CANADA
40th PARLIAMENT, 3rd SESSION
Standing Committee on Justice and Human Rights
EVIDENCE
CONTENTS
Monday, February 14, 2011
| 1530 |
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The Vice-Chair (Mr. Brian Murphy (Moncton—Riverview—Dieppe, Lib.)) |
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Dr. Vernon Quinsey (Professor Emeritus of Psychology, Queen's University, As an Individual) |
| 1535 |
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The Chair (Mr. Ed Fast (Abbotsford, CPC)) |
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Dr. Hubert Van Gijseghem (Psychologist and Professor (retired), University of Montreal, As an Individual) |
| 1540 |
| 1545 |
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The Chair |
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Mr. Brian Murphy |
| 1550 |
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The Chair |
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Mr. Brian Murphy |
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Dr. Vernon Quinsey |
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The Chair |
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Mr. Serge Ménard (Marc-Aurèle-Fortin, BQ) |
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Dr. Hubert Van Gijseghem |
| 1555 |
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Mr. Serge Ménard |
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Dr. Hubert Van Gijseghem |
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Mr. Serge Ménard |
| 1600 |
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Dr. Hubert Van Gijseghem |
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The Chair |
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Mr. Joe Comartin (Windsor—Tecumseh, NDP) |
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Dr. Vernon Quinsey |
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Mr. Joe Comartin |
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Dr. Vernon Quinsey |
| 1605 |
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Mr. Joe Comartin |
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Dr. Vernon Quinsey |
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Dr. Hubert Van Gijseghem |
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Mr. Joe Comartin |
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Dr. Hubert Van Gijseghem |
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The Chair |
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Mr. Stephen Woodworth (Kitchener Centre, CPC) |
| 1610 |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Hubert Van Gijseghem |
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Mr. Stephen Woodworth |
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Dr. Hubert Van Gijseghem |
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Mr. Stephen Woodworth |
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Dr. Hubert Van Gijseghem |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Hubert Van Gijseghem |
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Mr. Stephen Woodworth |
| 1615 |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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Mr. Stephen Woodworth |
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Dr. Vernon Quinsey |
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The Chair |
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Hon. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.) |
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Dr. Vernon Quinsey |
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Hon. Marlene Jennings |
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Dr. Hubert Van Gijseghem |
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Hon. Marlene Jennings |
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Dr. Hubert Van Gijseghem |
| 1620 |
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Hon. Marlene Jennings |
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Dr. Hubert Van Gijseghem |
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Hon. Marlene Jennings |
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The Chair |
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Dr. Hubert Van Gijseghem |
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The Chair |
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Mr. Marc Lemay (Abitibi—Témiscamingue, BQ) |
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Dr. Hubert Van Gijseghem |
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Mr. Marc Lemay |
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Dr. Hubert Van Gijseghem |
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Mr. Marc Lemay |
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Dr. Hubert Van Gijseghem |
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Mr. Marc Lemay |
| 1625 |
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Dr. Hubert Van Gijseghem |
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Mr. Marc Lemay |
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Dr. Hubert Van Gijseghem |
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Mr. Marc Lemay |
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Dr. Hubert Van Gijseghem |
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Dr. Vernon Quinsey |
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The Chair |
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The Chair |
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Dr. R. Karl Hanson (Senior Research Scientist, Corrections and Criminal Justice, Department of Public Safety and Emergency Preparedness) |
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The Chair |
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Mr. Ed McIsaac (Interim Director, Policy, John Howard Society of Canada) |
| 1635 |
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The Chair |
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Dr. R. Karl Hanson |
| 1640 |
| 1645 |
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The Chair |
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Dr. Richard Haughian (Vice-President, Church Council on Justice and Corrections) |
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Ms. Lorraine Berzins (Community Chair of Justice, Church Council on Justice and Corrections) |
| 1650 |
| 1655 |
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The Chair |
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Mr. Brian Murphy |
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Dr. R. Karl Hanson |
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Mr. Brian Murphy |
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Dr. R. Karl Hanson |
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Mr. Brian Murphy |
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Dr. R. Karl Hanson |
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Mr. Brian Murphy |
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Dr. R. Karl Hanson |
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Mr. Brian Murphy |
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Mr. Ed McIsaac |
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Mr. Brian Murphy |
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Mr. Ed McIsaac |
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Mr. Brian Murphy |
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Mr. Ed McIsaac |
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Mr. Brian Murphy |
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Mr. Ed McIsaac |
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Mr. Brian Murphy |
| 1700 |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
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Mr. Brian Murphy |
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Ms. Lorraine Berzins |
| 1705 |
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The Chair |
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Ms. Lorraine Berzins |
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The Chair |
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Mr. Serge Ménard |
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Mr. R. Karl Hanson |
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Mr. Serge Ménard |
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Mr. R. Karl Hanson |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
| 1710 |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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Mr. Serge Ménard |
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Ms. Lorraine Berzins |
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The Chair |
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Mr. Joe Comartin |
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Ms. Lorraine Berzins |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
| 1715 |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
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Mr. Joe Comartin |
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Dr. R. Karl Hanson |
| 1720 |
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The Chair |
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Mr. Bob Dechert (Mississauga—Erindale, CPC) |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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The Chair |
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Ms. Lorraine Berzins |
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The Chair |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
| 1725 |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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Ms. Lorraine Berzins |
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Mr. Bob Dechert |
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The Chair |
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Mr. Bob Dechert |
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The Chair |
CANADA
Standing Committee on Justice and Human Rights |
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EVIDENCE
Monday, February 14, 2011
[Recorded by Electronic Apparatus]
* * *
(1530) [Translation]
Good
afternoon everyone. This is the 48th meeting of the Standing Committee
on Justice and Human Rights. Today we have witnesses on Bill C-54, An Act to amend the Criminal Code (sexual offences against children).
[English]
We're very pleased this afternoon to have in our first
hour two witnesses as individuals. The first is Vernon Quinsey,
professor emeritus of psychology from Queen's University; and the second
is Hubert Van Gijseghem, who is a psychologist and a retired professor,
formerly of the University of Montreal.
Gentlemen, professors, we generally allow an opening
statement of about ten minutes, followed by a round of questions from
all of the parties represented here.
We'd like to start with you, Professor Quinsey, for ten minutes.
Dr. Vernon Quinsey (Professor Emeritus of Psychology, Queen's University, As an Individual):
Thank you very much. It's a pleasure to be here.
I have a few remarks to make. I tried to think of things
that would serve as an appropriate background for consideration of sex
offender sentencing and sexual crimes against children.
The first point I want to make, and the one that's most
important in this area and in dealing with sex offenders, is that sex
offenders vary enormously in their likelihood of reoffending. This is
the central datum that has to be dealt with in any kind of sentencing
policy. That being said, there are certain categories of sex offenders
who are relatively unlikely to commit subsequent “hands-on” or contact
sex offences. Among these are incest offenders and Internet offenders
without a history of contact offences.
At the individual level, a sex offender's risk of
reoffending can be estimated with a fair degree of accuracy using
actuarial methods. Our predictive abilities are good, but they're not
perfect.
Sexual predators are those who are very likely to commit
new “hands-on” sexual offences, especially violent sex offences. It is
critically important to identify and to incapacitate these individuals.
Given this, I think that criminal justice policies should seek to
balance offenders' civil liberties and community protection by
maximizing the incarceration of sexual predators and minimizing the
incarceration of low-risk offenders. In this view, sentences should
reflect both the gravity of the instant offence and the risk the
individual presents to the community. We have to realize in this area
that no sentencing policy can lead to the incapacitation of all sex
offenders who are sexual predators without the lifetime incarceration of
virtually all sex offenders. There will always be some missed. The
issue is one of striking a proper balance.
The solution to this policy conundrum involves carefully
appraising the risk of identified sex offenders and adjusting the amount
and intensity of supervision and the duration of incarceration on the
basis of risk.
I want to switch gears a little bit now and talk about
the historical context within which we find ourselves contemplating
changes in sentencing policy.
Throughout North America, the rates of homicide, rape,
and a variety of other crimes have declined over recent years, sometimes
substantially. These changes, reflected in both survey and official
records, parallel drops in a variety of other risk-related behaviours
and outcomes, including industrial accidents, driving without a seat
belt, having sex before age 13, smoking, dropping out of school, and so
forth. So there's a wide variety of indicators that are related to risky
behaviours, some of them criminal, some of them not. They're all
showing the same welcome trends.
We are doubly fortunate, I believe, that the rate of
sexual offending against children has also markedly decreased in recent
years. This is a North-America-wide phenomenon. We're doubly fortunate,
because sexual offenders against children are more likely to have been
sexually victimized themselves as children. It is likely, therefore,
that the drop in sexual offences against children will lead to a further
drop in the number of sexual offences against children.
That concludes my opening remarks.
(1535)
Thank you.
We'll move to Mr. Van Gijseghem.
[Translation]
Dr. Hubert Van Gijseghem (Psychologist and Professor (retired), University of Montreal, As an Individual):
I
will briefly start by introducing myself for credibility purposes. My
name is Hubert Van Gijseghem. I have been a psychologist since 1963. I
got my PHD in psychology in 1970. I have had two parallel careers: one
as an academic at the University of Montreal and one as a practitioner.
As a university professor, I obviously have the
opportunity to teach and do research. Most of my research has been on
sexual abuse, on victims and the consequences for victims, as well as on
offenders. As a practitioner, my entire life, I have mainly been a
clinician. As a clinician, I have had the opportunity to provide
treatment, once again to victims as well as to sex offenders.
However, over the last 15 or 20 years of my career as a
practitioner, I have focused solely on forensic examinations, in other
words expertise for a number of courts in various jurisdictions. Like my
colleagues who are here today, I have published some papers and books
on the subject of sexual abuse.
I have been asked to say something intelligent on Bill C-54
regarding the protection of children against sexual predators and also
to address whether or not mandatory minimum sentences are necessary or
useful.
I read the legislative summary and was somewhat shocked
by some passages. When I read arguments in favour of these types of
prison sentences and read the arguments against them, I found myself in
favour of almost all arguments. That is probably compatible with the
type of doubt inherent in the scientific mind.
I am not a lawyer. I have little or no understanding of
legislation, even existing legislation. Furthermore, I have little
knowledge of case law on sexual abuse. So I do have some difficulty
providing an opinion on the need for or use usefulness of mandatory
minimum sentences.
However, I am a psychologist and I do believe that I have
some knowledge, to a certain extent, of the sex offender population. I
also know certain things about their dangerousness, the risk of
recidivism, and the actuarial and other tools my colleague just referred
to. That is within my area of expertise.
The first thing I would like to point out, from the
outset, is that the sex offender population is not homogeneous. There
are different types of offenders. All those who have tried to come up
with a typology of abusers realized that there are in fact a number of
sub-categories that are not necessarily comparable.
Given the heterogeneous nature of this group it is
difficult to devise automatic or standardized measures. If we look at
evaluative research, because at the end of the day that is what brings
clarity to the issue of dangerousness or risk of recidivism, there are
two types of evaluative research. One is the type carried out by those
who promote therapy. Quite often, their results indicate that therapy
works and has a certain rate of success. However, when you look at
evaluative research conducted by independent researchers, results are
far less optimistic.
As Dr. Quinsey mentioned, specifically for extra-familial
abusers, not much rehabilitation is possible before a given age, in
order words before aging itself has had an effect.
(1540)
This evaluative research, and I am thinking of some
research conducted by my colleague Dr. Quinsey and his team or other
research done by my colleague Dr. Hanson, who is also here with his
team, has effectively shown that, especially in the case of
extra-familial abusers, there is no great improvement in the area of
risk of recidivism or dangerousness, regardless of whether or not the
individual has had psychotherapy. If there was psychotherapy, the type
of therapy matters little.
This leads us to believe that therapy or an order given
by a judge for a course of therapy, even though it may be seen as good
news by all, cannot be perceived as an alternative to incarceration nor a
substitute for punishment.
When we speak of therapy or when individuals get therapy
and we feel as though everyone is pacified, the good news is often
illusory. For instance, it is a fact that real pedophiles account for
only 20% of sexual abusers. If we know that pedophiles are not simply
people who commit a small offence from time to time but rather are
grappling with what is equivalent to a sexual orientation just like
another individual may be grappling with heterosexuality or even
homosexuality, and if we agree on the fact that true pedophiles have an
exclusive preference for children, which is the same as having a sexual
orientation, everyone knows that there is no such thing as real therapy.
You cannot change this person's sexual orientation. He may however
remain abstinent.
Now, if we think of psychopaths, who, according to my own
samples account for 15% of the sexual offender population, it might be
worthwhile to point out that we have been trying for hundreds if not
thousands of years to rehabilitate them, all for naught, at least for
the time being.
Of course, everything I have just said also points to the
fact that there probably are sexual offenders or types of sexual
offenders who can be rehabilitated. Which ones? Is it the majority? I am
not sure it will be the majority, but because some abusers can
certainly not be rehabilitated and others can, it means that sooner or
later we will have to come up with a careful differential diagnosis to
determine which ones can be rehabilitated.
Is this feasible? Is it too expensive in terms of time,
effort, or money? I do not know. There might be something to be done in
the area of the presentence report. I have seen many presentence reports
and I personally have often remained dissatisfied. Can a country afford
far more in-depth and elaborate presentence assessments? That is
probably up to you to decide.
(1545) [English]
Thank you very much.
We're going to go to questions from our members. We'll start off with Mr. Murphy, for seven minutes.
Thank you, Mr. Chair.
I thank both witnesses for your testimony today.
Bill C-54
imposes a number of mandatory minimums, or actually expands a number of
mandatory minimums. I couldn't be more empathetic, Professor Van
Gijseghem, because it's very clear that the mandatory minimums are in
the code already, have been for a long time, and there have been a
number of them introduced, but it's very much a matter of calibration as
to whether people think they go overboard, go too far, or don't.
If you look at the Library of Parliament's documents, you
will read that those who like mandatory minimums say they act as
deterrents and they perform an educational purpose by clearly
communicating society's disapproval, and those who don't like them say
that there's no deterrent effect and it's an inflexible penalty
structure.
I'm going to ask you both your opinion on where your
matrix is in this case. Do you think they're educational in purpose?
Would they reduce sentence disparity across Canada? For instance, you
might have some people getting lighter sentences in parts of the country
for the same offence. But I want to ask you about the context here.
When I look at this Criminal Code, it's like a textbook, and we try to
order the offences by the degree of severity. Part 5 of our code is
truly outdated, because it talks about very serious offences—sexual
touching, invitation to sexual touching, sexual assaults, and so on,
very serious—and we go down to around section 170, public nudity, which
I'm not suggesting is good or permitted or whatever, but clearly is not
as egregious as sexual touching. But there's an interim part under
“Corrupting morals” that now contains our child pornography offences.
And this is really the battle here: we realize in this day and age that
there's a proliferation of child pornography. And child pornography is
even a title that's out of date. It's the capturing on film or in media
of an abusive act towards a child who is defenceless and cannot consent
to that act. That's a crime of the highest order in this whole section, I
would say, this part.
If you take it that we feel the child pornography
aspects, the child abuse images, are the worst parts of the crimes in
this section, do you not think it might be appropriate under these aims
for mandatory minimums to torque them up a bit? That is what this bill
does in large regard. It moves things from 14 days, minimum, to 90 days
in some of these very serious offences. It creates new offences about
the reality of people procuring meetings with minors and so on. As
academics, do you see a balance there? That's the first question.
Secondly, you talk about a pedophile as having a
preference. I'm not sure if I understood that; perhaps you want to
expand. Is it a condition that can be treated, can be cured, or is it as
varied as any answer might be in that regard: it depends on the patient
and it depends on the client?
Those are the two questions for each of you. I think you'd each have about a minute and a half or so.
(1550)
Yes.
A minute and a half each.
Dr. Vernon Quinsey:
You ask a number of questions within your question. I'll try to address them all as best as my memory will allow me to.
The first issue you raised was one of proportionate
sentencing--how serious are these crimes, and are these mandatory
minimums an appropriate response to such a crime? I don't know if I'm
the right person to answer that question, but I'll give you my views
anyway.
What I worry about, with respect to mandatory minimum
sentencing, is the potential of having a whole bunch of new offenders in
the system. That's a potential, a very negative outcome, I think, of
increasing the penalties for say possession of Internet child
pornography. I'm not so sure that we want to go that way.
The reason I say that is because in the United States
this is the fastest-growing category of offenders in their system. When
you think about how available this material is.... I mean, after all,
child pornography is defined as images of anybody up to the age of 18.
It's unfortunate that it's called child pornography, because these
people are minors; they're young, the majority of them, but they're not
what, in my language, I would call a child. Certainly they're not
prepubertal.
On the other hand, I think you raise a very serious and
important issue. What we seek to address is the exploitation of
children. You can imagine all kinds of unhappy scenarios where someone
is coerced or tricked into doing stuff that's filmed. Certainly I think
those offences should be penalized quite heavily. At the level of
possession, I'm not so sure. I fear that it's so common that it will
lead to problems in administering justice.
You raise the issue of pedophilia. Let me just make some distinctions for you.
First of all, pedophiles are people who prefer
prepubescent children. They're not interested in 15-year-olds who have
an adult body shape or anything like that. They're not interested in
those kinds of people. They have quite a restricted area of sexual
interests in terms of the kinds of body types that their victims have.
There is no evidence that this sort of preference can be changed through
treatment or through anything else.
Treatment for those offenders shades into management,
where you essentially have to teach someone to live within their sexual
preference structure. They have to find other kinds of outlets. They
have to avoid high-risk situations. They have to do all those sorts of
things. But I think that most people would agree that this kind of
sexual preference pattern—an actual preference for prepubertal
children—is not alterable by any kinds of current treatments.
I'm going to have to cut you off there.
Monsieur Ménard, for seven minutes.
[Translation]
Mr. Gijseghem, I think the questions that have been asked are for you. Can you respond?
Dr. Hubert Van Gijseghem:
My response will not
be vastly different from that of my colleague Vernon Quinsey. Indeed, I
am equally uncomfortable with the idea of having the possession of
pornographic material included as a sexual offence. In that regard, it
seems to me that there is a big difference between possession and
creation of this material. Obviously, the argument is always that
individuals interested in this type of material, who own some and
download it, are encouraging producers and in so doing are essentially
part of a production line of child pornography. At the very least it is
said they are accomplices in the exploitation of children for sexual
purposes. I know this argument, and it is true. However, there is such a
high prevalence of possession of child pornography that I wonder,
honestly, whether it is realistic to include that among the offences.
Further, research has shown that only a small proportion
of individuals possessing pornographic materials act out. That is
another point I wanted to raise. With respect to pedophilia, as I
believe Dr. Quinsey just explained, in other words and perhaps better
than I, as I have already said, it is a sexual orientation. Of course,
even an individual whose sexual orientation involves a quasi-exclusive
preference for prepuberscent children can remain chaste or abstinent. In
fact, this has been seen among some members of the Catholic clergy.
Chastity exists, but for the vast majority of pedophiles, the risk of
acting out is far higher than for other sexual offenders. And in this
case I would refer to intrafamilial abusers as an example, as my
colleague has done.
(1555)
Generally
speaking, among criminal lawyers there is the view that child abusers
are very poorly received when they get to jail. Other offenders assault
them and most often, they must be isolated. One might think therefore
that sexual offenders are quite fearful of jail. Would the fear of an
automatic sentence, perhaps even a long one, put a stop to their sexual
conduct?
Dr. Hubert Van Gijseghem:
Yes, obviously,
sexual offenders are very poorly received. It is a fact. It is a bit of a
national sport, maybe an international one. When sexual offenders get
to jail, they get beaten. Sometimes, guards turn a blind eye. It is well
known. Would the fear of such a thing occurring inhibit sexual
offenders? I am not sure. At first glance, I am not in favour of
mandatory minimum sentences, but I do not think the “bashing” sex
offenders get in jail can serve as an argument not to impose minimum
sentences. I do not see it as an argument.
If
I understand correctly, over the course of your career you have often
testified. Canada-wide, you are among those who have testified the most,
with the most professionalism.
Could you give us an idea of the time required to do a
reliable assessment of the dangerousness of a sex offender, compared to
that of another offender, and tell us approximately how much this
assessment will cost?
(1600)
Dr. Hubert Van Gijseghem:
Obviously, opinions
vary among experts. I personally am regularly asked to give an opinion
on an offender, determine who he is and assess his degree of
dangerousness and risk of recidivism. I believe an in-depth interview
with the individual is necessary. One or two objective personality tests
must be administered to know how this person reacts, with respect to
personality structure or, in some cases, pathology. We also need
actuarial tools, and possibly qualitative tools like those Dr. Quinsey
was referring to earlier. I am thinking here of a tool, quite advanced,
which was developed by Dr. Quinsey himself as well as by others,
including Dr. Hanson, who is also here. We have actuarial tools, the
predictive success of which is eminently higher than that of clinical
intuition. All of these tools must be used.
I do not believe such an assessment would cost $1,000 or
$2,000. The cost would certainly be around $3,000 to $3,500. I am
talking here about an in-depth assessment along with a report that is
sufficiently reliable, so decision-makers can rely upon it.
[English]
Thank you.
We'll move to Mr. Comartin for seven minutes.
First I want to apologize to both of you. Je m'excuse d'être en retard. I was caught in the House.
Professor Quinsey, would you also answer that last question? Because I would like to know the same answer as we got from....
Dr. Vernon Quinsey:
Yes. I think the cost of
an assessment depends upon the infrastructure that exists. If you look
at an organization like the Correctional Services of Canada, you see
that they have a structured system of assessing risk and also of
gathering information that other assessments of risk are based on.
If that kind of system is in place.... It involves
probation and parole officers and getting court records and social work
input, those sorts of things where you have a very good history of the
person, both a behavioural history and a criminal history. If that stuff
is all documented and easily accessible, it markedly speeds up
assessments and makes them more reliable.
An assessment can only be as good as the quality of the
data that it's based upon. If you have an organization that's dealing
with offenders, it's critically important that they have a kind of a
standardized method of gathering and recording information that
professionals can then use in making risk assessments.
I
want to take you back to an issue that was raised by Professor William
Marshall when he was here last week. He was focusing in on the charge
for incest, where we're now going to be imposing a mandatory minimum of
five years.
He raised the issue that you have the situation where you
have incest between siblings that may very well be consensual in the
sense of them being adult--old enough to do it--or between adult parent
and child, which may not have started until the adult...and then the
more traditional stereotype of adult parent and a very young child.
Have you seen any statistics as to what the proportion
would be? In effect, I'm asking how many adults we are exposing to a
mandatory minimum of five years.
Dr. Vernon Quinsey:
I haven't seen any
statistics. I've never seen one in my practice--a case of that nature.
First of all, I don't know how often it occurs and, if it occurs, how
likely somebody might be to be apprehended. I don't think it would be a
common occurrence.
Now, just to continue that line of thinking, five years,
to my way of thinking, is a long minimum, because you wonder about even
these other cases, where it's a biological father-daughter kind of
incest, what sorts of extenuating circumstances there might exist. How
extensive was the pattern of abuse? All those sorts of things.... It
seems to me that if I were a trial judge, I'd want to make allowances
for those sorts of things, but that's my view.
(1605)
They're not allowed to in these circumstances.
Have you done any extensive work on treating children who are victims of sexual abuse?
Dr. Vernon Quinsey:
I've never treated victims.
Dr. Hubert Van Gijseghem:
I have been involved
in therapy programs for victims. Again, I would be cautious. I do not
believe that most of the programs we currently have on the market should
be suggested for or imposed upon children in a standardized or
automatic way. Here, as elsewhere, we have to approach the issue on a
case-by-case basis, to see what the needs of a particular child may be.
I have done research in this area and I would say that
some children need to discuss what happened or to “get therapy”, any
therapy. However, other children do not need that. There are a certain
number of children, rather a large number, who would be better served if
we left them alone quite simply, who do better if they are not
resubjected to the process of having to discuss their sexual assaults
all over again.
That means, I think, that we need to take into account
the individual and developmental needs of each child before we sign
victims up for existing programs.
I would therefore advise the highest degree of caution in
this case. I think a certain number of children have been re-abused
through this automatic recruiting into the types of therapy that are
currently available. One size does not fit all and we need to apply a
differential, case-by-case diagnosis. That is my opinion.
Is
it possible to determine whether victims feel differently if the adult
abuser is a parent, a family member or a stranger? We are looking at
putting them in jail, punishing them. Should they be more harshly
punished if they are parents, or strangers?
Dr. Hubert Van Gijseghem:
There is a paradox
there. Everyone would agree. Well, let's not exaggerate. Rather, let's
say that much research indicates that children who are abused within the
family are more scarred than those who are abused by strangers. That
said, intrafamilial abusers are less likely to reoffend than
extrafamilial abusers.
That is a paradox. If the sentence is based on the impact
on the child, we should punish those who have committed incest more
harshly; but if the sentence is based on the risk of reoffending, they
should be less harshly punished. That is the paradox.
Thank you.
[English]
We'll move to Mr. Woodworth for seven minutes.
[Translation]
Thank you very much, Mr. Chairman.
Thank you to our witness for being here with us.
[English]
I've been favourably impressed by the manner in which you
have testified. You have been professional and cautious, and you do not
overstate. Many times we see witnesses who are here to pursue certain
interests of their own, and they are less cautious. So I thank you for
that.
I note that you have both been careful to qualify your
evidence by saying you are not jurists. I assume that neither of you is a
lawyer. You are psychologists, so I mean this question in the best
sense, just to understand where you're coming from. Have you actually
read the bill we are here to study, Bill C-54?
(1610)
Dr. Vernon Quinsey:
I read the briefing summary. I didn't read the whole thing, but I read excerpts.
Some of it.
And Professor Van Gijseghem?
Dr. Hubert Van Gijseghem:
I also only read the briefing.
All
right. I understood at least one of you to be raising concerns about
mandatory minimum penalties with respect to the possession of
pornographic material. I forget which one of you it was. Am I correct in
understanding that you have some misgivings about mandatory minimum
penalties for simple possession of pornographic material? You have to
say yes or no for--
Dr. Hubert Van Gijseghem:
Yes, that's what I said.
Merci.
I should say there is a time limit on me, so I will try
to ask questions that can be answered simply. I myself am not a
psychologist, so large psychological explanations will be of less use to
me than legal explanations may be to you.
In this bill, for example, we have created a new offence,
which would impose a mandatory minimum penalty on anyone who, through
telecommunications, arranges with a second person to commit a sexual
offence against a child--in other words, a kind of conspiracy. Would
your concern about mandatory minimum penalties extend to that sort of
offence?
Dr. Hubert Van Gijseghem:
Personally, no.
Thank you.
And you, sir?
[English]
Dr. Vernon Quinsey:
I don't have a concern about that if the mandatory minimum is short.
Yes, in this case 90 days, I believe. One year on indictment, 90 days on summary.
Also, we have created a new offence that would impose a
mandatory minimum penalty upon anyone who provides sexually explicit
material to a child for the purpose of facilitating a sexual offence
against that child; in other words, to lure the child. Would your
concern regarding mandatory minimum penalty exist with respect to such
an offence?
Dr. Vernon Quinsey:
I think I would have some
reservations. My reason is, if the child is 16, 16 is the age of
consent, so it would have to be somebody who is 15--
Correct.
Dr. Vernon Quinsey:
--and if it excludes age mates and close--
Correct,
only if it were an offence, that the facilitating is of an offence, so
it would exclude close-in-age persons. Are you okay with that, then?
Dr. Vernon Quinsey:
Okay with that.
Merci.
Then, of course, we have also now imposed a minimum
mandatory penalty upon those who commit an aggravated sexual assault
where the victim is under 16 years of age. Would either of you or both
of you be okay with a mandatory minimum penalty in such a case?
Dr. Vernon Quinsey:
Yes, I'm okay.
And you, Professor?
Dr. Hubert Van Gijseghem:
The same.
Bien.
There are a number of other sections in the act that you
would see deal with serious sexual offences of this nature, which impose
mandatory minimum penalties.
I was curious, I think it was Dr. Quinsey who mentioned
that the incidence of child sexual assault is reducing. We heard
evidence from the manager of the child sexual exploitation
investigations section of the Ontario Provincial Police that in four
years alone that unit has conducted 11,537 investigations; it has laid
3,897 charges against 1,303 individuals.
I don't know, Dr. Quinsey, whether those figures would
surprise you or not, but I want to place that in the context of what I
think I heard, in that someone said these offences are reducing. Has it
been worse than that in the past?
(1615)
Dr. Vernon Quinsey:
Yes, necessarily so, if the rate is reducing.
So this is a good thing that we've got it down to these numbers. Is that what you're saying?
Dr. Vernon Quinsey:
The argument is not that
we shouldn't be concerned about offences against children, or that it's
not a problem now, but the argument is that it's better--and it's
considerably better--
And there's still some distance to go.
Dr. Vernon Quinsey:
Yes, still some distance to go.
Another area in which I'm really very interested has to do with victims.
Dr. Quinsey, perhaps I could take it up with you,
because you said that you haven't treated victims. My understanding is
that many perpetrators in fact were once victims, so would it be correct
to say that among those perpetrators who you've treated there would be
some who had suffered victimization as children?
Dr. Vernon Quinsey:
No, there definitely were, but I've never treated them for the victimization.
Right.
So what I'm interested in is, from either or both of you, do you see
from victims, particularly children, that they are satisfied with the
manner in which the justice system has responded to their victimization,
or do you see instead anger from them and further interior conflict as a
result of their encounters with the justice system, if you are able to
say?
Dr. Vernon Quinsey:
I don't know, I'm not in a position to comment on that.
You're out of time, unfortunately.
We're going with Ms. Jennings for five minutes.
Merci, Monsieur le président.
Thank you both for your presentations here.
Both of you have expressed agreement that in certain
cases sexual offenders should be subject to minimum mandatory penalties.
In the Criminal Code there are three categories of sexual offences.
There are those that have a maximum penalty, but no minimum. There's a
second category that already has minimum mandatory penalties and of
course a maximum penalty. Then there are the two new offences that the
government, through this legislation, hopes to create and that would
also have minimum mandatories.
Given the amount of research that has been done on sex
offenders, on the rates of recidivism, on the effectiveness or lack of
effectiveness of minimum mandatory penalties, are you aware of any
studies that actually looked at the criminal offences currently in the
Criminal Code, for which there are already minimum mandatory sentences,
to determine how effective those have been?
Dr. Vernon Quinsey:
I looked, and I didn't see
anything. There are no empirical studies I'm aware of that address
those variations in criminal sanctions.
You, sir?
[Translation]
Dr. Hubert Van Gijseghem:
I could not provide a
better answer. Your question makes me somewhat uncomfortable in that I
do not have a clear answer for you. Perhaps I may digress a bit.
Yes, go ahead.
Dr. Hubert Van Gijseghem:
In response to a
question that was asked a moment ago, there was reference to the fact
that therapy for the abuser could to some extent help him heal his own
victimization. On this point, I would like to refer to the results from
some studies.
I am thinking, for instance, of studies done in
Washington a number of years ago. These studies indicate that abuser
victimization, or the fact that an adult offender has himself been
abused during his childhood, what is referred to as the cycle of abuse,
has been largely exaggerated. An American researcher from Washington,
Hindley I believe, demonstrated, through very original methodology, that
most often, adult abusers questioned on their own childhood will say
that they themselves were sexually assaulted. They lie because it is a
societal excuse that...
(1620)
... lessens the negative impact.
Dr. Hubert Van Gijseghem:
Exactly.
So, I would like to emphasize this point. It is not an
opinion. It is based on research from the United States that has been
repeated, in fact.
Thank
you very much for this explanation. I think it supports the comments
made by a number of parole board members, at the provincial level or at
the National Parole Board, to the effect that sex offenders can be
manipulative. It is a way for them to justify their actions. So, I am
not surprised.
I have another question regarding mandatory minimum
sentences. As everyone here has said, there are already mandatory
minimum sentences within the Criminal Code that were brought in by a
previous government. However, these sentences are quite short: 14 days
in some cases, and 30 days in others.
I would like to know your opinion on this. If we create a
system of mandatory minimum sentences for criminal offences of a sexual
nature, specifically those against our children, should mandatory
minimum penalties be harsher or more lenient? I am calling on your
expertise in this area.
[English]
Please give a very quick response, Mr. Van Gijseghem.
[Translation]
Dr. Hubert Van Gijseghem:
The logical basis for this bill rests on the notion of a sliding scale, in other words, proportionality.
I think that for a series of offences or crimes,
mandatory minimum sentences can be light, because, it would seem to me
that they are rather symbolic in nature and their harshness or length is
of secondary importance. I believe in symbolic measures and that is why
I have a bias in favour of short mandatory minimums.
Thank you.
Mr. Lemay, you have five minutes.
I
will try to focus on this subject. I have to admit that I was not
expecting, on this Valentine's Day, to be talking about this
inappropriate type of love. It is not really love. It has more to do
with violence and control.
I am concerned, Professor Van Gijseghem—and I know you
well as I have heard you testify on a number of other subjects—because
you say, if I am not mistaken, that pedophilia is a sexual orientation.
Dr. Hubert Van Gijseghem:
That is what I said.
Should it therefore be compared to homosexuality?
Dr. Hubert Van Gijseghem:
Yes, or
heterosexuality. If, for instance, you were living in a society where
heterosexuality is proscribed or prohibited and you were told that you
had to get therapy to change your sexual orientation, you would probably
say that that is slightly crazy. In other words, you would not accept
that at all.
I use this analogy to say that, yes indeed, pedophiles do not change their sexual orientation.
Even if mandatory minimum sentences were longer?
Dr. Hubert Van Gijseghem:
That is correct.
In my opinion, society and no one around this table will accept pedophilia, even if it is a sexual orientation.
I recall a period, not too long ago, when homosexuality
was treated as an illness. It is now accepted, society has accepted it,
and even if some refuse to recognize it, it is accepted.
However, I cannot imagine pedophilia being accepted in
2011. You are telling me that even if we were to impose a five-year
minimum on people it would not solve the problem. Once they get out of
jail, they reoffend. That is worrisome.
(1625)
Dr. Hubert Van Gijseghem:
Yes, the risk is
high, and the best factor to predict that a person will not reoffend is
age. My colleagues will probably agree with that, at least one of them
will. For a number, or a category of offenders—when we refer to
pedophiles we are talking of only 20% of the abuser population—we hardly
have any other choice but to wait for the passage of time before we can
feel comfortable with their release.
I
agree with you. There are a number of aspects to the bill, but let us
focus on pedophilia. Would you go so far as to say the same thing in the
case of incest?
Dr. Hubert Van Gijseghem:
No, no. In fact I
precisely drew a distinction between extrafamilial sex offenders, and
that includes pedophiles, and intrafamilial offenders. I drew a very
clear distinction there.
You
are telling us that pedophiles, and I was carefully listening to what
you said, attack prepubescent children. The problem is that if they are
20 or 30 years old—you have seen pedophiles and so have I—we are going
to be keeping them in jail.
What can we do to reassure society? What you are telling
us today, with all due respect, is frightening. Regardless of what we
do, it is aging, or time, that will make it so that... So, there is no
treatment for this?
Dr. Hubert Van Gijseghem:
I think that Canada
at one point took a good decision on this subject by creating the
long-term offender or dangerous offender designation. I think that this
decision was probably based to some extent on this type of observation.
Dr. Vernon Quinsey:
I just want to say that
you can manage the risk that sex offenders present--even pedophiles.
It's a matter of supervision. So it's not necessarily that they need to
change their sexual orientation; they need to learn to control
themselves, with our help.
Pedophiles are not usually the highest-risk offenders.
Sometimes they are, but there are other characteristics in addition to
sexual preference that make people extremely dangerous. One of them is
their anti-social tendencies--things like psychopathy, and their
propensity for risk. Those things in combination with sexual deviance
make people particularly risky.
I want to thank both professors for appearing here today. Your evidence
has been helpful and will form part of the record. Thanks to both of
you.
We will suspend briefly, as we excuse these witnesses and allow the next panel to take their place.
(1625) (1630)
I'll reconvene the meeting.
We have with us a new panel to speak on Bill C-54.
First of all, representing the John Howard Society, we
have Ed McIsacc, who is their interim director of policy. From the
Department of Public Safety and Emergency Preparedness, we have Mr. R.
Karl Hanson, senior research scientist, corrections and criminal
justice.
You are here representing the department, correct?
Dr. R. Karl Hanson (Senior Research Scientist, Corrections
and Criminal Justice, Department of Public Safety and Emergency
Preparedness):
Yes, I'm a content expert representing the information we developed from the department.
Okay.
And then we have also the Church Council on Justice and
Corrections. We have Lorraine Berzins, the community chair of justice,
and Richard Haughian, board member.
Welcome to both of you.
We will begin with Mr. McIsaac.
Mr. Ed McIsaac (Interim Director, Policy, John Howard Society of Canada):
Thank you.
I'll begin by thanking the committee, on behalf of the
John Howard Society of Canada, for the invitation to appear. We
appreciate the opportunity to meet with you today to discuss Bill C-54.
For those of you who don't know, the John Howard Society
of Canada is a non-profit organization whose mission is to support
effective, just, and humane responses to the causes and the consequences
of crime. The society has 65 front-line offices across the country,
which deliver programs and services to support the safe reintegration of
offenders into our communities.
Everyone in this room is supportive of protecting our
children from sexual predators and promoting safer communities. Where
our concern lies with this legislation is in the vehicle chosen to
accomplish this goal. The introduction of mandatory minimum sentences
and the corresponding elimination of conditional sentences proposed by
this legislation will, in our opinion, not move us forward on these
issues.
The John Howard Society of Canada has been on record for a
decade as opposing mandatory minimum sentences. One of the cornerstones
of our sentencing policy is proportionality. We sentence the offender,
not the offence. The ability of the judiciary after having heard all of
the evidence to pass sentence consistent with that evidence is central
to ensuring proportionality and effective interventions.
I am unaware that we have experienced in this country a
rash of unreasonable sentencing decisions that would cause us to limit
the traditional discretion given our judges. Both experience and
research tell us that mandatory minimum sentences, in addition to
limiting the ability to ensure that sanctions imposed fit the crime,
result in fewer guilty pleas, which results in more trials, with more
offenders being sentenced to longer periods of incarceration. Our courts
are currently backlogged, resulting in excessive delays in initiating
corrective interventions. Our jails are currently overcrowded at both
the provincial and the federal level, causing further delays in
accessing treatment programs.
We know that mandatory minimum sentences neither act as a
deterrent nor reduce crime rates. The protection of society is best
served through the timely, supportive reintegration of offenders back
into our communities. Mandatory minimum sentences do not facilitate that
process.
(1635)
The limitations placed on judicial discretion by this
legislation will, in both the long and short term, act as barriers to
achieving the legislative objective. As both our neighbours to the south
and Great Britain retreat from decades of mandatory minimum sentencing
policy, I urge this committee to take a step back and ensure that
proportionality remains the cornerstone of our sentencing policies.
I thank you for your attention. I look forward to your comments and questions.
Thank you.
We move to Mr. Hanson for ten minutes.
Dr. R. Karl Hanson:
I'm Karl Hanson. I'm a
senior research officer with Public Safety Canada. I was invited here
today as a content expert. I've been doing research on sex offenders for
a number of years and some of my work has been mentioned in previous
testimony. What I will do today is basically introduce some summaries of
some basic facts about sex offenders and open myself up for questions
on the topics on which I have conducted research in our department, as
stated positions.
In front of you are four separate pieces of paper. One of
the pieces of paper is called “Sex Offender Recidivism”. It's a basic
summary of recidivism rates of sex offenders. We took a large group of
sex offenders, followed them for a period of time, and looked at how
many of them were caught for a new sex offence. What we find, on large
studies, is that about 10% to 15% will be convicted of a new sex offence
after about a five-year follow-up period of time. This is lower than
many people anticipate, but it's not zero. Also, there is wide
variability in the recidivism rates, with observed rates being as low as
1% or 2% in certain subgroups and being as high as 50% or 60% in other
subgroups.
The second piece of paper, the research summary, is
“Recidivism rates of female sex offenders”. This is one of the subgroups
of sex offenders who have very low recidivism rates. Their sexual
recidivism rates are in the order of 1% or 2%, if you follow them for a
period of time. We have updated this with larger samples with similar
results.
The third piece of paper is something called “What Works
For Sexual Offenders?” I'll pause here, since it says something a little
bit more complicated. What we did was we looked at all the treatment
programs out there that have been evaluated for sex offenders and
compared the ones that were more likely to be effective and those that
were less likely to be effective.
We found that, overall, for the offenders who received
treatment, their recidivism rates were about 11% after a five- or
six-year follow-up, and for those who did not receive treatment, it was
about 19%--it was higher. Both numbers are not zero, but there is a
significant reduction overall.
We also found that we could identify the programs that
are most likely to be effective. Those are the ones that treat
moderate-risk to higher-risk offenders--offenders who have at least a
moderate chance of reoffending--and those that treat the aspects or
psychological characteristics associated with offending risk, their
criminogenic needs. And the third principle is if they are able to
engage the offenders meaningfully in the therapy process--what we refer
to as responsivity. For programs that follow these principles, we have
much stronger effects than those that do not. Basically, there are
treatments out there that can be effective, many of which are
implemented across Canada in various places.
The fourth piece of paper is one abstract translated in a
French and English version. It summarizes a research study that I
conducted with my colleagues Michael Seto and Kelly Babchishin, which
looks at the extent to which offenders who have been caught for Internet
sex crimes are also involved in contact sex offences. What we found is
that among those who have been caught for an Internet sex crime, about
12% have an official conviction or record of a prior contact offence.
About half of them will admit to a contact offence in the past.
(1640)
If you look, then, at what happens to them after they're
caught, you find that their recidivism rates are in the order of 3% to
5%. We observe a 4% to 5% recidivism rate after about three to five
years, on average. About 2% are new contact offences, and about 3% are
new Internet sex offences.
In summary, we believe there is a category of individuals
who are involved with Internet sex offences who have a very low
probability of becoming involved with contact sex offences. Some of the
Internet sex offenders are just normal sex offenders who have Internet
access, whereas there's another category, probably a smaller category,
of individuals whose crimes are essentially restricted to Internet
involvement.
Those are the major points I'd like to make today.
(1645)
Thank you.
I will move to Mr. Haughian.
Dr. Richard Haughian (Vice-President, Church Council on Justice and Corrections):
Mr. Chair, honourable members, thank you for this opportunity to appear before you.
The Church Council on Justice and Corrections is a
national faith-based coalition of 11 founding churches, incorporated in
1972. We promote community responsibility for justice, with an emphasis
on addressing the needs of victims and offenders, mutual respect,
healing, individual accountability, and crime prevention.
In December 2010 the CCJC sent a letter to the Prime
Minister of Canada expressing our concern that in this time of financial
cuts to important services, the Government of Canada is prepared to
significantly increase investment in the building of new prisons:
“Proposed new federal laws will ensure that more Canadians are sent to
prison for longer periods, a strategy that has been repeatedly proven
neither to reduce crime nor to assist victims”.
Mr. Chair, Bill C-54 is one of the bills about which we have concern.
With me is Ms. Lorraine Berzins, CCJC's community chair
of justice. Lorraine has had many years of experience working in the
criminal justice system. She will speak in more detail about CCJC's
position.
Ms. Lorraine Berzins (Community Chair of Justice, Church Council on Justice and Corrections):
Good afternoon.
I've worked for CCJC for 27 years now, after working in
prison for 14. I want to tell you, first of all, that CCJC takes very
seriously the harm done to children by sexual offences and that we've a
long track record of really trying to do everything we can to help break
the silence about this in our churches and in our communities.
We have produced, over the years, several different
resources that help people in churches talk about it, because we've
known that so many victims were suffering in silence and that it was
something that was condoned. We take responsibility for how that has
affected and been contributed to by our own churches. We have done a lot
to help victims find a voice and to help churches be candid and honest
with each other and work toward prevention. We want to stop the
behaviour and help people heal.
Those are very good goals, and I think those are the
goals you have with this legislation too, but we are very concerned
about the fact that mandatory minimum sentences, as a tool, are not
effective and can do a lot of harm. Our concern is that your proposals
cover a lot of different situations for a lot of victims in a lot of
different situations and they cover them with the same blunt tool of
mandatory minimums.
We know and we've encountered situations where the
immediate safety of the victim in the community does require that
someone be in prison, and we are absolutely confident that when it's the
safest thing to do, it has to be done. But there are so many more where
that is not the case. What we're concerned about are the proposals that
are going to really make this something that has to be done even when
it's not appropriate and that what is already bad for victims in the
criminal justice system will become worse. I mean by that the
adversarial system and the way that works.
The adversarial court room is not a safe place for
victims to find support and tell their story. It's very frightening,
especially for children. It makes them feel guilty when they are pushed
by defence lawyers who are busy doing their job in our criminal justice
system. It's very scary for them, and people who care about particular
child victims would do anything not to put them through that. So
proceeding in a way that is not going to require a prison sentence for
safety but can avoid for the victim the kind of extra suffering is often
a good thing to do. It's something we would not want to lose.
The increased penalties are going to raise the stakes in
that and are going to make that battle even more so in our courts. Even
the victim impact statement is a scary thing for victims, and I'm
telling you this from my own direct experience with some victims and
from what I've heard from many others who work with victims. Child
victims don't want to feel that their entire life is ruined by what has
happened. They need to feel that they can still have a good life and
that the tools are there to help them do that.
A victim impact statement in an adversarial system really
tends to make them stress all the worst things and the terrible
prognosis of what's going to happen to them. That's not good for the
victim. So for those of us who care about them as people, it makes a lot
of sense to try to look at what could be avoided in order to give them
what they need to find support but not put them through what is not
necessary.
We have found one model that has worked very well and we
would really like to recommend that. It's the child abuse teams that
some crown attorneys' offices have established in some jurisdictions. In
that kind of model, the crown, police, victims' services, children's
aid, the parents, and the interviewer of the child—all of the people who
have a piece of the puzzle—get together and carefully assess what would
be the best way to respond as a criminal justice system in this
situation. Then they make a proposal that's put before the judge.
Sometimes it includes a sentence of imprisonment, but often it doesn't.
(1650)
The problem with a mandatory minimum sentence is that it
doesn't allow you that flexibility. As other people have told you, it
goes against all the research we have. There's no positive reason to do
it, and it takes away something that is so key to working more
effectively. It also goes against the international trends right now.
So why is the government doing this? Have you found from
research that the sentences are too low? I haven't seen anything like
that put forward. Have you found that when they were too low crowns
didn't appeal when they could have? What is the reason that is pushing
you to think this is necessary? I haven't seen any.
The terrible thing is that there will be collateral
damage from this. There will be a lot of unintended consequences,
because these proposals are designed by people who don't understand how
the system really works. I would like you to think very seriously before
you move ahead with something that's going to do so much harm.
It appears to have been done to reassure the media and
the public, but uninformed people are not the people to rely on to guide
you in what you should be doing on something as important as this.
We're not the first country to experience this. I'm going
to leave you with a quote by Lord Auld in the U.K., who faced the same
situation. He said:
| it is one thing to rely on uninformed views of the public as a guide to what may be necessary to engender public confidence, and another to rely on such views as an argument for fashioning the system to meet them. Public confidence is not an end in itself; it is or should be an outcome of a fair and efficient system. The proper approach is to make the system fair and efficient and, if public ignorance stands in the way of public confidence, take steps adequately to demonstrate to the public that it is so. |
These proposals will not do that; they will do the
opposite. They will make the system worse, and they will reduce public
confidence as a result of that.
I make three recommendations. First, there should be no
mandatory minimums. At the very least, could you make it presumptive
rather than mandatory?
Second, have child abuse teams in more jurisdictions. I
would really recommend that you consider this as an important direction
to pursue.
Third, couldn't future proposals be more evidence-based?
They need to be designed by people who understand how the system really
works. You could begin as a government to consult with people who can
give you that kind of recommendation so what you do doesn't do more
damage.
Thank you.
(1655)
Thank you very much.
We will open the floor to questions and move to Mr. Murphy for seven minutes.
Thank you, Mr. Chair, and thank you, witnesses.
This has been an extremely interesting panel of witnesses. I'll get right into some questions.
We've had some research here that is very interesting. I
think a lot of us are shocked about what the actual degree of recidivism
is.
I have some short snappers, Mr. Hanson, because I have
all kinds of questions that are more philosophical in nature. In the
documents you gave us in the research summary it makes no distinction
between a sex offender and a pedophile, if I got it right.
Dr. R. Karl Hanson:
No. Pedophilia is a--
Are there any statistics that break it down?
Dr. R. Karl Hanson:
In that report we divide
them by their victim type. We look at offenders against extra-familial
boy victims, of which a significant proportion would be pedophiles, by
the other term. They have rates that are substantially higher. But after
five years it would be 30%, or something like that.
What you're telling me exists somewhere?
Dr. R. Karl Hanson:
That exists.
Could you provide it to the clerk for us?
Dr. R. Karl Hanson:
Sure. That research summary has been translated, it is on the web, and it is referenced at the end of this report.
All right. Well, thank you for that. It's very interesting to me.
You mentioned the principles RNR.
Mr. McIsaac, are you familiar with the three
principles—risk, need, and responsivity—in the John Howard world? Are
those recognized principles?
Mr. Ed McIsaac:
Yes.
Okay.
And if this answer could be short as well, because I really want to get
over to the churches, is RNR—if that's the shorthand for it—being
adequately funded and used in our corrections facilities in Canada? Does
it work?
Mr. Ed McIsaac:
Well—
Do you agree, in other words, with your neighbour Mr. Hanson that it works
Mr. Ed McIsaac:
Given the level of funding, it
is not working. If that funding were increased, intuitively I expect it
would work, but I suggest there would need to be a review.
Not
to attack you, Mr. McIsaac, but you said we don't know that mandatory
minimum sentences work, and I'm guessing you don't have any evidence
they don't work.
Can I suggest that drug treatment court, which we've
reviewed in other legislation, is a form of a mandatory supervision or
sentence that does work, and that you agree with it?
Mr. Ed McIsaac:
I would say there is a difference there.
First, there is a great deal of evidence to indicate that
mandatory minimums do not reduce the level of crime within communities
and that they are not seen as a deterrent to the individual offender.
Well, with respect to the offences we're dealing with, do you have any studies or evidence on these?
The problem for all of us here is that we already have
mandatory minimum sentences and now we're moving the bar. That's the
problem.
Some of these statistics seem to indicate that with the
right treatment, recidivism, and therefore the problem to the community,
is less than we thought. That's with mandatory minimums already in
place. They've existed for some time.
I think it's hard for all of us to say, as lawmakers,
that they don't work at all, because I assume from most of the arguments
here—citing the statistics fellow—that it's not bad. I mean, it's not
great; there are problems out there, but it's working as it is. We don't
need to increase it.
Isn't that an argument that they are working partly because there are mandatory minimums?
Did you want to respond to that?
(1700)
Ms. Lorraine Berzins:
Yes. I believe the
research shows that treatment is more effective than prison alone. But
treatment and community are more effective than treatment and prison.
I think there's a strong body of knowledge around that. I
could get you the references if you want; I think they're pretty
conclusive. It's certainly worth pursuing and paying attention to that
kind of evidence.
I
know that notice is an issue, but we very much appreciate your being
here. If there is information you want to forward to the clerk for
dissemination to us—it will be translated, etc.—that would be very
appreciated.
I want to ask a couple of questions to the CCJC.
I've been on this committee for almost five years. I've
missed the odd meeting to be home or somewhere else, but have you
appeared before us on the justice agenda of this government before? How
many times?
Ms. Lorraine Berzins:
Yes, many times.
I mean against mandatory minimums.
Ms. Lorraine Berzins:
I'm sorry...?
In a capacity opposing mandatory minimums.
Ms. Lorraine Berzins:
Yes, we have. I think the last time was in 2007.
Right.
Ms. Lorraine Berzins:
I don't have it here
with me. We also appeared before the Senate committee on the same issue.
It was on the mandatory minimums as well as the conditional sentencing
issues: Bills C-10 and C-9, back then.
I remember Bill C-10 very well.
Ms. Lorraine Berzins:
Our analysis and our
conclusion is nothing new; it's something we've been working on for 39
years. We've made the statements many times over the years, with the
last time being 2007.
Sorry,
refresh my memory. How is it that you speak for the churches? There are
11 faith-based groups. What's the connection?
I'll give you an analogy, and it may be alpha-omega to go from church groups to lawyers, but....
Ms. Lorraine Berzins:
That one.
The
Canadian Bar Association comes forward. They have a system where the
criminal law section selects someone, usually a criminal defence lawyer,
and he or she comes and speaks for the Canadian Bar Association, of
which most of us are members. Generally, their comments are not in
favour of most of the legislation. But that's because they're criminal
defence lawyers. Now, you can't say that they speak for Mr. Dechert, who
is a corporate lawyer. I mean, they don't speak for him in his practice
or me in my civil litigation practice.
Is it similar to that, or do you have marching orders
from, for instance, the Canadian Conference of Catholic Bishops, etc.?
How do you form an opinion?
Ms. Lorraine Berzins:
We don't speak on behalf
of the churches. We were founded 39 years ago because the churches
realized, through the chaplains of the denominations who were working in
prison and also working with victims they were encountering, that it
wasn't enough to just minister them through chaplaincy, that there was
something flawed in the system that they were picking up, and the
churches needed to learn more about this.
We were mandated to use the best of our experience and
knowledge, and help the churches reflect on the implications for our
communities of having a justice system that does so much injustice. We
produced resources that helped them reflect on that and we assessed the
situation.
In conjunction with representatives of the churches and
very much a collegial process of discernment, we are able to arrive at
some conclusions and directions of what we think would be better for
communities, so we share that with them.
But each church takes their own position. We don't take
positions on their behalf. We give them the resources with which they
can take their own position.
(1705)
Thank you.
Ms. Lorraine Berzins:
I'd just like to say one more thing that I forgot to say earlier.
You can say that maybe in the next round. You'll get another chance.
Monsieur Ménard.
[Translation]
Thank you, Mr. Chairman.
I thank the witnesses for appearing before the committee. It will be of great use to us.
Mr. Hanson, it is the first time I am seeing these
documents or even these types of documents. Is the government hiding
them? How can we find out about these documents? You must certainly have
many others which could be useful to us in our consideration of other
criminal legislation.
Mr. R. Karl Hanson:
In fact, this research has
been on our Web site for a long time. It has also been published. If
you would like, we could add your names to a distribution list.
Yes, but I would first like to go to a place where I can find the entire list and see...
Mr. R. Karl Hanson:
Yes indeed, that is all available on the Public Safety Web site.
Thank you.
My question is for the Church Council on Justice and Corrections representatives.
I am the one who asked to have you appear. I had never
heard of you before I learned about a letter you had sent to the Prime
Minister on December 17. It was referred to in Le Devoir. That is
how I discovered your existence. Now that I've heard from you, I think I
will be asking you to appear again. Even if you are disappointed by
this current bill, it has to be said we are dealing here with one of the
worst possible crimes. That is certainly how the public in general sees
things.
I read your letter dated December 17. Have you gotten a response?
Ms. Lorraine Berzins:
I am not at the office every day, but I do not think so.
The
Minister of Justice said... It is unclear. We do not know if he has
heard about the letter, if he has read it or if he is vaguely aware of
its contents. Regardless, it would seem that you have not received a
response. When you deal with these matters, it would perhaps be a good
idea to also send a copy of the letter you sent to the Prime Minister to
the Minister of Justice.
Ms. Lorraine Berzins:
Yes.
I am not sure he will read it, but it would help you make your point.
Ms. Lorraine Berzins:
People from one of our
churches wrote to the Minister of Justice instead of the Prime Minister.
Moreover, we sent this letter to the heads of all political parties.
Oh, I see. Perhaps that is how I received it, but I first heard about it in Le Devoir.
I'd like to ask you a question. There are already some
minimum sentences in the Criminal Code. Personally, I have a bias
against minimums, but they do exist for the most serious crimes.
Do you have the same attitude about, for instance, minimum sentences for murder?
Ms. Lorraine Berzins:
I think they have been established for a long time and that they are better than the death penalty.
Yes.
Ms. Lorraine Berzins:
So, that is not my top concern at the moment.
I know why they are not needed. When the Crown feels that
it is not appropriate, they may lay manslaughter charges. They do have
choices. That is what happens.
I can tell you that in practice, I have seen crown attorneys bring murder charges against...
Ms. Lorraine Berzins:
Yes.
... people who, clearly, were only guilty of manslaughter, in order to get a guilty plea to manslaughter.
Ms. Lorraine Berzins:
Actually, I will change
my answer. No, I am not in favour of mandatory minimums, for anything. I
think we have the tools we need so that when a life sentence is really
required, we can impose one. That is what matters. However, if we are
locked into a practice we cannot do without...
We have also seen the case... Oh Lord, I do not recall the name.
(1710)
Are you referring to the Latimer case?
Ms. Lorraine Berzins:
Yes, I think many Canadians find that rigidity excessive.
Now, at the other extreme, there are short minimums.
Ms. Lorraine Berzins:
Yes.
That
is the case for some types of recidivism, where the individual who is
convicted the first time is given a warning that if there were to be a
second offence, a minimum sentence would apply. I am referring, for
instance, to impaired driving. I understand that criminology principles
and studies have established that this type of well-targeted short
minimums may, indeed, have an effect on the crime rate.
Ms. Lorraine Berzins:
I am not sure if I
understood everything. Sometimes I am a bit hard of hearing. However, I
think all the research data suggest that the are not at all effective,
be they short or long, 14 days or 90 days.
I think it has been years. The fact we have some does not mean we based them on research data.
I was misinterpreted. I can tell from your reaction.
There are some short minimums for reoffending, the most
significant being impaired driving, a crime committed by people who are
not necessarily criminals. Obviously, for a first offence, they do not
know what the minimums are. However, if they are informed, after the
first offence, that for a second offence, there will be jail time, it is
generally believed that that has an effect on recidivism.
Ms. Lorraine Berzins:
Again, everything I have
learned from various research points to the fact that criminal minds do
not work that way. People act in an impulsive way, without thinking.
They do not consider that given that they will spend 90 days in jail,
they will not do something. They are not aware of things to that extent.
The simple fact that it is recidivism does not mean that the
legislation has not changed since then. It is really not their
motivation.
You are really not realistic as to human beings and
people who get involved in crime like this. When you know the population
that is there, you know that that is really not what it is all about.
Thank you.
Mr. Comartin, you have seven minutes.
[English]
Thank you, Mr. Chair.
Thank you, witnesses, for being here.
Ms. Berzins, I don't think the letter that the churches
sent to the Prime Minister and the Minister of Justice has been filed
with this committee. Would you provide it to the clerk, so that it's
part of the record with regard to this bill, please?
Ms. Lorraine Berzins:
Certainly, yes.
Dr. Hanson, what is your academic background?
Dr. R. Karl Hanson:
A PhD in psychology, clinical psychology.
Do you actually do clinical work?
Dr. R. Karl Hanson:
I haven't done clinical work for a long time. I did do clinical work, I guess 20 years ago now.
Is it safe to say you basically are doing research at this point?
Dr. R. Karl Hanson:
That's correct.
On
the fourth item you referred to, the résumé, the abstract, I always
think I was really lucky that I didn't have to take statistics as a
prerequisite to getting a degree, because I don't think I would have
passed it, but I do work hard on trying to understand numbers. Do I
understand that individuals who are viewing child pornography,
child-abusive material on the net, that a full one-third of them never
commit any other crime? Is that the summary of what you've given us
here?
Dr. R. Karl Hanson:
It would be higher than
that. From the information here, about half of them would not have any
record of a previous sexual offence, and they would also not admit to
having committed or describe any other sexual offences under, in most
cases, conditions where they're very likely to disclose that—for
example, during a polygraph examination or truly voluntary treatment. So
this is somebody who comes for treatment from a mental health provider
with no criminal justice sanctions attached and no reporting
requirements. So these are situations where people have done child
pornography and have been involved in largely treatment settings and
have been asked if they have done anything else. About half of them say
yes and about half of them say no. (1715)
So it would be close to 50%, then, rather than one-third who would not have committed another offence?
Dr. R. Karl Hanson:
Yes, another sex offence,
that's correct. They may have committed other offences, but we're just
looking at sex offences here.
Yes. And again, the mandatory minimums are directed in that way.
Dr. Hanson, the material that you have here, the study, was done....
Dr. R. Karl Hanson:
It's in press. It's available online now. The hard copy should be out next month.
Do you have any sense of whether the Department of Justice looked at this before they drafted this bill?
Dr. R. Karl Hanson:
I have no opinion.
They didn't seek this information out from you?
Dr. R. Karl Hanson:
The information available
in this report is a summary of studies that are out there. It includes
all that we were able to identify. I cannot comment directly on the
process the Department of Justice was involved in.
When did it go up on the website?
Dr. R. Karl Hanson:
Within a matter of months.
The earlier draft of this report, the earlier findings, which some
people at the previous committee referenced, was part of a G-8 meeting I
was involved with in 2009. That preliminary version was put up on a
website at that time, but it wasn't widely distributed.
So
the G-8--would that have been the MInister of Justice or the Minister
of Public Safety? That's one of those preliminary meetings that we have?
Dr. R. Karl Hanson:
Yes. It was an experts
meeting held in North Carolina on the topic of Internet sex crime, and
it was experts meeting, collecting the information that was available at
that time, and the policies that were applied in the G-8 countries. And
that information was posted on the net in 2009.
Thank you.
You know, we saw it here with earlier witnesses who came
before us, people who work directly with victims, and of course we get
it from the Conservative Party and their right-wing pundits all the
time, that every single sexual abuser is going to reoffend, that there's
not one of them who doesn't.
Can you help us at all? How did we get to this stage? I
don't want you to make political comments here, and I'm not asking you
to do that, but is there something—I don't know—in the demographics of
this? Are there other studies at some point that would take just the
pedophilia, the hard-core pedophilia, and they'd say they couldn't work
with them and then extrapolate from that? Are there studies like that?
Is there some genesis for this gross misconception as to our ability to
successfully deal with sexual abusers of children?
Dr. R. Karl Hanson:
I can speculate. I've
been around long enough to have perceived public opinion as not taking
these things seriously enough. I have personally participated in trying
to get people to pay attention to sexual abuse. And during that period
of time, particularly the early eighties, many of my colleagues would be
saying things such as “there's no cure for pedophilia”, or “once a
pedophile, always a pedophile”. They were saying these things largely as
an advocacy position to get people to take sex offending seriously.
Prior to the 1980s there was widespread disbelief that
the rates of sex offending were as high as they actually are. You saw a
major change in social values during the eighties and nineties where sex
offending went from being an obscure crime to being a dominant crime,
including a significant portion of federal offenders. That could be part
of the genesis of this.
The other genesis of it is the actual rates of sexual
victimization. If you asked individuals, or individual women
particularly, a large number of them have been sexually abused. The
rates may be one in four. Sometimes it's a little higher, sometimes a
little lower than that. So it's a big problem. So if you are around any
women and ask them questions, you'll find rates of sexual abuse that are
much higher than you want them to be.
So, yes, it's a problem, and in terms of the absolute
recidivism rates, it is surprising that they're a lot lower than current
public opinion would attribute.
(1720)
Thank you.
We'll go to Mr. Dechert, for seven minutes.
Thank you, Mr. Chair.
Thank you, ladies and gentlemen, for being here today.
Ms. Berzins, I was interested in what you had to say. Have you had an opportunity to read all the provisions of Bill C-54? Have you reviewed them?
Ms. Lorraine Berzins:
Are you talking to me?
Yes, I am.
Ms. Lorraine Berzins:
Yes, I have.
Okay.
And did you survey the membership of any of the member churches that
your organization represents on the provisions of Bill C-54?
Ms. Lorraine Berzins:
No, we didn't, because that is not the way we work.
So did you--
Ms. Lorraine Berzins:
We have a long track
record of producing reports and consultations, and consultation often
over the same issues with our members--
So you didn't survey them.
Ms. Lorraine Berzins:
--so for 39 years there's a lot there.
Did you receive any submissions from any of the members of those churches on the provisions of Bill C-54?
Ms. Lorraine Berzins:
Mr. Chair, I feel that
I'm being asked a question that boxes me into an answer that would not
accurately reflect how my organization works.
Ms.
Berzins, members of this committee are entitled to ask whatever
questions they wish to, provided that they're done politely and with
decorum.
Ms. Lorraine Berzins:
I would just ask that
people take into consideration that I would like it to be an accurate
reflection of how we work, and a yes or no--
Ms. Berzins, you're free to answer as you wish, but Mr. Dechert is entitled to ask questions.
I'll take it that the answer is that you didn't receive any submissions on the specific provisions in Bill C-54.
You mentioned in your opening remarks something I thought
was quite interesting. You said that “uninformed people are not the
people to rely on to guide you in what you should be doing on something
as important as this”. Would you consider the members of the churches
that your organization represents uninformed, generally speaking, on
something as important as this?
Ms. Lorraine Berzins:
I think a lot of people
in our churches are not well informed, which is why we are really trying
to inform them. But I meant particularly--
Thank you for that.
Ms. Lorraine Berzins:
--that the people who have designed the provisions have designed them with some.... There will be unintended consequences.
So your view is perhaps that the people who drafted this legislation may also be uninformed. I understand.
The reason I ask is I regularly survey my constituents on Bill C-54
and other bills that our government has put forth on criminal justice
issues, and I have to tell you that I get overwhelming support for this
legislation and for other legislation on our criminal justice agenda
from my constituents. I checked the stats, and Statistics Canada tells
me that 65% of my constituents are regular church attenders and attend
many of the churches that your organization represents. So I'm just
curious as to why there is such a disparity between what they tell
me.... And of course I have to represent all of them and I have to be
concerned about their perception of the efficacy of our criminal justice
system and the integrity of our criminal justice system, and they tell
me that this is something we should do.
Ms. Lorraine Berzins:
My experience is that
people do not understand how the criminal justice system works. People
do have a moral reaction that is very appropriate to what they would
like to see happen to take the problem seriously. But that's quite
different from understanding how the criminal justice system works.
I understand that your view is that the general population is uninformed.
Ms. Lorraine Berzins:
About how the criminal justice system works.
Right. And the members of the church organizations are uninformed about this criminal justice issue, Bill C-54, and what our criminal justice system response should be to people who sexually abuse children.
Did you review the transcript of this committee's hearings on January 31 of this year?
(1725)
Ms. Lorraine Berzins:
No, I didn't.
Okay.
It's too bad you didn't, because if you had, you would have seen some
very compelling testimony from people who themselves were child sex
victims, and organizations that represent child sex victims, and
organizations that run, for example, the child pornography alert system
in Canada. They told us very clearly that these provisions in Bill C-54
are important and necessary. I would recommend that testimony to you,
and I hope you'll take the opportunity later today to go back and look
at it; it's all on the Internet.
Specifically, they told us that the mandatory minimum
penalties in these provisions are important and necessary. They're
necessary to them for a lot of reasons, and one of the reasons is the
victims say it's very difficult for a victim to come forward and tell
these stories and go through this process, and they need to feel a sense
of self-worth. When they see the person who sexually abused them go
back home without any time in jail whatsoever, that tells them that
society is saying to them that their life is not worth very much.
Are they uninformed, Ms. Berzins, those child sex
victims? Would you call them part of the uninformed group of Canadian
citizens who don't understand as you do why this legislation isn't
necessary?
Ms. Lorraine Berzins:
They have their
experience, and for many of them that may very well be true. But there
are others, and many others, who also have their experience and for whom
it's not true. I think we do have the measures for those who really
want and need this. It is possible to do it without having mandatory
minimum sentences.
Did you know there are mandatory minimum penalties for many of these provisions currently?
Ms. Lorraine Berzins:
Yes, I do, and two wrongs don't make a right.
Okay, so you're saying you disagree with the provisions that are currently there.
The Liberal justice critic told us earlier that some of
those mandatory minimum penalties were imposed when her former party was
in government a few years ago. Did your group attend before the justice
committee at that time and oppose those mandatory minimum penalties?
Ms. Lorraine Berzins:
Yes, we did.
Okay. And were they--
Ms. Lorraine Berzins:
We don't win them all.
Would
you say the members of the committee at that time were uninformed, that
the members of Parliament who passed that legislation--
Ms. Lorraine Berzins:
We're talking about
information about how the criminal justice system works and how crown
attorneys and defence counsel make decisions about these things that are
quite different from some of the provisions here, and it's going to
produce different results from what you were hoping for.
We're also extremely in favour of processes that hold
people to account--never a process that just doesn't take seriously what
happened.
Can I ask you about two specific new offences that are included in Bill C-54?
One of the new provisions will prohibit anyone from providing sexually
explicit material to a child for the purpose of facilitating the
commission of a sexual offence against that child. That's a new criminal
offence that's being created by Bill C-54. Do you think this offence
should be created and should become part of the Criminal Code of Canada?
Ms. Lorraine Berzins:
I have no big objection to that.
Okay, so you agree with that statement. You agree with that part of Bill C-54?
Ms. Lorraine Berzins:
It probably is not necessary, but I don't think it does any harm.
Those
people who testified on January 31, the people who represent child sex
victims and who monitor the usage of child pornography on the Internet,
said that was very important. In fact, most countries in the world
already have that sort of legislation.
Thank you. Your time's up.
All right, thank you, Mr. Chair.
We've
come to the end of our time. I want to thank all our witnesses for
appearing here. Your testimony forms part of the record, and we'll take
that into consideration as we continue a review of Bill C-54. Thank you to all of you.
The meeting is adjourned.
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