Hon. Marie-P. Poulin:

Honourable senators, I am here this evening to respond to Bill S-2, which is designed to tighten the law with regard to sexual crimes.

This bill contains recommendations aimed at providing more robust provisions for investigating, prosecuting and monitoring sexual offenders.

As a result, the tools of law enforcement will be enhanced and there will be greater public protection against perpetrators of heinous offences, particularly in the areas of child pornography and the sexual exploitation of children.

By way of background, the precursor to Bill S-2 was Bill C-34, introduced in the other place about a year ago. The other place's Standing Committee on Public Safety and National Security reviewed the Sex Offender Information Registration Act.

That committee's report addressed some concerns put forward by the Liberal members and was tabled in the house last December. There, its progress was curtailed by the government's prorogation of Parliament.

Honourable senators, it should be noted that the review, which was started in February 2009, was actually instigated by the standing committee in the other place because, under the terms of the act itself, a review should have been conducted two years after it came into force in December 2004.

That the government introduced Bill C-34 at the time the standing committee was, of its own volition, about to deliver its independent statutory review last December shows how muddled it was over its own much touted position to get tough on crime.

If the government was so eager to pursue a tough crime policy, one wonders at the long delay in strengthening the National Sex Offender Registry to better protect Canadians from sexual offenders.

What purpose did the government think would be served by pre-empting a standing committee — and its own members on that committee — by putting forward Bill C-34 at the exact same time its committee was about to table an independent report in the other place last December? It is no small wonder that committee members were perplexed by the government's actions.

Fortunately, the substance of the committee's report is reflected in the revised draft of the Bill C-34 legislation now known as Bill S-2.

Had the committee not initiated its own statutory review, despite the government's several years of neglect of that obligation, the reform legislation we are dealing with now would still be at the starting gate.

Finally, we have the results of the statutory review before us in Bill S-2, the reincarnation of Bill C-34, revised as it is to refine the Sex Offender Information Registration Act.

Honourable senators, in debating whether to send Bill S-2 to the Senate's Standing Committee on Legal and Constitutional Affairs, I applaud the House of Commons committee for its work and wish to emphasize the merits of its legislative proposals.

At the same time, I urge the Senate committee examining the bill to exercise due diligence in several areas that I will discuss shortly.

First, though, we need to examine the bill in the context of the times.

Every day, we are barraged with terrible imagery from a host of television crime programs. We get the impression that we are being overrun by rapists, molesters and murderers.

The issue that springs from that imagery is whether our laws are a reaction to fear that weighs too heavily on children, their parents and older people.

In other words, does the evidence warrant the degree of intrusion proposed in S-2, and if so, how far? For at stake here are victims' rights, offenders' rights, and the protection of society. We must be careful to strike a balance.

Honourable senators, permit me to review a few facts with you. To begin with, the National DNA Data Bank was set up in 2000 to collect evidence from crime scenes containing genetic profiles derived from bodily substances — an initiative aimed at prosecuting crimes. This data bank, administered by the RCMP, allows authorities to match profiles from crime scenes against samples taken from offenders by court order.

In addition to the data bank of 2000, the Sex Offender Information Registration Act, or SOIRA, was proclaimed into law in 2004. Four years later, in 2008, amendments to the National Defence Act ensured that SOIRA applied to Canadian Forces personnel found guilty of designated offences at court martial. The National Sex Offender Registry is governed by SOIRA, and the National DNA Data Bank by the DNA Identification Act.

All these laws dealing with crimes of a sexual nature come against a backdrop of perceptions that such offences are rampant. Such views are not supported by the numbers. Figures from Statistics Canada show that crime is actually on the decline — down 17 per cent in 2008 from 1998. The crimes of aggravated sexual assault and sexual assault with a weapon or causing bodily harm were down 43 and 40 per cent respectively over the same 10-year period. Sexual assault involving the least personal injury was down 23 per cent.

Unfortunately, an exact assessment of sexual crimes against children is not readily available due to different reporting methodologies over that span of time. Nevertheless, I do believe that all of us in this chamber know that the raw numbers that are available do not begin to reflect the stark horror behind the adults and children who suffer terribly each year from various forms of sexual assault.

In 2008, about 1,400 children were reported by police to have been victimized. Overall, there were almost 21,000 assaults with relatively minor physical injuries, a category known as level 1. At the next most serious level, level 2, there were 352 sexual assaults that involved a weapon, threats to use a weapon or causing bodily harm. At the highest category, level 3, there were 139 cases of sexual assault in 2008 that involved wounding, maiming, disfigurement or endangerment to life.

Thus, somewhere in Canada today, children and adults are undergoing a terrifying ordeal. We can only imagine the horror of brutal, perverse acts that traumatize and damage minds and bodies. That is why we must ensure that this legislation meets its objectives.

Honourable senators, it is clear that, with some provisions, the recommendations for improving the six-year-old Sex Offender Information Registration Act are reasonable. However, that said, there are several areas that need addressing. I have three major concerns which I will briefly speak to. They are as follows.

First is the list of primary offences, which require offenders to be automatically put on the sex offender list. Second is the absence of adequate judicial discretion in determining who should be exempted from the list.

Third, there are the potential difficulties inherent in offenders seeking to have court orders terminated, that is, to be removed from the list.

Before moving to those points, I would point out, as my colleague Senator Runciman did, that Bill S-2 is modelled after similar legislation in Ontario, the Ontario Sex Registry, often referred to as Christopher's Law in memory of a young boy who was raped and killed by a convicted sex offender. Christopher's parents deserve not only our sincere sympathy, but our admiration and gratitude. They championed the idea of the Ontario Sex Registry, following Christopher's horrible experience.

Honourable senators, the category of sexual offences is similar in both the Ontario and federal lists. All offences are covered by the Criminal Code of Canada.

In April a year ago, there were 11,963 offenders registered on the Ontario registry, and more than 19,000 registered in the national registry. Clearly, the numbers seem to show a disproportion between the two registries, and perhaps the same situation exists in other provinces.

Certainly, enforcement rates vary province by province because of different judicial practices, including plea bargaining. In addition, about 50 per cent of offenders found guilty of a designated offence have not complied with national register orders, but, hopefully, this will end with the passage of Bill S-2.

As it stands, offenders placed on provincial registries have only to move to another province to escape compliance. That should end with Bill S-2.

The committee may want to consider the apparent duplication of multiple registries. Undoubtedly, the national registry list will grow as the new mandatory orders take hold, resulting in greater manpower and financial resources. The benchmark will be whether the new measures are effective in reducing sex crimes and protecting the public.

I mentioned three items that I believe should be heeded during the committee review.

First, there are 18 primary offences identified in the Criminal Code that warrant mandatory inclusion on the national offender list.

They are: offences in relation to sexual offences against children committed outside Canada, such as sex tourism abroad; sexual interference; invitation to sexual touching; sexual exploitation of a person with disability; incest; bestiality in the presence of or by a child; making, possession, or distribution of child pornography; parent or guardian procuring sexual activity; luring a child by means of a computer system; exposure; stupefying or overpowering for the purpose of sexual intercourse; living off the avails of prostitution of a person under age 18; obtaining prostitution of a person under at 18; sexual assault; sexual assault with a weapon, threats to a third party or causing bodily harm; aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization; and removal of a child from Canada for sexual purpose.

Under S-2, all these crimes are treated the same: a mandatory order to be placed on the offender list regardless of the crime. Absent in the judicial process is discretion by the judge to determine whether the nature of the offence warrants the stigma of being placed on the registry.

And I should add that it is the offenders who will be responsible for reporting their movements to authorities. A moment ago, I touched on the types of offences that will trigger automatic registration, and I respectfully ask the committee to pay close attention to the different degrees of severity and the interpretations possible upon conviction.

For example, does a case of exposure warrant the same degree of punishment as incest or bestiality involving a child? Care must be taken to not be over-zealous.

One redeeming provision of the bill is that offenders will have the opportunity of petitioning the court to terminate an order after a certain length of time. That is, if they have the knowledge, capability and financial resources to launch an appeal. Furthermore, in the absence of judicial discretion, one pauses at the prospect of emasculating our judges by tying their hands and imposing mandatory sentences.

Our judges are learned individuals who, in their legal careers, not only have demonstrated proficiency in the law, but are experienced in weighing evidence and issuing judgments consistent with the cases before them.

How can we seriously believe that they would not distinguish between different types of offences? Would it not be unjust that two offenders should suffer the same consequences — the ignominy of being placed on a reviled list — when one has committed a far lesser crime and is but a petty offender? Might a judge be inclined to record a not guilty verdict because of the mandatory order required under the proposed legislation? Would justice not be better served by providing discretion in sentencing?

Should the first-time offender not be given an opportunity at sentencing to demonstrate why he, or she, should not be placed on the list? Would this not ensure a fairer system than the one-penalty-fits-all approach?

Honourable senators, we have little tolerance for sex offenders, and I concur. Yet convictions should be tempered with a judicial system that has the flexibility to keep our communities safe, without imposing undue burdens on those guilty of secondary, or lesser, offences of a sexual nature.

As the list grows and grows, resulting in escalating administrative and monitoring costs, would it not be prudent to enable individuals who no longer pose a threat to be taken off the list?

As for indecent acts, abduction, and kidnappings, again, mandatory orders for inclusion on the national registry are required if it can be proved that, in the commission of a designated crime, there was an intent to commit an offence of a sexual nature. One wonders about the definition of an indecent act and why that term was put in this "secondary" list of sex offences while exposure is among the primary offences. Perhaps this can be clarified at committee.

In addition, can the government assure Canadians that police will have the manpower and financial resources to monitor the offender list and ensure compliance with court orders?

Honourable senators, the Report of the House of Commons Standing Committee on Public Safety and National Security noted that the National Sex Offender Registry is not a panacea, and that the implementation of innovative solutions for the monitoring and handling of sex offenders must remain a priority.

In keeping with that assertion, I have touched upon three areas where, I believe, improvements could be made: distinguishing between the different degrees of seriousness of offences; restoring an element of judicial discretion; and re-evaluating the process for submissions for terminations of orders involving the offender list.

Those are my observations, honourable senators.

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