Eighteen months ago, the federal government promised to finally fix Canada’s dysfunctional sex-offender registry. At the heart of the proposed legislation was a “mandatory inclusion” rule, ensuring that every person guilty of a sex crime actually ends up on the database. No exceptions. No excuses.
But eighteen months later, as Bill S-2 slowly works its way through Parliament, the status quo stands in the courts: a prosecutor must still ask a judge to add a rapist or pedophile to the registry—and some judges are still refusing. Like in the case of J.W., a Nova Scotia man sentenced to 15 months probation for pinning his girlfriend against a wall and tearing off her clothes. The Crown wanted him registered, but J.W. told the court he was planning to enlist in the military after serving his sentence, and that checking in with police on a regular basis would be tricky.
The judge gave him a pass. “As a member of the Canadian Forces, J.W. will, no doubt, be required to make frequent changes of his primary residence due to the changing locations of his basic training, ongoing training and field manoeuvres as well as placements on tours of duty,” wrote Justice Theodore Tax. “These frequent changes, which may be in remote locations inside or outside of Canada, will no doubt have a significant impact on his ability to comply with the [sex offender] reporting obligations.”
Such exemptions will soon be extinct. S-2 has already passed through the Senate, and when it clears third reading in the House of Commons (likely in early 2011) judges will lose all discretion when it comes to the registry. Every single sex offender, regardless of the circumstances, will have to report to police once a year, notify the cops of an address change, and endure the odd visit from detectives if, for in—stance, a child is abducted from the neighbourhood.
For the RCMP, the force in charge of the registry, the new law will remedy years of frustration. Since the database was first launched in 2004, the Mounties have been warning their political masters that the system is an embarrassing mess—riddled by weak legislation, laughable technology, and a Parliament obsessed with protecting the privacy rights of proven criminals. Optional registration is just one of countless deficiencies. Hundreds of offenders are missing, countless more have exploited a rule that allows them to leave home for two weeks without telling authorities, and the computer that is supposed to keep track of everyone is so archaic that it can’t even record the most basic fact: when is a person scheduled to check in?
After a Maclean’s investigation, based on scathing internal memos obtained under Access to Information laws, the federal Conservatives finally took action. But today, as their response inches toward royal assent, a delicate question lingers: is mandatory inclusion the best solution? Should criminals like J.W.—an 18-year-old first-time offender deemed a “very low risk” to strike again—be lumped in the same category as hard-core sexual predators? The registry, which already contains more than 24,000 names, was designed to provide police with an instant list of suspects living near a crime scene. But does the next J.W. really belong on that list? Will society be any safer?
“Sexual assault is everything from pinching someone to full, violent rape,” says Stephen Robertson, J.W.’s lawyer. “Are you telling me that one end of the spectrum should be treated the same as the other? It would be terrible. The judge could see this was a decent boy who let his impulses get away one time and was immediately remorseful. The military angle was just one extra thing the judge could point to.”
Critics of the mandatory rule can point to another case: R. vs. Eric Tillman. Twelve months ago, the former general manager of the Saskatchewan Roughriders was granted an absolute discharge (guilty, but no criminal record) for sexually assaulting his children’s 16-year-old babysitter. Felling “loopy” after popping pills for back pain, Tillman grabbed the teenager’s hips, puts his fingers through her belt loops and wheeled her around. In the judge’s words, “while in that position there was physical contact of a sexual nature.”
The whole episode lasted just a few seconds—and Tillman has said he doesn’t remember any of it. He later apologized to the unnamed girl (she forgave him) and the prosecutor didn’t even bother asking for a registration order. Under the new system, however, Tillman’s name would have been automatically entered—no questions asked.
“He is not somebody who should be on a sex offender registry,” says Aaron Fox, his Regina lawyer. (Now the GM of the Edmonton Eskimos, Tillman did not respond to an interview request through a team spokesman.) “The registry will begin to become meaningless,” Fox continues. “It just won’t have the significance it’s supposed to have.”
Gary McLennan does not agree. A retired Mountie who ran the registry centre in Saskatchewan, he says there is no magic tool that can predict who will reoffend. And people like Tillman, who commit so-called “minor” crimes, are removed from the computer after 10 years. “He should have been on, I’m sorry,” McLennan says. “It’s not a big inconvenience. Once a year you have to register and have your picture taken, and after 10 years it’s goodbye. You prove to us in 10 years that you’re not going to recommit an offence.”
As for the Tories, don’t expect any last-minute amendments that scrap the mandatory plans. “Police services and victims’ groups have been clear: the national sex-offender registry must be strengthened so that it better protects our children and communities from sexual offenders,” says David Charbonneau, a spokesman for Public Safety Canada. “We are determined to strengthen the registry so that it becomes a more effective tool.”