Several years ago, B.C. created a program to, in limited circumstances, notify the community about the presence of child sex offenders who posed a clear risk to children in a community. The issue of community notification about such offenders was discussed by the Board, and although the Board cautioned that notification not be over-used or viewed as a panacea to child sex abuse, and that community-wide notifications be used only in extreme circumstances, it was not opposed in principle to the program. We have received no information that the program is being over-used. Since November, 1994, 25 public notifications have occurred.

Under the old program, when B.C. Corrections received information about a child sex offender who was believed to pose a risk of re-offending, the information was sent to a risk assessment officer who would make a recommendation (in effect a decision) whether notification was required. Corrections would conduct the notification. If such information came to the attention of the local police department, police would make the notification decision and carry it out.

Now the Attorney General wishes to replace that program with a new one and expand the types of offenders possibly subject to notification. The new program was publicly announced on September 29, and so is a fait accompli. The new program (called High Risk Offender Community Advisory Program, or CAP) will operate as follows:

(1) The program focuses on high risk offenders whose release from a prison is imminent, high risk offenders currently under some form of community supervision, and others who police view as a threat of physical harm to the community. Initially, the majority (if not all) of the offenders will be those who are released from prison at warrant expiry   i.e., those whom a parole Board has decided are too dangerous to release on mandatory supervision or parole, and so who have served their full sentence in prison and are being released “cold” into the community, without supervision or conditions. Approximately 10 files per month are expected to be reviewed. These are cases in which the destination in B.C. of the offender upon release is known. Where the destination is not known, the offender’s name will go on a “persons of special interest file” on CPIC, and when he is located, the file will be sent to a Risk Assessment Officer.

At present young offenders are excluded from the program (their files are referred to the Ministry of Children and Families), but provision for including them exists.

The files (extensive, including court and prison records, psychiatric assessments, rehabilitation efforts etc.) of such offenders will be forwarded by Corrections Canada, B.C. Corrections or a police agency to a Risk Assessment Officer in the Attorney General’s Ministry. This person would assess the files, request any further information necessary, and provide a summary of the information, along with a recommendation for/against community notification, to the Community Advisory Committee.

(2) The Community Advisory Committee is currently composed of representatives from:

• Corrections Canada
• B.C. Corrections
• RCMP
• municipal police
• Public Safety and Regulatory Branch (Attorney General)
• Criminal Justice Branch (i.e., Crown Counsel)
• Community Justice Branch – Victim Services.

No representative from Forensic sits on the Committee. Advice from a forensic psychiatrist will be available on an as-needed basis.

The Committee meets as necessary to decide whether to recommend that community notification take place, and if so how much information to release and to whom, and whether to recommend that an application be made to a court under sections 810.1 or 810.2 of the Criminal Code. (These sections allow a court to place conditions on a person’s liberty if there is a reasonable fear that they will commit a serious personal injury or sex offence.) The Committee is specifically required to assess whether notification is advisable at all, what other possible operational responses might be advisable, and to consider the proportionality of the response to the apprehended risk, along with the privacy interests of the offender, the risk of public alarm, etc. Decision is via a simple majority vote. The Committee then sends its recommendations to the appropriate police force.

In every case where notification is recommended, the Committee will recommend that section 810.1 or 810.2 conditions be sought. Where notification is not recommended, such conditions may or may not be sought.

(3) The local police force is responsible for deciding whether or not to notify the community, if so at what level, and whether or not to apply to the Crown for s. 810.1 or 810.2 conditions, and to implement its decision.

If the decision is to notify, then the police force must make reasonable efforts to notify the offender of what information will be disclosed, to whom and for what purpose, seek the offender’s consent to notification, and hear any appeals by the offender.

(4) A database of effected notifications will be maintained, and the Attorney General wishes to allow public access to this database, possibly via a web site. (Public access is not part of the current program.) All notifications are reviewed every 6 months, and upon appeal by the offender. If it is deemed that notification is no longer required, the offender’s name and personal information is removed from the database.

(5) Police forces and police officers are indemnified by the Province against civil suit awards and costs if they acted in accordance with a Committee recommendation to release (or not to release) information. Members of the Committee are also indemnified against civil lawsuit awards and costs.

Several issues about this program were raised at the Executive meeting (Board members may have other concerns to add to this list):

A. Public access to the database

Although this is not yet part of the program, it is being pushed by the Attorney General. It would apply only to the personal information (name, criminal record, picture and date of notification) of those offenders about whom the community has been notified. Possibilities being looked at include access via the Internet, and in a database or binder accessible at police stations. If after a review or an offender appeal the notification is decided to be no longer warranted, the information would come off the database.

B. Simple majority vote

Given the current Committee make-up, concern was expressed that offenders’ rights and interests would be given short shrift in a simple majority decision. Again given that make-up, what other decision threshold (if any) would the Board not oppose? If the make-up were altered to include one or two offenders’ rights reps, what decision threshold (if any) would the Board be comfortable with?

C. Potential for over-use of Sections 810.1 and 810.2

The Board has (up to now) not absolutely opposed the existence of these sections whereby on application by a citizen, conditions can be placed on another citizen’s liberty because of a “fear on reasonable grounds” that the other citizen will commit a sex or serious personal injury offence. However, the Board expressed concern that the test for the reasonableness of the fear would not be stringent enough, and too broad a range of conditions imposed. There has been some evidence that this concern is well-founded. Under CAP, conditions will be sought in all cases of notification, and may or may not be sought in other cases. Is this a concern? If so, what would alleviate it? A stiffer test in the Code? Abolishing the Sections? Taking recommendations re: the sections out of the Committee’s mandate and leaving the matter up to the police/Crown?

D. Indemnification of police

It could be argued that the possibility of a civil law suit for releasing information, or for not releasing information, is an appropriate safeguard against irresponsible police actions, and indemnifying police who act in accordance with the Committee’s recommendations undermines that safeguard. After all, in all other circumstances police act under the threat of civil action, and have the legal and financial resources of the municipality to back them up. Is this a concern?

E. BCCLA presence on the committee

Interest has been expressed by Ministry officials in having me on the Committee – partly because of my work in this area, partly because someone in my position on board would lend credibility to the program. (Another BCCLA rep is also a possibility.) The Committee is currently reviewing the issue of involvement of individuals and/or groups from outside the criminal justice system since they have received requests from several groups to sit on the Committee. I have suggested to the Ministry that someone from the John Howard Society would be better equipped to play a role in assessing risk and to stand up for the offender’s rights. Ministry officials are lukewarm to the idea, and police representatives are apparently against it (breach of confidentiality concerns). I have told the Ministry that the issue of my/our participation would be taken up at the October Board meeting.

My (or another BCCLA rep’s) participation would require a significant amount of time. Initially two two-hour meetings per month are planned, some in Victoria and some in Vancouver. After a bit, it is thought that much of the business could be conducted via conference calls. The Risk Assessment Officer’s synopsis of the files and his recommendations would be sent out in advance, and the BCCLA rep would need some time to review these — perhaps eight hours preparation per meeting.

The point of a BCCLA rep serving on the committee would (in my view) be to serve as an offenders’ rights advocate — to as best he/she can offset the heavily loaded bias against the offender, to press for the case to be made that notification is needed and would be effective, and to press for the least amount of information released to the fewest number of people, consistent with community protection. In doing this, it is inevitable that he/she will have to make his/her own risk and effectiveness assessments, and so would have to spend some time learning about risk assessment tools, offender recidivism patterns, etc. The prospect of being the sole voice for offenders’ rights at such meetings is not appealing (a second offender’s rights rep, such as a rep from The John Howard Society would improve matters), but the alternative is not appealing either: there being no one on the Committee standing up for offenders’ rights.

If the Board is opposed to the whole program as it stands, then our participation would be used to lend credibility to an unacceptable process, with minimal impact on the outcomes, and probably should be foregone.