SECU Committee Report

Supplementary Opinion of the New Democratic Party

Don Davies, M.P.

            This is the first statutory review of the Sex Offender Information Registration Act.  The primary goal of this review is to determine what changes need to be made to the Act to ensure that the Registry created by the Act is best able to fulfill the purpose for which it was enacted.    

This purpose is two-fold:  to help police services investigate and solve crimes of a sexual nature, while preserving society’s interest in the rehabilitation of sex offenders.  In both cases, the over-arching objective is to make our communities safer places for everyone.

Indeed, those very principles are enshrined in the Act.  Section 2 explicitly points to the public’s interest in furthering police investigations of crimes of a sexual nature by giving police rapid access to certain information relating to sex offenders, as well as the public’s interest in the rehabilitation and reintegration of sex offenders into the community, thereby ensuring that they do not re-offend. 

The New Democrat position during the Committee’s study has been to work to strengthen the Registry so that it can most effectively achieve its purpose, and to ensure that public safety is protected by preserving the necessary balance between the aforementioned principles.

This report contains some extremely positive recommendations to improve the Registry’s effectiveness, and to close loopholes that were present in the original legislation.  New Democrats support all of these measures, and played a role in initiating a number of them. 

These recommendations include enabling the Registry to track whether an offender is incarcerated or deceased, allowing police to track offenders’ vehicle information, ensuring that sex offenders convicted abroad are required to register upon return to Canada and providing for better communication between federal, provincial and territorial corrections agencies and the police who maintain the Registry.

We believe that, overall, the report’s recommendations will result in a Registry that is more complete and effective.  There is, however, one area in which the report does not adequately reflect the opinion of the New Democratic Party.

            The report proposes a system of automatic registration for sex offenders, while allowing for “rare circumstances that warrant a departure from this rule when the judge is convinced that the impact of inclusion in the registry on the offender’s privacy and liberty would be grossly disproportionate to the public interest.”  To the extent that this proposal preserves judicial discretion, we agree.  The evidence that the Committee heard was that the primary failing of the current system of registration was that prosecutors were inadvertently neglecting to apply for registration.  The evidence we heard around judicial discretion, on the other hand, was that the system was working well.  In fact, the Committee heard from a Department of Justice official who stated that “right now it is working fully as intended, whereby probably 90% of applications that are brought before the courts result in an order of the court for the individual to register.” 

New Democrats believe that public safety requires giving judges discretion to keep people off the Registry who do not pose a risk to the public.  In fact, we heard direct evidence that if the Registry is overpopulated by those who do not pose any real threat of re-offending, as will inevitably occur with a fully automatic system of registration, the Registry’s utility as a tool for police to rapidly investigate crimes is actually diminished.

            It is the New Democrats’ position that the Act ought to be amended to make registration automatic upon conviction for offences proceeded by way of indictment, with the ability of the offender to make the case why such an order ought not to be made.  It is our view that the current test in this regard, namely, that an accused must show that the impact of registration on his privacy or liberty interests is “grossly disproportionate” to society’s interest in making the order, constitutes an appropriate and heavy burden that will only be discharged in the most clear of cases. 

By this process, we can cure the problem of prosecutors neglecting to make the request for registration by making such a request automatic upon conviction.  It also maintains the present location of the onus on the offender to show why an order ought not to be made, and with a heavy burden at that.  At the same time, we may also preserve the very important principle of judicial discretion that is so critical to the administration of justice.

            For offences proceeded by way of summary conviction, we support the present system in the Act that allows prosecutors the discretion to make an application for registration.  We again favour the rigid and heavy burden on the offender to show why such an order ought not to be made in such cases if an application is made. 

In this manner, we can preserve the important concept of prosecutorial discretion.  In the New Democrats’ view, the Crown prosecutors of our country are skilled and professional officers of our courts whose judgment is essential both to securing convictions and distinguishing cases that justify registration from those that do not.  We would point out that prosecutors must have the discretion to negotiate terms in order to obtain convictions or guilty pleas in appropriate cases, and preserving their ability to do so often serves to obtain convictions where otherwise guilty offenders might walk away free.

            The New Democrats believe that the Registry is an important and essential tool in helping to keep our communities safe.  We believe that sex offenders who present a danger to our communities ought to be registered.  We believe that our judicial system must have the discretion, flexibility and strength to ensure that the Act effectively achieves the most fundamental aim of all:  to keep our communities safe.

It is our view that the Report, with these amendments, would result in a Registry that is more likely to achieve this goal.