Canada's sex offender legislation: 'tough on crime', short on smarts!

Registries and Bill S-2

The first of the sex offender registries (SORs) was created in Canada almost a decade ago. At that time its purpose was laudable.  Over the years however the registries have been proven to be ineffective. Research has disproved the flawed beliefs on which the registries are based. The current Canadian Government however has once again refused to listen to that evidence. Instead of correcting the obvious flaws, thus improving public safety, it seeks again to advance its political standing by  introducing  “tough on crime” legislation which will expand that flawed registry and reinforce the public misperceptions and fears upon which it is based.

 Purported Purpose of the Canadian sex offender registries

 In 1988, an eleven year old boy was abducted outside of a shopping mall in Brampton, Ontario. Two days later his body was found; he had been beaten and sexually abused, then murdered. Details of the murder have been previously publicized and the victim's name, Christopher Stephenson, has been immortalized in subsequent legislation. (Ministry of Community Safety and Correctional Services, 2004a; Petrunik & Weisman, 2005). With this single, horrific incident it was determined that there existed a need for a National Sex Offender Registry (NSOR) and a “broader need for more comprehensive Canadian legislation supporting more successful management of sex offenders within the community setting” (Ontario Ministry of the Solicitor General, 1993).

 Canada currently has two sex offender registries (SORs): The Ontario Sex Offender Registry (OSOR) established in 2001 and the National Sex Offender Registry (NSOR) established in 2004. Both SOR databases contain information (e.g., photo, age, address, type of offence, and victim characteristics) of individuals convicted of sex offences (e.g., sexual assault, sexual interference, computer child luring, child pornography). Placement on an SOR in Canada lasts from 10 years to life (Hudson, 2005).

 The registry does not realize its goal:

 Sex offender registries are a political response to significant community concerns about the presumed risk of new sex offences committed by strangers (exemplified by the "stranger danger" campaigns). From a police perspective, SORs are based on the presumption that current and reliable information concerning registrants' whereabouts provides useful information in the aid of apprehending offenders responsible for new unsolved sexual crimes (Brodsky, 2006; Hudson, 2005). It is theorized that a database (SOR) of known sex offenders may assist investigators in effectively solving sex crimes. The legislative foundation for the OSOR highlights the importance of swift action in incidents of child abduction. Accordingly, police investigators are permitted 24 hour access to the OSOR during an investigation. The OSOR allows the police to search the database by various criteria. For example, investigators are able to search by geographical region based on the known location in which abduction took place or the residence of a missing child. The SOR search can generate a map and list of all registrants who live within the designated area. Investigators are also able to determine who in the region is complying with OSOR requirements and who is not in compliance (Friscolanti, 2008a). In contrast to dismal compliance rates in U.S. states, compliance rates for registrants on the OSOR have been in the range of 95% (Cole and Petrunik, 2007).

While protecting society is a laudable goal for the SOR, over the past ten years the registry has proven to be anything but effective:

Effectiveness

With the proliferation of laws requiring sex offender registration, the question eventually arises as to how effective these mechanisms are at ensuring more effective and efficient conviction of offenders who recidivate or indeed if they contribute at all to a reduction of sexual recidivism. There is currently no published research examining the effectiveness of Canada's provincial and national registries in terms of decreasing overall recidivism. There exists unequivocal evidence which proves their ineffectiveness:

The RCMP officer in charge of the national Sex Offender Registry testified before the House Standing Committee [in 2008] 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.

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

Retrieved from: http://www.priv.gc.ca/parl/2010/parl_20100415_e.cfm

 

American research on the impact of registration has been unambiguous about their effectiveness. 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” (Sandler, 2008).

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 (Zgoba, 2009). 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.

The reason why these registries are ineffective is due to the facts previously outlined within this paper:

1.       Most sex crimes are the work of first-time offenders, against who background checks, registries offer no protection. The individuals already on the registry are unlikely to commit another crime.

2.       Registries are designed to deal with situations where the victim does not know the offender, e.g. child abductions. However, such abductions are extremely rare. Most perpetrators of sexual crimes are family members or other acquaintances of victims.

 Here is just one example of some of the individuals Canada has on the registry: In 2009 a female teacher in Ontario, Leslie Merlino, received a suspended sentence with a 12 month probation after pleading guilty to three charges involving a ‘mutually agreeable’ sexual relationship with a former female student that began with a stroke of the seventeen year-old student's hair in 2006 (for which the teacher plead guilty to sexual exploitation), and involved sexually-explicit emails and coffee shop rendezvous, eventually blossoming into a sexual weekend in a Quebec City hotel when the student was eighteen. In addition to a criminal record and public disgrace, the woman lost her job as a teacher and will never again be able to teach. The charges, sentence and the revocation of this individual’s teaching license was justified; she was a teacher in a position of trust and authority over the younger female. Regardless of whether the seventeen year-old desired the relationship, which she supportably did, the teacher broke the law and was appropriately punished for that fact. In addition, the former teacher was placed on the Ontario sex registry for 20 years and ordered to submit her DNA to the national databank. For practical purposes, placing such an individual on the SOR defies logic: Ms. Merlino broke the law, not because, as most people would assume of an SOR registrant- that her partner was under the age of consent or because there was any force involved- but because there was an existing teacher-student relationship. Ms. Merlino will never again be able to teach, so society need have little fear that there will be a repeat of this situation. It would be reasonable to assume then, that Ms. Merlino would be of incredibly low risk to reoffend and yet she is on the registry for the next two decades.  If then, a child goes missing close to Ms. Merlino’s neighborhood the police will begin their search for the child by contacting Ms. Merlino and others like her who are on the registry. With such individuals on the registry is should be no surprise that, over the past ten years, the registry been useless in preventing or solving crimes of a sexual nature. Retrieved from: http://www.thestar.com/news/gta/article/695502

 

 

Other than failing to achieve its goal the registries have resulted in the following unintended and negative consequences:

 

Detracts from the real threat:

It has been said by some that the registry will help police investigations. This argument has been rebutted by critics. In 2004 Richard Zubrycki, then special advisor to the Department of Public Safety and Emergency Preparedness Canada, had advised the government against this type of sex offender registry. He has been researching international sex offender registries for 10 years, and uses the example of the case of 10-year-old Holly Jones, who was abducted and murdered in Toronto in 2003.

"In the Holly Jones case, you had a couple of hundred former sexual offenders in that neighborhood," Zubrycki says. "The perpetrator ended up being someone who wasn't on Ontario's registry. Going through the registry takes police resources that would otherwise be spent investigating clues and tips and going door to door."

Four weeks after the disappearance of Holly Jones the Ontario government announced that it would give Toronto police an extra $700,000 to monitor sex offenders. Security Minister Bob Runciman says Holly's murder was the catalyst for the additional resources. Unfortunately, these resources would have been wasted even if they were distributed a year before the disappearance of Holly Jones- Michael Briere ,the individual responsible for the murder of Holly Jones, never had a criminal conviction and so would never have been on the sex offender registry.

Recidivism rates:

Supporters of SORs believe that such mechanisms of control are justified as sex offenders pose a greater risk to the personal safety of citizens (particularly vulnerable segments of society) than other types of offenders (Cole and Petrunik, 2007). Recent research however has indicated that the average recidivism rate for sex offenders is significantly lower than the recidivism rate for most non-sexual crimes (Hanson and Morton-Bourgon, 2007). However, there are no 'registries' for other types of offences with similar or higher re-offence rates such as non-sexual assault on children and adults or armed robbery, aside from criminal record databases, which list criminal convictions (rap sheets).

 Human rights:

 The implementation of SORs is a relatively controversial topic and has led to debate surrounding the question of fundamental human rights. Opponents to sex offender registries stress that it is not fair to impose added measures to sex offenders once they have completed their sentence as they have essentially paid their debt to society. They question why sex offenders are being burdened with additional scrutiny from which other offender types are exempt (Cole and Petrunik, 2007).

False sense of security:

Another criticism of registries is that SORs provide the public with a false sense of security (Brodsky, 2006; Freeman-Longo, 1996; Zevitz and Farkas, 2000). They also tend to reinforce the idea of sexual offenders being predatory strangers, whereas in reality, the majority of sex offenders are known to their victims. In fact incidents of stranger abduction and sexual abuse are quite rare (Matravers, 2003; McAlinden, 2007; Petrunik, Murphy and Fedoroff, 2008). By reinforcing the myth that if we simply know who the former sex offenders are you can keep children safe, is actually making children less safe:

The laws are ill conceived because children are more at risk of sexual abuse from a family member or trusted friend of the family than from a former sexual offender,

-          Jamie Fellner, director of the U.S. program of Human Rights Watch

Cost:

The immense cost of successful implementation and proper maintenance of the OSOR and NSOR have also been identified as an area of contention (Murphy et al., 2009). The cost of keeping up-to-date and accurate information in the database is high and often requires that local police detachments do much of the field work to ensure compliance. Furthermore, since registrants are required to report for such long periods of time it is foreseeable that the number of offenders on the registry will continue to expand, which will contribute to increased maintenance costs. However, it appears as though the funds designated for more long term maintenance of the OSOR are not being utilized as was intended. The Auditor General's report on the OSOR highlighted the fact that a significant proportion of funds designated for the Ontario registry have been used to cover other OPP expenditures instead of using the remaining funds to address flaws in the system and ensure proper system maintenance and training of law enforcement officials (Auditor General of Ontario, 2007).

Previous challenge to the Ontario registry:

In 2008 An Ontario man challenged the law requiring sex offenders to register with the province arguing it violated his constitutional rights after he was charged with failure to comply for not reporting an address change on time.  The end result was not unexpected since the judgment was based, once again, upon flawed assumptions:

Ontario's highest court dismissed a thorny constitutional challenge to the province's sex offender registry today, ruling that the public's right to safety trumps any potential infringements on an offender's freedoms.

 While the registry does violate an offender's liberties to a modest extent, sex criminals are "prolific" and "likely to reoffend," said Appeal Court Justice Robert Blair.

He added that the registry gives police a valuable investigative tool when a sex offence occurs, and appearing on the list doesn't impede a person from "doing anything or going anywhere."

                                Retrieved from: http://www.thestar.com/news/ontario/article/418445

It is now clearly understood that the dismissal of the challenge was based on erroneous beliefs relating to recidivism rates and the supposed effectiveness of the registry. As to the judge’s suggestion that appearing on the list doesn't impede a person from "doing anything or going anywhere", that’s definitely not going to be correct with the introduction of Bill S-2.

 

Bill S-2, An Act to amend the Criminal Code and other Acts (Protecting Victims from Sex Offenders Act):

In April 2009 the office of the Privacy Commissioner of Canada 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.  At the time the Privacy Commissioner recommended that “a formal evaluation of the effectiveness of the legislation and the Registry by an independent third party [be conducted]. No such evaluation was ever conducted by the Conservative government. “Rather, the government has simply proposed an expansion of the existing regime.”   Retrieved from: http://www.priv.gc.ca/parl/2010/parl_20100415_e.cfm

On June 1, 2009 Public Safety Minister Peter Van Loan announced the proposed legislative amendments that were intended to ‘address some of the public criticisms of the NSOR’. These proposed changes include: automatic registration for all individuals convicted of a designated sex offence, a mandatory order for registrants to provide a DNA sample for the National DNA Databank, and increased ability for police to proactively use the registry to prevent potential sexual crimes. Police would also be permitted to notify foreign policing organizations of high risk sex offenders travelling to those international destinations (Golloway, 2009; Public Safety Canada, 2009). Mr. Van Loan stated that the “Government of Canada is committed to strengthening the National Sex Offender Registry and the National DNA Data Bank so that they better protect Canadians from sexual offenders.” Some of the most important changes defined in this legislation result in very great reason for concern:

A.       Automatic Inclusion in the National Sex Offender Registry

Currently offenders are not automatically placed on the NSOR but, rather, must be specifically ordered to register by a judge. For this to occur, once an offender is convicted of a designated offence, the Crown prosecutor must make a formal request to the court for a Form 52 Sex Offender Registration Order which places the offender on the registry and mandates their compliance with the SOIRA. The court may refuse the order if it is determined that registration would be grossly disproportionate to public interest (SOIRA, 2004). 

The conservative government is now proposing that SOIRA and DNA registration would be automatic upon conviction, or a finding of not being criminally responsible, for a prerequisite sexual offence, making it mandatory for the sentencing judge to impose an order to register and provide a DNA sample. The Crown prosecutor will no longer be required to bring an application for an order.

Politicians have argued, that because the registries have failed to solve a single crime, it must be because not everyone who could have been added, had been. If this were true it would be simple to prove with a little number crunching: examine everyone over the past decade who had been convicted of a sexual based offence and who, by judicial discretion, had not been added to the registry. How many of those individuals had later been convicted of another sexual offence? Very few I suspect. The federal politicians did not do their research of course, and now everyone will automatically be added to the registry.

 ¨       Calgary defense lawyer Alain Hepner says that the registry is intended for offenders who commit violent or horrific sexual offences, but the new amendments would require mandatory lifetime registration as a sex offender for minor crimes such as a misplaced office kiss.[1] An Edmonton Journal editorial argues that the changes go too far:

 [For] many cases, the sort of automatic registration the government is pushing for is unnecessary and will only clog up the databanks that investigators find helpful in tracking down serious predators. At the moment, it is left up to judges and prosecutors to determine who should be on those lists, as is right and proper.[2]  Bloc Quebecois MP Serge Ménard voiced his concern that automatic inclusion on the sex offender registry could swell the number of registered offenders to that point that preventative efforts would be undermined:

 Is it really important to increase the number of sexual offences required in order to be placed on the registry? When police officers check the registry after a child has been kidnapped, instead of getting 15 potential suspects, they get 400 or 500. The time they spend looking into those 500 people is time that will not be spent on perhaps more relevant searches.[3]

 ¨       Critics of the proposed legislation say the bill is meant to send a message to judges, rather than prevent sexual offences. Frank Addario, president of the Criminal Lawyers Association says the Tories are “sending a message that they mistrust judges.”[4] The Canadian Council of Criminal Defense Lawyers insists there is no evidence to suggest that making compliance with SOIRA mandatory will make the registry work any better.[5]

 ¨       In an editorial, the Globe and Mail likewise questioned this one-size-fits-all approach: “About 25,000 sexual assaults are reported to the police each year; the vast majorities are at the least severe end of the spectrum. Making all those convicted of sex offences report their movements to the police would tie up the police and impinge on civil liberties for little or no effect on crime investigations.”

 On June 10, 2010 a 17-year-old boy from western Manitoba was been convicted of sexual assault for having consensual sex with a 13-year-old during a game of Truth or Dare (http://www.winnipegfreepress.com/local/17-year-old-guilty-of-sex-with-girl-13-96034564.html). If Bill S-2 comes into force, and inclusion is thus automatic, this boy would be placed on the Sex Offender Registry. The Conservative government of Canada would have you believe that the inclusion of this boy on the registry is essential to the goal of ‘protecting society’.

 

B.       Proactive Use of the Registry

 Bill C-34 would also allow police officers to use, without restrictions, the national sex offender registry proactively to assist in preventing sexual offences. In this regard, police would be permitted to access the database for consulting, disclosing, matching of information and verifying compliance. It has been stated that if Bill C-34 passes, police investigating, for example, someone suspected of acting suspiciously near a school would be able to check whether that person’s name is in the registry’s database {X. In fact, the idea that a former offender will be lurking near a school or playground is a ridiculous stereotype- we know most offences occur in the home. Also, it’s not against the law for a former offender to be standing across the street from a school. Such an individual may simply be waiting for his own child to get out of class or his brother to finish work in the building in front of which he stands. Every Canadian citizen maintains the right to be presumed innocent of any wrongdoing and the right not to be subjected to harassment; simply being listed on the registry does not abrogate those rights. At what point in time did authorizes gain the power to know the intentions of its citizens? If this bill becomes law, individuals will be prosecuted not for anything they've done but for things someone thinks they might do - because someone is second-guessing their thoughts.

¨       The structure of how when the registry information should be used must be strictly defined. Are we willing to allow carte blanch on how this information is to be used. We setting a dangerous precedent here

¨       How will this prevent sex crimes? Most offenders on the registry will not recidivate. Thus most new sex offenses are committed by individuals not on the registry. Also the majority of sex offences are committed within the home, by individuals known to the victim. The registry will not prevent that.

The BC Civil Liberties Association also sees the possibility of great danger in the "preventative" aspects of the bill.

"The example that was given was someone acting suspiciously around a schoolyard might be enough to trigger police to use the information in the database," says executive director David Eby. "That sort of preventative use is of potential concern to us because when you're talking about suspicious activity, then you start talking about people who appear to be homeless, or appear to be drug users, or you get into issues of racial or sexual profiling, and we're very cautious about the term 'suspicious activity.'"

C.       Travel Notifications

This proposal would allow travel notifications to other jurisdictions about National Sex Offender Registry registrants to enable police to advise other foreign or Canadian police jurisdictions that registered high-risk sex offenders are traveling to their area. In effect then former offenders will effectively be prevented from leaving Canada in order to seek employment, to visit family and friends abroad, or simply to travel with their friends and family on vacation.

¨       Notifying foreign authorities of the travel plans of former sex offender’s will most certainly violate the Canadian Privacy Act.

¨       Such notification also breaches both international and domestic law:

 

1. Article 13 of the Universal Declaration of Human Rights, adopted by the U.N. General Assembly, reads,

    (1) Everyone has the right to freedom of movement and residence within the borders of each State.

    (2) Everyone has the right to leave any country, including his own, and to return to his country.

 

Article 12 of the International Covenant on Civil and Political Rights incorporates this right into treaty law:

    (1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

    (2) Everyone shall be free to leave any country, including his own.

 

3.       The Constitution of Canada contains mobility rights expressly in section 6 of the Canadian Charter of Rights and Freedoms. The rights specified include the right of citizens to leave and enter the country and the right of both citizens and permanent residents to move within its boundaries. Section 6 mobility rights are among the select rights that cannot be limited by the Charter's notwithstanding clause.

 4.       Canada's Social Union Framework Agreement, an agreement between governments made in 1999, affirms that "All governments believe that the freedom of movement of Canadians to pursue opportunities anywhere in Canada is an essential element of Canadian citizenship." In the Agreement, it is pledged that "Governments will ensure that no new barriers to mobility are created in new social policy initiatives."[6]

It may be argued that there are justifiable exceptions to the above conventions and legislation. In respect to the Privacy Act for example, Section 8.2a of the act contains an exception that might allow police to disclose this information in certain circumstances: “…personal information under the control of a government institution may be disclosed (a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose.” Also Article 12 of the International Covenant on Civil and Political Rights states that “the above-mentioned rights shall not be subject to any restrictions except those provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” In both instances then there must be a justifiable reason for infringing upon these rights to mobility. Proponents of Bill C-34 will argue that notification is necessary to prevent harm to children.  However, simply appearing on the registry is not suitable grounds for making such an assumption since most individuals on that registry will not reoffend.  If travel notification is reserved for only those former offenders still considered to be ‘high risk’, the government must ensure that a compelling and recent risk assessment has been conducted and that such a risk assessment provides  reasonable grounds to believe that the offender will sexually harm a child abroad. The government must ensure that such individual risk levels are reassessed annually.

 

D.       Sex offenders would be required to provide notice in advance for any absences from home address of 7 days or more.

  1. The sex offender would need to notify registry officials within seven days regarding any changes in employment or volunteer work and address/location where they work.

It is difficult to determine what benefit items D and E would have on protecting society. It is far more evident how this process may increase the stressors experienced by former offenders, thereby indirectly contributing to subsequent relapse.

  1. This proposal would clarify that wherever an individual has been convicted of more than one sexual offence against different victims, or against one victim at separate points in time, the duration of the Order would be for life, even where the convictions for those offences were entered on the same date.

If Bill S-2 becomes law, the mandatory lifetime registration for convicted sex offenders may be challenged as “overbroad.” The Supreme Court recognized the doctrine of “overbreadth” in R. v. Heywood,[ 7] where it struck down a Criminal Code offence that prohibited a person previously found guilty of a sexual assault to be “found loitering in or near a school ground, playground, public park or bathing area.” The Court found that a law that restricted liberty more than was necessary to accomplish its purpose would be a breach of fundamental justice (Charter, section 7) on the grounds that it was overly broad. [8]

  1. The registry would also contain information on the license plate, make, model, year of manufacture and colour for vehicles that are registered in the sex offender’s name or that are used regularly such as company vehicles.

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-Statement by Jennifer Stoddart, Privacy Commissioner of Canada

 

The Canadian Civil Liberties Association shares our grave concern of the harmful ramification which will likely result from this legislation:

The CCLA recently sent a letter to the federal Public Safety Committee urging reconsideration of proposed changes to the sex offender registry that would result in automatic inclusion of certain offenders and broader use of registry data. In its letter, the CCLA suggested that courts should be given more discretion to determine which offenders are, and are not, appropriate for inclusion on the sex offender registry, and that more clarity needs to be provided as to when it is appropriate to use registry data for preventative purposes.

Retrieved from: http://ccla.org/wordpress/wp-content/uploads/2009/11/2009-11-03-letter-to-SECU-re-Bill-C-34.pdf

 

 Advocates of registries believe that having a database of information on convicted sex offenders serves as a fundamental tool for the efficient and effective investigation of crimes of a sexual nature. However, empirical evidence has proven that sex offender registries are ineffective. The conservative government counters this evidence by proposing amendments to the existing legislation. Once again, tighter restrictions will be imposed on former offenders. Once again these changes will do nothing to increase public safety simply because of the fact that most of these former sex offenders will never reoffend. Sex offenders committing another sex offense is the only reason that a "Sex Offender Registry" exists at all, and yet almost everyone listed in a Sex Offender Registry is less of a danger than those who are not listed at all. On the other hand these changes will do much to increase the pressure on former offenders, punishing them further for a crime they have already been punished for and potentially increasing the rate of recidivism of those former offenders.  Another repercussion is that, by pouring scarce resources into monitoring all convicted offenders means there will be less time, energy and resources to implement sexual violence prevention policies that will actually keep the public safe. Because of such concerns, Human Rights Watch called in a 2007 report (http://www.hrw.org/en/reports/2007/09/11/no-easy-answers) for a major revamping of America's sex offender laws. It was recommended, amongst other things, that registration should be limited to former offenders who have been individually assessed as dangerous, and only for as long as they pose a significant risk.

Once sex offender laws are in place, it is hard for politicians to repeal them, because they don't want to appear weak on the issue of sex offenders. Before Bill S-2 is enacted then, further research MUST be conducted that clearly establishes the overall effectiveness of Canada's SORs. It is important to understand the extent to which registration impacts recidivism rates and if SORs achieve their intended goal of more readily identifying recidivist suspects.

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.

-          Statement by Jennifer Stoddart , Privacy Commissioner of Canada

 

In the absence of compelling evidence that the sex offender registries actually keeps Canadians safer, its constant expansion cannot be justified.