't have grounds to suspect? How does that work in actual fact if I can press a button and access this sex offender registry? This seems to be a meaningless test in practical terms.

The Chair: Mr. Westwick, and then I'm going to Ms. Jennings.

Mr. Vincent Westwick: I hope I understand your question. Your concern, as I understand it, is with police abuse of the information. First of all, generally speaking, the kinds of situations where a police officer is going to be looking into this are where a situation has occurred. I'm making some generalities. Generally speaking, it's not going to be your average patrol officer who is going to be accessing it. It will likely be the specialty units that are involved in a major crime response or sexual abuse or whatever the particular case may be. So that's the first thing. The second thing is that it will remain to be seen how the CPIC committee, which has a board of directors made up of RCMP and police from across the country, decides that access will be granted. So a structure will be put in place. But the public can have great comfort that with the high-tech capabilities that exist now, all of these inquiries are traceable, and they are traced. One of the other functions I perform with the Ottawa police is that of discipline. We are called upon to discipline police officers who make inappropriate use of CPIC and other databases. There is a process in place to do that and investigative steps can be taken to trace that, and police officers are called to account for that. So we guard that information very carefully, because we feel it's the right and moral thing to do when you have access to that information, but also because we're well aware that if that kind of information is abused, we will lose access to it. So we police ourselves very well in respect of that, much more so, quite frankly, than I think is widely believed.

Á (1100)

The Chair: We try to keep our committee meetings on time, Ms. Jennings, so you have very little time left.

Mrs. Marlene Jennings: The decision of the Supreme Court of the United States on the Alaska registry was mentioned. They found that it was not a violation of double jeopardy, but there were three strong dissenting opinions, if I'm not mistaken.

To come back to the issue of retroactivity, it was mentioned that the DNA legislation provided for retroactivity for offenders who were in custody at the time of royal proclamation. But there is a bit of a difference, isn't there? With the DNA there's a one-time actual violation of the person when the DNA is taken. The individual is not required to provide DNA every time they move or every year, because the DNA does not change. Once it has been analyzed, it's put on the bank and it remains on the bank. But in this case the offender would be required to register every time they move, and there are penalties that are attached. In my view that would be an added element that could sway the court that the system is not designed as an investigative tool but is in fact punitive. Punitive is not necessarily just one measure. It's a gradation, when you add on all of the different effects of the legislation. Is that something your experts looked at when you looked again at the retroactivity, that if one applied the legislation retroactively, all of these requirements might in fact raise the bar in terms of determining whether or not the registry is a punitive action or simply an investigative tool?

Mr. Irv Yaverbaum: I can answer that question. In actual fact you have it reversed. The DNA is a higher threshold than the national sex offender registry, and I'll explain why. The DNA conscripts evidence against the person. Not only can you use the sample to relate to subsequent crimes that the person has committed, but you can also go back and use that sample as evidence to convict him of prior crimes. In that sense there's a far higher charter vulnerability with the DNA regime than with the limited intrusion on interests in having somebody report where they are living. Nobody is going to go to jail as a result of the national sex offender registry, unless, of course, they subsequently commit a crime and the police by using the registry catch them. There is limited retroactivity for DNA. The analysis of that substance can in fact lead to further charges being laid against the person and them going back to jail. So in that context you're quite right, there is a differentiation, but you have it reversed. There is a higher charter vulnerability for DNA, I believe, than for the national sex offender registry because DNA is far more intrusive than the national sex offender registry is.

Á (1105)

The Chair: I'd like to thank the panel.

The meeting is adjourned.