44th Parl. 1st Sess.
October 4, 2023 02:00PM
Mr. Speaker, we are here today talking about a very uncomfortable topic: sexual crimes, the way we deal with offenders and the way we protect victims. We acknowledge as a society that sexual crimes are heinous or injurious and have long-lasting effects, sometimes for the rest of the life of the victim. We recognize that the majority of victims of sexual crimes are women and children. We also acknowledge as a society that, based on the data we have, many sexual offenders will reoffend.
The Liberal government under Prime Minister Martin back in 2004 brought in a new tool for law enforcement to give it investigative and preventative tools. The 2004 Sex Offender Information Registration Act created the national sex offender registry and gave the courts the power and authority to order that people convicted of a sexual crime have their name and further particulars added to this registry. It was intended to be an enforcement tool. It was not available to the public, only to police agencies. The bill passed through the House of Commons unanimously.
However, there was a problem with that legislation, as it left it to the discretion of judges to decide whether or not a person had to have their name added to the registry; it was not done automatically. Some more lenient judges felt that the sentence itself was enough punishment and that the offender did not have to have their name added to the registry. However, of course, the mistake there is that the registry was never intended as punishment but as an investigative and preventative tool. The result of leaving this to the discretion of the judges is that up to one-half of all convicted criminals did not have their names added to the national registry, which completely undermined the efficacy and usefulness of it as a tool. If half the data is missing, what good is the registry?
In 2011, the Harper government remedied that gap with legislation that would make registration to the national sex offender registry mandatory. The registration was to be tied to the duration of the sentence, and for people who were repeat offenders or who were charged with and convicted of more than one offence, it was a lifetime registration. That legislation passed unanimously.
Now fast-forward a decade to October 28, 2022, or 11 months and one week ago. In 2015, Eugene Ndhlovu was convicted of two counts of sexual assault and sentenced to six months in prison with three years of probation. His name was entered into the registry for life because of the two convictions. However, he challenged the validity of these two provisions of the Criminal Code, and the Alberta trial court agreed with him and declared those two provisions to be unconstitutional. The Alberta Court of Appeal reversed that decision, and it then went to the Supreme Court of Canada, which reinstated the original finding of the trial judge, with a declaration of invalidity.
It was a split five-four decision of the nine judges sitting on the Supreme Court of Canada. The majority had this to say about section 7 violations: “registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re-offending.” In other words, if even one person who was not a threat to public safety ended up on the registry because it was automatic, the whole regime was unconstitutional.
The minority of four judges took quite an opposite view. They said that the mandatory registration in the 2011 legislation “is appropriately tailored to its purpose of helping the police prevent and investigate sexual crimes”. They noted that the evidence before the trial judge was clear and that even low-risk sexual offenders, compared to the general prison population, posed a heightened risk of reoffending, at five to eight times more likely.
That was the data the SCC had. Based on that, the minority said this: “It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.” I am thankful to the Supreme Court minority for respecting and deferring to Parliament and the hard work we do in response to what we hear from the public.
It is often said that judicial review of legislation under the Canadian Charter of Rights and Freedoms is not undemocratic, in that it does not attack parliamentary supremacy. Rather, academic scholars say that the judicial review process is better viewed as a dialogue between Parliament, which makes the law, and the courts, which review the law. Sometimes, as in this recent Supreme Court of Canada case, it feels very much like one-way dialogue, with the courts speaking and Parliament listening and obeying.
It is unfortunate that the four judges in the minority could not have convinced at least one more to come over to pay deference to Parliament. However, here we are having to deal with the majority decision, and we need to respond to that. We need to fix the law. We have been given one year to do it.
That brings me to the bill that is before us, Bill S-12, which has already been through the Senate. The Minister of Justice presented this bill to the House last week, saying it is Parliament's response to that court's decision. In reply to a speech given by my colleague, the member for Kildonan—St. Paul, the Minister of Justice said, “we are enacting what we believe would be the strongest possible regime against sex offenders in compliance with the Supreme Court's [decision]”. In other words, our hands our tied and this is the best that we can do.
He might be right, but that leads me to another issue and that is the rush with which this is being pushed through Parliament. We have a deadline of October 28, which is 24 days from now or three and a half weeks, one week of which will be a constituency week. We will not even be here in Ottawa. How are we going to deal with such an important issue in that amount of time? It is urgent, of course, but we also have to get things right.
At committee yesterday, the Minister of Justice told us that social science supports the legislative intention of the drafters of this legislation. He might be right, but I would very much like to see that social science data. I would like to hear from experts in the field. I would ask the experts whether those convicted of a sexual offence are indeed five to eight times more likely to reoffend, as the minority had said in the Supreme Court decision.
Will there be time? This is important legislation, but it is also important that we get it right. We cannot miss the October 28 deadline, or the police will lose a very important investigative and preventative tool. If we are serious about being charter dialogue partners with the courts, this should have been before Parliament months ago. I blame the Liberal government for dragging its feet on this. It put us in this very difficult position.
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Mr. Speaker, first of all, I am going to donate to the cause, so I thank the member for that. It was good work.
The member is absolutely right that the vast majority of victims of sexual assault are women. He is also absolutely right that, as the member for Fundy Royal said, witnesses have told us that the justice system is a legal system and not really a justice system. We heard from witnesses at committee in our victims-of-crime study that they feel like they are on trial. When they are giving evidence under cross-examination about the sexual assault that happened against them, they feel like they are on trial. That is unfair and needs to be fixed.
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Mr. Speaker, there are good things in this bill. One of them is to give more voice to victims in publication bans, so we completely support that. However, we need to study the bill. It is too bad that it is going to be so rushed, but our committee is soon going to be seized with this topic. We have already started the investigation into the bill, and we will do the best that we can with it.
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Mr. Speaker, it is a great question that would take a lot of conversation to fully answer, but it goes to show us how important the sex offender registry is. It is a very useful tool for the police. It is not perfect, but it is another tool.
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