Introduction

There is a widespread belief that convicted child sex offenders are dangerous, that if we cannot successfully treat them or keep them locked up, and if the police cannot protect children in our communities from them, then citizens have both the right and the responsibility to do what they can to protect children.

Some have called for a registry of convicted child sex offenders living in each community, a registry to which any citizen can have access, which would contain:

• the name and address of all child sex offenders living in the community
• a recent picture of the offender and
• a description of the offender’s criminal history.

Under current law this is not possible, since there is no authority to require that offenders who have completed their sentences notify police of their whereabouts. Thus, citizens’ demand has been that local police issue public notifications about all convicted child sex offenders who they know are living in the area, or else create registries of them. If the police are not willing or able to do so (as apparently they are not—they are likely prohibited from doing so by privacy statutes), people claim that whenever they can obtain information about released offenders living in the community, they are justified in publicizing the information themselves by way of posters or publications like the Tri City Child Care Guide (see below).

Some who oppose such measures argue that the offenders have done their time, paid their debt to society, and have the right to be left alone. The reply of supporters of community notification is that the offenders gave up their right to privacy when they committed their crimes. They claim that the rights of children in the community to protection from these predators outweigh any rights to privacy that they may have.

It has also been argued by proponents that release of an offender’s conviction record is not an important privacy issue since criminal records are already in the public domain. Anyone who knows which court a person was tried in can find out the offence(s) with which a person was charged, whether they were convicted, and the sentence they received.

It has also been suggested that child sex offenders are not the only dangerous criminals living in our communities: those convicted of rape, violent assaults and drunk driving may be also likely to offend again. If so, why not extend community notification programs to these offenders too? The BCCLA here takes no position on community notification of these other potentially dangerous persons. We restrict our comments to notification about child sex offenders for two reasons. First, the calls from the public for registries and notification have been predominantly restricted to the issue of child sex offenders, and this brief is a response to those calls. Second, children, particularly young children, are especially vulnerable to the predatory tactics of child sex offenders, and so constitute a group naturally in need of protection.

Some facts about child sex offenders

Virtually all child sex offenders pose some risk of offending again. The sexual attraction to children is for most offenders a life long condition, which in some cases can be managed, but rarely if ever cured.

Those offenders who are most successful in managing their condition tend to:

• be first time offenders
• acknowledge the wrongness of their actions and the harm caused by them
• successfully complete sex offender treatment programs
• on release, have the support of family and friends, and establish social relationships
• learn to avoid situations in which they have contact with children
• participate in ongoing counselling and
• are monitored.

The last two of these appear to be particularly important in lowering the risk of re-offence. As noted by Barbara Fisher in her address to the Annual General Meeting of the BCCLA in 1993 (citing several studies), continuity of treatment from the institution to the community is critical, as is ongoing “relapse prevention” treatment and close supervision.

Those offenders most likely to re-offend are those who do poorly in the above categories: they are multiple offenders, have no remorse about their actions, do not do well in treatment programs, etc.

In terms of type of crime:

• The most likely to re-offend are those convicted of non-contact crimes such as voyeurism or exhibitionism. Their recidivism rates range from 41 percent to 70 percent.
• The least likely to re-offend are those who have been convicted of crimes against family members, i.e., incest. Their recidivism rates are from four percent to ten percent.
• Those convicted of contact crimes against non-family members (that is, those offenders most often referred to as “paedophiles” and most often the subject of community concern) have recidivism rates from ten percent to 40 percent.(These figures are for untreated child sex offenders and include international findings. They are from W.L. Marshall and H.E. Barbaree, Handbook of Sexual Assault (1990) and were cited in Findings from the Community Protection research Project: A Chartbook, Washington State Institute for Public Policy (1994).)

It is important to note that these statistics are compiled from various studies, include both re-arrest and re-conviction rates, and involve varying follow-up time periods. They do not accurately reflect re-offense rates, since some re-offenders are not caught. Further, some offenders have multiple victims, and so the figures do not accurately represent the number of crimes committed, or the scope of the harm. However, even taking these cautions into account, it appears that a fair percentage of child sex offenders do not pose an immediate risk of re-offending.

By comparison, a recent study in Washington State revealed that after an average of 4.6 years of release from prison, 12 percent of child molesters had been arrested again for a child sex offence. (Washington State Sex Offenders: Overview of Recidivism Studies, Washington State Institute for Public Policy, February 1995). In another study cited by Barbara Fisher, 31 percent of child molesters referred to an institution for treatment had been subsequently convicted of a sexual offence.

Although we have not found statistical evidence to support this claim, we take it as likely that public exposure of those men who are not an immediate risk to re-offend would interfere with their rehabilitation efforts. Public exposure could undermine their efforts to establish family and social relationships, hold a steady job or live normal lives. Since these are factors which are positively correlated with successful rehabilitation, there is a danger that public exposure of their criminal past would increase the likelihood of their re-offending, and thus the risk that they pose to children in the community.

Current attempts to address the risk

Under the Criminal Code, unless at the time of sentencing a child sex offender is declared a dangerous offender, that offender cannot be kept indefinitely in prison. With or without probation or mandatory supervision, the offender is going to be released back into the community. Further, once the offender’s sentence is completed, there is no authority under the Corrections and Conditional Release Act or the Criminal Code to require that he report to police or keep them informed as to his whereabouts, or take counselling or other treatment. Thus, convicted child sex offenders are being released back into our communities with no ongoing monitoring or supervision, no continuing treatment, and often with no notice.

B.C.’s notification policy

In B.C., the Attorney General approved a policy (the Notification Policy to Protect Children From Abuse, July 1994) whereby communities can be notified of the presence of high risk child sex offenders, but low risk offenders are left alone. Whenever a convicted (and in some cases, charged) child sex offender comes to the attention of authorities (police, Corrections, Parole), the authorities are required to share information with other criminal justice agencies, and to assess whether community notification is called for.

In making the assessment, the policy states that the following factors are to be taken into account:

• the circumstances of the convictions or charges
• whether the offender has violated relevant conditions of probation or parole
• the offender’s participation (if any) in past or current treatment programs
• any relevant psychiatric history and
• the offender’s current activities, including access to potential victims.

Provision is made for various degrees of community notification, including the amount of personal information that is to be released, how it is to be released, and to whom. The policy states that in some cases only one individual may need to be notified, while in other cases, daycare groups, area schools, a defined community or the public at large will need to be notified. The methods suggested include telephone calls, door-to-door notification, bulletins, letters and the general mass media.

If the offender first comes to the attention of Corrections or Parole, the recommendation whether or not to release information is made initially by a Corrections or Parole office. It is forwarded to the Information and Privacy Analyst in the Attorney General’s Ministry, who can approve restricted releases of information (e.g., to a school). Wider releases of information to the general public must be approved by the Deputy Minister.

If the offender first comes to the attention of a municipal police force, the decision whether or not to notify the community is made by either the Chief Constable or a Deputy Chief.

These releases of information are subject to the Freedom of Information and Protection of Privacy Act. The Act not only authorizes the release of personal information where “there are compelling circumstances affecting anyone’s health or safety” (ss. 22 and 33), it requires release where “there is a risk of significant harm to… the health or safety of the public or a group of people” (s. 25). Since the Act came into force, municipal police forces and the A.G. have used these sections to justify notifying communities of the presence of a child sex offender in four cases that we are aware of.

Such disclosures have not yet been reviewed by the Information and Privacy Commissioner on appeal, and so there is no jurisprudence interpreting the powers of public bodies to disclose information about child sex offenders. The number of community notifications has so far been surprisingly small. This may change as authorities become more confident in their powers under the Act, and less fearful of lawsuits.

Releases of information are also subject to court bans on publication, the advice of Crown Counsel (for offenders with outstanding charges), and the Young Offenders Act.

It is interesting to note that in Manitoba, the community notification policy includes a “community” panel of representatives from a variety of criminal justice authorities (Corrections, the Attorney General, the RCMP and the local police, a psychiatrist, and so on). The panel receives detailed information from Corrections or the police about potentially dangerous sex offenders, and makes a recommendation to the police in the community where the offender lives whether some level of notification is called for.

If the police act on the panel’s recommendation, they are protected from civil liability. A bill creating a similar panel (with more community representatives and provision for input from the offender) has recently been introduced in the Saskatchewan Legislature.

The situation with federal agencies

The RCMP (who act as municipal and provincial police in a number of areas in B.C.) is governed by the federal Privacy Act. The federal Act allows police to release information where, in the opinion of the head of the institution, “the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure” (s. 8(2)(m)). Currently, this authority has not been delegated, and is exercised in Ottawa. For 18 months, the Deputy Commissioner in E” Division (B.C. and Yukon) has tried to get the authority delegated to him, so that decisions can be made more speedily and in response to local concerns, so far to no avail. The RCMP policy governing the decision to release information is being revised to coincide with the delegation of disclosure authority to the Deputy Commissioners of the various Divisions.

There have been several instances in which the RCMP has released information about child sex offenders to communities, most recently in Fort St. John and North Vancouver. In both cases, the offenders were run out of town by the resulting publicity and protests in front of their homes.

A publication called the Tri City Child Care Guide has for several years been receiving from citizens information about convicted child sex offenders thought to be living in the Lower Mainland, and publishing the pictures, last known addresses and criminal histories of those with multiple convictions in a special section called Paedophile Alert. Until recently, the publisher had been able to confirm the accuracy of the criminal record information with the Coquitlam RCMP. Several months ago, after consulting with the Privacy Commissioner’s Office, the RCMP decided that the practice of confirming these men’s criminal histories was a violation of the Privacy Act, and has ceased doing so.

The federal Parole Board and Corrections Canada are also governed by the federal Privacy Act. The Parole Board does not release information about dangerous offenders itself, but forwards concerns about offenders due to be released to Corrections.

Sex offenders released from federal prisons on mandatory supervision or parole are required to participate in weekly treatment/counselling sessions run by Corrections, where their at-risk behaviour is monitored. Where at the completion of sentence an offender is thought to pose a significant risk of re-offending, the local police are notified and supplied with information about him. It is then up to the police to decide whether community notification is called for.

The principles involved

In setting out our response to citizens’ concerns about the risk to children posed by child sex offenders being released back into our communities, the BCCLA applies the following principles:

1. The issue is not whether the offenders have done their time and paid their debt to society. The issue is whether children in the community are in need of protection from them.
2. The protection of children in the community is paramount. Where an offender’s privacy interests conflict with the protection of children in the community, those interests must give way.
3. This does not mean that it is open season on child sex offenders. Child sex offenders did not give up all rights to privacy when they committed their crimes. They have a right to be left alone, except where the protection of children in the community requires that their privacy be compromised.
4. In deciding whether the protection of children in the community requires that child sex offenders’ privacy be compromised, the following three tests apply:
   • the invasion of their privacy must reduce the level of danger which they pose to children in the community,
   • there must be no less invasive way of reducing that risk, and
   • their privacy should be invaded as little as possible consistent with the protection of children in the community.

Discussion

The BCCLA views public notification as a serious privacy issue. Information about a person’s criminal history can, if released, have devastating consequences for their personal, social and employment life. This is especially true of convictions or charges for child sex crimes. Statutes which regulate the use of criminal histories (such as B.C.’s Criminal Records Review Act) are carefully designed to protect such information from unauthorized use and disclosure, largely because of the serious impact release could have on people’s lives. And stiff penalties have been handed out to police officers who have done unauthorized criminal record checks on persons, and released the information.

If community notification of all child sex offenders would in fact allow communities to protect their children, then the BCCLA would support it. However, it is not clear that it would. Released child sex offenders are only part of the problem. Much of the child abuse occurs within the family, and some (perhaps many) non-family molesters have never been convicted of a child sex offense.

Further, the effectiveness of community notification in protecting children is questionable. A study in Washington State (where they have had a community notification program for six years) shows no statistically relevant difference in re-offence rates between those about whom the community has been notified, and those with a similar history about whom the community has not been notified. (Community Notification: A Study of Offender Characteristics and Recidivism, Washington State Institute for Public Policy, October 1995) The only significant difference is that offenders subject to notification were arrested on average earlier than the others. This is not a small gain, since many offenders have multiple victims, and if they are going to re-offend, the sooner they are re-arrested the better. But the supposition that we can protect our children by preventing offenders from re-offending by notifying the community about their presence does not appear to be borne out.

We speculate that among the practical difficulties with community notification are:

• that the information is retained by parents and children only for a short time
• that offenders choose victims in areas where they have not been publicly identified, or move to other communities and
• that the more notifications that take place, the less effective any one is.

These difficulties could be partly addressed if the A.G. created a registry of those offenders about whose presence a community has been notified, a registry to which any citizen would have access. The drawback to such a registry is that many of the notifications will have been “limited” releases of information, to an individual, school or community centre officials, just because a wider release would not provide better protection to the community. To have a registry which included personal information about all these men would defeat the purpose of limited releases of information, since some citizens would no doubt use their access to the registry to create and publicize lists of all the offenders contained in it. A registry of only those offenders whose presence in the community has been widely publicized would not have this drawback.

An additional problem is that we cannot say ahead of time with a high degree of certainty which offenders will re-offend and which ones won’t. Some offenders will be obviously dangerous (such as those with multiple convictions, a history of violence, and no remorse) while for others the risk of re-offence may be quite low (theirs was a first offence, they are sincerely remorseful, have successfully completion sex offender treatment, and so on). Perhaps many will be somewhere in between.

Another difficulty with wholesale notification or a registry is that it lumps together all offenders, whether they are a high or a low risk to re-offend. For those at a low risk to re-offend, their privacy would be shattered and the chances of continued rehabilitation may be harmed. Notification could well increase the risk that they pose to children in the community. Thus it is questionable that the community as a whole would be safer as a result.

If we pursue a policy of selective community notification of dangerous offenders, and leave alone those at a low risk of re-offending, then “dangerousness” assessments are going to have to be made. The BCCLA believes that the persons who are able to make the most accurate assessments are those who are in a position to bring together as much of the relevant information about these offenders as possible—such as police reports, criminal and psychiatric history, reports from Corrections and Parole officials, and trial records—and apply standard criteria. That means that it is the police, or other criminal justice authorities, or community panels such as those proposed in Manitoba and Saskatchewan, who should be making these assessments, since they are the ones with access to this wide range of protected information.

Unfortunately, mistakes are inevitable. Some offenders are going to be publicly exposed even though they are not dangerous, and some offenders who are not deemed dangerous will go on to commit crimes against children.

It might seem that in the face of the inevitability of mistakes, we might as well expose all of them—what have we got to lose? Or, if mistakes are going to be made, let them be made by the parents or other members of the community whose children are the ones at risk. The common perception is that, when making dangerousness assessments, criminal justice authorities have been mistaken so often in the past, and with such tragic results, that we ought not leave notification decisions up to them.

The BCCLA believes that we have two things to lose: the rehabilitation efforts of some of the offenders (and thus the lower risk posed by them), and a society in which even the most reviled among us are not stripped of all sense of dignity with no gain to society’s broader interests.

Punishment cannot be the reason for depriving offenders of an important aspect of their privacy—there must be some increased level of protection to the community to justify this. We are not convinced that a wider policy of exposure of convicted child sex offenders than is set out in the current A-G’s policy will result in such an increased level of protection. And if not, then it is not justified.

Recommendations

1. That the BCCLA support the B.C. Attorney General’s “Notification Policy to Protect Children From Abuse”, with three qualifications:
   • that in the assessment of dangerousness the severity of the potential crime and the scope of potential victims be taken into account, such that notification about exhibitionists and voyeurs, and those convicted of incest, would rarely be considered.
   • that the government be urged to create a community panel similar to those in Manitoba and Saskatchewan to receive information about potentially dangerous child sex offenders and make recommendations to the government and the police whether to notify a community about their presence; and
   • that a registry be created containing the personal information of all those offenders about whom a wide public notification has taken place.
2. That the BCCLA urge the federal Solicitor General to immediately delegate authority for community notification to the Division Deputy Commissioners, and to create a policy on community notification for Corrections and the RCMP similar to that recommended in 1 above.