JUST Committee Meeting

Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.

For an advanced search, use Publication Search tool.

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

Previous day publication Next day publication

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, June 12, 2003

1115

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

Ms. Carole Brosseau (Lawyer, Research and Legislation Service, Barreau du Québec)

1120

1125

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

Ms. Rosalind Prober (Director, Beyond Borders)

1130

1135

The Chair

Ms. Carrie Kohan (Co-Founder, Project Guardian)

1140

1145

The Chair

Dr. Andrew Harris (Senior Research Officer, Corrections Directorate, Department of the Solicitor General)

1150

1155

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Dr. Andrew Harris

Mr. Kevin Sorenson

Dr. Andrew Harris

Mr. Kevin Sorenson

Dr. Andrew Harris

Mr. Kevin Sorenson

Dr. Andrew Harris

Mr. Kevin Sorenson

1200

Ms. Rosalind Prober

Mr. Mark Hecht (Senior Legal Counsel, Beyond Borders)

Ms. Rosalind Prober

The Chair

Ms. Carrie Kohan

The Chair

Ms. Carole Brosseau

1205

The Chair

Dr. Andrew Harris

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Ms. Carole Brosseau

1210

Mr. Richard Marceau

Ms. Carole Brosseau

Mr. Richard Marceau

Ms. Carrie Kohan

Mr. Richard Marceau

1215

Ms. Rosalind Prober

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance))

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

Ms. Carrie Kohan

Mr. Lorne Nystrom

Ms. Carrie Kohan

Mr. Lorne Nystrom

Ms. Carrie Kohan

Mr. Lorne Nystrom

Ms. Carrie Kohan

1220

Ms. Carole Brosseau

Mr. Lorne Nystrom

Ms. Carole Brosseau

1225

The Chair

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

Ms. Carrie Kohan

Mr. Pat O'Brien

Ms. Carrie Kohan

Mr. Pat O'Brien

Ms. Rosalind Prober

1230

Mr. Pat O'Brien

Ms. Carole Brosseau

The Chair

Mr. Kevin Sorenson

1235

Ms. Carole Brosseau

Mr. Kevin Sorenson

Ms. Carole Brosseau

The Chair

Ms. Carole Brosseau

The Chair

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

The Chair

Ms. Rosalind Prober

1240

The Chair

Mr. Richard Marceau

Mr. Mark Hecht

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

Ms. Rosalind Prober

Mr. Mark Hecht

1245

The Chair

Dr. Andrew Harris

Ms. Hedy Fry

Ms. Rosalind Prober

Ms. Hedy Fry

Ms. Rosalind Prober

The Chair

Mr. Chuck Cadman

Dr. Andrew Harris

The Chair

Ms. Carrie Kohan

The Chair

Mr. Svend Robinson (Burnaby—Douglas, NDP)

1305

1310

1315

The Chair

Mr. Pat O'Brien

1320

1325

1330

The Chair

Mr. John Harvard (Charleswood—St. James—Assiniboia)

Mrs. Marlene Jennings

Mr. John Harvard

Mrs. Marlene Jennings

Mr. John Harvard

1335

The Chair

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

1340

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

The Chair

Mr. John McKay

1345

The Chair

Mrs. Marlene Jennings

1350

The Chair

Mr. Richard Marceau

1355

The Chair

Mr. Pat O'Brien

The Chair

Mr. Pat O'Brien

The Chair

Mr. Pat O'Brien

The Chair

Mr. Svend Robinson

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 061

2nd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, June 12, 2003

[Recorded by Electronic Apparatus]

Á (1115)

[English]

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): I'd like to bring this morning's meeting to order, please. This is meeting number 61, as my very capable clerk has just pointed out to me.

We're talking again about Bill C-23. We have the Barreau du Québec, Beyond Borders, Project Guardian, and the Department of the Solicitor General with us.

I'm assuming that pretty well all of you have been here before, one way or another. The order is that we simply go 10 minutes at a time. I'll try to signal when we're at 9 minutes. I note that we're about 20 minutes late, so if people could stay to the timelines, I'd appreciate it, and that includes members.

In no particular order, other than the witness order here, we'll hear the Barreau du Québec for 10 minutes, please.

[Translation]

Ms. Carole Brosseau (Lawyer, Research and Legislation Service, Barreau du Québec): I would first like to thank you for welcoming us this morning. I represent the Barreau du Québec and I am replacing the president of the Bar, Mr. Pierre Gagnon.

As you know, the Barreau du Québec works mainly through task forces. The conclusions of those task forces are submitted to the Barreau's administrative courts. They are the ones who make the official rulings. Our brief therefore presents the Barreau du Québec's official position.

I would also like to mention that we have a legal obligation to protect the public. It is in that context that we deal with authorities such as yours.

That said, we have noted a consensus among attorneys general of the provinces as well as the representatives around this table with regard to the importance of having a registry for dangerous offenders. Given its role as protector of the public, the Barreau du Québec will not meddle in the decision to introduce that type of registry.

However, it is important to recognize that the registry is one of many measures taken over the past few years to control sexual offenders. There was mention earlier of DNA banks, but there is also the Criminal Records Act that was amended in 2000. All of that information is compiled and the registry is a new element.

Given the time we have, I will comment on specific aspects that we feel are more critical.

The purpose of this bill, and it is fundamental, is to have reliable information to allow law enforcement agencies to conduct effective investigations. It is fundamental because the bill is based on that objective and that is its raison d'être.

Clause 4 deals with the offender's obligation to report to the registration centre. But paragraph 4(1)b) of the bill says that a person found not criminally responsible for an offence on account of a mental disorder and who received an absolute or conditional discharge will be subject to the same obligations. Paragraph 4(1)c) includes a further obligation on a sexual offender who is released from custody pending the determination of an appeal.

The Barreau du Québec is very concerned about these provisions. On the one hand, with regards to the time limits for an appeal, even though the bill stipulates that if a person is acquitted, the information will be deleted from the registry, we think that in the interest of fairness and to preserve the presumption of innocence, it would be better to wait until the appeal deadline was passed or until the appeal was heard and a decision was made before applying this obligation. There would be a sort of waiting period. For example, if the judge agreed to the request to order the offender to register, some time would elapse before that obligation came into effect.

The other point we wanted to make was about people who receive a discharge on account of a mental disorder. That also troubles us. Section 16 of the Criminal Code provides for that defence. First of all, that defence is very difficult to get in the case of sexual offenders and it is most exceptional. Furthermore, section 16 provides for a defence that requires serious investigation. It is based on preponderance of probability. It is not the same level of proof as in criminal law, where proof beyond any doubt is required. So we are very concerned about the application of the registry in those specific cases.

Á (1120)

As for keeping the information in the data bank, or the registry itself, with a view toward ensuring a balance between the privacy of those sentenced, their rehabilitation and public safety, keeping the information may not be as justified as one would think.

The bill states that information will be kept for an indeterminate period. But the application of this bill is very broad. It applies to all sexual offenders. As an example, DNA data banks apply solely to dangerous sexual offenders guilty of serious sexual assault under sections 271, 272 and 273 of the Criminal Code. So it is somewhat limited. In this case, it applies to all sexual crimes. All offenders are targeted, be it for a first offence or a repeat offence.

Clause 20 of the bill provides for additional new provisions in the Criminal Code, one of which is a request for a legal review of the duration of the order obliging the offender to provide information. It is important to note that this judicial review applies solely to a first offence. Not all repeat offenders would get this review. In fact, they are completely excluded from it.

If a judge decides, through a judicial review, that the offender has met his obligations, in order to be consistent, it is difficult to see why the information would be kept in the registry. In fact, it is the reliability of the system and of the information that is the objective.

If the offender is no longer obliged to regularly provide information, by virtue of legal discretion and because of his specific case, as provided for in the bill, how can we be sure the registry is accurate in such cases? And furthermore, what is the rationale behind keeping the information?

Do not think the information completely disappears. There are other registries, including the one provided for in the Criminal Records Act. In those cases, when a person is rehabilitated, the information is not destroyed. It is simply made inaccessible.

In this case, we wonder about the consistency and validity of keeping the information in the registry and about the access to the information. In our view, it would no longer be very reliable. Bear in mind that a judge makes his ruling after an investigation has been done. Usually it is very serious.

We would also like to draw your attention to the limits on access to the registry. Clause 16 provides limits and we think they are fully justified. The public does not have access to it. Since the information is kept for an indeterminate period and given the amount of information in the registry, people who have access only to the registry would get partial information, whereas the bill stipulates, in the majority of cases, that police forces use various registries to compare the information; thus, that partial information could be prejudicial.

Finally, I would like to talk about the non-retroactivity of the act. Obviously, for the reasons mentioned in the brief, we object to the retroactivity of this bill. We think constitutional problems could occur with regard to the retroactivity, given the fact that offenders who have already been sentenced were sentenced under specific laws and made choices based on the legislation that existed at the time. A judge who has to make a ruling on the request made by the lawyer representing the case should, in those cases, make a ruling based on current laws and in the current context.

We think that constitutional problems could arise with regard to the presumption of innocence, the right to equality and the right to full and complete defence.

Á (1125)

In conclusion, I would say that even if repression can have some effect in certain cases, one must not forget that it is difficult to assess the extent of sexual delinquency. The steps taken are always based on a qualitative approach. It is important that rehabilitation, information and education be added to repressive elements.

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): We will go to Beyond Borders, Rosalind Prober and Mark Hecht.

Ms. Rosalind Prober (Director, Beyond Borders): Good morning. Bonjour. My name is Rosalind Prober. I'm president of Beyond Borders Inc., Au-delà des frontières. It's a children's rights organization dealing with global child sexual exploitation. Mark Hecht, the senior legal counsel for Beyond Borders, is with me today.

Beyond Borders' goal is an amendment to Bill C-23 giving the public a narrowly prescribed right of access to the sex offender registry so that caregivers do not unknowingly put their children at risk.

Children are by nature loving, trustworthy, and fun loving. Young children very much want to please and impress adults. In a perfect world, no one would choose to take advantage of those qualities. Kids would play freely in the parks, walk safely to school, and enjoy that very special period of childhood innocence they're entitled to enjoy. Tragically, one group of people has selfishly spoiled and usurped that fundamental right.

Child sexual exploiters have totally impacted on how our children must live. Kids must be streetproofed as young as possible, lectured over and over on good touch, bad touch, and watched, protected, and fenced in. Because sexual predators are so very clever, a balancing act à la Cirque du Soleil is now required to teach children to protect themselves at the same time as to respect and obey adults.

Child sexual abusers' choices have left parents with no choice. The harm done to a child when he or she is molested, the lasting and often deadening pain from which there is often no pardon, makes protecting children from predators a constant duty.

Children have a right to grow up healthy, emotionally and sexually, in a free and democratic society.

Beyond Borders asks that the new registry not just be used once a crime has been committed, but be accessible to the public to help them keep their children out of harm's way. If your sympathy lies with an exploiter's right to privacy and not a child's right to protection, it's sadly misplaced.

Child sexual abuse is a crime that feeds off inequality. Spokespersons come before you saying you must protect the charter rights of exploiters who show no regard for the rights of children. Surely the charter was never meant to be used as a weapon against the defenceless.

Although sexually abused like a great number of Canadian children, when I married a criminal defence counsel and lived a life of privilege and good family times, I became adrift and complacent and forgot how prevalent child sexual abuse is and the level of vigilance that good parenting requires. The overwhelming statistics on child sexual abuse show that children are abused by people they know. Abusers go to exceptional lengths to get themselves in loco parentis with children, and tragically, my family was no exception.

Allowing a convicted abuser to re-enter society with no possibility of anyone finding out his history is, frankly, just leaving an offender with too much power to again wreak havoc on children and their parents' lives. Canada is hyper-lenient with abusers that are convicted. Faster than you can say John Robin Sharpe, they are recycled and living back in the community.

For some reason our justice system sentences child sexual exploiters not as individuals with distorted perceptions of reality, often with out of control fantasies fueled by obsession and denial, but as ordinary people who just made a dumb mistake. Sex offenders are often told when sentenced “You're guilty of one of the worst crimes imaginable against defenceless children; go home.” There is absolutely no predictability about the future control pedophiles will have over their impulses. Consequently, there is a lot of finger crossing involved when dangerous pedophiles are released.

Judges blame Parliament for allowing conditional sentences, which have led to this revolving-door phenomenon. Whatever the reasons, Canadians are now aware that they are living side by side with, from a child's perspective, the ultra-dangerous.

Take, for example, Bryan Larsen. Convicted of stealing pictures of sexually abused kids from the hospital where he was a security guard, Larsen then used his anonymity, developed a relationship of trust, and mercilessly abused the children of friends.

Á (1130)

Larsen collected children's underwear and amassed the largest child pornography collection to date, which finally led him to the attention of law enforcement. The kids never told. They rarely do until reaching adulthood. Larsen kept his computer on his fridge so he could watch child abuse images and not leave for refreshments. Larsen even admitted that he was having fantasies of abducting children, and I don't have to tell you what happens to children who are abducted by pedophiles.

It's pretty obvious that Larsen should be kept away from kids, but in two short years he'll be back in the community. Outrage is the only word to describe what parents feel when full-blown pedophiles are sentenced like this, but there's little they can do. But this justice committee can and must remove a convicted child abuser's best friend and enabling ally: anonymity.

In a vast country like Canada, convicted abusers can and do reinvent themselves to start another grooming process doing good to eventually do evil. Those who are convicted of violating the most vulnerable in society should have no expectation that the state will not drastically curtail their rights, so the opportunity for recidivism is in every possible way diminished. The minimal harm that may be created to a sex offender's right to privacy with an open registry is far outweighed by the need to protect children.

If Parliament and the courts are forcing parents to raise children surrounded by sex offenders like Larsen and worse, and they are, then Parliament must give those responsible for children the tools to protect them. Anything less is really irresponsible.

The California model of Megan's law is respectful of a convicted sex offender's right not to have his picture and address on the Internet, while recognizing that on a need to know basis, those responsible for kids have a right to know who around their children are sex offenders. Access to the registry is by signed application and is controlled by law enforcement. I've brought a lot of information on the California model with me today.

As some of you are aware, I appeared before this committee on Bill C-27, regarding sex tourism. Like this bill on the sex offender registry, which by design fails children, the 1996 sex tourism legislation was equally flawed. At that time, this committee took the necessary action and recommended that the law be broadened. Unfortunately, the Department of Justice responded but built in loopholes that brought international embarrassment to Canada as Bill C-27 failed its first test.

So with the history of that legislation in mind, I feel it's fair to give examples of what Canadian children can expect if you do not force this issue, amend Bill C-23, and allow the public some form of access to the registry. Canadian children can be put in situations where their new caregivers or step-parents may be sexual abusers and their other parent doesn't know. They can expect babysitters or new friends of their parents could be a convicted sexual abuser and no one is aware. They can expect homes, rooms, and apartments may be rented to sexual abusers where they're living, and their parents can't warn them as they do not know.

In short, Canadian children can expect to be in a million different situations where they may be in close contact with a sexual offender and not even realize they should be careful, not trust them, or put themselves at risk.

As little as 10 or 15 years ago society had little knowledge of how manipulative sex offenders are. Sadly, experts now tell us that 3% to 4% of the population, usually male, get sexual gratification from children, often boys.

Organizations that deal with children have been targeted by pedophiles and have gone to great lengths to protect kids by requiring criminal record and pardon checks. However, in everyday situations, Canadian children will remain unarmed and sitting ducks. Opening the registry will save many children from the trauma and degradation of sexual abuse. Simply put, the rights of children must trump the rights of convicted sexual offenders. It's only common sense. Please do not let convicted sex offenders live amongst us anonymously.

Á (1135)

The Chair: Thank you very much.

From Project Guardian, Carrie Kohan.

Ms. Carrie Kohan (Co-Founder, Project Guardian): Thank you.

Hello. Bonjour. My name is Carrie Kohan and I am the founder of MMAP, Mad Mothers Against Pedophiles, as well as the co-founder of Project Guardian.

I'd like to thank the committee for allowing me to speak to you on this matter today.

I became active in speaking about this epidemic after our baby, our two-year-old infant, was targeted by a three-time convicted pedophile who was actually released back into the public even though a psychological assessment report said he was likely to repeat again. In other words, he was likely to molest more children.

My perspective here is as a mother, as a child advocate, and as an activist. After speaking with literally thousands of Canadians on this topic, the consensus has been to have a registry that is open to the public by way of the Internet, as it is with Megan's law in the United States. In many court rooms across North America, it's being argued that Megan's law is unconstitutional and will violate the rights of freedom and liberty of the sex offender. Yet in approximately 34 states, Megan's law does exist. Recently, the U.S. Supreme Court ruled that Megan's law in fact did not violate the pedophile's rights. We need to ask ourselves here in Canada, what weight does the right of a pedophile have against the right of a victim or a potential victim?

Critics, like the CCLA, the Canadian Civil Liberties Association, and the John Howard Society, repeatedly make the statement that by opening up the registry to the public, it will put sex offenders at risk of vigilantism or public harassment. But according to the Washington State Institute for Public Policy, which conducted the only study on this issue, they found that harassment only occurred in 3.5% of all notifications to the state. Most of these cases were non-violent acts, such as picketing.

Critics have also argued that if we put sex offenders on a public registry, this will stress the sexual predator out, out of their homes, out of their communities. Well, critics like the CCLA and the John Howard Society and the Defence Lawyers Association also add that it is this stress that often triggers an offender committing additional crimes against children.

Yet according to the State of Washington study, no differences were found in the recidivism rate of sex offenders who were subjected to community notifications and those who were not. However, a positive note was determined, and that was that those whose names were posted on a public registry were actually apprehended much more quickly after parole violations and crimes. The conclusion made was that possibly the sex offenders' neighbours were actually watching them more carefully and were more quick to report any violations of their parole to the authorities.

On March 5, 2003, the U.S. Supreme Court ruled in a nine to zero decision that states may place names and photographs of convicted sex offenders on the Internet. Chief Justice William Rehnquist added in his summary that in his opinion a convicted sex offender has no right to a hearing to prove that he or she is no longer likely to commit crimes of this nature. Yet in this current bill we may actually allow sexual predators to appeal to the courts to have their names excluded from the registry.

All studies to date show that there is no known cure for pedophilia. Releasing pedophiles into society is gross negligence on the government's behalf. But because the government insists on releasing them back into our communities, the overwhelming demand from Canadian citizens has been for a registry to be made open to the public and that no loopholes be created in this legislation to allow child rapists to jump through.

Another urgent question about this bill is, why does this bill ignore the following issues: photographs, retroactivity, mandatory registration, severe penalties for violators, inclusion of immigrant sexual offenders or prisoner exchange, inclusion of predators under the age of 18, even if this registry is only accessible to the police? Most disconcerting is that the ability to rewrite this law still remains in the hands of the judges.

As this bill is written today, judges will be able to determine whether a sexual predator is excluded from the registry on grounds of privacy and liberty. What this causes, yet again, is an inequality in our judicial system. Some judges are less punitive with pedophiles, while others are much harder on this crime but are confined by the restrictions of the laws. So depending on your judge, you may be on the registry or you may not. How fair is that, not to the predators, but to the law-abiding members of this society?

Á (1140)

In Canada we need to be more concerned with the rights of children and society as a whole rather than the rights of the pedophile, but in Canada we've done the reverse. We seem to be more concerned with the rights of the pedophile.

As a result, we have incarcerated the wrong sector of society. We in effect imprison children in their own homes. We no longer allow children to walk two blocks to their friend's house, let alone three doors down. Instead, we have become a reactive society. We react to this ever-present fear by driving our children to and from school, to supervised day cares, and then off to organized sports, and then back home again where they can watch TV or play computer games.

Indoor activities have become the norm, with our children's psychological and mental well-being paying the price. Never in our history have we had more depressed and overweight children. Why? I believe much of it is because of the fear that society, parents, schools, governments, and everyone have placed upon our youth. This fear is debilitating, and the debilitating consequences are massive. We are just beginning to scientifically understand and discover what they are.

Finally, as we design more efficient and lightweight leashes for our toddlers to wear in the shopping malls while we take them shopping, the sexual predators, who have created this silent epidemic, walk free and in total anonymity. I have to ask you, where is the justice?

According to Statistics Canada, this is a white male crime, average age 42, with the average sentence for child rape being a measly 18 months, with the actual served time in prison being six to eight months. As a mother whose baby was targeted by a three-time convicted pedophile, I can tell you that you need to take the anonymity out of this crime. You need to give good, law-abiding Canadian citizens the tools needed in order to protect their most vulnerable, their children.

I can also tell you that today we have a great opportunity ahead of us here because we are in essence our future generation's history class, right here, right now. The question is, will our children of the future still know the crime of childhood sexual assault intimately, or will they just read about it in history books as we read today about horrific lifestyles of the past such as cannibalism and slavery? The decision made here could have far-reaching consequences indeed.

Please make the registry a piece of legislation that is clear in intent and please make it open to the public. Please make it in plain language as to leave no room for misinterpretation by the courts or to create any loopholes for predators to jump through. We need penalties worthy of second thought in Canada. With the absence of minimum sentencing, concurrent sentencing, and civil commitment, at the very least we need a tool that will indeed have sexual predators fearful of penalty. After all, individuals should fear legal consequences, because in reality, it is this penality that is meant to deter individuals from committing unlawful acts in the first place, is it not?

Can we honestly say in Canada that our current laws, in the way Bill C-23 is written today, accomplish the purpose of being the deterrent? I believe not.

As for pedophiles themselves, if the registry were made open to the public, then yes, indeed, they could initially feel some discomfort at being picketed, and yes, child rapists could move and move again, register and re-register again. But this minor discomfort experienced by a predator will never compare to the torture of a child being sexually abused.

It will also speak volumes to future pedophiles as they may think twice before touching our sons and daughters, and for that very reason alone the registry should be made open to the public. Florida sex offender and predator unit manager Mary Coffee, stated that knowing where a toxic spill is won't keep you perfectly safe, but it will keep you from going there. This is the same as the registry. If you don't let us know where the predators are, the women and especially children become sitting ducks.

Thank you very much.

Á (1145)

The Chair: Thank you very much.

From the Department of the Solicitor General, Andrew Harris, senior research officer, corrections directorate; and James Bonta, director, corrections research.

Dr. Andrew Harris (Senior Research Officer, Corrections Directorate, Department of the Solicitor General): Thank you, Mr. Chair.

I've been asked to present some data to the committee on recidivism rates of sexual offenders. I would like to direct members of the committee to some handouts that have been provided in both official languages.

At the bottom of page 1, questions were asked in this committee on May 29 regarding the relationship of victim to offender. The best data we have at this time available on that is from on ongoing Solicitor General of Canada project called the Dynamic Supervision Research Project. This data is current to May 1 of this year.

We're following 649 identified offenders, 88 of which had female victims. The initial victim was, 79% of the time, known to the offender, either a spouse, a family member, or an acquaintance; 17% of the time the offender was listed as a stranger. This data set includes data from all provinces and territories, with the exception of Quebec. Quebec does participate. There is just no data from Quebec in this particular sample.

On page 2 the top slide is for general criminals. I have here six long-term studies that show reconviction rates for any crime over two years. We see that the studies are fairly consistent in showing that any recidivism runs at about 40% to 42% over two years. This would include all offences: property offences, violent offences, and there would be some sexual offences in here. Generally, the most common offence in terms of recidivism is administration of justice offences, things like not showing up for one's court date.

Below you have two-year recidivism sexual rates for sexual offenders. In the top slide you have any conviction. I would emphasize that in the bottom slide you have only sexual recidivism over two years. This is based upon a large sample that includes seven Canadian samples, two U.S. samples, and one British sample.

The thing perhaps to note is that different types of sexual offenders recidivate at different rates. For example, the entire group recidivated over two years at 7%. For sexual recidivism, and these are charges or convictions, where the upper slide is convictions only: rapists at 9%; girl victim child molesters at 5%; boy victim child molesters at 10%; extended incest child molesters at 1.4%; and extrafamilial child molesters, both boy and girl, an average of 6%.

I will move on to page 3 where you will find some graphs. These are called survival curves. First, these are quite large samples. As a result, these estimates can be considered quite stable and fairly reliable.

Sexual recidivism—and these are all types of sexual offenders over 20 years. To explain this graph, the vertical axis contains the percentage of offenders who have not sexually recidivated over time while in the community. If you look at the top left-hand corner beside the number 100, this is where all offenders are released into the community. Unfortunately, over time some of them recidivate, so the horizontal axis is time. Because some of them do recidivate over time, the trace descends over time.

For example, if you want to know the number or the percentage of sexual offenders who have not sexually recidivated, charges or convictions, over five years, you read up from five years to where it reaches the trace, and you find that over five years approximately 85% of sexual offenders will have been neither charged nor convicted of another sexual offence in the community.

One more example. If you go out to 10 years, you'll find that after 10 years, for a group of mixed sex offenders, there will still be 80% of those offenders who have not been charged or convicted in the community after 10 years.

Á (1150)

Sex offenders, on the whole, differ in their rates of sexual recidivism based upon their offender characteristics. At the bottom of the slide you'll find that rapists actually mirror the overall sample fairly well, and you find that after about 10 years approximately 80% of rapists have not sexually reoffended—charges or convictions in the community. Of course, to get the percentage who have recidivated, you simply subtract 80 from 100 and you get 20% recidivism over 10 years.

On page 4, boy victim child molesters represent more of a risk over time than girl victim child molesters. If we look out to 10 years, once again going up, we find that 70% to 72% of boy victim child molesters have been neither charged nor convicted after 10 years in the community, whereas with girl victim child molesters you still have maybe about 85% to 86% who have neither been charged nor convicted after 10 years in the community.

Incest offenders—those who offend against family members—are significantly less likely to reoffend than people who go after children outside their family, that is, extrafamilial child molesters. We see, for example, in the bottom slide that at 10 years we have 80% to 81% of extrafamilial child molesters who've been neither charged nor convicted, where we have 90% to 91% of incest offenders who will not recidivate either with a charge or a conviction over 10 years.

Carrying on to page 5, we find that those who are first-time offenders recidivate at a significantly lower rate over time than those who have previous sexual offences. You'll notice that over 10 years you have maybe 67% to 68% of those with a previous sex offence who have not recidivated, where for those who are first-time offenders you have 82% or 83% who have not sexually recidivated with either a charge or a conviction over 10 years.

To go to the bottom slide, sexual recidivism decreases with age. The older sex offenders do not recidivate as frequently as younger sex offenders.

To go to page 6—one of the more important slides, Mr. Chair—this slide shows recidivism over time in the community for three lengths of time in the community. There is a perception among some that the longer sexual offenders remain in the community, the more dangerous they become, the more likely they are to recidivate. That in fact is a myth, and when you look at this graph, men who have been 15 years offence-free in the community recidivate sexually at a significantly lower rate than men who have been offence-free in the community for 10 years and men who have been offence-free in the community for 5 years. The longer they remain offence-free in the community, the less likely they are to recidivate.

It's very much like other types of human behaviours in that the longer smokers have not smoked, the less likely they are to go back to smoking. I just use that by way of analogy.

Finally, Mr. Chair, one of the things that is very important and seminal to these discussions is the effect of treatment for sex offenders. It is a myth that sex offenders cannot be affected by treatment.

I was lucky enough to be a member of an international panel that looked at 43 studies, the majority of which were peer-reviewed. Some were sort of institutionally published and not peer-reviewed. We looked at 43 studies and found that treatment of a cognitive behavioural nature, that is, well organized from the scientific point of view, over about four and a half years, reduces sexual recidivism from 17% on average to about 10% on average, which represents approximately a 40% decrease in recidivism. The benefit also found was that sex offender treatment also greatly reduces general criminal recidivism.

Á (1155)

The overall effect of this meta analysis in which I was involved found that general recidivism over the same period dropped from 51% to 32%. In effect, when taxpayers invest in treatment, they sort of get a double bang for the buck. The final slide is simply the reference for that published report.

Thank you, Mr. Chairman.

The Chair: Thank you very much.

Mr. Sorenson, for seven minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you. That was fascinating. All the witnesses this morning were excellent, but the report at the end here was fascinating, and we thank you for it.

Just very quickly, is it mandatory that all sex offenders who are incarcerated receive programs?

Dr. Andrew Harris: No, sir.

Mr. Kevin Sorenson: So you are saying there is a higher rate for those who have received programs but it's not mandatory that they take programming. Given the statistics that some have said that a pedophile.... I mean, I can show lots of documentation where some psychologists and others have said that people who have been repeat sex offenders in pedophilia can't be rehabilitated. So there is still no mandatory treatment while they're incarcerated.

The other thing I want to question in the brief is the definition of boy—

Dr. Andrew Harris: A male child.

Mr. Kevin Sorenson: A male child, but what is the definition of child?

Dr. Andrew Harris: It's sort of a technical question, sir, because we are attempting to sample widely, and hence we have studies from the U.K. and America. The actual sort of definition of what is a boy child varies slightly by study.

Mr. Kevin Sorenson: Would it be correct to assume that it would be under the age of consent?

Dr. Andrew Harris: Yes. You can say that it's for that jurisdiction, sir.

Mr. Kevin Sorenson: All right. So it would probably be around 14.

I want to go back to the other witnesses we had here from the two different groups. You know, we're trying to build a registry that works. There's no use having an ineffective registry, but I'm not sure about the idea of the public being able to access every name on that registry. Would you accept a registry that may allow public access to the names of people who have a record of pedophilia or of specific sexual offences against children, or are you requesting a registry that would give public access to every individual who is placed on that registry?

Â (1200)

Ms. Rosalind Prober: Maybe Mark would like to comment.

Mr. Mark Hecht (Senior Legal Counsel, Beyond Borders): Thank you.

I am speaking now on behalf of Beyond Borders only. Carrie can speak about Project Guardian.

We are definitely comfortable with the idea of a two-tiered type of system, similar to the model used in California and other states, where a risk assessment is done on the potential for these offenders to reoffend, with particular concern for children, as they are the most vulnerable in our society, whereby under certain circumstances limited access would be provided.

We do not think that having full access or access on the Internet, for example, as some jurisdictions have suggested, is the best way to go. But we do think that upon application to law enforcement, under certain circumstances, the general public needs to know if a convicted sexual predator is living among them or having access to their children.

Ms. Rosalind Prober: I would just like to comment a bit on these statistics. When you look at these statistics, these are statistics of children or men and women who've gone to law enforcement. The vast number of sexually abused people never go to law enforcement. They don't appear on these recidivism statistics.

In the Larsen case, which I was telling you about, where children were being sexually abused, they said absolutely nothing even though the abuse was long term and of a very tragic nature.

So when you look at these stats, I think you have to then say to yourself, “Well, let me look at the victimization stats”, and then you'll see that these stats don't make any sense at all because the victimization stats are high among people in society who say they've been victimized. So to just look at these stats and say “Oh well, a very, very small percentage of people reoffend”, you can't tell that because people, children particularly, don't tell.

The Chair: Ms. Kohan.

Ms. Carrie Kohan: Back to your question, Mr. Sorenson, pedophilia, obviously, is our main concern. Children have to be protected in our society.

I would like to see the ability to actually access this on the net, specifically about pedophiles. The reason is that in our case, as I said, we had a three-time convicted pedophile after our daughter. He had three prior convictions, and in his last one he actually dated a woman for her two sons. Had she had the ability to go on the net to actually look up the person who was new in her life, she could have saved her two sons from a horrific outcome, and believe me, it was horrific. You never want to wish that on your worst enemy. We could have saved children from these consequences had they had that ability.

Going back to the stats here, I would like to comment on one more thing. The average time that pedophiles actually start to become active, we'll say, is between the age of 13 and 21. Often they have a 20-year career of pedophilia before they're actually caught or reported. By the time that pedophile gets out of prison, as Ms. Prober said, often these children do not speak of their crimes to the authorities. And who's to say that another 20 years won't go by? I don't believe these stats speak the truth.

The Chair: Thank you.

We will now go to Ms. Brosseau and then Mr. Harris.

[Translation]

Ms. Carole Brosseau: With regard to the information that is currently available, it is possible to get it on people who want to work with children. That means that community organizations, workplaces, can get information on these people. Under the Criminal Records Act, it is possible to get specific information on those individuals. It is already possible.

As I told you earlier, the problem is that everything that has been set up for sexual predators has been done over the past few years. So it takes a while for things to settle and the effects will be felt in the longer term. The goal of the bill itself is to ensure effective investigations. It is an additional means that will be implemented to help organizations enforce the act. The objective is to make the investigations effective. That is the purpose of the bill and there may be other mechanisms that should be looked at.

However, there are some very interesting statistics that were given to you this morning by Mr. Harris. They are also consistent with the information we received from the Quebec Youth Court, namely that the people involved are always people who are known to the child. Sexual predators, especially pedophiles, are always people the child knows.

Will knowing them better reduce the number of incidents? Other mechanisms may be useful, such as training and educating judges. Some comments have already been made on that, and we could come back to them later.

The number of sexual assault court cases has increased over the past decade because more cases have been reported. I think we should be pleased about that. At least the legal system provides victims with greater access to justice and listens to them more. Of course people are gaining more experience in the field, which will only increase over time.

Â (1205)

[English]

The Chair: Mr. Harris.

Dr. Andrew Harris: Thank you, Mr. Chair.

Just to speak to what is sometimes called the dark cloud, that sexual offending that is not reported, by definition it's almost impossible to provide reasonable statistics on something that is not reported. There have been estimates on those issues and they vary greatly, depending upon the jurisdiction from which they come.

There is one thing that might be helpful to the committee. One of the reasons we presented these long-term estimates is that we have good reason to believe that the longer the estimates, the less effect the non-reporting has due to the fact that people who do have a proclivity, especially for children, tend to do it again and again. Over time, there's an accumulation of risk.

So while on the left-hand side of these graphs, yes, there would be an effect for non-reporting, the estimates get more accurate the longer you go out in the graphs—that is what we believe, although I am not quoting direct statistics.

Thank you, Mr. Chair.

The Chair: Thank you very much.

Monsieur Marceau, 10 minutes.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you for your very interesting presentations. I will start with Ms. Brosseau.

Did I understand you correctly when you said that the Barreau preferred not including all sexual offenders in the registry? If I understood correctly, could you tell me how you would make the selection?

Ms. Carole Brosseau: Perhaps I did not express myself clearly. Right now, the bill provides for a fairly imposing number of sexual offences. It is a question of access to the registry. The more sexual offences there are, the greater the obligations put on those people and the greater the need to find a balance between the privacy of those individuals and public safety.

The bill includes a huge number of offences in the case of dangerous offenders, but there are even more in the case of DNA banks. There are primary and secondary offences. In fact, the greater the number of offences, the more rigorous one has to be in terms of access, confidentiality and use of the information. There must always be a balance.

The public must be protected. Statistics show it is essential to protect the public because of the significant number of sexual offenders in federal prisons. But there must be a balance between protecting the privacy of those offenders, their rehabilitation, because that is the primary objective of the prison system, and protecting the public.

Â (1210)

Mr. Richard Marceau: Ms. Brosseau, what could you tell someone who has had a fairly traumatic experience, whose child was kidnapped and sexually molested, and who says that if he or she had had access to a data bank, on the Internet for example, it would have never happened? How can you respond to those arguments?

Ms. Carole Brosseau: I am also a parent and I share these concerns entirely. With regard to children, we are always in a dilemma because we are often both parents and lawyers.

I am not convinced that public notices will be effective. The information we have and even the studies may show that publicly disclosing information on the offender could have negative results. The person may not identify himself and could continuously be on the move. So there might be a false sense of security. One must always be careful. Regardless of the methods used, we run the risk of creating a false sense of security. That is our concern.

I would say that there is a fairly specific problem with this bill—I am trying to get back to the bill that you studied—because adolescents are included in it. Recently, after assessing the Youth Criminal Justice Act, the Court of Appeal ruled on the question of disclosing certain information on youth. It deemed those provisions unconstitutional. In light of that ruling and what Ms. Kohan said earlier, we have problems with that. Our statistics show that pedophiles start committing offences in their adolescence.

Mr. Richard Marceau: Ms. Kohan, I saw you note down Ms. Brosseau's answer. Perhaps you would like to respond to her statements.

[English]

Ms. Carrie Kohan: Certainly. What Ms. Brosseau was speaking about was pedophiles having to move from place to place. I think a great example is John Robin Sharpe. He has been probably the most vocal pedophile in Canadian history and yet he lives in his community fine without being harassed greatly. He has his own website. He is very visible in his viewpoint. Here in Canada we treat him as a regular citizen, and there hasn't been vigilantism toward him.

So I don't think we have to worry in Canada, especially when you see that for only 3.5% of the population in the United States was there actually some form of targeted harassment. As I said, usually it was in the form of picketing or a picture on a telephone pole. So it's very minimal.

The other thing is the false sense of security. I think that argument is very weak, that we may have a false sense of security if we put the pedophile registry out to the public. The reason is, knowledge is power. If we can enable our citizens to actually have some kind of power—

[Translation]

Mr. Richard Marceau: I just have one minute left. I have a question for Ms. Prober, unless Ms. Kohan wants to answer it.

Is society not better protected when offenders can be rehabilitated? If so, could publicly advertising the presence of a pedophile not completely undermine that rehabilitation, which is, in fact, the ultimate protection we could provide?

Â (1215)

[English]

Ms. Rosalind Prober: Thank you very much.

As I said, we propose the California model of Megan's law. We are not proposing for Beyond Borders that pictures be put on the Internet. What we're saying is what happens in California...and I did bring you that model. I would also like to say that the California department of justice say that the majority of their sex offenders do report.

Under that model, if you have a suspicion or you have concerns, you can go in and see a CD-ROM of sex offenders in your area. If you have concern about a particular individual, you can phone in, but you have to make application, you have to say who you are, you have to identify yourself, and you have to say your reason for wanting that information.

I can only ask this committee. You're living somewhere. Do you want a three-time convicted sex offender of boys living next to you when you have boys, and you don't know? That's the issue here. That's the question you have to address here. Looking at the balance of privacy risk to that individual and the risk to children, what does this committee, as people who are raising children and grandchildren, feel about the type of information they should have about who's living next to them?

The issue comes down to predators, sexual abusers, exploiters, etc. They have jumped onto technology faster, and everyone here knows that. I don't have to tell you they are on the Internet. So what is wrong with giving the public the technology, the technological tool, to protect themselves from these individuals? It isn't about punishing them again. It's just simply putting a child's rights to protection above the person's right to anonymity, because they are part of a club, a group of people, who should not have that tool. Anonymity is the way these people take advantage of children, and that's a very sad thing. So leaving them with that power is unfortunate.

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Mr. Nystrom for seven minutes.

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): I wanted to ask you a question. I find these statistics very interesting. I think it's 80% of the people are known to their victims, families, and so on. So you're dealing here with only a very small group of people who are strangers.

What about the idea of just having a registry where somebody who is suspicious about the neighbour, as you mentioned, calls the police and the police lets them know whether or not this person is a convicted pedophile, rather than have the whole thing open to the public in terms of access such as that said by Carrie and also Carole Brosseau?

Ms. Carrie Kohan: When you speak of the statistics, it's actually dropped. It was 89%. It's down to 81% now.

Mr. Lorne Nystrom: The statistics say 79%. I'm rounding it off to 80%. Sorry.

Ms. Carrie Kohan: Known to the victim—that would be a group leader, a neighbour. That is not necessarily a family member. That is someone who has—

Mr. Lorne Nystrom: I didn't say it was. I want to make it clear. It says spouse, family member, or acquaintance.

Ms. Carrie Kohan: Right. To put only those who are not familiar, who are predatory as such, on a registry...we have to recognize that all pedophiles are predatory.

Mr. Lorne Nystrom: I'm not saying put anyone on a registry. I'm saying what would be wrong with this? If you're suspicious of a neighbour, phone the police, and then the police have access to it and they phone back and say yes or no.

Ms. Carrie Kohan: We went through that process actually because CPIC had that ability. I phoned the police and said “If I suspect my neighbour of being a pedophile, can you tell me?” They said “You have to come down, fill out the paper work, and it will take about a week”. Well, I just happened to mention his name and the woman who was a dispatcher was familiar with him, and she had two of the biggest police officers on my doorstep within minutes. He had entered our house. That's why I phoned the police. He said he was just trying to be neighbourly and bring over a burnt roast for our dog. The whole process would have taken much longer had I not mentioned his name.

In that week period during which we were waiting for a response, a lot of damage could have been done. He was very aggressive. He had been working on us for about a week, and each day he was getting more and more aggressive. I hate to think what the outcome could have been had we waited for some kind of answer from the police service.

Â (1220)

[Translation]

Ms. Carole Brosseau: That ties in to what I was saying earlier about the youth court. Statistics show that in 50 per cent of the cases, if I am not mistaken, the new partner was the aggressor.

I have spoken with a number of judges about this and I know that these are not very simple situations. There is a new partner and tense family relations. That involves a child and its natural parent as well as the aggressor parent. They are not easy situations.

In Quebec, attempts are being made to make it easier for children to testify, to provide children with a safe environment and with services to help them get out of their misery. However, the fact that the aggressors are known gives rise to situations that are intimately related to interpersonal relations. Unfortunately, some aspects of the situation will never change, except through education.

As we were saying earlier, sexual delinquency often starts to manifest itself during adolescence. Right now, the Quebec Department of Education offers training in schools starting at the secondary level on appropriate sexual behaviour. They work with children, and, in classrooms, a follow-up has been done of those who presented risks.

Attempts are being made to implement measures that could help educate people. Bear in mind that the aggressors are often big brothers. In cases of incest, it is often the older siblings who aggress the younger ones. There is really no obvious solution.

[English]

Mr. Lorne Nystrom: I just have one final question, Mr. Chair, to Carole Brosseau as a member of the bar.

What kind of public access to the national sex registry do you think would be charter proof? In other words, could any public access stand a court challenge, or do you think it would have to be pretty narrowly prescribed?

[Translation]

Ms. Carole Brosseau: The registry suggested here is well designed. I think it resists the principles of the Charter. I have the feeling it will survive. In my view, a challenge under the Charter could be difficult and would not invalidate it.

One interesting aspect of the registry is that it is huge. Besides offering what other registries do, it will provide information that was not accessible before as well as information on juvenile delinquents.

If you make it accessible to the public, with the information it has, there may be abuse. Just as Mr. Marceau was saying, it is possible that in a rehabilitation context, where situations must be assessed based on their context and on each individual, the Charter may invalidate some provisions regarding this registry. In my view, at this stage, the registry would resist any attack.

There was also mention of the fact that in cases where there is judicial discretion, this obligation may not be imposed or it could be included, for example, in one of the grounds for the sentence. But bear in mind that repeat offenders are not entitled to a reassessment of their record and their obligations.

If it is a first offence, the judge may use his judicial discretion and not impose the obligation, but for a second offence or a repeat offence, I am not sure the courts would decide to be very tolerant of delinquents; it would depend on the type of offence, of course. I am not sure of that. We should let the registry prove itself before assessing it.

Â (1225)

[English]

The Chair: Merci.

Mr. O'Brien, seven minutes.

Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chair. I too want to thank all the witnesses. This is a difficult and interesting topic, that's for sure. I have several questions.

First to Ms. Kohan. I'd like you to define public access a little more narrowly if you could. For people living in Ottawa, would they have access to sexual offenders in Ottawa, Ottawa-Carleton, Ontario, Canada? How do you see that?

Ms. Carrie Kohan: Right now in Canada we have two sex offender registries, one in Ontario and one in Alberta. From what we can see, there is deterrence to go to other provinces because they know they would be put on a sex offender registry here.

You have to consider looking at the United States and Canada. If a pedophile is looking at where to live, they know that in the United States they can be put on a registry that is accessible on the Internet by way of either putting in your postal code, your name, your area, your address, whatever. You can search on different engines.

They have civil commitment in the States. They have sentences of 1,300 years, 150 years, because it's concurrent, etc. So they are becoming very stern against this crime in the United States. In Canada we're looking at a sex offender registry that actually has like three hoops that you have to jump through in order to even get on the registry in the first place: the prosecutor has to apply; then there's an appeal process; and then the judge. So there are three areas that can fail the children as such.

Mr. Pat O'Brien: I'm wondering, though, what would you propose that people in Ottawa be able to access? The city of Ottawa? Ottawa-Carleton?

Ms. Carrie Kohan: Well, I guess that's up to your discussion here. I would like to see it be across Canada, because we know that pedophiles do go across Canada. Again, in our case, we got a peace bond against our pedophile and he ran. It's been five years. He's on the run. We don't know where he is. We have a peace bond out for him that is effective the date they find him.

The police have told us that basically we have no ROPE program in Alberta or B.C. They have it in Ontario, and they actually hunt down parole violators. Basically we have been told that the likelihood of finding him will be when he has a speeding ticket or something like that. They will pick him up on a misdemeanour.

It really has to be right across Canada, I believe, because they travel, and if they feel a lot of heat in one area, they will travel.

Mr. Pat O'Brien: Thank you.

Similar to the question of Mr. Nystrom, I wonder if I could have a response from Ms. Prober, and maybe again Ms. Kohan, on what role, if any, the police might play.

Mr. Chairman, as you know, I'm from London, Ontario, a region of southwestern Ontario, and I guess it was two or three years ago that there was a dangerous sexual offender released there. First the public knew it was southwestern Ontario, and finally the police chief announced he was living in that particular community.

Do either of you see some sort of role for the police to play in this process?

Ms. Rosalind Prober: For high-risk offenders there are already community announcements by police, pictures, and in Manitoba they actually put them on the Department of Justice website. Beyond Borders is talking about that everyday situation where in fact you should have the right to check somebody out.

The model we're proposing—and as I say, I have information for you—is one that is on a need to know basis. You do have to apply. It's just common sense to us when we're trying to raise children in this environment where the courts are exceptionally lax, and I don't think anyone will disagree with that. We're very lenient with these people. Plus, to get a dangerous offender status on a person is very difficult in this country—to get them declared that and kept in prison. So they are being recycled among us.

Crime prevention is really what the issue is here, because if you are concerned about an individual, find out about them. I think that's only fair.

Â (1230)

Mr. Pat O'Brien: Thank you.

I'd like to hear from Ms. Brosseau. You stated you were against retroactivity, but could you elaborate why? What is your primary objection to that?

[Translation]

Ms. Carole Brosseau: Retroactivity would impose this obligation in the same regime. So the judge would have to be convinced that the name of the person must be included in the registry, etc.

The fact is that the individual would knowingly have pleaded guilty—guilty pleas are very frequent—under legislation that was in effect at the time.

If that individual is rehabilitated, there is very little chance that he will be subject to those obligations. So it would be a legal process involving very few people. Moreover, those involved could challenge the constitutionality of it based on what I said earlier, namely the right to equality, the right to full and complete defence and the presumption of innocence that is found in subsection 11(d) of the Charter.

The objective is always to maintain the viability of an act so that it can be useful. Retroactivity will not be necessary. The measures taken over the past few years as well as increased knowledge of sexual offences and the nature thereof—not only the quantitative aspect, but also the assessment of sexual offenders—in my view, will allow us to make better judgments.

Furthermore, society has evolved and is more open to this type of debate. It is a topic that is being discussed and denounced more often, and that has a ripple effect.

Measures have been taken since 1995. For example, a number of people having committed sexual offences are now registered in the DNA banks. In some cases, the individuals who committed the offences are deemed dangerous offenders; so they are under special surveillance. The registry would be in addition to that. So there would be a huge range of options for those sentenced.

In my view, the viability of this registry would be in danger if we imposed it retroactively on offenders who have already been sentenced.

[English]

The Chair: Merci.

Mr. Sorenson.

Mr. Kevin Sorenson: Thank you.

Again I want to go back to a response I got from Ms. Prober and Ms. Kohan in regard to the statistics that were brought forward by the Department of the Solicitor General of Canada.

I don't think we need to look at these statistics and minimize what these statistics say. I'm not suggesting that's what we're doing, but I think these statistics are very scary. These statistics talk about boy victim child molesters, the recidivism rates, and it shows that after 10 years, in some cases, there are about 78% who have not been charged or sentenced to a repeat offence.

I think everyone here recognizes that these statistics are much worse than what it would show on these graphs. For example, they recognize that when individuals come out of prison, they're guarded. They're guarded by family; they're guarded by neighbours. The people who do know now recognize that. Yet there's a very high chance that they still may reoffend.

When they come out of prison, or when they come out of whatever sentence they've received, the family members are going to be very suspicious. Still, after 10 years we have a high, high rate of recidivism. Those are the ones who have been charged. Those are the ones who have been sentenced.

So I think everyone in this room would recognize that the rates will be much, much worse than what we have here, that are shown specifically in these statistics.

I'm not sure if the translation was wrong. I'm not sure if I heard what I thought I heard, but I think I heard Ms. Brosseau state that retroactivity isn't that important. Did I hear that correctly? What did you say in regard to retroactivity?

Â (1235)

[Translation]

Ms. Carole Brosseau: No. I said that the retroactivity put the viability of the registry in danger, in my view, because there could be constitutional challenges.

[English]

Mr. Kevin Sorenson: Okay, but would you agree then that if there wasn't a charter challenge or if it was constitutional to have it retroactive, it would be a very important part of the bill to have those people on that list who...if it did hold up to a charter challenge?

[Translation]

Ms. Carole Brosseau: I believe the opposite is true. The registry is designed so that offences that are in it are kept indefinitely, even if I, personally, have reservations on that. A decision to make it retroactive would not stand up to the test of the Canadian Charter of Rights and Freedoms. Generally speaking, in our legal system, any retroactivity is frowned upon. It is a principle of law that measures should not apply retroactively.

Is my time up?

[English]

The Chair: No, I'm signalling to him, not to you.

[Translation]

Ms. Carole Brosseau: In any case, retroactivity always poses a problem, regardless of which act is involved, including tax legislation, even if it sometimes applies in that area. It would lead to very specific problems.

[English]

The Chair: Now we'll go to Ms. Jennings.

I would advise both committee members and the panel that for each of these questions, the question and response is three minutes. So if more people want to participate, then the people who answer will have to be brief, and similarly the members of the committee.

Ms. Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I'm going to thank each of the witnesses for their presentations.

I understand the concerns on behalf of Beyond Borders and Project Guardian about public notification. I assume you are aware there are a whole myriad of systems that the federal government, with the agreement of provincial governments, has put into play: the national screening program; public notification; under CCRA the obligation of Corrections to inform the police when any federal inmate is being released, either on temporary absence or statutory release; etc.

Beyond Borders used the example of the California registry. I read a survey recently, quite in-depth, that said that according to the police who actually run the registry, over half of the sexual offenders who are listed cannot even be found, and they themselves put into doubt the effectiveness, efficiency, and enforceability as a result of that.

Therefore, my question would be this. Given that this registry has been designed with consensus—not unanimity, but consensus—of the provincial, territorial, and federal governments, that we want it to be effective, efficient, and enforceable, and that it is an investigative tool, is it not better that we ensure that we're able one year, two years, three years down the line to ensure that the information we have on those people who actually get listed is in fact accurate? What's the point of having 20,000 names and addresses on a registry if 16,000 or 8,000 of them are not up to date? It gives a false sense of security. Isn't that the case?

The Chair: Ms. Prober.

Ms. Rosalind Prober: My understanding—and I can show you the front page from the California department of justice—is that the vast majority are reporting, so we have a different view on that.

I come back to prevention. I come back to looking at the situation, for example, where a woman.... We know that sexual predators target single moms with children. We know that. We have to look at that situation where you have someone who has a couple of boys, for example. She has found a new partner, he's come to town, he's very, very nice, and he becomes the stepfather of those children. Does that woman have a right to check and see if that individual is a sex offender against children? Beyond Borders' position is yes. It's simply prevention.

Â (1240)

The Chair: Thank you.

Monsieur Marceau.

[Translation]

Mr. Richard Marceau: That is fine. I just want to understand your reasoning. When you explained who would have access to the registry, you said that Beyond Borders had a different opinion from that of Ms. Kohan, and you said you would not agree with it being on the Internet and that you would prefer a two-tier system. Could you quickly explain to me what that two-tier system would entail?

[English]

Mr. Mark Hecht: Yes, of course.

Essentially, we're looking at a system wherein there is an evaluation of the offenders, and those who are at greatest risk of reoffending would be put on the registry that would allow the public access. We're still talking about one registry. The difference is part of it would be available only to law enforcement and part would be available to the public.

For example, the bill before us encompasses more than only sexual crimes against children. When you look at certain things like general sexual assault, or when you look at things such as incest and so on, generally we would not put that in a high-risk situation. However, convicted pedophiles, predatory sex offenders, we would categorize as high risk and as such we would want the public to have access to that type of information.

The Chair: Ms. Fry.

Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much, Mr. Chair.

I just wanted to thank the witnesses for coming. I know this has been Rosalind's life work. We've joined facts along the way on this issue.

I want to say that this is an issue of great concern to me. My questions don't have to do with the fact that this is a problem we need to deal with, but what is the most effective way to deal with this? I don't know that I'm necessarily convinced that this is. I want to find out if it is because I don't want us to say, “Here we go, we've solved the problem”, and wander off thinking we're safe. This is my biggest concern.

If 79% of offenders are spouse, family, or acquaintances, the biggest thing that concerns me is that no one ever knows who these people are most of the time because their children won't tell, their brothers or sisters won't tell, and their cousins won't tell. It's the big secret. As you have said, this will not deal with that. We're talking about 75% or 80% of the problem here that we can't even touch.

The second question I want to ask is, what about those people who sexually exploit child prostitutes? These are words I do not like to use. I think they should be called commercially sexually exploited children—the 13- and 14-year-olds and sometimes the 10-year-olds who are bought by people on the Internet. Are those people going to be considered for the registry? They should be. What they're doing is not even legal, but there you go. They should be on the registry. How does one track those people?

This sounds like a nice pat answer. For me, the problem is so great that I just want to ensure we are finding the right tools to deal with the problem. For instance, Rosalind, I think, might have some ideas. I'm just concerned the registry won't have the people we should have on it. I'm also a little concerned that if you check up on everybody and your next door neighbour, what happens? Do you get them to move? If it happened to be one of that 95% that will not offend again, or that probably won't offend for 20 years, are you going to chase them out of town? I don't know.

Can somebody answer those things for me?

Ms. Rosalind Prober: Mark is going to answer, if you don't mind. He was ready.

Mr. Mark Hecht: I appreciate your comments, Dr. Fry.

Two quick points. First, I don't think this is the only answer. I think it's just one tool. I agree with you that we have to be very vigilant, not to say that this is going to stop or curtail the phenomena.

I think the point that was made regarding what happens if only half or a third register and those addresses are accurate—that's still a third that we know about. That's still more than the public has access to now. I think it's one tool we would be able to use.

The second point was about the person who, for 20 years, hasn't reoffended, and do we want his name on the list? I think the idea of a two-tier system would allow for people like that, even initially if they are recognized as high risk, after a certain amount of years not reoffending, to be taken off that tier that the public has access to.

I think we're particularly concerned with the same group of people, which are the people we know because someone has told on them. They have been convicted and are likely to reoffend. Those are the people we think the public should have access to.

Â (1245)

The Chair: Mr. Harris.

Dr. Andrew Harris: I would just say, Dr. Fry, that in all violent offences—violent attacks and sexual offences—the percentage of victims who have an intimate contact with their offender is very high. This 79%, 80%, and 85% is really quite consistent across all types of violence studies.

Ms. Hedy Fry: The exploitation, Rosalind?

Ms. Rosalind Prober: I'm sorry, I didn't hear that. All sexual offenders are going to be on the registry, all the ones who are convicted of sexual....

Ms. Hedy Fry: What about exploiters?

Ms. Rosalind Prober: Absolutely.

The Chair: Thank you, Dr. Fry.

Mr. Cadman. This will be the last question.

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

To Mr. Harris, I was just wondering if there were any stats available. You've given us stats on charges and convictions. Do we have any stats available on victimization reports? I think those might be substantially different. That's one question.

In terms of what actually constitutes an acquaintance, is it somebody that person knows? It could be somebody they've never spoken to but have just seen on the street. Is that an acquaintance? Do you understand what I'm saying?

Dr. Andrew Harris: Thank you, sir.

I don't have victimization stats in my head. There have been a couple of good studies put out on Canadians, in terms of victimization.

I direct the committee to some work by Trainor, with Statistics Canada. One of the problems with some of that is to try to create a complete picture in those victimization statistics. Their definitions of “sexual offence” are quite broad and include things that would not, under any circumstances, be considered criminal. That's just a caveat there.

But there are good statistics. I believe the author is Trainor.

In terms of who is an acquaintance, the rule that was used in that study is they have to know each other for longer than 24 hours and there must be some form of interaction. They must have spoken. They wouldn't necessarily have to know each other's last name, but it has to be somebody who could identify the other person.

The Chair: Thank you, Mr. Cadman.

Ms. Kohan.

Ms. Carrie Kohan: I'd just like to add to Ms. Marlene Jennings' question about the 50% inaccuracy with the California sex offender registry. She was correct in that. I've read the same study. In fact, after a one-year period, up to 50% of the information was incorrect, but almost all of it was addresses, because they were required to re-register only once per year. Instead of moving and then having to re-register within 15 days, it was a full year's period. So by the end of the year, 50% of the information was inaccurate. She was correct.

The Chair: Thank you very much.

I want to thank the panel for your assistance as we undertake the review of this legislation, and I want to thank the committee members for your insightful interventions today.

I'm going to suspend for five to ten minutes. I should tell the members of the committee, as you would all know, that according to the new rules, if someone wants to come in with a stationary camera they can do that. We've had two requests today. We'll have both CBC and CTV here. It takes a few minutes for them to set up, so I'm suspending for them to do that. We'll reconvene certainly no earlier than one o'clock, because I've made a number of promises with respect to that, but probably in 10 minutes.

Â (1249)

· (1303)

The Chair: I call to order the continuation of the 61st meeting of the Standing Committee on Justice and Human Rights.

Today we've been given notice of motion by Mr. Robinson and I believe others. I would entertain Mr. Robinson first.

Mr. Svend Robinson (Burnaby—Douglas, NDP): Thank you very much, Mr. Chairman and colleagues.

Perhaps I'll just start by reading the motion that is before the committee, of which I gave notice on Tuesday:

I move that this committee support the recent Ontario Court of Appeal decision which redefines the common-law definition of marriage as the voluntary union for life of two persons to the exclusion of all others, while fully respecting freedom of religion as guaranteed under the Charter of Rights.

I move that motion, Mr. Chairman. I understand it doesn't require a seconder, but I move the motion, and I'd like to speak to it.

I think the time has come for this committee, the Standing Committee on Justice and Human Rights, to take a stand on this issue of fundamental justice and equality. This committee has travelled across the land from coast to coast to coast—to the Atlantic, Quebec, Ontario, British Columbia, and Nunavut—and has heard eloquent and powerful and passionate and deeply felt evidence on the question of the recognition of the right of gay and lesbian people to choose to marry.

We are now at a critical point in the decision-making. We are now at a point at which I believe it's appropriate for us to advise the Minister of Justice and the Prime Minister of the position we believe the government should take on the issue of an appeal of the decisions that have been made by the British Columbia Court of Appeal and the Ontario Court of Appeal.

I want to say something about the role of Parliament in this decision, because we've heard on many occasions from our friends in the Canadian Alliance and some members of the Liberal Party that what the courts have ruled in the Ontario Court of Appeal and the British Columbia Court of Appeal is in some way denying the right of Parliament to make a decision; that in some way it is subverting our role as parliamentarians; that in some way it's taking away the jurisdiction of Parliament on an issue of fundamental social values and justice.

I think every member on this committee has to clearly understand that isn't the case; that life changed for us as parliamentarians on April 17, 1985. That was the date the equality rights provisions of the Charter of Rights came into force. At the heart of those equality rights provisions is a recognition that if elected representatives, whether federal or provincial, take action or don't take action to ensure the equality of the citizens we represent, the courts will in fact do so. We as elected representatives asked the courts to take on that task when we adopted the Constitution of Canada.

So that's their role, and gay and lesbian couples have waited far too long for parliamentarians, for the government, to ensure our basic equality—our right to participate in marriage.

In fact, not only did Parliament not act on this, but on a couple of occasions at least, Parliament made statements that flew in the face of that basic equality. In 1999, on a motion of the Canadian Alliance, and once again in the debate on the recognition of same-sex partners, Parliament said no, as elected representatives, we take the position that you're not entitled to equality.

What happens then? What happens then is that as gay and lesbian people, we said if we can't look to our elected representatives for leadership, we'll go to the courts. If the charter means anything, we want an assurance that we will have access to equality. So that's what happened, and so far there have been four courts and 10 judges who have ruled in favour of equality.

The purpose of the motion today is very straightforward. It's saying it's time that this committee fish or cut bait; that we have a responsibility to advise the minister. The Minister of Justice, Martin Cauchon, has said he's looking for guidance from the committee. This is our chance to give the minister guidance.

· (1305)

Along with other gay and lesbian people in this country, I am tired of being treated as a second-class citizen in my own country. I'm tired of seeing taxpayer dollars being used to fight against basic equality for gay and lesbian people.

At a very personal level, this touches the core soul, the basic values of us, as gay and lesbian people. When I attended the marriage of my nephew, as I did not that long ago with my partner Max, and I was asked by a young girl there at the reception afterwards, are you and Max married, what could I tell her? “No, I'm not allowed to be married.” That's not equality. That's not fair. That has to stop.

When you saw the joy and the incredible emotion of gay partners in the course of the last couple of days—and I can tell you, I've spoken with a number of them—it was something I don't remember, as a gay man, experiencing for an awfully long time.

I felt that sense that I'm sure to some extent blacks must have felt, and Marlene Jennings has talked about it, in Brown v. Board of Education. We've finally realized we're equal. Sure, there are a lot of changes to be made, but at least the courts have said we're not second-class citizens in our own country.

Why would this decision be appealed? It would be appealed by people who don't support that equality. With respect to my colleagues in the Canadian Alliance, I expect them to take the position they're taking against equality because, frankly, that's the position they've taken on every single piece of legislation that's come before Parliament.

Extending equality to gay and lesbian people—the Reform Party voted against the Canadian Human Rights Act. They said it's okay to throw people out of their homes or to fire us from our jobs because we happen to be gay or lesbian. They voted against hate crimes legislation. The voted against recognition of benefits. So I don't look down at this side of the table for justice or equality.

But I have to say, very directly, that I do look across the table at my colleagues. I look to you for leadership on this issue. I look to the party that was led by the Prime Minister who decriminalized homosexuality. I look to the party that has taken a stand on equality in a number of areas, including hate crimes, and I look to a party whose candidates for the leadership, Paul Martin, John Manley, and Sheila Copps—since we have to look to them for direction because the current Prime Minister hasn't taken a stand—have all said, get on with it, don't appeal, do the right thing, be Liberals.

I want to say a couple of other things about what this debate is not about. This is not about religious freedom. This isn't about, in any way, asking religions who don't accept the right of gay and lesbian people to marry to have to solemnize those relationships. I want to just draw to the attention of my colleagues the decision of the Ontario Court of Appeal. These are the words of the justices of the Ontario Court of Appeal:

In our view, this case does not engage religious rights and freedoms. Marriage is a legal institution, as well as a religious and a social institution. This case is solely about the legal institution of marriage. It is not about the religious validity or invalidity of various forms of marriage. We do not view this case as, in any way, dealing or interfering with the religious institution of marriage.

We have to be crystal clear on that, because if there's one thing we heard as the committee travelled across the country, it was that there was some concern around that issue. If there was any doubt about it, I want to quote from one other section of the Ontario Court of Appeal decision. Here's what they've said:

Nor is this a case of balancing the rights of same-sex couples against the rights of religious groups who oppose same-sex marriage. Freedom of religion under s. 2(a) of the Charter ensures

—and I emphasize this, ensures—

that religious groups have the option of refusing to solemnize same-sex marriages. The equality guarantee, however, ensures that the beliefs and practices of various religious groups are not imposed on persons who do not share those views.

So I think that's pretty clear.

· (1310)

Why would we want to drag this out for two more years to the Supreme Court of Canada? That's what we're talking about, another two years. Why would we want to deny equality for another two years? Frankly, I think we've waited long enough.

I know my friends in the Alliance like to talk about public opinion, that there was a public opinion survey.... I don't believe you decide these issues on the basis of public opinion polls. I never have. You don't decide basic equality issues on the basis of public opinion surveys, but in fact according to the poll in the Globe and Mail today, a significant majority of Canadians are asking us as elected representatives to respect the right of gay and lesbian people to marry. I'm sorry that Vic Toews isn't here today because I note that in the province of Manitoba, 58%—one of the highest percentages—of Manitobans say they support gay and lesbian marriage.

The issue here then, again, is one of respect. It's one of equality, of inclusiveness. Allowing us, as gay and lesbian people, to marry isn't going to threaten your marriages. We're not the first country. The Netherlands and Belgium both allow same-sex marriages. There hasn't been a collapse in the moral fabric of those countries. There hasn't been a dramatic drop in the procreation rate in the Netherlands. There hasn't been a drop in the number of people who marry in the Netherlands. Life goes on, but the family circle is whole.

We, as gay and lesbian people, are part of that circle, and that's what we're saying here. We're not saying take away anything from heterosexual marriage; we're saying we want to be part of this family if we choose to do so.

· (1315)

[Translation]

As far as I am concerned, it is a basic question of justice and equality. It is also the opportunity for this committee to state very clearly that we accept the Canadian Charter of Rights and Freedoms, and to tell the justice minister to not appeal this, to not waste any more public money and to just accept the ruling.

[English]

I'm going to leave the committee with a letter that was sent to every member of this committee by John Fisher from Egale, because I think he says it far more eloquently than I could about what this means to all of us as gay and lesbian people.

He says:

Dear MP:

Today I went to my first same-sex marriage.

I don't mind telling you I cried at the hope and joy that Heather and Lisa expressed as they read their vows. Their love and commitment to each other was so evident, so overwhelming, as was their pride at living in a country where they finally felt that their love for each other was equally valued and respected.

I know that many MPs have been at the forefront of advancing this important equality issue, and that others still find it a difficult matter. I can truly say that no-one could have been at Lisa and Heather's wedding, and seen the joy and the celebration in the faces of the couple, and those gathered to celebrate with them, and still feel there is anything to be afraid of. Who would want to take such joy away from any couple seeking to express their love and commitment?

Over the years, I have been privileged to know and work with many of you. Presumably, you entered politics because there are values you believe in, including the dream of a society where all are treated with equal dignity and respect.

Some of your colleagues have expressed concern that the courts are making these decisions, rather than politicians. I couldn't agree more that this is a time for our elected representatives to show leadership. Some day, future generations will look back on this day, and wonder what all the fuss was about. It's time for you to decide which side of history you want to be on.

I am writing to you now to ask that you please urge Justice Minister Cauchon to support equal marriage rights for same-sex couples.

This week's decision is one in which we can all take pride as Canadians. Please let me know as soon as possible whether you support equal marriage rights for same-sex couples, and please, act now to ensure that your lesbian and gay constituents, their families, supporters and friends, know that they can look to you as their elected MP to uphold the fundamental values of the Constitution.

I ask you to support this motion, which calls on the government not to appeal the decision but to accept the right of equality for gay and lesbian people in this country.

The Chair: Thank you, Mr. Robinson.

I have a list and I'm going to read the names of the people who are on it. Then we'll go to Mr. O'Brien, who is the first name on it.

Mr. O'Brien, Mr. Harvard, Mr. Lee, Ms. Jennings, Mr. Ménard, Mr. Marceau, Ms. Fry.

Mr. O'Brien

Mr. Pat O'Brien: Thank you very much, Mr. Chair.

The motion Mr. Robinson has asked us to support is the recent Ontario Court of Appeal decision, and of course there's no way that I can or will support that motion. I've made that position clear already and I'll repeat it here.

My objection is on two grounds, Mr. Chair. First of all, there is the issue itself, the definition of marriage, and I'm not prepared under any circumstances whatsoever to redefine something as important to our society as marriage, which has served this country quite well since its inception in 1867, and which predates Canada and all of the known countries of the world. There is a 3,000- to 4,000-year history of marriage, which has been endorsed, if not unanimously, certainly by the vast majority of the religions of the world. I'm not prepared to support this appeal because I'm opposed to the very principle of redefining marriage. That's point one.

But Mr. Chair, what makes me even more upset about this whole issue—and I repeat advisedly what I said before—is the incredible judicial arrogance of three judges in Ontario to say, zap, we have just redefined marriage and you, Parliament of Canada, elected representatives of Canadians, and you, millions of Canadians who disagree with the idea of redefining marriage, your opinions don't count. We three unelected judges in one province arrogate unto ourselves the right to redefine marriage. And do you know what? We do it instantly.

Mr. Chair, that kind of incredible judicial arrogance must not stand without being challenged by this government. I want to make clear that I spoke with a number of lawyers in my party. I won't cite individual names because I didn't say I would. They're proponents of changing the definition. They support changing the definition of marriage, but they share my view, which is shared by millions of Canadians: they're shocked; they're disappointed; and they share the perception that this was incredible arrogance by three judges. This is the only court that has made that kind of a ruling and has given no lead time for those humble servants of the people, elected by the people of Canada, to even deliberate on this.

Mr. Chair, this arrogance was displayed with the full knowledge of that Ontario court that this committee was coming close to the end of its deliberations on this important topic.

So I have no intention of supporting this motion. For me, it's quite simple, and I respect Mr. Robinson's view of this. I expect that there are colleagues on this side who have that view as well. But I want to tell everybody that to be a Liberal does not mean you have to go against your conscience. For me, this is a matter of conscience, and the day anybody tells me that I can't be in the Liberal Party and follow my conscience, I will leave the Liberal Party and so will a lot of others.

So it's very simplistic for anybody, be they a Liberal member or anybody else, to say there is a monolithic Liberal Party with one view and all other views are not acceptable if you're a real Liberal. That's simply not on, Mr. Chair. My colleagues in this caucus know that there's considerable support for the two different positions in our caucus. There's considerable support for the position I'm espousing here now and there's considerable support for the position that has been espoused by Mr. Robinson and some of my Liberal colleagues on this committee. I respect that point of view, but I reject what being a real, good Liberal means. I don't care if it's the 21st century or what century it is. The day isn't going to come when somebody should have to go against their conscience and against the views they hold very dearly to, because if it's modern to go against your conscience, then I'm happy not to be modern. A lot of Liberals, good, lifetime, hard-working Liberals, share that view--elected members of the Liberal Party and non-elected members of the Liberal Party.

So I cannot and won't defend, with respect, Mr. Robinson's motion because, number one, on the principle itself I think we should not be redefining marriage. We should not be tinkering with something so important under the guise of extending equality.

· (1320)

Number two, Mr. Chairman, I will not support this motion because, as I said, even some people who support redefining marriage were shocked themselves at the judicial arrogance, and it ought to be objected to and challenged to the Supreme Court on that basis alone, Mr. Chairman. Obviously the principle itself needs to be referred to the top court as well.

I've been asked by people in the media recently and by colleagues, why do you want to go to the Supreme Court? I didn't put this in the courts. It's in the courts, and it's with every right that people put it in the courts. Since it is, I think it's incumbent on this government to make sure it's heard by the Supreme Court of Canada and that they have the final word. There are people who are setting themselves up as experts in this situation who say, “We know what the court will say.” Do we? I don't have that omniscience, Mr. Chairman. I don't have that crystal ball that they seem to feel they have. And there are some in the Liberal Party who hold that view. Quite frankly, they're wrong. We don't know what the Supreme Court will say until it's referred to them, and it's incumbent on this government to refer this issue to the Supreme Court.

I have been calling on the Minister of Justice, as other colleagues of ours in the Liberal caucus were calling on the Minister of Justice, for several weeks now to appeal the B.C. court ruling, and, frankly, the government has dithered on it and now they find themselves in a situation where the Ontario court has now arrogated unto itself an instant redefinition of marriage. Now the minister finds, and the government finds, that its hand is forced. it should have been a little more proactive earlier in appealing the B.C. ruling.

In my view, Mr. Chairman, the B.C. ruling and the Ontario court ruling should both be appealed to the Supreme Court of Canada immediately. And depending on what else happens in this meeting today, I would be prepared to move such a motion. I've given notice of motion 48 hours ago, you'll recall, that if necessary I would put such a motion.

Mr. Chairman, I want to make it very clear that I feel that whatever a person's sexual orientation, they are deserving of respect and dignity. But this does not mean we must redefine something as fundamental and important to our society as marriage, which is held dear and cherished by millions of Canadians who are very fearful of what such a change would do. It does not mean that in treating people with respect and dignity we have to discard our own values, ignore our own conscience. That's just simply not on, Mr. Chairman, not for me and not for millions of other Canadians.

Mr. Robinson and others say, what harm would it do if we let two gay men or two lesbian women marry? What possible harm could it do to me and my wife and our marriage or to society? Mr. Chairman, we have hundreds of hours of testimony from witnesses who detailed what harm it could very possibly do.

I have put on the record the expert opinion of a Professor Eskridge, himself a gay man at Harvard University. He didn't appear before the committee, but his testimony is referenced, and he is honest enough and candid enough to say that of course if you redefine marriage it will have a major impact on the institution itself. He goes on to talk about the child rearing that's one of the major consequences of that. He speaks about a shadowy world of child rearing where children will be raised by people, in many cases, with no biological connection. They'll have no sense of their personal history in many cases.

Members of this committee are aware of that. This is not a simple case of Canadians being the nice, tolerant people we try to be, and think we are, and why don't we all just be nice and get along and let gay men and lesbian women marry because what possible harm could it do? If I believed that, in all honesty, I would support this. I would. But I simply don't believe it. I don't believe it after sitting through the hearings I've sat through. And it's very fundamentally for me, Mr. Chairman, a matter of conscience. I won't support something that I think—and I thought before the hearings and I've had reinforced after all the testimony—could potentially bring great harm to this Canadian society. I'm proud to be a Liberal, because a lot of Liberal Party members, elected and unelected, share that view.

· (1325)

So, Mr. Chair, it's a matter that we can't let this judicial arrogance stand. I won't support the motion. If the motion is defeated, I would hope that there would be a subsequent motion coming forward. If there's not, then I would be prepared to do that.

I would finish on this note, too, Mr. Chair. Again, in the testimony we heard and then in our deliberations, we had an expert woman, herself a lesbian, Ms. McWhorter, who said.... The opinions were very candid and very honest. I would challenge, respectfully, some of the people who are reporting this important issue to the Canadian public to search out some of these views, to look at some of the committee testimony—I know some have—where these expert opinions challenge the view that this won't do any harm to anybody. Ms. McWhorter said this could fundamentally undermine the nature of the heterosexual relationship itself. These are very honest experts themselves living in a gay or lesbian lifestyle.

So how can I possibly ignore that kind of expert testimony, Mr. Chair, ignore my conscience, and, under the guise of being a Liberal or just being a nice guy, throw out something that millions of Canadians hold dear in this country? I can't. I won't, Mr. Chair. We'll see how this goes. I'll have a motion, if no one else does, later on.

· (1330)

The Chair: The next speaker is Mr. Harvard, but I would remind members of the committee, at least as it is intended right now, that we have until 2 o'clock.

Mr. Harvard.

Mr. John Harvard (Charleswood—St. James—Assiniboia): I'm a Liberal, and I will speak from my conscience. My message will be quite unlike that of my colleague, Mr. O'Brien. This is not a question of being nice. This is not a question of being a Liberal. This is a question of equality, of giving people of a different orientation the same rights that I enjoy.

I'm a father of five children. I'm a grandfather of four grandchildren. I don't feel any way threatened in my relationship if gays and lesbians are in a position to marry. I don't feel threatened at all.

I don't think there's going to be any harm to our society. We've heard this story before. I could take you back almost to 100 years when women were given the right to vote. You may want to go back to some of the legislative debates. The debates suggested what harm there would be to the family and to society if we let people like Marlene vote.

I don't think even the social conservatives of today, based on the experience of the last 80 to 90 years—

[Translation]

Mrs. Marlene Jennings: It is true that some people here think that those parliamentarians were right.

[English]

Mr. John Harvard: I'm sorry I mentioned your name.

Mrs. Marlene Jennings: That's okay. I feel honoured.

Mr. John Harvard: It was intended with honour. I don't see any harm.

But let's cut to the chase. It is time to exercise leadership. It is time to stop buck-passing and it is time for parliamentarians to face up to our responsibilities.

Members, let's recognize one fact. Back in the early 1980s, when the charter was adopted and placed inside the Constitution, it changed our country. We have a law—it is called the Charter of Rights and Freedoms—and the courts have said over and over and over that you cannot discriminate in this fashion against gays and lesbians. That is the job of judges. They are not being activists; they are carrying out their responsibilities.

When somebody offends a traffic law, the case is taken to the courts and the judges are tasked to tell us what the law means and whether the action contravenes the law. There is no difference with traffic law, with some kind of criminal law, any kind of law. This is the job of judges.

Let's remind ourselves. It was a previous generation of parliamentarians, back in the early 1980s, who framed the charter, and what did they say? You cannot discriminate in this fashion against your fellow citizens—in this case, gays and lesbians—and it has taken us almost two decades to bring that decision and that legislative action by a previous generation of parliamentarians to fruition. We're here today, so let's support this motion.

The Ontario court has been anything but arrogant; it has faced up to its responsibilities. Perhaps we parliamentarians have not done so. I have heard from social conservatives that it's time for parliamentarians to face up to their responsibilities. Yet it is the very same social conservatives who say, “Oh, let's pass it on to those activist judges who, by the way, we don't have any confidence in, but we want to pass on the issue to them for final adjudication.”

Members, one more thing. We know what the decision from the judges is going to be. We know exactly what the decision will be. Ontario has told us, Quebec has told us, British Columbia has told us, all kinds of people have told us. It is staring us absolutely squarely in our face, so I think it's time that we simply reaffirm the legislative action, the law that was enacted, the charter. It is time for this generation of parliamentarians to reaffirm that law. Let's get on with it; let's do the right thing.

· (1335)

The Chair: Mr. Lee. After Mr. Lee it's Ms. Jennings.

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

The court judgment that our colleague asks us to indicate support for today is, for many of us, almost legally unassailable. I've read it and it coincides with the judgments of many other courts. There are some who would argue that there may be reasonably justifiable limits on the application of section 15 of the charter, but the courts haven't found that yet, as I see it. There may be one court out there that did, but it is clear to me that the definition of marriage, in Ontario at least, before the Ontario court decision, did not give equal benefit of the law to gays, lesbians, transgendered persons, and possibly others who haven't come forward yet.

Our colleague asks us to support the judgment. I don't think we can do much but accept that the judgment happened. If you want to fight a court judgment you might bump up against contempt. The court has made a finding in law.

Having said that, I'm not going to support the motion, but I will explain why. Some people have said that the courts got there first. Yes, that's true. But look at the court; it had three persons on the Ontario court and there might have been three or five persons on the B.C. court. It was only a few unelected people. They are wise people, experienced people, but we in Parliament are very different. We have 301 persons, all elected, and most of us will acknowledge that the House is divided in many ways on this and on many issues. Is it any wonder that half a dozen people arguing just the law and a few other collateral issues got there first before the House got there? It's not a surprise to me.

Having acknowledged that there is division among Canadians, the House and the government have embarked on looking at the issue with a view to resolving it. The court decisions have, in effect, got there first. But if our colleague's resolution is to be adopted today, not only would the courts have got there first, but we would actually have allowed the courts to pre-empt the work of Parliament and this committee, because we've embarked on a task.

If the courts want to give us a deadline on something, let them do it. The Ontario court did not give us a deadline. It hoisted the issue for legal reasons. I'm not comfortable, as a legislator, having our work pre-empted either by the courts or by a resolution put forward in good faith by our colleague here.

I would also note that the way the Ontario court has interpreted and ruled on this, it has probably even technically circumvented any potential application of the section 33 notwithstanding clause, either temporarily or for the five years, simply through the way, technically, the decision came down. That particular device placed in the charter to benefit the legislatures and Parliament is, in this case, likely not even usable, should we want to, on a temporary basis.

I'm not in a fight-back mood, but I'm saying we still have work to do. One example of the work still to be done is as a result of the Ontario court's approach in deciding that in Ontario anyway this will be the law and it's in effect immediately, and by the way, there's no further work for the legislatures or Parliament to do, thank you very much, so close the file.

As a result of that, we have a checkerboard situation in existence across the country. We have a checkerboard in terms of application of what the definition of marriage is. I think we have three provinces—I'll let our researcher do the head count here—but we now have a Canadian checkerboard of what the definition of marriage is.

· (1340)

Maybe the Ontario court didn't stop to think, who's going to fix up the provinces; who's going to correct the checkerboard application; who's going to fill up and get rid of those lacunae, as the court referred to them in Ontario?

Even though the Ontario court said it had no business going there or no need to go there, thank you very much, it is only Parliament, the legislatures, or the Supreme Court of Canada, as far as I can see, that can do that. It may be that the courts are going to say it's their job. Unfortunately, the courts in Ontario, New Brunswick, B.C., or wherever, don't have jurisdiction over the whole country. We only have one court who can do that, and that's the Supreme Court.

So either we in the committee are going to finish our work and/or Parliament is going to finish our work, or we're going to let the Supreme Court finish the job, which has been done so far on a piecemeal basis by the appeal courts. But no matter how you cut it, our job isn't done. We've either got to do it in the House or we've got to get the Supreme Court to fill up the gaps.

The way we do it with the Supreme Court is either to appeal or to send a reference. Technically, I sometimes get lost between the two, but it may be a reference that is needed.

But I think by accepting Mr. Robinson's motion today, we would preclude—at least from the committee's point of view—our work. We'd be out of business on the issue. Frankly, I think a lot of our constituents.... Well, some might like us to be out of business on the issue, but I think a lot of others would like us to still be in business.

I want to continue to do the job we were asked to do and set out to do. I'm prepared to do it on a basis articulated around the table, which is, “Let's do the right thing here”. But I think we have work to do.

I'm not going to roll over, and this is not going to be a parliamentary cop-out at the initiation of the Ontario Court of Appeal.

Thank you.

The Chair: Thank you, Mr. Lee.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Chairman, I have a point of order.

I know that several members want to take the floor and I think that you recognize the importance of this debate as much as I do. It would be most unfortunate if we could not hear everyone. I would even go so far as to say that to a certain extent we are scuttling the debate. Could we check to see whether there is a consensus on the fact that if we have not heard from everyone by 2 p.m., we can reconvene or pursue the discussion after question period? I think it is important to be able to vote, but we should do so once everyone has had a chance to express their views. I am concerned that we may not be able to do so by 2 p.m. I know that several of us would like to express our views on this. I suggest we come back after question period and that we do so at 3 p.m. Could you check to see whether there is a consensus on that?

[English]

The Chair: First of all, I think most committee members know that I'm not going to call a vote unless everybody who wants to say something gets a chance to say it. We have some shared history, I think.

If I were to ask for consent to sit through question period, it would have to be unanimous.

I don't have unanimous consent to go through question period, so we're going to reconvene at 3:30 on this point of order.

Mr. John McKay: On this point of order, I don't think we're going to be changing minds. I'm on the list of speakers, along with a lot of other people. I would like to speak, but I don't think I'm going to get an opportunity to.

As I said, I don't think we're changing a lot of minds here. At 2 o'clock, we might as well vote and call....

A voice: Agreed.

· (1345)

The Chair: If those people whose names are on the list would like to vote at 2 o'clock, we'll vote at 2 o'clock. If anyone wishes to speak at 2 o'clock who hasn't had a chance to yet, we're going to go until 3:30. Understood?

Also, to those people who will be speaking now, we have less than 15 minutes left.

Ms. Jennings.

[Translation]

Mrs. Marlene Jennings: Thank you, Mr. Chairman.

I will try to be brief to give my colleagues a chance to speak as well.

I think my colleague, Mr. Harvard, put it as elegantly as possible: it is a matter of conscience. Canada's fundamental values are expressed in our Canadian Charter of Rights and Freedoms and our Constitution. Those values imply that every person is entitled to equality, dignity, freedom of expression and belief, and to respect.

As a black woman who also has Belgian, aboriginal, French and Irish ancestors—since my family name is Irish— I can only applaud the Ontario Court of Appeal's ruling. I congratulate judges McMurtry, MacPherson and Gillese because they had the courage to correctly interpret the law, the Constitution and the Canadian Charter of Rights and Freedoms, and to make a firm, clear and logical ruling, which we, as parliamentarians, have apparently not managed to do in a long time.

[English]

On the day the decision came out, I made a statement that said I think those Canadians who believe firmly in the equality and dignity of all persons, the respect of all persons, and the right to liberty of all persons should rejoice in the decision of the Ontario Court of Appeal in the same way that Americans who shared those same values rejoiced back in the 1950s when the Supreme Court of the United States ruled in Brown v. the Board of Education that there was no such thing as separate but equal, and ordered that all public institutions be open and accessible to all Americans, regardless of their racial background.

I ask all Canadians, and I particularly ask each and every member of this committee who will be voting on Mr. Robinson's motion, to really examine your conscience. I think Mr. Harvard made a good point when he said it would be interesting to go back and read the blues, the transcripts of the debates that happened in this Parliament when the issue of women's right to vote was debated, when the issue of aboriginal peoples' right to vote was debated, when the issue of making our immigration legislation and policy non-racially based was debated in this House, when the issue of abolishing slavery was debated—it wasn't in this House, because it was in 1833 when we were still a colony of the U.K., but it was debated—when we abolished the death sentence here in Canada. I'd be interested to read the transcripts of the debates.

I ask each member sitting around this table who will be voting to examine your conscience on the basis of how dearly you hold the values of equality of every person here, the dignity of every person here, the right to liberty of every person here, and the right to respect of every person living in Canada. If you can vote against this motion, if you can vote against legal recognition of same-sex unions in all conscience, I will respect that decision, but I let you know here and now that I do not share it. I will never share it. And I would hope that my offspring would never share it.

Thank you.

· (1350)

The Chair: Thank you.

Mr. Marceau.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chairman. First of all, I must say that, unlike what Svend Robinson suggested, this issue is broader than that of gay and lesbian rights.

Mr. Robinson's comments were very eloquent, and he spoke from the standpoint of a gay man. However, this issue is broader than gay and lesbian rights. It is a societal issue, an issue that affects all those who believe in equality, openness, tolerance and acceptance in Canada.

This is why many heterosexuals accompany—and even precede—homosexuals in the battle for their right to equality for same-sex spouses.

The committee has a very simple choice to make. It can uphold the current definition of marriage as the union of a man and a woman, or change it to the union of two persons. There is no middle road for parliamentarians to take.

To all those who are considering a national registry—as you know, this was one of my favourite questions—I will say that such a registry would not be under federal jurisdiction. The federal government has jurisdiction only over marriage and divorce. It cannot choose a different form of civil union, or establish a national registry.

As you know, I come from a very open society—Quebec. Discrimination on the grounds of sexual orientation has been prohibited in Quebec since 1977. Ever since 1977! You also know that, several months ago, the National Assembly unanimously adopted a new form of union, a civil union, which is a sort of twin of marriage. Given that marriage per se is under federal jurisdiction, we were unable to change the actual definition of marriage. Nonetheless, Quebec—with unanimous support at the National Assembly—went as far as it could within its jurisdiction. It went as far as it could to enable gays and lesbians to legalize their loving relationships immediately, relationships that are just valid as those of the heterosexuals around this table.

Many people want the government to appeal the decision of the Ontario Court of Appeal. I would like to point out that many of those people who want to appeal that decision have said—and there, I have to pay tribute to Pat O'Brien's honesty—that even if the Supreme Court were to decide that marriage would henceforth be defined as a union between two persons, they would not accept that definition and would seek to use the notwithstanding clause.

So in that case, why appeal the decision? What would be the reason for such an appeal?

I think this committee has to send a message that we ourselves want to live and want our children to live in a society that is not only tolerant, but also accepts differences and even embraces differences.

Voting for this motion would be a wonderful way to end this parliamentary session, and join in expressing our best wishes for all the same-sex couples who will be getting married in the next days and weeks. Thank you.

· (1355)

[English]

The Chair: Thank you, Mr. Marceau.

Mr. Ménard has generously offered up time for Ms. Fry, but he was assuming we were going to be doing this after question period. I asked the question before: if there is consent to go directly to a vote we will, but if anybody wishes to speak after, I am going to go after. I simply need to know. I'm looking for someone to say.... If no one objects, we'll have Ms. Fry.

Mr. O'Brien.

Mr. Pat O'Brien: This is on a point of order. I don't want to pre-empt my colleague. Two meetings back there were two members who indicated they gave 48 hours' notice of motion—one being Mr. Lee, the second being myself—to be dealt with at this meeting. When we dispose of Mr. Robinson's motion in whichever way we deal with it, is it your understanding that in the event Mr. Robinson's motion does not pass—or whatever happens with that motion—we would deal with one of these two other motions?

The Chair: Essentially, the only meeting we anticipated today was from one o'clock until two o'clock. I've asked the group if they want to go to 3:30 p.m. to finish the meeting that's from one o'clock until two o'clock. I think there's an interest in doing that. Beyond that this afternoon, if we decide to go to one of those.... If someone wants to put a motion, they can, but at this point we're simply dealing with this one, and—

Mr. Pat O'Brien: Fair enough, but, Mr. Chairman, I'll just finish on this.

The Chair: You're taking time; it's almost two o'clock.

Mr. Pat O'Brien: I understand. Given the seriousness of this issue, and even with the strong disagreements and the collegial way we've tried to have these disagreements, you're surely not telling me we're not going to deal with both motions, including Mr. Robinson's, proper notice of which was given two days ago. I couldn't believe this committee wouldn't want to reconvene after question period to deal with this matter in its entirety.

The Chair: Okay, let's do it from that end first. If we're going to do that, we're in no rush to get done by two o'clock.

Mr. Robinson.

Mr. Svend Robinson: Mr. Chairman, I think it's pretty clear there is business we'll want to continue at 3:30 p.m. I suggest we can hopefully agree to that. We still haven't heard from our colleagues in the Alliance and others, so we should continue.

The Chair: Okay, we're going to 3:30 p.m. We're not going to do that here. Before everybody races off and is angry with the chair later for not knowing what they're doing, here's what we're doing. At 3:30 p.m. we are going to be in room 701 of La Promenade building.

This meeting is adjourned.