SECU Committee Meeting

     I'd like to bring this meeting to order.

    This is the Standing Committee on Public Safety and National Security, meeting 30. We are today considering an act to amend the Criminal Code and other acts.

    We have with us as witnesses, from the Department of Public Safety and Emergency Preparedness, Ms. Mary Donaghy, Clifford Yumansky, and Agnès Levesque; from the Department of Justice, Mr. Douglas Hoover; and from the Department of National Defence, Mr. Glen Rippon and Alex Weatherston.

    We welcome you all to the committee. Normally we allow witnesses an opening statement. In this case, I don't know if that's absolutely necessary. I think you're here mainly as a resource to answer any questions that members may have in regard to this, unless you have some pressing comment you'd like to make.

    Go ahead.

    Thank you, Mr. Chair.

    No, we did not come prepared with opening remarks this morning. We understood that members of the committee had some questions about the bill. As you know, we're here as resources to answer those questions.

    Thank you very much.

    Okay.

    Is the committee ready to proceed with clause-by-clause, or do you have any comments or questions you want to ask the witnesses before us?

    You have some comments and questions.

    An hon. member:Oui.

    The Chair: Okay.

    We'll begin with the Liberal Party.

    Who would...?

    Mr. Chair, I think we'll split the time.

    So we're going to go with seven minutes....

    Okay. I thought maybe we could speed it up here, but it's up to you.

    Go ahead.

    Thanks, Mr. Chair.

    I wanted to start with a couple of the elements that were missing from what we were going to be recommending as a committee and what we heard from the witnesses.

    One item that we had heard was the importance of vehicle information—licences, make, model, year—and ensuring that if somebody changes vehicles, they report that. That was noticeably absent from the report. I'm wondering why that was absent from the report. Perhaps you would give us an explanation of why it wasn't included and if there was a particular rationale for that. And if we would seek to include it, what would your recommendations be on how we would include it in the bill?

    Let me say, in terms of the discussions that went into the work preparing the bill, that of course the question of vehicle registration was one that was considered. There were a number of options, obviously, that the government looked at in coming to the final form of the bill. The decision was taken that at this time it would not be appropriate to proceed with amendments to the legislation that would include or allow for vehicle registration.

    Go ahead, Robert.

    Thank you.

    I guess the most senior person here is an acting assistant deputy minister. Was the deputy minister unavailable to attend today?

    We had asked for the minister, so I'm just wondering. We have an acting assistant deputy minister.

    Yes. I understand that the minister was not available this morning, and that neither the deputy nor the associate deputy was available this morning.

    Okay.

    Can you tell me whether the work of our committee—we worked for about two weeks on this piece of legislation—was considered by the department in your restructuring of this bill? We didn't issue our final report, but we had witnesses. There have been news accounts and there have been a number of statements made from sources from this committee. I'm just wondering whether that went into your work at all.

    Certainly some of the members or representatives of the department who were here at earlier discussions of the committee on the bill are here again today. I'll invite them to speak more directly to that question, but certainly all of the discussion, input, and advice forms part of the consideration in development of the bill.

    I'll just invite my colleagues to add any additional comments that they want to make on that point, if you don't mind.

    I would only suggest that most, if not all, of the issues that we heard witnesses raise in front of committee, as well as questions asked by members, were issues that were common knowledge, based on prior consultations with provinces, police groups, victims groups. I don't think there were any real surprises in some of the directions that were being put forward to committee for suggestions. And we did not have the benefit of your report to see what the consensus was of the committee.

     You're done?

    An hon. member: [Inaudible--Editor]

    The Chair: Yes, you may.

    So that you all understand—and Mr. MacKenzie knows this—I think this legislation should be as strong as possible, because we have horrible statistics about what happens, in particular to children who are kidnapped. I think we need to really beef this up. So I have questions in terms of that.

    The first question is regarding foreign criminals who come back and are required to register. There's a provision in here saying they should only be required to register after this legislation comes into force. So the foreign criminals who are currently in Canada don't have to do anything. I'd like to know the rationale for that.

    Again, I'll invite one of my colleagues who's been more directly involved in the drafting to comment on this.

    Certainly, the considerations had to do in part with the practicalities of ensuring that when these amendments are made to the act, they can be enforced and appropriately administered.

    Agnès, do you want to comment on the specific question about the return of international offenders?

    Well, I believe the question was more about the ones who serve their sentence abroad, or is it the ones....?

    Maybe Mr. Hoover should respond.

    I would only suggest that it would be a policy choice. As officials, we take our instructions from the government of the day. It is at the discretion of the government of the day to direct whether or not this should be a prospective or a retroactive scheme. If there were a direction to explore retroactivity toward the international offenders coming into Canada, I think there would have to be careful charter analysis; clearly, there'd be issues raised. But we were not asked to consider that in this particular proposal.

    So you were not asked to consider whether that was a possibility?

    All I can suggest again is that the directions I received for this proposal were for prospective use.

    In terms of protecting Canadians and being tough on criminals and tough on crime, would you agree with me that it would actually be better to include such provisions?

    I would not make that conclusion without further analysis.

    Do I have more time, Chair?

    You have two more minutes.

    In the legislation, there are a number of clauses.... You start with mandatory inclusion, which is an improvement. I support that. But there are a number of clauses in here with respect to termination orders, such as section 490.14, and exemption orders that follow in clause 12. Further on, you have automatic terminations in terms of the duration of obligations, found in section proposed section 490.027. I would assume first that in proposed section 490.02905, “Application for exemption order”--there are a number of possibilities and exceptions here for somebody who is required to register on a mandatory basis to then somehow get out of it.

    First, I assume you would agree—and I think this is self-evident—that it would be better for the public if this didn't happen, that they couldn't get out of this, particularly the dangerous offenders. Second, why are there all of these various ways to get out of it in this legislation?

    Well, in the first place, I don't think it would be correct to automatically assume the termination and exemption provisions are contrary to public safety.

    I think it's important to understand the context of policy development for this legislation. This was first tabled in December 2002 as Bill C-23. That was the result of direction from the then public safety minister to consult with all provinces and territories to come up with a consensus model for a sex offender registry.

    The federal-provincial territorial high-risk offender working group of senior justice officials met over a lengthy period to review the existing frameworks for sex offender registries around the world to consider what the best policy choices and effective policies were for protecting Canadians through a sex offender registry. They did come up with a unanimous consensus. Included in that consensus were recommendations for the model that was tabled as Bill C-23. That passed, as all parties supported it in the House at the time, and all parties supported it in the Senate, so it became law.

    There's been little or no suggestion that I've seen so far to date, other than today, that the termination and exemptions currently part of the scheme are somehow contrary to public safety. So my personal view is that it works very well.

     Thank you.

    We're going to have to move on to the Bloc Québécois, please, and Monsieur Ménard.

    Mr. Chair, I thought that you were asking whether we had any comments to make and whether it was worth while to get going on the clause-by-clause study. Personally, I do not think so. This bill is not easy to read. I will always remind federal legislative drafters that law that is badly written is law that is badly understood, not to mention badly enforced. So much of the legislation that we see here is in that category. Just when you start to understand, you notice that there are unexplained gaps. The minister could certainly have filled those gaps, had he received our report before having the bill drafted.

    The most striking example is the one that Mr. Holland gave about vehicles. Anyone who is familiar with the way in which dangerous sex offenders operate recognizes that, to be of any use, the registry must contain information like that. We really should not normally be debating political questions. We would all agree that there should be information about the modus operandi, or, to guard against oversights, for example, the fact that those keeping the registry are not informed when a sex offender dies. We are told that that kind of information overloads a registry, and that it becomes less useful when it is too full.

    We would certainly have recommended that there would be computerized geographic mapping of dangerous sexual offenders, as is the case in Ontario. I would also like to have discussed whether it would be pertinent to include new offenders in the DNA registry. At the moment, we cannot even include information related to the last two bills we passed. Eliminating that backlog would take at least two years. That, in fact, is the time it would take to train the staff hired to do it.

    There are a number of suggestions. We had at least five that all parties would normally have agreed on. They are not in this bill and the only explanation I can think of is that it was not a departmental decision, it was an oversight. A lot of consultation took place, and the consultation we did ourselves leads us to the conclusion that some deficiencies have not been dealt with.

    I have no objection to starting the clause-by-clause study. But, time and time again, when I have introduced amendments, I am told that...

they're out of the scope of legislation.

    The best example is the addition of geographic mapping, I am sure. That certainly would help to enhance police investigations. I do not think that we are ready to move to clause-by-clause study. I thought that was what you were asking, to start with. Perhaps we should discuss it right away.

    So I am going to introduce a motion to put off clause-by-clause study until the fall. Among other things, that would allow us to talk to the minister, who, in turn, would be better informed about what was in our report.

    You've heard Monsieur Ménard make a motion that we, in essence, suspend our deliberations today and allow for the minister to come before the committee.

    As chair, I was wondering if any of the witnesses had any comments in regard to the concerns that Monsieur Ménard raised--geographical representation, that kind of thing. Do you wish at this point to make a comment? We will have to have discussion on the motion and then decide, but as the chair I was wondering if you had any comments in regard to that.

     I can make a couple of comments on two of the issues that Mr. Ménard raised, one issue being the fact that information regarding the death of a sex offender is not able to be registered. In fact, one of the proposed reforms does call for a change that, essentially, would allow for pure data elements, such as the death of a sex offender, to be included in the database.

    With respect to geographic.... I'm not quite sure of the term that was used. “Geographic mapping” is the term I'm familiar with. It's my understanding this is a technical issue that really doesn't need to be put into the legislation. It's a system enhancement that goes to the operation of the registry rather than something that would have to be contained in the legislation.

    Does anyone else have anything to add to that?

    Monsieur Ménard, Mr. Yumansky just made a comment in regard to geographical mapping or representation not being necessary within the legislation. I understand it's probably already somehow addressed within the registry. Does that address your concern?

    No, I think we should follow the lead of the Ontario act.

    Anyway, there are other things. Modus operandi and vehicle information are not included. This is vital information if this act is going to have the preventative effect that the preamble claims.

    Are you aware that amendments have been submitted to address some of those things?

    Mr. Chair, I have a point of order.

    Mr. Holland, on a point of order.

    I'm just wondering if the best way to handle this is to perhaps allow the questions to be completed. And then maybe we could go in camera and talk about future business and how we might best be able to handle this.

    Monsieur Ménard, would you agree to wait for the discussion on your motion until we go in camera, and allow the other parties to ask the witnesses questions?

    That is fine by me.

    So I will ask my questions; I do not have a lot.

    Okay. I haven't kept track of the time, so let's give you another three or four minutes.

    I can still get some explanations.

    Okay.

    Why does vehicle description not appear in the bill? Why would a sexual offender's modus operandi not be in a registry of dangerous sexual offenders?

    I would like other explanations. I am not sure that the registry has to mention the fact that a person is in jail or has been released.

    If you do not need legislation for the geographic mapping, why has it not already been done?

    I'll give it a try.

    With respect to the geo-mapping issue, as I indicated earlier, it is an issue that goes to the heart of the operation of the sex offender registry rather than the legislation. I guess it's a decision the RCMP, the group responsible for both the maintenance and the administration of the database, would have to address in conjunction with the provinces and territories that ultimately own this national sex offender registry.

    I don't want to simplify the answer, but I wouldn't hesitate to suggest that resources are a major concern. Ontario decided to implement a geo-mapping system. That's a policy decision it made. Other provinces are free to do that if they wish. Ultimately, it's a decision that would have to be taken when it comes down to the type of operation you want to have with respect to the....

     But as far as I understand, it is something the RCMP would be best to address.

     You're actually out of time, but does anybody want to talk to the first question that he asked?

    In regard to the modus operandi, I'm not sure exactly what you're referring to. In the body of the Sex Offender Information Registration Act, section 2, there's a stated purpose that discusses the objective of public safety in regard to sex offenders, police investigation of sex offences, and protection of society as the new amendment. That may go to your concern. I'm not sure if what you're talking to is in fact in the test in the Criminal Code. Again, this act is no longer going to require any judicial discretion to determine whether an individual goes on the registry. I'm not sure if modus operandi is relevant in the Criminal Code at this point. You may want to clarify what you mean by that.

    As to the information remaining on the registry when the individual is out of prison, yes, it does for the term that the individual is ordered to be on the registry to comply. Once the individual's term has expired, then the obligation to report is no longer relevant to the registry's functioning.

    Mr. Davies, please.

    Thank you, Mr. Chairman.

    I don't want to shoot the messenger, but I will state for the record that one of the problems here is that of course this bill was drafted while we were putting the finishing touches on a report. I can tell you that many comments and witnesses' comments were obviously not taken into account in the drafting of this bill.

    I want to focus on vehicle information. I still have not heard a satisfactory answer to the question of why vehicle information--licence plate number, make, model, year, colour, and description of the motor vehicle that's owned, leased, or used by a sex offender--is not required to be included. I'd like a specific answer as to why exactly it isn't.

    Ms. Donaghy, I heard you say that you looked at vehicle information and considered it not appropriate. I'd like to know why you consider it not appropriate to include that information.

    I'll tell you one other thing. It's not an RCMP issue. Inspector Pierre Nezan told this committee that the registry is of no assistance to law enforcement in sexual crime investigations where police do not have a suspect vehicle description as a lead. It's not the RCMP's issue. They clearly told this committee that the legislation doesn't authorize that information, and they wanted it in the bill.

     Can you tell me why the minister did not see it as appropriate to put this information in the bill?

    Let me clarify my earlier comments.

    Indeed, there have been discussions in this committee and in many forums about the importance of vehicle registration. There was discussion in the context of the preparatory work leading up to the tabling of this bill. There was a decision taken by the government at this time not to include vehicle registration information in the registry. Our role as officials, of course, is to execute those directions and to work within the direction that we're provided.

    Again, with the greatest of respect, that's not an answer. I know the decision was taken, because I can read the bill, but that's not telling me anything I don't know. I want to know why that decision was taken, if you know.

    I'm not in a position to provide further comment on this. It was a decision that was taken.

    So you don't know, or you don't want to say. Is that accurate?

    Yes, I think that's accurate. As officials, we take our direction, and we execute the will of the government of the day, as you know.

    I want to move to automatic registration. This was an issue that we looked at very carefully. The committee heard that there were a number of difficulties with registration. One of the prime reasons was that prosecutors across the country either don't make the application, or they forget to make the application, or there are plea bargains. Of course, we have evidence from the Ontario model. The Ontario model has a longer list of offences than this legislation does, unless that's been changed by this bill.

     I also understand that one of the federal offences is sexual assault. This is a hybrid offence, meaning that you can proceed by indictment or by summary conviction. Mr. Rathgeber had some interesting comments to make about perhaps looking at separating off summary or conviction offences, which I think is something worth pursuing. In the committee's draft recommendation, which the minister clearly didn't have, we were about to recommend, at least in draft form, that we have automatic registration of offenders except in very rare circumstances that warrant a departure from this rule. We were going to determine those very rare circumstances.

    I'd like to know, before going to absolute automatic registration without any consideration of possible exceptions, whether there was any consideration of that and what considerations there might have been

     Once again, I would suggest that automatic registration has been the subject of a lot of discussion over the past number of years. There has been dialogue with provincial and territorial senior officials. There's been internal review between the Departments of Justice, Public Safety, and National Defence.

    Again, various proposals were considered fully. It was the direction of the government of the day that the proposal that's in the bill before you would become part of the act and the amendments to the sex offender registry.

    All I can suggest is that it is what it is at this point. I'm not sure what you had in mind in terms of your proposals and your report; I haven't seen your report. But I'd be happy to respond if you had something specific.

    I saw some heads shaking the other way when I mentioned that the Ontario list of offences for which automatic registration is required is shorter. Might I take it that you disagree with that? I think it was Mr. Yumansky.

    For one thing, I do not believe the Ontario legislation includes the 13 so-called “non-sexual” offences in its legislation, whereas in the federal legislation we do include those.

    I believe that offence for offence it pretty much matches. Everything that's included in the Ontario legislation is included in the federal one. In fact, now we have a couple of new ones in the federal one that the Ontario one doesn't have.

    I'm not going to quarrel with you, but are you sure about that, because--

    I know that the 13 “non-sexual”--

    That's true, but for the primary designated offences, I'm almost certain that the federal list is longer than the Ontario list.

    Yes.

    I'm sorry. If I said the opposite, that's why I'm confusing you.

    You're correct, absolutely.

    The federal list is longer. In other words, the Ontario list is automatic because it has a shorter, more tightly controlled list of offences. Of course, the only one that I have concern about is the federal hybrid offence of sexual assault. While all sexual assaults are serious, because there are degrees of this in terms of a summary conviction offence.... The example I have in mind is an 18-year-old who inappropriately touches his 16-year-old girlfriend. The father of the 16-year-old girl gets angry and charges him. The kid gets convicted. Now he's subject to ten years of registration.

    There may be the exceptional rare situation, in my mind, where it's not appropriate to hang a ten-year registration requirement on someone. The rest of the offences are appropriate, I think.

    That's one of my concerns. Was there any discussion about that?

    All I can suggest on that is that it was a matter of extended dialogue with provinces and internally. At the end of the day, the option of going fully automatic, similar to Ontario's, as opposed to not going to automatic was considered. There were certainly a number of different variations of going automatic.

    One thing I would point out is that if a sexual assault hybrid...and there are a number of hybrid offences in the automatic list. If you remove those summary conviction offences, you would see that the majority of sexual offenders would not be automatically registered. The majority of offences in Canada are in fact prosecuted summarily.

    That, I think, probably was a major consideration in terms of how this was going to be structured. If the direction and the will of the government—and ultimately of Parliament—is to have an automatic system of registration for sex offenders, if the majority of sex offenders are in fact subject to some type of discretion, then I don't know that you would be calling this an automatic sex offender registry on par with Ontario's.

    Again, I think that's a policy choice. It is a decision of the government of the day.

    Do you have a brief supplementary?

    On the latter point, how certain are you that the majority are by summary conviction? I'm looking at things like kidnapping, sexual exploitation of persons with disabilities, stupefying or overpowering for the purpose of sexual intercourse, purchasing sexual services of a person under 18, attempt to commit rape, rape. Those are not offences that are going to be prosecuted summarily.

    I certainly can undertake to get back to the committee with a list and the numbers, but I'm fairly certain that the majority of sex offence convictions in Canada are in fact summary.

    I would like that information, if you could, in writing. Thank you.

    Mr. MacKenzie, please.

    I don't think we have any questions, Mr. Chair, but I do believe there was a motion on the floor. I think we should deal with it.

     I wanted to give everybody an opportunity while we had the witnesses here to ask some questions in regard to it.

    Is the committee ready to proceed with discussion of the motion?

    We don't have to go in camera unless you wish.

    An hon. member: I wish.

    The Chair: You wish to go in camera.

    An hon. member: I do.

    The Chair: Okay.

    We will clear the room and suspend.

    [Proceedings continue in camera]

    [Public proceedings resume]

     I'd like to bring this meeting back to order. I have an indication here from Mr. MacKenzie that he has an issue he'd like to raise.

    Yes.

    Mr. Rathgeber.

    Thank you, Mr. Chair.

    It is with regret that I inform you, Mr. Chair, of a breach of parliamentary privilege. It has to do with the release of the report of this standing committee on the findings arising from the Iacobucci and O'Connor inquiries.

    As members may or may not know, and I certainly bring it to the attention of you, Mr. Chair, and ask that you report it to the House, this report has been leaked to The Toronto Star. It appeared in a story written by Mr. Jim Bronskill of the Canadian Press. One of the members of this committee is quoted in that story.

    I'm going to ask that this breach of privilege be reported to the Speaker of the House of Commons and that all appropriate inquiries and actions be taken, and I am going to, for the record, state, and ask the members on this side of the House to state on the record, that they did not release the contents of this story to anyone.

    On my behalf, I am saying on the record that I did not release the contents of this report of the standing committee, dated June 2009, a review of the findings and the recommendations arising from the Iacobucci and O'Connor inquiries, outside the confines of this meeting room.

    The request has been made that I report this breach of parliamentary privilege to the House and ask the Speaker to investigate. I understand that's clearly what the request has been.

    Are there any comments on that?

    Mr. Kania.

    I'm happy to discuss this issue, but if we're going to discuss it, should we not at least see what you're talking about? Do you have a copy of the article? Do you have enough copies for everybody? I'm not asking for myself; I'm asking for everyone.

    Can I get permission from the committee to distribute this article?

    Monsieur Ménard, do you have any objections to my distributing this article to the committee?

    No. I think I can give you another one; there is a French version.

    I understand the answer was no, that he has no objection.

    Copies are being made.

    Mr. Norlock.

    Just for the record, I spoke to no one about it, and to the best of my knowledge, no one from my staff did.

    It's in more than one paper. It's in The Journal of International Criminal Justice, the Federal Politics Journal and The Chronicle-Herald. I haven't gone through everything, but it appears to be widespread.

    Mr. Chair, at this time I would like to have on the record, as an individual, that I have not spoken to anyone, nor has anyone in my office, just so there's no misunderstanding.

    I'll go on the record and state that I did not talk to anyone, nor to the best of my knowledge did anyone in my office.

    All right.

    I'd like to have it on the record as well, Mr. Chairman, that neither I nor any of my staff members leaked any of this information, and I would certainly like to hear the same from the other side.

    Monsieur Ménard, you had your hand up.

    I did not communicate with reporters in any way and I am certain that no one on my staff did either. The staff is quite small.

    Are there any other comments or questions before I leave?

    Mr. Davies, please.

    I'll go on the record as well and state that neither I nor anybody in my office released any information about this to anybody at any time.

    Mr. Holland.

    I'll similarly go on the record. I've never communicated with any journalist at any time about the report.

    Does anybody else want to make a comment?

    I'd love to go on the record, but as a matter of principle, as a lawyer, I'm not commenting on anything before I've read it.

     Do you not have a copy? Okay.

    Mr. Oliphant.

    I'm happy to go on the record as well. People tend to not call me and I try not to be upset about that.

    As chair, I would like to also go on the record. I have talked to no one in regard to this report, and in fact I have not had staff here while it was being discussed.

    Okay. I will then report this to the House. I should be leaving here.

    Yes, Mr. Rathgeber.

    Mr. Chair, I just need to emphasize--and this is a serious matter--that somebody on this committee leaked this report to somebody. Either directly or indirectly, it ended up in the hands of the media. There are staff members who are privy to these deliberations. There are indirect routes of doing it. Every member in this committee has made some representation, and some of them slightly qualified, I would suggest. Nonetheless, I'd ask that the chair report this breach of privilege to the Speaker, and that the Speaker thereafter take whatever actions he deems appropriate.

    He will have to investigate this. It doesn't seem like we're going to shed much light on how this occurred.

    Is there anything else before I adjourn the meeting?

    I'd like to go on the record once I've read this, so I would ask you to give me two minutes.

    Just so we're clear, Mr. Rathgeber, what is it that you're asking the chair to do specifically with respect to this June 17, 2009, article in the Toronto Star?

    As with all matters of privilege, when the alleged breach of privilege is in committee and not in the House, which in this case I'm suggesting it is, the role of the chair of the committee is to report the breach of privilege to the Speaker at the first available opportunity and to ask the Speaker to take whatever actions he sees as appropriate.

    I'm going to respond in two parts. First, at no time, I can clearly say, have I ever spoken to this reporter, and I have personally never divulged any information from this committee in camera, ever. So I am agreeing with that, without reservation.

    But this is my major comment, now that I've read this. It says, “says a key source”, and then the last paragraph quotes Mr. Holland, but previously it says, “Mr. Holland said at the time it was “staggering...”, etc.

    So to be fair, the most you can suggest is that you can make an allegation that you want the Speaker to look at some key source--said something--but there is no indication in this article that anybody from this committee said anything. And I want that to be clear. So who is “a key source”?

    Mr. Kania, we deliberated in camera for four hours on Tuesday. The recommendations of our in camera deliberations have been released to the media. Somebody in that meeting breached the privilege of this House. I don't know who the key source is. I'm not suggesting that it's a member. It may be a staff member. The leak may have been indirect.

    All I'm asking--and let's be clear on this--is that the breach of privilege be reported. I am not making allegations.

    Okay, that's fine. I think we should do that, so I'm not disagreeing with you. I just want to be clear in terms of what this says.

    I think we have agreement all the way around that I report this to the House. It's an obvious breach.

    The article speaks for itself, as does my request, Chair.

    Okay, I will do that. It is my obligation, as chair of the committee, to do that.

    This meeting stands adjourned.