Appearance before the Senate Committee on Legal and Constitutional Affairs on consideration of Bill S-2, An Act to amend the Criminal Code and other Acts, the “Protecting Victims from Sex Offenders Act”

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April 15, 2010
Ottawa, Ontario

Statement by Jennifer Stoddart
Privacy Commissioner of Canada

(Check against delivery)


Introduction

I would like to thank this Committee for inviting us to appear today to speak with you about Bill S-2, An Act to amend the Criminal Code and other Acts, also known as the “Protecting Victims from Sex Offenders Act”. I am joined today by Lisa Campbell, Acting General Counsel to my Office.

When apparently competing rights intersect, we must most carefully consider the merits of each, and strike a balance that fits with our constitutional system of democratic governance. We see this balancing frequently, for example, when we ensure that constitutional legal rights exist within our criminal justice system. The Supreme Court of Canada has repeatedly held that the protection of privacy is a quasi-constitutional right to which all Canadians are entitled.

Bill S-2 represents an attempt to achieve the public benefit of protecting people from sexual offenders, and in doing so, it would intrude on the privacy not only of sex offenders, but other innocent persons. We understand that it is extremely important to protect the public, and often the most vulnerable members of the public, such as children, from sex offenders. In some situations, this may unfortunately involve incursions into privacy in order to achieve the goal of public safety. It is critical, however, with any proposed incursions into privacy, to evaluate beforehand whether those measures are necessary.

A vitally important question, and one we have asked repeatedly in respect of the existing sex offender registration scheme, is whether the measures proposed by Bill S-2 are effective in protecting the public from sex offenders. We have also asked whether the intrusions to privacy are proportional to the benefits to be derived from a law enforcement and public safety perspective. Lastly, it’s important to consider whether there are other measures, that are less privacy invasive, that would achieve the same purposes.

Bill S-2 would expand the current sex offender registration system in a number of ways, including:

  • Judicial discretion would be removed and all sex offenders would be automatically included in the registry, regardless of the factual circumstances.
  • Similarly, judicial discretion would be removed for certain sexual offences, for which it would be mandatory to provide a DNA sample for inclusion in the DNA databank.
  • The amount of information to be provided would increase, and include information about employers, and vehicles regularly used.
  • Police would be allowed to use the registry for prevention and investigative purposes, as well as post-crime investigation.
  • People sentenced for sexual offences in other countries could be included in the registry on returning to Canada.

The requirement to provide additional information could impact not only the privacy of sex offenders but also their families, friends, co-workers, neighbours and others. The requirement to provide information about a vehicle frequently used could mean that someone other than the registered sex offender could be watched, stopped and even questioned simply because they are driving the vehicle.

Our Office appeared before the House of Commons Standing Committee on Public Safety and National Security on the Statutory Review of the Sex Offender Information Registry Act in April 2009. At the time, we raised concerns about greater transparency and openness about the program; since that time, there has been some improvement in the general information available about the National Sex Offender Registry.

We also recommended a formal evaluation of the effectiveness of the legislation and the Registry by an independent third party. This has not happened; rather, the government has simply proposed an expansion of the existing regime.

The RCMP officer in charge of the national Sex Offender Registry testified before the House Standing Committee last spring that they have not solved any crimes where the offender was unknown. When asked about statistics regarding the use of the registry to solve crimes, he testified that there have been a few cases where the offender/suspect was already known to the investigating body and the registry was used to provide updated information, such as a photograph or address, which advanced the investigation. It has not helped in any cases where the crime was unsolved and the offender was unknown.Footnote 1

As this suggests, there is little or no evidence that the Registry is effective. The Ontario sex offender registry has been operational for almost ten years. In 2007, the Ontario Auditor General observed, “there is little evidence demonstrating the effectiveness of registries in reducing sexual crimes or helping investigators to solve them and the Ministry has yet to establish performance measures for its Registry”.Footnote 2

A 2009 study of New York’s Sex Offender Registration and Notification Law concluded that there was no significant impact on total arrests, arrests for subsequent sex offences or on the number of first time arrests for sex offending”.Footnote 3

Similarly, a 2009 state-funded study of New Jersey’s sex offender registration and notification law concluded that the system failed to either deter sexual crimes or reduce the number of victims.Footnote 4 There appear to be a number of reasons for this, including that the majority of sex offenders and victims are known to one another, many offenders have no previous convictions, and a large proportion of sexual offences against juveniles are committed by other juveniles.

These studies are among manyFootnote 5 that raise serious questions about the effectiveness of sex offender information registries from an economic and public safety perspective. Their conclusions also strongly support our recommendation last spring that the Canadian registry be assessed for effectiveness for the same reasons, as well as to evaluate whether its numerous privacy incursions are justifiable.

In May, 2009, five years after the implementation of the legislation, our Office received a Privacy Impact Assessment of the National Sex Offender Registry from the RCMP. Although late, it addressed some of the concerns we expressed about internal handling and verification of personal information, as well as greater transparency about the operation of the program. It did not, however, address the broader question of the overall effectiveness of the system. There is no information about the total or current costs of the program, the extent to which it is used and whether it is effective in preventing or solving sexual offences.

The proposed expansion of the current sex offender registry system, without an adequate assessment of its effectiveness, is a questionable approach to the very serious challenge of protecting the public from sex offenders while ensuring that Canadians’ constitutional rights to privacy are respected.

Thank you for your time today, and we would be glad to answer any questions that this Committee may have.

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