Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for March 24, 2004
OTTAWA, Wednesday, March 24, 2004
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:30 p.m. to give consideration to Bill C-16, an Act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other Acts; Bill S-15, an Act to amend the Act of incorporation of Queen's Theological College, and Bill C-250, an Act to amend the Criminal Code (hate propaganda).
Senator George J. Furey (Chairman) in the Chair.
[Translation]
The Chairman: Today, we will be considering three bills.
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We will start by carrying on with our work on Bill C-16, the sex offender registry. We will then go on to consider Bill S-15, a private member's bill sponsored by Senator Murray concerning Queen's Theological College. The public part of the meeting will end with one witness on Bill C-250, the amendment of the hate propaganda section of the Criminal Code. I would ask senators to remain at the end of the meeting to discuss future business in camera.
Prior to hearing from witnesses, I should like to address a concern raised by Senator Tkachuk at a previous meeting on Bill C-250. That concern was that Mr. Svend Robinson, in his testimony on Bill C-250, had indicated that he was not aware of any major religious leader in the country who had voiced opposition to the bill. Senator Tkachuk took exception to this evidence and drew it to our attention as either a point of order or a point of personal privilege, indicating that he was not sure in which category it belonged.
Honourable senators, I would suggest that it belongs in neither category. There has been no breach of the rules of the Senate and therefore there can be no point of order. There has been no breach of the rights enjoyed by parliamentarians and thus no breach of privilege. Had there been a breach of privilege, I suggest it would be the chamber and not the committee to decide that question, in any event.
It is my opinion, that it was merely a difference of opinion. We have to assume that Mr. Robinson's evidence was given in good faith, even, in fact, if some portion may later be revealed to contain inaccuracies. Moreover, Mr. Robinson's evidence was couched with the term, ``as far as he was aware.'' There was no opposition from a major religion. His evidence was his personal belief and its expression constitutes neither a point of order nor a point of personal privilege. I believe this clarifies matters and I propose to move on to hear witnesses as proposed on the agenda. Do I have the concurrence of the committee?
Hon. Senators: Agreed.
The Chairman: For Bill C-16, an act respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other acts, we welcome from the Canadian Bar Association, Professor Allan Manson and Ms. Tamra Thomson. I would like to remind witnesses they have five minutes to make a presentation and that will be followed by questions from senators.
Ms. Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Thank you honourable senators. The Canadian Bar Association is very pleased to have the opportunity today to present its views on this important bill to you.
The Canadian Bar Association is a national association of approximately 38,000 members, jurists from all parts of Canada. The brief that you have before you was prepared by members of the criminal justice section and, most particularly, the committee on imprisonment and release. I should note that the section counts amongst its members both crown and defence attorneys and it brings this optic to its analysis of the bill.
I will start by saying that the time we had after the request that we appear before this committee did not permit us to update the submission to reflect the new numbering of the bill from the last session. The written submission that you have before you reflects the bill as it was presented in the last session and, most particularly, the section numbers that were in Bill C-23. Where that is significant to our comments, Professor Manson will make reference to the new sections but I will ask him now to address the particular matters in the bill.
Professor Allan Manson, Chair, Committee of Imprisonment and Release of the National Criminal Justice Section, Canadian Bar Association: Thank you, honourable senators. As Ms. Thomson said, the brief that we have circulated labelled Bill C-23 was done while this matter was in the House. I will refer to parts of it and I will try to update the section numbers as I do that.
This position is the consensus position of both the national criminal justice section and the committee on imprisonment and release. Those groups consist of a number of defence counsellors, prosecutors and academics and everyone agrees about one thing: This is bad policy; this is a bad idea.
I can tell we have gone far down the road. It has already passed the House of Commons and you may wonder why we are going back since, obviously, both the government and the House are committed to it. I think it is important to understand why we think it is bad policy. That gives context to any potential Charter difficulties because, if we assume that at some point there might be constitutional challenges, the same factors will apply with respect to the section 1 justification.
Let me start with why we think this is a bad idea.
We think this scheme, and in fact any sex-offender registry scheme, will achieve very little, will cost a lot, and will distract attention from real sources of risk to children and other vulnerable people. It will distract attention from developing potential strategies for ameliorating those risks, which everyone has to agree, underlie the concern to develop a scheme like this, the need to protect vulnerable people in the community, especially children.
Let me explain why we think these three results flow from this kind of legislation.
First, let us look at the murders of children in this country. Obviously, this is the most serious offence that everyone would want to ensure as best we can, some level of protection. In 2001, out of 554 homicides in Canada, 39 were children under the age of 12. Thirty were killed by their parents, six by friends and relatives, and only three by strangers. It is our position both with respect to crimes of violence and sexual offences that the greatest harm to children lies within the family and within friends and associates of the family. The greatest harm to children flows from dysfunctional home contexts.
Second, if we look at the nature of this kind of registration scheme and listen to the police argument that it will help the investigation and apprehension of people who have committed crimes of this nature, especially crimes against children and other vulnerable people, you have to remember that there are three pre-conditions before that could ever happen.
The first is that the real perpetrator must have been previously convicted; therefore, people such as Paul Bernardo, for example, would not be on your registry. Second, assuming that, the perpetrator would have to be on a registry, have complied with registration, and committed the new offence or attempted to commit it near the registered address. If they move to the next county it is a different ball game.
For example, in Massachusetts, where they have similar legislation, a 1999 study went to their penal system and found 136 offenders who were clearly sex offenders. Then, they did a backward-looking analysis of those files to determine if a registry system at the time of their offences would have enhanced the police ability to catch them in any way. They found only four cases out of 136 where that enhancement existed. With respect to those four, they concluded that there would be a good chance that registration might have avoided victimization, but only if a great investigative effort was spent — four out of 136 cases.
I would suggest to this group that we should have a meeting of various agencies in the community that are concerned about providing care, treatment and protection to children and vulnerable people including: children's aid agencies; residential treatment centres providing emotional, psychological and psychiatric help to children; special education agencies that help children in school; and other agencies that provide treatment for dysfunctional families and children at risk. At such a meeting we would also give a chair to the sex-offender registry agency. The topic for discussion would be what to do with $4 million — because that is what Ontario spends on its registry — I would be prepared to wager if you were the decision-makers, that agency will not get the $4 million. The other agencies would get the $4 million, the ones in the field doing things to help and protect children and vulnerable people, not the people keeping a list of past offenders.
There is also the question of distraction. Supporting legislation of this sort makes us all feel we are doing something. I do not think we are. The opportunity costs Ontario $4 million a year, but there is also the distraction amongst legislators, government officials, and other agencies because you think you are doing something. Therefore, it distracts you from sitting down and asking some hard questions about what might be done.
I should like to list the four Charter violations that we think exist in the legislation, some of which is addressed in the materials. I should say that the part of our brief about defences has been accepted, and there was an amendment in the House. There now is a reasonable excuse defence, so we are pleased about that.
With respect to potential Charter violations, first, the orders are all of mandatory length based solely on the maximum sentence for the offence. They do not engage the section 7 principle of fundamental justice guarantee of proportionality. There is no link between blameworthiness, dangerousness and risk, and the length of the orders. The orders are all 10 years, 20 years or life. They are mandatory, and there is no link between those periods and the actual case and the risk presented by that person.
Second, and this is complicated, is retrospectivity. There are two aspects of it in this legislation. With respect to mandatory orders, the section number is 490.013, subsections (2) to (5). With respect to retrospectivity, it pops up twice — 490.012(3), which provides for lifetime orders in the case of people previously convicted, including those convicted before the legislation comes into force. That is the retrospective application. Then there is 490.019 that permits notices to be served on people previously convicted or those in the Ontario registry.
Our point is a simple one: Constitutional law in Canada, both the jurisprudence of the Supreme Court of Canada — for example, from cases like R v. Gamble, 1988 — states that people are entitled to be sentenced in accordance with the law that exists at the time of the offence; and 11(h) of the Charter states that a sentence cannot be compounded or supplemented after the person has been convicted and punished.
Bringing these two groups of people into the new regime and first, restricting their liberty by requiring them to report, and second, subjecting them to potential penalties for failing to report, in our respectful view, is a compounding of their original sentence, and a constitutionally infirm retrospective application of this legislation.
The third concern we have is the exception in 490.012(4), which states that if an offender shows that there is a gross disproportionality between the impact on their privacy interest and the public interest, then they are exempt. In our view, this is an illusory exemption, and those defences are constitutionally prohibited as explained by Chief Justice Dickson in the case of Morgenthaler.
Why is it illusory? It assumes a public interest in ``protecting society through the effective investigation of crimes of a sexual nature to be achieved under this act.'' I tried to explain at the beginning that our position is that there is no public interest. You are spending a lot of money to achieve very little. In our submission, we consider the potential exemption illusory. Even though a similarly constructed exemption exists under the DNA data bank legislation, there is a real value to investigations of DNA data banks. This is just a list of people's names.
The last point is not only are people who have been convicted of designated offences brought into this net, but people who have been found not criminally responsible by reason of mental disorder. That also poses constitutional problems, because our Supreme Court has said these people can be addressed through the criminal justice system, and their liberty interests affected by the criminal justice system, to the extent that they represent a risk and to the extent that any of that impact is the least intrusive.
This is the Supreme Court of Canada decision in Winko v. British Columbia (Forensic Psychiatric Institute). Treating them the same as everyone who has been convicted and subjecting them to the same mandatory penalties without regard to the nature of offence also presents constitutional problems.
For all of these reasons, if there are Charter problems you then have to go section 1, and the government will have enormous difficulty using section 1 to justify this when it will be difficult to show there is any benefit achieved by a system of this sort. Thank you very much.
Senator Beaudoin: I would like to know a little bit more about the disproportionality in the exemption. You referred to Chief Justice Dickson. What was the case exactly?
Mr. Manson: In respect of the Morgenthaler judgement, Chief Justice Dickson expressed concern that what appeared to be a statutory defence was illusory. He argued that it would not be practical or reasonable for someone to pursue that. He made the point that it is a principle of fundamental justice if the government is going to intrude on the liberty interests of individuals, and at the same time, to balance rights, provides what appears to be a defence or an exemption, it has to be realistic. It has to be based on a principle that can be carried into practice.
Our position is that because this exemption involves a balancing of the impact on the individual with this public interest, we think it is a sham. It is our respectful submission that there is no public interest in this kind of investigative tool.
Senator Beaudoin: This is what worries me. You say what is before us is not useful, proportionate or of any help. However, that is a judgment on the bill itself.
I fail to find a link between what you say and section 7 of the Charter, which refers to the fundamental justice. We have to rely on something, and section 7, of course, is the right to life, liberty, et cetera, and the fundamental justice. How can you say that it is not the fundamental justice? How can you say that the exemption is really disproportionate — probably because you say the bill is of no interest, of no use? Is that what you have in mind?
Mr. Manson: If we go back to Morgenthaler, the principle of fundamental justice necessarily constrains the ability of government to affect an individual's right to life, liberty or security of the person. Chief Justice Dickson was the only one who addressed this, but it has never been challenged.
If the government, the state or legislation were going to offer a defence or an exemption, under the guise of showing fairness, I would submit this exemption is like the defence in that case. Here, for example, it says ``the court is not required to make an order, if it is satisfied that the person has established.''
The defence has to be real. It cannot be an illusion. In our respectful submission, once this section factors in the as public interest that has to be weighed, the assumption that ``the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration...'' is false. It is a sham.
Senator Beaudoin: You say that the mere fact that we have a registry and the way it is done in this Bill C-16 does not have any virtue or value.
Mr. Manson: The best example would be this: If Parliament created an offence — any offence you can imagine — and then said but no one shall be convicted if after all the evidence is in they are capable of levitating themselves up to the ceiling, I think the courts would say this is an illusory defence. It has to address a realistic potential for the individual to exculpate himself or herself. That is our argument.
Senator Smith: You mentioned the 39 homicides. In terms of sexual assault, do you have that data on that and would the ratios be the same? There must be a lot more numbers. Do you know those numbers?
Mr. Manson: I will have to do this from memory because I only have the homicide data with me. It is somewhere between 70 to 80 per cent. Family members, friends and associates cause offences against children. I have this data but I am doing it by memory and I apologize. It is a very high proportion. Part of the problem is that we have this myth that it is the monster, the other, who commits these. Those offences happen but they are not common. Children are most vulnerable in their home, in their family and social situations.
Senator Smith: For the sexual assault, are we talking hundreds or thousands?
Mr. Manson: The gross number of sexual assaults?
Senator Smith: The murder figure was for twelve or under, was it not?
Mr. Manson: I was talking about children. There are large numbers of sexual assault against children. I could not tell you the gross numbers by memory.
Senator Andreychuk: You a speaking to at least one convert — if we used our money in preventative measures and community services we would be better off on the justice side. Some of what you say is correct.
The government came in saying that the registry was important because there is a public demand. That is the comfort level. I understand that. They also said that it was an investigative tool for the police and I understand that. Therefore, it is a question. It may not be the most legally sound piece of legislation but there is some sort of public appetite for it. The government is responding to that.
What troubles is that in their submission the government said that being put on a registry was not a punishment. It was an investigative tool and it was for the benefit of the people on the registry as much as for people who might someday be subject to a sexual predator.
Based on the fact that they say the DNA has discounted convicted criminals as often as it has ensnared them, do you believe that the sexual registry is part of the punishment of the crime that you committed or if it is merely an investigative tool, a condition but not necessarily a punishable one?
Mr. Manson: One of the staff gave me a copy of what was filed here. I said between 70 to 80 per cent. It looks like the statistics is 79 per cent. My memory was close.
Creating burdens that impact on people's liberty interest has to be viewed as part of a punishment. It does that by requiring people to physically report, but more importantly by subjecting people to potential penalties for failure to comply.
When I gave evidence in front of the House of Commons, I was on the same day as Detective Inspector Young who runs the Ontario registry; he is with the OPP. He gave the figure of the $4 million a year for an annual budget. He said it had a very successful compliance rate. He said this is a successful program and one of the MPs asked him why is it successful. He said it had a very high compliance rate with over 92 per cent. When pushed about why is it successful, he said, we are always being patted on the back by police agencies. He could not at that time — I understand since then he can — point to a case where the existence of the registry did help an investigation.
Again, going back to Massachusetts, we are talking about the possibility of 4 out of 136 cases. It is a tiny number. The people responsible will tell you it is working but they mean they have a big list and most of the people on the list comply. I think it is wrong to assume that it is an investigative tool. That is very unlikely; it is not like the DNA database.
Senator Joyal: To come back on that simple issue of the word chosen by you versus the word chosen by other witnesses. Senator Andreychuk has put her finger on it. We were told by the representative of the police association and by the Minister responsible for public security that this is essentially a tool and so it is legally neutral. In my view, a ``tool'' has no consequences in legal terms; there is legal substance to the word.
The way I read the bill — and I raised that issue often during the course of our study of this bill — it is difficult to disassociate this system with the sentence. In fact, you get a longer or shorter term depending, in fact, on the crime, the sentence and, of course, the possibility of coming back. That is the way I reflect on it. I might have been wrong but that is why I questioned the various witnesses we had so that they could offer us insight on this.
Explain to me on which legal ground are you concluding that this is part of the sentence and as such, is submitted to the Charter prescription on sentence? That is your reasoning if I understand correctly. Could you come back on this? I understand your retroactivity argument. However, this one to me is still one of the key elements of this bill and since we have contradictory statements over the nature of what we are doing in terms of legal impact on the Charter, I would like to hear from you on this.
Mr. Manson: I listed four major constitutional problems. I will deal with retrospectivity first, because I think it shows why we are talking about an additional punishment and additional penalty.
Proposed subsection 490.012(3)(a) provides for a lifetime order, if the person convicted today ``was, before or after coming into the force of that act, previously convicted...'' Even before the act comes into force, something that happened yesterday, last week or 10 years ago can now be reactivated and becomes the trigger for turning a 10- or 20- year order into a lifetime order. It seems to us that that is a retrospective application. It is a new burden that flows directly from that prior conviction.
The other section to which I wish to refer is 490.19. Under the provisions of this section, the Attorney General can serve a notice on someone who was, on the date it comes into force, subject to a sentence. In other words, they are still serving a sentence, but for something that was committed before this came into force.
Our position is simple. A person is convicted and punished in accordance with the law that exists at the time of the offence. New burdens and penalties cannot be added in the future.
Why is it a burden or a penalty? There are obligations to do something that impacts on one's liberty — that is, one is required to show up and report. That may not be a big obligation. However, the real one is if that one fails to show up, then one is subject to prosecution. That potential is certainly a new burden and penalty.
That is our position, senator.
Senator Bryden: I thought Senator Joyal's question was more direct than that. He said he understood the retroactive measures. I thought the question was with regard to someone who has never been convicted before but is convicted today. What was presented to us was that being included in the registry is not part of the sentence. It is not a sentence. I heard you say that it is. On what basis do you say that?
Mr. Manson: It is the same argument. It is a new burden and potential penalty that is placed on that person as a function of the conviction. That is what punishment means.
In Canadian law, punishment means state-imposed burdens that are potentially painful and costly. By the same token, if there were a sex offender tax act, under which all people convicted of sex offences would be taxed $1,000 on top of their —
Senator Bryden: Let us talk about the real world here and not supposition.
Mr. Manson: This is the real world. You are convicted —
Senator Bryden: There is no provision that says if you are convicted, you pay more tax. Let us stick to what really happens.
Mr. Manson: What really happens is if you are convicted you must go down to the police station and register. You must keep your registration up on a regular basis and notify of change of address. If you fail to do that, you will be prosecuted and you can go to jail. Those are new penalties and burdens.
The Supreme Court of Canada has made it clear that default and payment of a fine is a new penalty, even though it is just potential and speculative. It is the same thing here. You are subject to the new penalty. You must do ``A'' and if you fail to do ``A'' you can be incarcerated.
Senator Joyal: I am sorry to be labouring on this. I am trying to understand what has happened before, and we want to subject it to the registry. You have some important objections to the fact that we are creating retroactivity on the basis of a sentence. We have the present. You say forget about those ones with regard to retroactivity and start with those ones who, next week, will be sentenced.
If, in your upon opinion, the registry is part of the sentence, then which aspects of the bill in relation to the sentence would be subject to a Charter challenge?
Mr. Manson: The first point is the fact that the duration of the orders is mandatory. They are not proportionate either to blameworthiness, risk or dangerousness. They are 10 to 20 years in life based on where you fit on a list. The only relation is the maximum sentence available in the code.
Our argument is that because you are talking about pains and burdens that implicate an individual's right to life under section 7 of the Charter, it must be in accordance with the principles of fundamental justice. One principle of fundamental justice is that punishment must be proportionate to the sentencing goals. Here there is no proportionality.
Forgetting about retrospectivity, the second argument is the one that I think I failed to persuade Senator Beaudoin about, namely, the illusory defence.
The third is the dragging into this group of the not criminally responsible by reason of mental disorder. You can imagine a number of situations of inherent unfairness in subjecting this group of people to new pains and penalties, especially ones who require compliance with a regime, when often one of the problems of the people in this particular group is their inability to comply just with the medical and therapeutic regime. We will now create more criminals or potential criminals out of people who are sick.
Forgetting about retrospectivity, those three are serious Charter concerns.
In the earlier bill, the trigger for police access to the code was reasonable belief that they were investigating a sexual offence. That has been changed to reasonable suspicion. We have gone from ``belief'' to ``suspicion.'' I would have to think about the legitimacy of that threshold. However, I think that is a subsidiary point.
The major ones are mandatory duration, not criminally responsible by reason of mental disorder and what we argue is an illusory exemption, the matter Senator Beaudoin and I were debating earlier.
Senator Pearson: Because I am not a lawyer, I will not talk about some of the legal aspects. However, I would like to turn on its head one of the comments that you made about the fact that children are most at risk from people they know. I agree with that. That is not a question.
I am assuming that if you have a proven sexual assault case and the accused has been sentenced, that that person's name, even though he is the uncle of a certain child, goes on the list. That does not persuade me that somehow those people do not belong on a list. On the contrary, I tend to think this would be pretty salutary and would ensure that they paid more attention when they were around their nieces and nephews.
This tool is intended not only for children, although that it is one of the prime reasons I support it. It is also intended for other vulnerable people, including women and those who are attacked. I have not been persuaded by your argument that this is an extension of a sentence. I see it as an administrative issue. Like any of us who run a car, we have to register it. It is mandatory that we register our cars. There are penalties if we do not.
I know you probably have legal answers to that. However, in my sense, I do not have trouble with that.
The retrospectivity aspect gives me some unease. I can see that as an issue. My concern is with regard to the issue of the mentally disabled. The trouble is that we know that a great many serious sex offenders are in fact pathological. We should not decide not to keep track of them just because they are defined as being mentally ill, because we know we are dealing with psychopaths in many of these cases.
I have not been convinced that this is part of the sentence that they are undergoing. I do not know whether you saw the evidence from our questioning before, but I did ask that there be very careful attention paid to the impacts of this, and in how many cases did the police use it. After all, this has come to us partly from public pressure, partly from the police, and partly from the provinces. I never buy the argument that you should spend $4 million on something else because you should do something. In those cases I think you may have to do both. Also, I have never found out when you say $4 million from X that it actually went to Y.
That is my concern. I am supporting the bill. We have a review in two years to see whether it is doing what it has set out to do.
Mr. Manson: In our submission at the time, there was no review or monitoring mechanism. I am pleased to see that there is some. In respect of what you said, if you have a list, by all means include uncles, aunts and nephews. Our point is simply that it is not much of a tool simply to have a list.
I would refer you to a report done by Justice Archie Campbell of the Ontario Superior Court on the Bernardo prosecution. Following that, he did a one-person task force. He is involved now in a SARS inquiry. In his lengthy and detailed Bernardo inquiry, about what went wrong with the investigation and why it took so long, et cetera, he talked a lot about a new software program a number of police agencies are using. It is called VIClass. It is about tracking violent offenders through characteristics of offence. I understand that most sophisticated police agencies in Canada are now plugged into it. That is a ``tool.'' It creates no burdens and penalties. It means when you investigate case X and you bring your prosecution against that offender, you put all of your facts into a database and they are available to all the other police agencies. Whether they are in Vancouver, Saskatoon or Restigouche, they can plug in and say, ``We have a similar case. Was this guy in our province?'' That is a tool that makes sense. DNA is a tool that makes sense. This just does not make a lot of sense.
I understand that Detective Inspector Young could now point to a case that was solved with the help of this. However, after so many years and $4 million a year, you are not getting much bang for your buck. It is a huge opportunity cost and it is a distraction. You can see the distraction here between the group of people who think this is not a good idea and another group who thinks we may have achieved something. Our submission is that we are not achieving very much.
Senator Di Nino: I want to go back to the questions that were raised by Senator Smith and Senator Pearson. If I am quoting you correctly, you said you are spending a lot of money to achieve very little. You were basing that on your original statistics dealing with murders and homicides of young children. It has been brought out that this legislation is not only intended to capture offenders — violators of children — but also anyone else who would be committing a sexual offence. Therefore, I would suggest that the statistics would be much larger including, as Senator Pearson said, adults of whatever gender.
If you are going to make this kind of a statement, in effect putting a price on a life, I would like to ask you, if you have statistics that would encompass or bring in the other components of this, would you share them with us? If you do not have them now you could send them to us.
Mr. Manson: As I said earlier, my recollection was that 70 to 80 per cent of sexual assaults are committed by people — family members and so forth — who know the victims. One of the staff members gave me a copy of a report that said the figure was 79 per cent. You do not need an investigative tool to identify the perpetrator when it is someone the victim knows. That is why the homicide statistics are relevant, because the victim is dead. When you have a live victim, and in four out of five cases the perpetrator is someone that person knows, the police may have difficulty proving there was a sexual assault or what kind of sexual assault it was, but they do not have any difficulty identifying the person.
Senator Di Nino: You have made a convincing argument. You have brought to us some valuable information, which we will take under consideration. I think we all agree that the preventive measures have to be a component of this.
However, I just do not want to leave this hanging on the record and the evidence. We are talking about $4 million in Ontario, and maybe there was one person who was identified, because you were really looking at a narrow definition. You would agree with me that if we had statistics that included all — if the 70 per cent or 80 per cent is thousands and thousands — while the others may still be thousands of people, thousands would be caught. I think that is an important difference to put on record.
Mr. Manson: For the one-fifth, the 20 per cent, still to be of any investigative effect, it requires first, that the perpetrator must have a previous record; second, that the perpetrator must be on your list; third, that the perpetrator must be complying; and fourth, that the perpetrator must have committed the offence near their current address for it to have any value.
Senator Di Nino: We have to start somewhere.
Mr. Manson: The Massachusetts data show that the highest potential is only four out of 136 cases.
Senator Bryden: Professor Manson, you indicated that this is not good public policy and you gave three reasons. It achieves very little; it costs a lot; and it detracts from doing something else.
I want to ask you a question. Believe me, as the chair will know, I always treat everyone with due respect. I do not want to appear impertinent. However, could you tell me what qualifications you have to make public policy decisions as to what a lot is, as to what would constitute a distraction rather than an alternative, and what gives you qualifications to assess an achievement as being a little or a lot?
Mr. Manson: Do you really want me to answer that or do you want me to talk about my qualifications?
Senator Bryden: I asked you the question. I do not have your biography. I assume you have some knowledge of the law, but you also may be a sociologist or an accountant. I do not know that.
Mr. Manson: In terms of cost, I do look at what other criminal justice programs cost. I do know, for example, that the child advocate in Ontario, who deals with 3,000 cases a year of complaints about children in state care, has a budget of less than the $4 million. I would rather see that office get the $4 million. Maybe you do not want to say you do not have the competence to make that judgment. Four million dollars is a significant amount of taxpayers' money and 3,000 children in care complaining about the quality of their care is a significant number of children in Ontario.
Senator Bryden: The police come in and they make public policy pronouncements as well. I want to make one point. When the debate over gun control was running around this hill — and I do not think it is finished yet — I made an argument that if we were to devote the money that would be spent on registering long guns, to health care, to children's care, to almost anything else, that it would be a better use of what has turned out to be close to $1 billion. The answer that was given to me was this: If what we are doing saves the life of one child, it is worth the cost.
You are saying that so-called strangers commit only 20 per cent of sexual assaults. If using this tool has a chance to prevent those 20 per cent from sexually assaulting again, under the argument that was used so often in relation to the gun control issue, then is not the life or well-being of 20 children out of 100 worth it?
Mr. Manson: The answer is simple: Logically and philosophically there is a fallacy to that position. Certainly there is value in one life and you want to do what you can do to save it. However, we are saying that there is more value in saving three, four, five or more lives. It is a fallacious argument to say that it does not matter how many billions of dollars we spend to save one life. If you think about it for a minute, that essentially justifies shutting down all your hospitals in one part of the country to save a life in another part of the country. We do not think like that. We do make comparative judgments. This is what policy-making is about in a world that is less than perfect, I would submit.
Senator Beaudoin: You referred to the Charter. My question is this: If the registry exists, do you come to the conclusion that the presumption of innocence is violated and cannot be accepted under section 1 of the Charter? We have debated this subject. What is your opinion on this matter?
Mr. Manson: I will offer my opinion with one caveat. This returns to the reverse onus that exists in the exception. There is a similar reverse onus in the DNA provisions. Constitutional challenges to the DNA provisions have failed. One case was heard recently. I apologize; I have not read it. Section 487.051(2) contains the same reverse onus. I do not know if that was considered in any of the DNA cases. Assuming that reverse onus has not been addressed — and the Supreme Court certainly has not addressed it — my argument would be not the presumption of innocence, but the burden of proof on the Crown applies at the sentencing stage. How do we know that? In the pre-Charter case of Gardiner v. The Queen, 1982 Supreme Court Reports, the Supreme Court said, when dealing with sentencing facts that are in dispute, the ordinary criminal burden applies. Post-Charter, in a bail case called Pearson, 1987. Justice Lamer applied Gardiner as a principle under section 7 to the sentencing stage. The argument was that at the sentencing stage the presumption of innocence is gone; so do not argue about burden. He said that the presumption of innocence may be gone, but the Crown's obligation to prove still exists. That is the case of Pearson in 1987.
Subject to the caveat that I have not read the most recent case, and the courts may have addressed that, the reverse onus is a serious problem as well.
Senator Joyal: My first question is, are you a law professor and, if so, at which faculty?
Second, clause 4 of the bill deals with the obligations of sex offenders. Clause 4(4) states, ``A sex offender shall not leave Canada before they report under this section.''
That is of concern to me. Twenty-four years ago, when we were drafting the Charter, I remember well the first paragraph of section 6 of the Charter, which provides for the right to enter, remain in and leave Canada. I remember the discussion we had at that time. The mobility rights and the fact that you can come and go is a fundamental element of the mobility.
It seems that there is a limit put on mobility rights. Would you interpret that, in relation to section 4 of the Charter? Do you think aspect could be saved by section 4 of the Charter in relation to section 6? It clearly violates section 6.
Mr. Manson: I am embarrassed to say that that did not occur to me. You are right; at the prima facie level this is a violation of section 6 mobility rights. That means that the state must justify, in accordance with the Oakes test, first, that there is a pressing and substantial objective, and second, that it is proportionate. All of the arguments I was trying to make about its lack of usefulness will make it difficult for a government to support this in court.
You are right; I should have added that to my list. I am embarrassed that I did not notice it. After admitting my embarrassment, I have been a law professor since 1977 at the faculty of law at Queen's University, where my colleagues sitting behind me are from.
The Chairman: Thank you for being with us this evening and thank you for sharing your views and opinions.
Senator Joyal: On a point of information, I would like to draw the attention of my colleagues to an article that was reported on Sunday in the Winnipeg Free Press, the Edmonton Journal and La Press. The titles of those articles refer to a report that was obtained from the Office of the Solicitor General under the Access to Information Act. The study was dated October 26, 2003. The title of the article was: ``Sex-offender law not working in one of four cases — report.'' The headline of the Edmonton Journal was: ``Long-term supervision law for sex offenders run into snags.'' Even though the study seems to deal with a previous bill — Bill C-55, which dealt with those issues and came into effect in 1997 — it has a direct connection with what we are doing here. I suggest that might be of interest to all members of the committee.
The Chairman: I would ask Senator Joyal to provide that information to the clerk who will circulate it to members of the committee.
We will now move to consideration of Bill S-15 and if we could ask Senator Murray and Mr. Little to come forward.
We welcome our friend and colleague, Senator Murray.
Senator Lowell Murray, P.C.: Mr. Chairman and colleagues, thank you very much for accommodating us in this way. I think you know why we are here. I have nothing to add to what I said and what Senator Day said at second reading debate, except that, from a process point of view, if the committee in its wisdom sees fit to proceed to clause- by-clause consideration tonight, and if the Senate in its wisdom were to give us leave to proceed to third reading, then Mr. Speaker Milliken, who is the member of Parliament for Kingston and the Islands, will use his good offices in the House of Commons to facilitate passage of this legislation.
This is the first time since Parliament created Queen's Theological College in 1912 that the college has come back to Parliament for an amendment to its act.
Allow me to introduce Mr. Robert Little, Q.C., a lawyer in private practice in Kingston who acts for Queen's University; Reverend Anne MacDermaid, Chairman of the Board of Management of Queen's Theological College; and Dr. Jean Stairs, Principal of Queen's Theological College.
Mr. Robert A. Little, Q.C., Solicitor, Queen's Theological College: Mr. Chairman and honourable senators, as Senator Murray has said, it has been a long time since we have been here. We only come when there is a matter of significant importance to our Charter. As the bill indicates, there are two or three areas that we ask be changed to bring our management and our board into the twenty-first century.
One is to open membership on our Board of Management to members of our faculty. The 1912 act said that could not be the case. The second is to open membership on the board to persons who are not members of the United Church of Canada. The institution serves a very wide community in this country; it educates people of different persuasions and different faiths and, therefore, non-members of United Church of Canada as members of the board are appropriate. Powers regarding the appointment and removal of the principal or of professors are changed. Professors who are not teachers or professors of theology — that is, those who are training women and men for the ministry — can be appointed by the board only. Third, the college has membership on the Queen's University Senate by virtue of the fact that it is affiliated with the university. That is an important partnership and has been an important partnership for all of these many long years. Representation will be open not only to a member of faculty and the principal ex officio but also to one of the students in the college duly elected by the others.
There are a few technical amendments to bring the legislation up to date. They include removal of reference to the Presbyterian Church in Canada, substitution of the name of the United Church of Canada, and also a general statement continuing the college as a corporation.
These changes have the approval of the Queen's University Board of Trustees and also the Executive Committee of the General Council of the United Church of Canada. We come with the support of our partners and our supporters and we respectfully ask your indulgence in dealing with this legislation.
Reverend Anne MacDermaid would like to say a couple of words as well.
Reverend Anne MacDermaid, Chairman of the Board of Management of Queen's Theological College: Mr. Chairman and honourable senators, I would simply like to thank Senator Murray and Senator Day for having shepherded this bill to this stage and to thank this committee for the work that you will do on our behalf. We appreciate your taking the time to look at this as it is very important to our future.
Senator Buchanan: I am 100 per cent in favour of this bill. It is an excellent bill being promoted by a Cape Bretoner and a New Brunswicker. Second, Mr. Little has a brother-in-law and a sister in Halifax. Reverend MacDermaid has a relative, a Cape Bretoner, who was the President of the Atlantic School of Theology. Of course, Dr. Stairs has many relatives in Nova Scotia and in New Brunswick. As well, my middle daughter is a United Church minister who graduated from the Atlantic School of Theology, so I have no problem with the bill.
Senator Smith: I have no problem with the bill. However, I am curious. It was Presbyterian originally. When did it change? Was that in 1925 with the merger?
Ms. MacDermaid: Yes.
Senator Smith: Do any of you know where the first meeting of the United Church of Canada was held?
Mr. Little: Yes. It was at the Mutual Street Arena in downtown Toronto.
Senator Smith: That is right, and I got the demolition permit for that building.
Senator Andreychuk: I do have a question. It seems archaic that you must come before us to make changes in your management structure. Have you discussed with the government a way of amending your corporation other than coming before us, who obviously are not competent to judge? We can ask you whether you have done your homework, and you have convinced me that you have. Therefore, I approve of the bill on faith, if I can use that word.
Is there not a better way to do this? Obviously, you will need changes in the future when the times demand it.
Mr. Little: Honourable senator, you are correct. There is another way. There could be an amending formula that would be local. To the extent that we have reviewed it, the board of the college, the university and the United Church has not addressed that as such, but I agree that it would be a better way to do it.
Senator Joyal: To add to what Senator Andreychuk said, I went through a similar process with regard to the consolidation of insurance companies on behalf of the credit unions in Quebec. At that time, I came across a report of this committee — made when Senator Beaudoin was the chair — whereby this committee recommended that the Canada Corporations Act be amended to allow all private corporations previously incorporated under a special act of Parliament to adapt their structure internally so that Parliament would be spared the burden of being in the difficult position of judging these internal matters.
I am in no position to quarrel with a restructuring of the board with a majority of members from the United Church of Canada. That is a private matter and not one for the Government of Canada to look into.
The committee's report and recommendation is a matter of public policy, not a matter of private request. Our committee should be sensitized to that because we do not want to keep the people waiting months before they go through the process. It does not serve the public purpose either. Those corporations that were incorporated by a special act of Parliament in another time should have the capacity within the Corporation Act of Canada to adjust within the context of a framework that could be part of the general policy. I would suggest, Mr. Chair, that that be part of our report. You could probably look into the archives and see when that recommendation came forward. It should be renewed because it would be a sound policy for everyone.
Senator Andreychuk: That was my point as well. We had the same debate the last time, but the government has not picked it up. I suggest that perhaps the corporations that are involved take it up with the government. Perhaps with their involvement with some government officials, a more modern way of handling it could be found.
Senator Beaudoin: I am not sure that I agree with what Senator Joyal said. I do not remember it very well; it was many years ago. I am digging in my documents now. We may have decided 10 years ago. I will let you know.
Senator Cools: It would be interesting to find out how an act of Parliament could be amended for the general administration. I am not sure how that could be done.
I differ slightly. I am delighted to see these old organizations come before Parliament. It gives us an opportunity to put faces on the people of many of these great institutions and to celebrate their antiquity.
Parliament is in danger of becoming nothing but a voting machine on bills that are coming faster and faster and larger and larger. When an opportunity such as we have before us presents itself, then one sees Parliament as a power- granting body rather than as a voting machine.
I have done much work on the question of divorce. Many divorces were granted by an act of Parliament through the divorce committee. At the time, they thought that if they moved divorce into the general administration of the law, all the problems would be solved, and it would be a lot cheaper for the parties.
It got more expensive. An industry was created.
I want you to know that I am very pleased to see you. I have no objection to our taking time for a few of these bills every now and again.
The Chairman: Thank you Senator Murray, Mr. Little, Reverend McDermaid and Dr. Stairs. It is unusual that we go to clause by clause on a bill immediately after hearing witnesses, but this case is very non-controversial. It is a bill that Senator Murray would like back to the chamber as quickly as possible so that it can be dealt with expeditiously. Does the committee consent to moving to clause by clause?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 1 to 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 6 to 10 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the short title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed, honourable senators, that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, is it your wish that the bill be reported with the observations as expressed by Senator Joyal and Senator Andreychuk?
Hon. Senators: Agreed.
The Chairman: Those opposed?
It is agreed, honourable senators, that I will report this bill with observations to the Senate. Agreed?
Hon. Senators: Agreed.
The Chairman: Thank you very much.
Welcome, Dr. McVety, president of Canada Christian College. Dr. McVety is here as a witness for our deliberations on Bill C-250.
Dr. Charles McVety, President, Canada Christian College: Thank you, Mr. Chairman and honourable senators. I want to address you on the issue of Bill C-250, which is of grave concern for hundreds of thousands, if not millions, of Canadians who are very much afraid of this bill. I am the President of Canada Christian College, a theological college with over 1,100 students. We have graduated over 3,500 clergy that are serving across the country and around the world. On September 7, we called for an afternoon of prayer where over 100,000 people in 22 regions across the country came out to pray for this issue. We prayed that we would be defended against the attack that is waged through Bill C-250.
I want to thank you for allowing me to speak today. We applaud your efforts to reduce hate propaganda. Every civilized person certainly abhors any kind of hate propaganda. We witnessed much of this last week in the City of Toronto with anti-Semitic incidents. A central tenant of the faith of Christianity is to love one another but Bill C-250, while it proposes to restrict hate propaganda, is fundamentally flawed in many ways.
First, the bill equates sexual behaviour with ethnic origin and religion. Second, it does not provide any attorney general protection under section 319(1) of the Criminal Code. Third, there is no definition for ``sexual orientation.'' Fourth, the bill reduces the normal criminal practice of proving beyond a shadow of a doubt in order to incarcerate and penalize under section 319(1) and reduces this to a 50-50 split whether it is likely or unlikely. Fifth, the bill is a breach of the authority of the trust given by the people of Canada. Sixth, it is contradictory because it attacks religion while it purports to protect religion.
The result of passing Bill C-250 could be catastrophic for Canadians. If the bill were passed, people could be convicted under this and sent to prison. Such prosecution could be catastrophic for many, especially those of goodwill and faith attempting to build this country rather than tear it down.
With this in mind, I ask you to rethink the clauses of the bill and even the fundamental purpose of it. In this instance, we are dealing with the Criminal Code and not with policy, ideology or a kind of argument. We are also dealing with the punishment of criminals. We cannot possibly believe that teaching against sexual behaviour constitutes the making of a common criminal worthy of incarceration.
To make a moral equivalent between someone's sexual behaviour and ethnic origin is unethical. Sections 318, 319 and 320 of the Criminal Code protect people against hate propaganda and from those who would say that it is wrong to practice Judaism or any other religion. They protect people in this country from being attacked by hate propagators claiming that it is wrong to be African or Oriental or of any other ethnic origin.
Bill C-250 deems it a criminal offence to state that it is wrong to practice sexual behaviour. This is of great concern to us, especially those of us who teach the bible, because it waters down the current protections. We have just experienced a rash of anti-Semitism in Toronto. People have fought for generations to gain Criminal Code protection against hate propaganda. By the addition of two words — sexual orientation — to the bill, we have watered it down and equated it to something that has no right to be part of a Criminal Code.
Bill C-250 would clearly stop the teaching that opposes the practices of sexual behaviour. We cannot possibly drift toward that in this great country of Canada. Bill C-250 has this incredible dichotomy because it would provide an exemption, in section 319(3)(b), for those who teach against sexual behaviour in a religious context or through interpretation of a religious text. I believe the proposed subsection is fundamentally flawed because it not only pertains to the hate propaganda based on sexual orientation but also to hate propaganda based on ethnic or religious origin.
This is a serious problem because we live in a complex world where our society is literally under attack by people who believe that we are of the wrong religion. People reference scriptural text to justify attacks on people. We saw evidence of that on September 11 in New York City and many times since. By adding this proposed subsection to Bill C-250, Osama bin Laden and others like him will be free of section 319(2) pertaining to hate propaganda because they have referenced scriptural texts to support their actions. This is a dichotomy because I know the purpose of that amendment — to protect those who want to teach that sexual immorality is wrong and that sexual behaviour outside marriage is wrong. However, that is not the case. The proposed subsection goes well beyond that.
Section 319(1) of the Criminal code declares no protection by the Attorney General. A private citizen can then lay a charge. It could be a frivolous charge or a politically based charge that could end with prosecution and indictment — a horrific ordeal to go through.
The bill contains no definition of ``sexual orientation.'' What is sexual orientation? I looked it up in the dictionary and in many different journals of psychology and the definition varies greatly. There are many definitions in the back of the Criminal Code. Why could a definition of ``sexual orientation'' not be added?
I believe this breaches the Canadian Charter of Rights and Freedoms because we are guaranteed freedom of religion. The book I have with me teaches, on almost every page, against one kind of sexual practice or another. If we are not allowed to teach this Bible, then we do not have freedom of religion and we do not have freedom in this country; we would not be a democratic country. Does Canada want to criminalize people who teach against sexual behaviour? Do you really want to jail mother who goes to a Girl Guides meeting and teaches against sex out of marriage in jail? Do you want to put that lady in jail? I do not believe you do.
Therefore, I believe that this great Senate that is charged with the protection of this country and the protection of the citizens, will stand up and make the necessary changes if not scrap Bill C-250 in its entirety. I thank you for listening to me today.
Senator Beaudoin: The way I read this addition to a list of words is to the effect that we are just adding something. That is the way I read it. In the Vriend case, the court said that sexual orientation should be included and they ruled that it should be included in the legislation from Alberta. In this case, it is added. The way I read it, I consider it to be an addition. I cannot see how you can conclude that it would be impossible at the university or in the church, et cetera, to teach the other religion because it is not related directly.
Dr. McVety: Unfortunately, it is related because it is in the same Criminal Code section that you are attempting to put this in. You are relating it to ethnic origin and religion.
Senator Beaudoin: That is the way you read it.
Dr. McVety: No. That is what is in the Criminal Code. You are adding this to ethnic origin and religion. There is also race and colour, but that is also ethnic origin. Can I teach that it is wrong to be Black? Can I teach that it is wrong to be Jewish? No, I cannot. That would be hatred for me to do it.
You are now saying that I can no longer teach that it is wrong to practice sex out of marriage. You are putting it in the same Criminal Code. You are adding it to a string of identifiable groups: Race, colour, creed, religion, ethnic origin and then sexual orientation — that is, sexual practice. I like what Pierre Elliott Trudeau said, namely that the government has no business in the bedrooms of our nation. Likewise, the bedrooms of our nation have no business in the government. What we want to do in our bedrooms is up to us. However, we cannot bring it out into and equate it to ethnic origin and religion — that is, to things that are clearly identifiable on the outside and things that are clearly identifiable in someone's life. We are now saying that it is wrong to speak against someone's ethnic origin and to speak against someone's sexual practice. I believe that that is a fundamental flaw in this Bill C-250 and I ask you, as the Senate of Canada, to right the wrong. I believe this was rushed through Parliament in a very difficult time and I do not believe it received enough debate.
Senator Jaffer: Do you really believe that the New York bombings were to kill Christians?
Dr. McVety: If you read the statements of those who perpetrated the New York bombings, they were doing this based on their own religious belief. I am not saying it was to kill Christians. They stated and they quoted religious text.
Senator Jaffer: You just told us that it was to kill Christians.
Dr. McVety: Did I say that?
Senator Jaffer: Yes.
Dr. McVety: I do not remember saying that. If I said that, I was an error. It was not to kill Christians; it was to kill people. They quoted religious text. This is commonly done. If you watch what happens and you listen to them, religious text is quoted. I am sort of arguing against myself here; this is the dichotomy. On the one hand, Bill C-250 is protecting me, as a religious clergyman so that I can teach young teenage girls that sex out of marriage is wrong. However, you are writing into the Criminal Code — and this is a serious issue — that someone can launch hate propaganda and then say, ``I am quoting scriptural text, and therefore I am clear of prosecution.'' I say that is wrong.
Senator Jaffer: You have no problem of protecting people of colour. Is that correct?
Dr. McVety: Absolutely no problem.
Senator Jaffer: People of race?
Dr. McVety: No. I would fight for that.
Senator Jaffer: Neither do you have problems protecting people of religion or ethnic origin?
Dr. McVety: No.
Senator Jaffer: However, you have problems protecting people of certain sexual orientation?
Dr. McVety: No. I have no problem with people being protected; it is the way they are protected here in Bill C-250. What is sexual orientation? I do not even know what it is. I can no longer teach that sex outside of marriage is wrong.
Senator Jaffer: That is the problem.
Dr. McVety: That is my issue.
Senator Jaffer: Where does the act say that you cannot teach sex out of marriage is wrong?
Dr. McVety: If you look at the practice of this issue, it is wrong and it is hate. You have to define ``hate.'' It is hate to teach that it is wrong to be African. It is hate to teach that it is wrong to be Jewish. Therefore, it is hate to teach that it is wrong to teach certain sexual orientation. What it is, I do not know because it is not defined in the law. You must go down a train of logic. If it is hate here and it is hate there and you have a train of different discernable groups — that is, people who practice some type of sexual orientation. If it is wrong here, there and there, then it is hate right down the line.
Senator Jaffer: You would agree with me in this wonderful country everyone should be protected?
Dr. McVety: Absolutely. I fully agree. However, I believe Bill C-250 does not do this. I believe it is a muzzle on religious people who teach that sex outside of marriage is wrong — that is, that adultery, fornication, homosexuality, lesbianism, all kinds of sex outside of marriage is wrong. I do not believe that you, as the government, have the power or the authority to come against the population of the country and say that you cannot teach your children. I believe every one of you has taught some children — be they your own or others — that sex outside of marriage is wrong. Now you will criminalize us for what you have already done.
The Chairman: I am sure you would agree, though, that it would be wrong to promote violence or hatred against those who practice sex outside of marriage, would you not?
Dr. McVety: I wholeheartedly agree with that. But I am saying that Bill C-250 does not do that. It is wrongfully crafted.
Senator Smith: Sometimes I have the feeling that the evangelical community — which I know well because that is my background — sense conspiracies that are not really there. I do not think anyone here has a problem with to a church saying that sex outside marriage is sin and that it is wrong by your standards. This bill is not saying that you cannot do that.
To go so far as to incite what sounds like gay bashing or that sort of thing, that is where you draw the line. You draw the line if you were burning crosses on the lawns of people who were Black, as was the case in the south long ago.
Dr. McVety: Sure, I would agree with you. However, I do not believe that is what happened here. Bill C-250 does not address it properly. It is just an add-on to something that already exists. It is an add-on to this group of identifiable groups.
Are we conspiracy theorists? No. This will be a law under which judges will decide whether someone was teaching against being of a certain sexual orientation. If she did, the hammer goes down and a sentence of maybe up to two years in prison is given. That is a Criminal Code offence here.
Senator Smith: I went to law school and I did lots of criminal trials. That is not the way I read it. I sometimes wonder about the sense of some people on what constitutes the separation of church and state. We live in a multicultural, pluralistic society. Just because certain acts are viewed by certain people as sinful does not make them criminal offences. Would you be arguing that homosexuality should be restored to the Criminal Code?
Dr. McVety: No, not at all. In fact, I have said to the contrary. I quote Pierre Elliott Trudeau that the government has no place in the bedrooms of the nation.
Senator Smith: What about people from the gay community who genuinely sense that there are the odd red-neck fanatics out there — however you want to describe them? Some preacher came up here from Oklahoma who literally would incite people to do heaven-knows-what to people down on Church Street in Toronto.
Dr. McVety: I agree that is wrong and needs to be addressed. However, Bill C-250 has not dealt with that properly. It is a sort of band-aid situation that equates sexual orientation with something that is not equatable. The bill needs to be redrafted. I have presented some of the technical problems. There is no protection of the Attorney General.
Senator Smith: Why do you think that people from the gay community and from various groups representing people of that orientation are so supportive of this bill? They must think the bill addresses some of their concerns. Why are they wrong and misled?
Dr. McVety: The bill does not allow other people in the nation to teach that sex outside of marriage is wrong. If you write a law in the Criminal Code to say that one cannot teach that, then we will have a serious problem in this nation.
Senator Smith: You really think that if this bill passes, that anyone who preaches against fornication or adultery — forget the gender aspects — will run the risk of being charged on this?
Dr. McVety: I truly believe it, especially because under section 319(1), the Attorney General is not involved. A private individual can have a criminal charge laid on someone, even if it is frivolous or politically motivated, and the person will have to defend him or herself. Let me ask you the question. Can the Senate guarantee me that I will not be prosecuted for preaching and teaching that sex outside of marriage is wrong? Can I be guaranteed that I will not be prosecuted?
Senator Smith: We do not live in a society where we can guarantee anything.
Dr. McVety: Yet you will guarantee that such teaching is a criminal act. I would hope there would be some guarantee of freedom. That is why I say there is a dichotomy here.
The Chairman: If I may, I think Senator Smith is getting at the point that if your teaching does not direct people toward hate or violence, then there is no real issue. I do not think you see that in the bill, do you?
Dr. McVety: Section 319 refers to a public statement that is ``likely'' to cause a breach of peace. It is only ``likely.'' There is no cause and effect. It does not say, ``did cause'' a breach of peace. It says ``likely'' — perhaps 51 per cent more likely than unlikely. What type of phrase is that, ``likely to cause a breach of the peace...'' Now, if my statement is likely to cause a breach of peace, then a charge can be levied. There is no Attorney General protection on that; and individual can levy the charge and I can be put through a criminal prosecution and face up to two years in prison, under this Criminal Code. I am very afraid of it. I ask you, the Senate, to address this. There are thousands and thousands of Canadians who are equally as afraid of this as I am.
Senator Smith: This is a rhetorical question. You do not have to answer. What if I were to put this to you: Do you believe that what happened at Sodom and Gomorrah was the Lord's will and that the Lord's will as it occurred there should also occur on Church Street or in other little communities like that around the country? I will not ask you that question because I am too nice a guy. I am hoping it makes a point.
Dr. McVety: I do not believe that. I do not believe that is for today.
Senator Joyal: You are from Ontario, as I understand.
Dr. McVety: Yes, I am from Toronto.
Senator Joyal: When you say sex outside of marriage is wrong, you are not referring to the definition of marriage as recognized by the Ontario Court of Appeal. You are referring to marriage according to your doctrine?
Dr. McVety: I am referring to teaching from scripture, teaching from sociological evidence, and teaching from medical evidence that sex outside of marriage is wrong. I have a fundamental freedom to teach that in this country. I would hope that would be sustained even after this deliberation today.
Senator Joyal: I am puzzled because marriage in Ontario is between two consenting adults. That is the way the Court of Appeal of Ontario has ruled. When you say to me or to us or to the public generally that sex outside marriage is wrong, do I have to understand that you accept that sex between two consenting adults within the bounds of marriage — according to the law of Ontario — is something you agree with?
Dr. McVety: I will go further. This is my opinion; this is my teaching that sex outside of marriage is wrong. Someone else may teach that sex outside of marriage is fine. We are both free to state these things. I would like that freedom to remain.
I read in this bill that it will be against the Criminal Code to say that it is wrong to be Black, it is wrong to be Jewish, it is wrong to be of a certain sexual orientation.
Senator Joyal: It does not say that.
Dr. McVety: That is the logical progression of Bill C-250.
Senator Joyal: Let us go back then to your alleged problem with the word ``sexual orientation.'' You ask what it is. Let us go to section 718.2 of the Criminal Code. The title is, ``Other sentencing principles.''
Senator Cools: Chairman, in all fairness, if we want to have this dialogue, maybe we can lend to the witness a copy of the Criminal Code. Then Senator Joyal will be able to speak to the witness.
Senator Joyal: Do not worry. You will get a copy. We have a learned adviser who is handling the code here.
The Chairman: The witness has the section now.
Senator Joyal: It is in the chapter of the code dealing with purpose and principles of sentencing, and section 718.2 is headed ``Other sentencing principles.''
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
The concept of sexual orientation, which you allege is imprecise, is already in the code. The courts consider when they sentence someone if a crime was based on alleged elements of bias, prejudice or hate based on sexual orientation. If I were a judge in a criminal court tomorrow and in front of me I had an accused who had been found guilty of an offence, I have to take into account on sentencing him if the motive that brought that person to commit the crime was moved by hate, bias or prejudice based on sexual orientation.
Dr. McVety: It still does not define it.
Senator Joyal: The court will have to define it.
Senator Cools: The judges just know by divine inspiration.
Dr. McVety: What is it? I would like to know.
Senator Joyal: May I, please? The concept of sexual orientation is in all the human rights provincial charters, and when it was not there, it was read by the court to be there. Senator Beaudoin mentioned the Vriend case. It is not a concept we invented for the purpose of this bill.
Dr. McVety: I am not saying that.
Senator Joyal: Section 15 of the Charter, which we cherish as Canadians, has been interpreted as including sexual orientation by the Supreme Court of Canada repeatedly. In other words, it is not another vague concept. It is a concept that finds its reality in other legislation that deals with human rights. I think I could quote to you international conventions and so forth.
Dr. McVety: Then please tell us what it is.
Senator Joyal: I am sure that when a court interprets ``sexual orientation'' in 718.1, it will refer to those definitions. It will not invent a definition.
Dr. McVety: Please tell us, because I prefer not to hear it from the judge when I am sentenced. I would like to hear it now so that I know. I have read so many different definitions of ``sexual orientation.'' I would put to you, the Senate, that ``ethnic origin'' is very well understood. It is a clear term. What is ``sexual orientation?'' I would ask you to define it and put it in the definitions. The Criminal Code has a full page of definitions.
Senator Joyal: How many pages?
Dr. McVety: I would ask you to add it.
Senator Joyal: Did you have the same concern when section 718.2 was amended some years ago to include sexual orientation?
Dr. McVety: No.
Senator Joyal: It is already done in the code. It is already there.
Dr. McVety: The phrase is in the code, but we still do not know what it means, and I respectfully ask you to please identify what it is, because this is very serious. This is about going to jail. This is the criminal code.
Senator Joyal: We take this bill very seriously.
Dr. McVety: I know you do, and I respect you for it. I know the Senate is here to be a check and a balance and to protect this great nation of Canada. I thank you for considering this.
The Chairman: I would like to thank Dr. McVety for taking the time for being here this evening and sharing his views.
I understood Senator Cools wanted to raise a point of order.
Senator Cools: I said I wanted to raise a point of order after, but I did have some questions.
The Chairman: I apologize for misunderstanding. Before you go, Dr. McVety, Senator Cools would like to ask you a question.
Senator Cools: I thank you for coming before us. You are not alone. Large numbers of people are deeply concerned. I too have been concerned with the fact that ``sexual orientation'' is being treated as a ``gens.'' Section 318 is the genocide section of the Criminal Code. Despite all the best assurances, I do not take sexual orientation to be a ``gens'' as race and ethnicity are.
It is very interesting. Some days ago, Mr. Robinson said religion could be changed too. I think that is an incomplete statement, because at the time that these provisions were created in the code 30 years ago, as these issues were conceptualized, religion was intricately connected to race. Make no mistake about it. Most Jewish people are members of the religion of Judaism. Most Arab people are members of the religion of Islam. Recently, with globalization and so on, maybe you can talk about people changing religion as they change clothes. However, at the time this was conceptualized, that was the thinking.
I do not share the naive views that are expressed. I believe that once a power is put into the Criminal Code to prosecute, prosecutions will follow, because that is the nature of people and the nature of the exercise of power.
My real question to you is flowing on this whole thing. Senators, I would like to say to members here that at the time of Bill C-33, the amendment to the Human Rights Act, a bunch of us pleaded with Mr. Rock, the then Minister of Justice, that he not use the term ``sexual orientation'' and that the law should say what it meant and it should mean what it said. There was a choice of whether it was sexual ``preference'' or ``orientation.'' There were many terms flowing around at the time. I was of the strong opinion that if the objective is to protect homosexual persons from discrimination, then let the law say ``homosexual persons.'' In other words, be specific. I was raised to believe that criminal legislation should be as clear and as concise as possible.
My question is as follows: You feel some concerns, and citizens, every time speech is criminalized, should feel some concern. My concern in particular is that these sections, if they become law, will be used politically against certain people for political reasons and to make political points and political statements. Could you comment?
Both Mr. Robinson Mr. David Jones, who was with the police association from British Columbia, Vancouver, testified that this bill was not necessary. I believe Mr. Robinson said this bill was symbolic, or largely symbolic or something to that effect. I have it right here. Mr. Jones, because I asked him directly if he would use this to prosecute, said no, this bill is about social recognition.
The strongest supporters of the bill are saying that the Criminal Code is already sufficient to be tasked for the crimes that exist. I have to wonder why this new criminal power is being created. I know it is a little bit roundabout, but I do you have any opinions whatsoever on the use of the Criminal Code as a means of social recognition or as a means of symbolism? I see too many bad prosecutions. I see too many wrongful things happening daily.
Dr. McVety: For years we have had a debate in our society whether or not people can say that sex outside of marriage is wrong. We had a bit of that debate here. Civilized people in a democracy say yes, you can debate. You can state and you can have an opinion and I can have an opinion. We can all be free.
Now Bill C-250 has been written and put forward for social change so that I can no longer say my piece. I can no longer say that sex outside marriage is wrong. I have a 14-year-old son. I have a six-year-old daughter. The way I read this, I can no longer say publicly that sex outside of marriage is wrong.
I purposely do not say this is only about homosexuality. It is about sexual orientation, which goes way beyond homosexuality. Here we have a debate that is raging, and then an upper hand has come down and it is passed through the legislature with a quick hand. There were promises on the doorstep of the legislature to go make amendments to allow for religious protection in all three areas of the code. They walked in, closed the door, denounced the amendments, voted against them, and allowed only one amendment to stand.
Now we have a situation where 318 is exposed but that section is at least protected with some sense of sanity with the Attorney General having to actually lay the charge. But 319(1) is not protected at all. I ask you as the Senate to protect 319(1) at the very least and to allow the Attorney General to be that who lays the charge — not just some individual.
I was on a talk radio show with Svend Robinson. He was arguing for same-sex marriage and I was arguing against it. We live in a free country. Now he does not want me to be able to argue against it. It is going to be a crime and I am upset about it and so are thousands, if not millions, of Canadians. I personally feel that the whole bill is fundamentally flawed but at least afford the protection of the Attorney General.
I also do not believe the religious protection is only for sexual orientation. Of course, this also pertains now to ethnic origin and religion. I believe those who fought and spilled their blood to gain freedom in this country against discrimination — at the college where I preside, 80 per cent of its students are visible minorities and they fight a battle every day — hate propaganda, and hatred. I give my opinion that this religious text is not protecting people of ethnic origin.
I believe this whole thing is fundamentally flawed and I ask you as the Senate to fix it. That is why you are here.
Senator Cools: You have confined your remarks to situations such as sex outside of marriage. However, this situation goes far wider than that. There are many boorish and hurtful people out there and people who say cruel, insensitive things. However, it does not mean that one should go around throwing them in prison. As a matter of fact, we may find out we are throwing an awful lot of people in prison.
My concern, in addition to what you have said, is that individuals, for example, doctors who speak out about public health concerns around sexual activities, will find themselves being prosecuted. Non-religious individuals who express moral opinions about certain forms of sexual activities will find themselves prosecuted because what we are talking about is words — the use of speech.
In one of the defined cases, Keegstra, which was before the Supreme Court, Madam Justice McLachlin dissented in that judgment and said that hate was a subjective thing and the evaluation of hate was subjective. She went into a very enlightening set of statements on the question of hate and speech and the hesitation and reluctance we should always have when we move to criminalize speech. I put that question to Mr. Robinson, because he has cited the majority judgment. I asked him to cite the minority judgment because I thought it would balance.
The Chairman: Senator Cools, will you come to a question soon? You have had a fair amount of time on your first question and I am being very tolerant. Dr. McVety has been kind to come here and spend the time.
Senator Cools: I was wondering whether Dr. McVety has any knowledge about the number of people who are religious people or people who are concerned about the morality around sexuality who have been threatened and or have had actions taken against them via the human rights route? I speak to many people daily. I can tell you that whether is it Scott Brockie in Toronto or someone else, the heavy hand of persecuting or prosecuting disagreement is upon us.
Dr. McVety: I say that there is a dichotomy here. On the one hand, sections 318, 319 and 320 are to protect people of religion; on the other hand, it is used to silence people. This book — almost on every page — speaks against some type of sexual practice. All of the sudden, the same Criminal Code that has been fought for, for years, to protect people who want to preach and teach religious values is now being used to muzzle and threaten, with even incarceration. This is very serious, very troublesome, and people are afraid of this right across the country.
I am not sure I fully understand the question, have I come across any statistical data —
Senator Cools: I met with a group not too long ago and they were able to cite instances of individuals in their group who are teachers or nurses — who are in different occupations — and they are feeling a distinct chill on expressing professional opinions on homosexual pratice.
Dr. McVety: I dealt with one of our graduates yesterday who is a teacher in the public school system and was handed a document two weeks ago stating categorically that 10 per cent of her classroom is homosexual on average, which is a very debatable point. She had to teach so that those students would be comfortable in homosexuality in her class. This is against her religious teaching. It is against what she understands for humanity. To have sex for any occasion — adultery, or multiple sex or whatever — is harmful, and now she has been given a document stating that she must teach it, and this is pressing down on Canadians.
It is not a matter of freedom. If Svend Robinson wants to teach that homosexuality is fine, let him do it. I am not asking for a Criminal Code against that. However, he is asking for a Criminal Code so I can no longer teach that sex outside of marriage is wrong and so that a teacher or a scout leader or a girls' club leader can no longer teach it. That is why this thing is so fundamentally flawed.
Senator Cools: Chairman, a lot of our dialogue and debate here has not included or comprehended the amount of so-called sex education that is going on throughout school systems. I think these decisions have to be made in the context of social realities today.
I would like to say, in respect of another file that I worked on, I see the criminal prosecutorial system misused daily. I have seen civil and criminal judicial proceedings misused frequently, so I do not have the innocence of naïveté in prosecutorial systems. There was a time when I used to think there is justice and everything will be fine and good, and the system is intact and every lawyer is an honest lawyer and every judge is a competent judge and so on.
The Chairman: Senator Cools, I am going to interrupt you. Dr. McVety is here to share his views and opinions. If you want to share your views with him, perhaps you could do so after the meeting. If you have a question for him, please put it to him so we can get on with the meeting. Do you have a question?
Senator Cools: I did not think I was impeding the meeting.
Senator Bryden: We have been at this for over two and a half hours. A number of us had other appointments at 7:00 p.m. and we have to get there, and it is now almost 6:45 p.m.
The Chairman: Senator Cools, do you have a question?
Senator Cools: I did not realize we had a time limit on this meeting. Perhaps, chairman, at the beginning of the meeting we could try to determine, so we could all know, what the time limit is because there are times —
The Chairman: My point is not that we have a time limit. My point is that it is one thing if you want to share your views with the witness. However, this is not the forum for that. The witness has given generously of his time to be here and he has engaged in rigorous debate with a number of senators. With respect to expressing your views, we can do that at another time.
Senator Cools: I think, chairman, you will discover that the witness is comfortable with my line of questioning, and that I was expressing no hostility to his opinion. I think the witness is quite comfortable with me.
In any event, if members wish to wind down the meeting, I will not complain.
The Chairman: Thank you, Dr. McVety, for taking time to be here.
Dr. McVety: I thank you for allowing me to be here. We put this into your able hands and we trust that you will do what is good for this country. I love this country and I know you will do what is right.
The Chairman: Senator Cools, you had a point of order.
Senator Cools: I thought we were going to deal with the point of order of Senator Tkachuk. I have a couple of points that I would like to raise as a point of order.
This point of order arises out of the fact that a couple of days ago I was viewing the broadcast of Mr. Robinson's testimony before us on March 10, 2004. In that testimony, I put a question to him as follows. I shall quote the statement that I made in part:
I understand the concerns, but the other parts of the code speak about colour, ethnicity, race and so on. Sexual orientation, as far as I know, is not an immutable characteristic. Honourable senators, my skin is black; that is immutable.
I go on to say that no evidence has been put before us about the immutability of sexual orientation.
In his response to me, Mr. Robinson says the following:
First, you suggested that your race is an ``immutable characteristic,'' — I believe those were your words — that sexual orientation is not necessarily an immutable characteristic and that you could have had in your life a relationship with a woman as well as a man, for example — in your words, that it is fluid.
At the time, I responded, ``Not me, but some could.'' However, that did not show up on the record in the broadcast, which brought me back to examine the record very carefully.
I just wanted to say that I found those remarks inappropriate and distasteful. I just wanted to raise that as a point of order. I do not know what I said that Mr. Robinson could possibly be repeating, that he could say that.
The Chairman: In order for it to be a point of order, it has to be a breach of a rule.
Senator Cools: There are breaches of the rule that states there should be no personal insulting statements. It is a very common, known rule, and an apology would be easy, it would be nice. My understanding is that in our exchanges with each other, there should be no sharp, personal or taxing statements; and this, to my mind, is a little bit — maybe you did not hear carefully.
I will read it again. He said:
... you suggested ... I believe those were your words — that sexual orientation is not necessarily an immutable characteristic and that you could have had in your life a relationship with a woman as well as a man, for example — in your words, that it is fluid.
I said nothing of the kind. I find this extremely distasteful and unnecessary.
I think it is out of order and improper. I would never make a statement like that. I can raise it again if you want, if time is of the essence?
The Chairman: If you wish, Senator Cools, I will review the record. If you want me to take it up with Mr. Robinson, and if it is appropriate, I will bring it back to the committee and be directed by the committee whether or not we should ask for an apology from Mr. Robinson. Would that be okay with the committee?
Some Hon. Senators: Agreed.
Senator Cools: I never said anything like that, and I have a few problems with that. If I said anything like that to Mr. Robinson, I have no doubt he would be up in arms.
I have another one. There was an ad in the newspapers a few days ago, sponsored by REAL Women, and it was in the National Post on March 17, 2004. It was an ad against Bill C-250. I received a phone call from Janice Tibbetts, a journalist with the Ottawa Citizen, on Friday, March 19 to the effect that Svend Robinson told her that I had paid for this ad, and was that true? I was shocked and surprised. I told her, ``Of course not. I had not paid for any such ad.'' I wanted to raise that.
The Chairman: Is that a committee matter?
Senator Joyal: It is outside the committee.
Senator Cools: This is Bill C-250.
Senator Joyal: I have no problems to make sure that the transcript of what happened in a committee be corrected and reflect clearly the words that Senator Cools said to us, in all her honour as a senator, so that it indicates the fact that she did not say it. It happens during committee proceedings.
However, what can happen between a senator and a third party outside a committee sitting, to me, is not within the walls of this committee.
Senator Cools: This is not so. It is within. It is not a question of privilege. It is about a matter that we are currently studying. It is very much within the purview of the committee.
I have a third one which definitely concerns the committee.
The Chairman: Let us deal with the second one. I am of the opinion that the fact that the bill number was mentioned has nothing to do with your second point with committee proceedings or hearings.
Senator Cools: The ad was about the Senate committee and urged people to come before the Senate.
The Chairman: The issue that you raised is something that was said with regard to whether or not you paid for it.
Senator Cools: I was asked to verify because Mr. Robinson supposedly told the journalist that this was so.
The third point is I have a statement from a Web site page of March 16, 2004. It is called The Dominion Daily Weblog, and the headline is: ``Senate filibuster threatening hate crime legislation?'' It is from Svend Robinson. I quote the third paragraph that says:
The bill that includes ``sexual orientation'' in the hate propaganda sections of the Criminal Code, is at risk of being lost because of a filibuster by unelected Senators, led by Liberal Anne Cools.''
Honourable senator, this committee is not filibustering this bill at all. There is no filibuster going on in this committee. I can assure you that I am not leading any filibuster on this particular committee.
It goes on to say how it is being blocked in the Senate and on and on. I wanted to say that and to put it on the record. You can rule as you wish. That is okay with me. I do not think there is filibustering going on and I am not leading any filibuster on this particular committee.
The Chairman: Again, Senator Cools, that is not a matter with respect to proceedings or anything that occurred here at the committee hearings. It is a matter that you can take up in the chamber if you wish or a matter you can take up with the media.
Senator Cools: This is a letter from Svend Robinson.
The Chairman: It is not being presented to the committee or read into the record.
Senator Cools: It does not matter. It is about Bill C-250, which is before this committee right now. You say to raise it in the chamber. There is no way to raise it in the chamber as a point of order because the bill is here. A characteristic of the proceedings on bills is that the bill moves along like a physical thing. The bill is here right now so there is no way that it can be raised in the chamber.
The Chairman: Can I get help from colleagues on this? Does anyone feel it is a point of order? Am I the only one who feels it is not?
Senator Andreychuk: It is a court action if anyone is defamed. I certainly hope Mr. Robinson will at some point respond, if he has said that we are filibustering here. The only thing I am having trouble with is handling all the bills come through here and other committees. There are not enough opposition members. I have not followed this bill as closely as some others because I am the critic on other bills. If he made these statements, they are inappropriate. However, if he made them particularly against the senators, then there these are defamation cases.
Senator Joyal: At this point the alleged statement that Mr. Robinson published was not something that was said on the work of this committee per se during his testimony. It is something he printed outside. Well, any third party can print outside something about what we do, or what we think individually.
However, as such, if we feel that our rights as senators are infringed upon, we have other recourses besides the one that this committee can afford as we are doing now. That is my humble opinion.
I have seen instances in the past where witnesses who came to testify and had the conviction that once the bill was adopted that their view was not taken into account raised problems with the way that they were treated and so forth. It happens all the time; it is public debate. If the reputation of somebody is directly attacked and if a senator is prevented from doing his or her work because of that, well then of course there is a direct link to the status of the institution. As a matter of different opinion on the work of the Senate, we hear and read it in the paper daily.
Senator Beaudoin: It is not a point of order in my opinion. I am generally agreeing with the fact that there may be something of defamation and things of that sort. However, it is not directly related to being a point of order. For the reasons expressed by Senator Joyal and Senator Andreychuk, I agree it is not.
The Chairman: Colleagues can we go in camera for a few minutes please?
The committee continued in camera.