The five things you need to know about the National Sex Offender Registry - Macleans.ca

The five things you need to know about the National Sex Offender Registry

A not-so-secret briefing note

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The five things you need to know about the National Sex Offender RegistryWhen Christopher Stephenson was a young boy—before he was kidnapped, sexually assaulted and murdered by a notorious pedophile—his father would often tuck him into bed with a classic fairy tale: The Emperor’s New Clothes. A well-known children’s book, it tells the story of a pompous but gullible monarch who mistakenly hires two swindlers to revamp his kingly wardrobe. The result? The con men convince the emperor that they have discovered a gorgeous—but invisible—new material, and then promptly parade him around town in his latest “clothes.”

In Ottawa yesterday, as Christopher’s dad testified in front of the House of Commons Standing Committee on Public Safety and National Security, he used that fictional fable to illustrate a very real point. “Mr. Chair, committee members,” said Jim Stephenson, sitting beside his wife, Anna. “In its present form, the [national sex offender registry] has no clothes, either. It is dysfunctional, and fails to properly protect Canadians from becoming victims.”

Sadly, Jim Stephenson is hardly the first person to criticize the fairy tale state of our sex-offender registry. The database has been described as everything from “a national embarrassment” to something straight out of a “Monty Python skit,” and a series of Maclean’s investigations uncovered a horribly broken system crippled by weak legislation, archaic technology and an utter lack of political will. But for the first time since the database was launched in 2004—and more than two years after the law mandated a Parliamentary review—MPs are finally taking a close look at the litany of problems plaguing the registry.

For two days (four hours in all) the Public Safety Committee heard from a variety of expert witnesses, from bureaucrats to police officers to privacy advocates. There was news (in five years, the registry has not solved a single crime). There was honesty (some offenders are “falling through the cracks,” said a senior RCMP officer). And, of course, there was the inevitable politicking (Conservative ministers repeatedly lamented the fact that Jean Chrétien’s Liberals didn’t foresee all these obvious problems when they first introduced the registry). However, it was Brydie Bethell, representing the Canadian Council of Criminal Defence Lawyers, who summed it up best. “This is not an easy issue,” she said. “This issue strikes at the core of our hearts, as human beings and as parents.”

Peter Van Loan, the Public Safety Minister, assured reporters this week that Stephen Harper’s government is already “consulting” with stakeholders and considering amendments that would toughen up the registry. (Of course, his predecessor, Stockwell Day, said the exact same thing—and nothing happened). Adding to the endless consultations, the parliamentary committee must now prepare yet another report for the government, including a series of specific recommendations. Until then, here are five essential things that they must consider:

1) HOW WE GOT HERE
Christopher Stephenson was 11 years old when Joseph Fredericks, a convicted child molester with a heinous criminal record, abducted the young boy from a Brampton, Ont., shopping mall on Father’s Day weekend, 1988. Fredericks kept Christopher alive for 36 hours and assaulted him repeatedly before slitting his throat and dumping his body. A coroner’s jury later concluded that if police had access to an electronic registry of known sex offenders living in the neighbourhood, detectives might have knocked on Fredericks’ door while the boy was still alive. As Jim Stephenson testified today: “There would have been a very definite, different outcome. You talk about time being of the essence in an investigation like that? Police were on the scene within about three minutes of Christopher’s abduction. They responded very quickly, but did not have much information to go on. They had no information on sex offenders who were living in the community.”

Ontario, under then-Premier Mike Harris, launched a provincial sex offender registry in April 2001 (eight years ago this week). It’s called Christopher’s Law, in honour of Jim and Anna’s son. Anyone in the province convicted of a sex offence is automatically added to the database, and among the “state-of-the-art” features is a geo-mapping function that can pinpoint the names and addresses of every registered rapist and pedophile who lives near a crime scene. Harris offered Ontario’s software to the Chrétien government free of charge, but for a long time, the feds weren’t interested. And when Ottawa—under increasing pressure from provincial governments—finally did decide to build a nationwide sex offender registry, they didn’t want Ontario’s help. Instead, the federal Liberals ordered the RCMP to build a completely new system from scratch. Many of the current shortcomings can be traced back to that single decision.

2) REGISTRATION IS OPTIONAL
More than 19,000 names appear on the national registry, but if the RCMP had its way, there would be thousands more. Unlike in Ontario, the legislation that created the national registry (The Sex Offender Information Registration Act, or SOIRA) does not make inclusion mandatory. A prosecutor must ask a judge to order a convicted sex offender onto the database, and according to statistics collected by the Mounties, almost half of all eligible criminals are spared the hassle of telling police where they live. “In some provinces, applications are diligently made, while in others, orders are not being sought for a variety of reasons,” testified Insp. Pierre Nezan, the RCMP officer in charge of the registry. “Someone convicted of molesting a child in one province may be ordered to the registry, while in another, they may not. Given the difficulty in determining which sex offender will re-offend and which will not, this means that some of the recidivists are falling through the cracks.”

When they first drafted the law, the feds feared a Charter challenge. Months before the national system went live, Abraham Dyck, a sex offender in Ontario, convinced a lower court judge that Christopher’s Law is unconstitutional because it paints all offenders—from flashers to rapists—with the same brush. The Ontario Court of Appeal later disagreed, but as Doug Hoover, a federal justice official, told the committee on Tuesday, the Supreme Court could still weigh in on the issue. In other words, if the federal government moves toward automatic inclusion, it may want to wait until the country’s highest court rubber-stamps the practice.

3) FLIP THROUGH THE ROLODEX
Police have a hard enough time monitoring offenders who are ordered to comply. The computer system is so primitive, and so hampered by restrictive legislation, that it can’t even keep track of the most basic fact of all: When is Joe Offender scheduled to check in?

Everyone in the system must report to police once a year, if they leave home for more than two weeks, or if they change addresses. But the RCMP has no legal authority (or a line in the electronic database) to record a person’s next reporting date. RCMP detachments across the country are literally forced to use separate hard-copy systems—a Rolodex, for example, or an Excel spreadsheet—to monitor compliance.

The Ontario system, on the other hand, is one-stop-shopping. It provides up-to-the-second statistics, and as soon as an offender is overdue, the computer issues an automatic red flag. Kate Lines, a chief superintendent with the Ontario Provincial Police, testified in front of the community on Tuesday and made a point of showing off her registry’s technical muscle. “As of 8:15 this morning,” she said, “there are 11,963 offenders registered in the Ontario registry with 278 currently non-compliant and under investigation.” Translation: the Ontario compliance rate is precisely 96.84 per cent.

Insp. Nezan of the RCMP said the national compliance rate is similar (94 per cent, he said) but conceded to the committee that it took a few days to collect those stats. The computer system is simply incapable of keeping track, and as Nezan warned, it will “be increasingly more challenging” as the registry expands.

The database lacks other crucial “administrative fields,” Nezan told the committee. The computer can’t alert police when a federal offender is released from custody and supposed to register—and even if it could, the Correctional Service of Canada refuses to share that information. For reasons that defy common sense, federal prison officials continue to insist that they do not have the legal authority to tell registry staff when a dangerous offender is back on the streets.

The cops also can’t record an offender’s vehicle information, including a licence plate number—or the fact that he may be dead. “Because of the specificity of the Act, we can’t add a little box—to be quite frank—that says ‘deceased,’ ” Nezan explained. “So if an investigator calls us and is looking for a potential list of suspects or persons of interest, we may inadvertently provide him a list of people and one of them may be deceased. They are essentially chasing a ghost. They are chasing their tails.”

4) NO PROACTIVE USE
This can’t be stated enough: the purpose of the registry is to help detectives locate potential suspects living near a crime scene. Unlike in the United States—where sex offender registries are available online, and are meant to allow the public to find dangerous people living in their neighbourhooods—the Canadian version is for police use only. The content is off-limits to only a select few officers, and not a single witness who testified this week lobbied for a U.S.-style system that welcomes harassment and, in some cases, vigilantism. Three years ago this week, a New Brunswick man famously drove across the border to Maine and murdered two men whose names and addresses were posted on the state’s Internet sex offender registry.

What police forces do want, however, is the power to use the national registry in a proactive fashion. As the law stands now, the database can only be accessed to help solve a crime, not prevent one. During his testimony, Nezan offered a troubling example of the registry’s limited capabilities. “There was a man in an elementary schoolyard taking pictures of children,” he said, not disclosing the location. “The staff who worked there didn’t recognize him as a parent, staff, reporter, or otherwise so they were alarmed by his presence. When they tried to approach him and confront him, he fled. They called the police, the police called the National Sex Offender Registry, but we couldn’t access the database because there had not been a sexual crime that had occurred. Those are the types of proactive uses that we would like to see expanded upon.”

5) IS THE REGISTRY REALLY WORTH THE EFFORT?

This is the critical question, the one that hovers over every debate about the national sex offender registry. After weighing all the pros and cons about proactive use or the Charter rights of child pornographers, the government must decide: Is the database actually effective? Even if it were a well-oiled machine, is it doing society any good?

The goal, remember, is to pinpoint possible suspects, not keep 24-hour track of every known sex offender. But as Insp. Nezan admitted during his testimony, the national registry has not solved a single crime since it was launched four-and-a-half years ago. “We think the results will come,” he said, optimistically. “But we need some important modifications, and it just takes more time.”

Here is Nezan’s logic: as more and more names are added to the list (a process that would be bolstered by automatic inclusion) the odds of catching a repeat offender would naturally increase. Yet even in Ontario, where the provincial registry is eight years old and includes every convicted offender, the database has solved only one crime. One. “This is a significant intrusion of an individual’s privacy—an intrusion that can only be justified on the grounds that it produces a clear and demonstrable public safety benefit that cannot be achieved through less intrusive means,” said Carman Baggaley, a strategic policy advisor in the Office of the Privacy Commissioner. “Assessing the effectiveness of the scheme is very important. If it’s not effective, then the privacy intrusion is for naught. Sacrificing someone’s privacy in the hope that this may protect society is a dangerous precedent.”

Baggaley urged the committee not to recommend any changes to the system until a formal, third-party evaluation is conducted “into the effectiveness of the legislation.” He pointed out, quite accurately, that a 2007 report by the Ontario Auditor-General concluded that “even though sex offender registries have existed for many years and can consume significant public resources, we found surprisingly little evidence that demonstrates their effectiveness in actually reducing sexual crimes or helping investigators solve them, and few attempts to demonstrate such effectiveness.” A recent evaluation of the New York state registry reached a similar conclusion.

Brydie Bethell, representing defence lawyers, testified that there are already legal measures in place to rein in the types of repeat, loathsome offenders who pose the highest threat. Police chiefs have the power to warn the public if an especially prolific sex offender is back on the streets. Canada also has dangerous offender legislation, which allows for indefinite jail terms (think Paul Bernardo) and if that doesn’t apply, prosecutors can apply for Section 810 peace bonds, which impose strict bail conditions on newly released prisoners. Lumping every convicted offender into the same registry—from, in Bethell’s words, “drunken office party kissers” to convicted pedophiles—is not only a potential waste of resources, but an unfair infringement on those who pose a very low risk of re-offending. “We are here to strike the appropriate balance, to step back and look dispassionately at what we have, what’s missing, what’s needed, and why we are doing this,” she said. “It is an issue that requires us to balance individual and collective rights.”

Registry critics also like to point out that the stereotypical sex offence—ie. the lurking stranger who tortured and murdered Christopher Stephenson—is an infinitely rare occurrence. The vast majority of victims are abused by people they know and trust (an uncle, for example, or a babysitter) and not by a man in a trench coat lurking in the bushes. In fact, most people on the national database (82 per cent, according to Nezan) are first-time offenders. There is nothing a registry could have done to spare their victims or solve the crime. The Ontario registry, for instance, didn’t help Holly Jones, the 10-year-old Toronto girl who was kidnapped and murdered near her home in May 2003. Her killer, Michael Briere, had an impeccable criminal record and wasn’t listed on the registry.

There is, however, another side to the tragic Holly Jones case. No, the registry didn’t catch her killer, but it eliminated dozens of possible suspects in those crucial few hours after she went missing. Armed with a list of convicted offenders living in the neighbourhood, police were able to knock on doors, cross off names, and redirect limited resources to other potential leads. And what if one of those offenders was the perpetrator? What if Holly Jones had been saved by a sex offender registry? Would anyone be bickering about privacy intrusions or statistical analyses? “If we spend one minute of our time on this, one dollar of our money, and it saves one child or one youth, one woman or one man from becoming a victim, it’s worth our time and our money,” said Robert Oliphant, a Liberal MP on the Public Safety Committee.

The stats, by the way, work both ways. Although researchers have never proven that registries reduce crime, a 2006 study conducted by the Washington State Institute for Public Policy did find that sex offenders convicted for failing to register have 50 per cent higher recidivism rates. In other words, there registration has its benefits: those who are ordered onto the database, and check in as required, are less likely to re-offend.

“It is true that offenders who are truly motivated to perpetrate crimes of violence will usually do so,” Nezan says. “It would be disingenuous on my part to suggest that the national sex offender registry would always or even consistently prevent sexual crimes. But there have been cases with other registries where this very thing has happened. While we do not view the sex offender registry as the panacea for solving sexual crime, it nevertheless has a role to play and can support our efforts in identifying and prosecuting sexual crime offenders. More importantly, crime prevention should always be one of law enforcement’s primary goals.”

Jim Stephenson, who since his son’s death has found the courage to meet and counsel many jailed sex offenders, puts it this way: “They appreciate the fact that the sex offender registry reminds the sex offenders that somebody is watching. If that isn’t preventative enough, I don’t know what else can be suggested.” Other than quoting another fairy tale.