Hon. Bev Busson moved third reading of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, as amended.

She said: Honourable senators, I am pleased to take the floor once more to speak to you about Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

This bill has recently returned to this chamber following the study by the Standing Senate Committee on Legal and Constitutional Affairs.

I first want to thank the Department of Justice for their timely support, along with my amazing staff. I also need to thank all the senators of our committee for their comprehensive analysis of the bill and for their engagement with the bill’s important objectives, especially Senator Boisvenu, the critic, for his strong and compassionate commitment to championing the issues around sexual offences and intimate partner violence referenced so forcefully and emotionally on this special day of remembrance for him.

The committee made a number of amendments, which were reviewed in detail in a long and deliberative Monday evening meeting during clause-by-clause consideration of the bill. Some of these amendments were drafted by the government in collaboration with key stakeholders, many of whom testified at committee earlier this month. Others were proposed by individual senators. All, I believe, were part of a collective effort to strengthen the bill. Despite differences of opinion expressed, I remain strongly supportive of this legislation as a whole and urge senators to pass this legislation at third reading.

I will remind you all that because this government bill has originated here in the Senate, it will then be up to our colleagues in the other place to conduct their own thorough study of the bill after we hopefully present it to them as amended.

Bill S-12 responds to the 2022 decision of the Supreme Court of Canada in R. v. Ndhlovu, which struck down elements of the National Sex Offender Registry. In particular, it struck down the law that required judges to order all offenders to register, regardless of their risk level — thus violating the offenders’ Charter rights under section 7 — as being overly broad and not connected to the goals of the legislation.

The bill addresses this concern and also contains elements that would strengthen the sex offender registration regime to ensure it continues to be an effective tool for police, such as increasing the registrant’s obligation to report their intention to travel internationally from no advance warning to 14 days.

As mentioned in my second reading speech, these reforms do carry some urgency. If this bill is not enacted by October 28 of this year, courts will no longer be able to order offenders to comply with the National Sex Offender Registry. This will seriously undermine its effectiveness in protecting our most vulnerable citizens and thus negatively affect public confidence in the justice system.

I can’t overemphasize the seriousness of this situation, and hope that you are committed to acting with the necessary urgency required to respond to the Supreme Court’s decision that automatic registration for all individuals convicted of or found not criminally responsible on account of a mental disorder for a designated sexual offence is unconstitutional. The bill proposes judicial discretion in the form of a rebuttable presumption of registration.

In other words, a court must order registration on the sex offender registry unless the offender can demonstrate that their registration would be grossly disproportionate to the public interest or that their registration would not be connected to the purpose of the act.

It further proposes to retain automatic registration in two circumstances, namely, for repeat sexual offenders and for those who commit sexual offences against children in cases where the Crown proceeds by indictment.

I would like to take a moment to discuss in a bit more detail the policy rationale for why automatic registration should still be preserved in these two particular cases.

As a result of the decision in Ndhlovu, some judicial discretion was reintroduced in the sex offender registration regime in order to bring it into compliance with the Charter. That said, the government has been very deliberate in its efforts to put forward the most targeted and specific reforms possible while respecting the Supreme Court’s decision.

The two specific categories of offenders for which registration would be automatic reflect current social science evidence that demonstrates that these categories of individuals — namely repeat offenders and offenders who prey on children — are at a higher risk to reoffend.

In the view of the government, this represents a balanced and constitutional approach to automatic registration and responds to the Supreme Court’s concerns. The proposed enactment of a rebuttable presumption for all other offenders, including for those who commit sexual offences against women, would only direct courts to exempt an offender from registration if the offender could demonstrate it would unduly impact their rights under the Charter. I know that some of us would like to go further, but I believe the bill strikes the right balance and will ensure that the sex offender registry meets the Supreme Court’s benchmark and remains a valuable and constitutional tool for law enforcement to prevent and investigate crimes of a sexual nature.

The goal of this rebuttable presumption is to ensure registration except in the rare cases where registration would not be connected to the objective of helping police services prevent or investigate crimes of a sexual nature.

Another amendment made by the committee would ensure the application to offenders who are on the registry because of an offence committed abroad. As previously introduced, the bill contained a limitation that unintentionally limited the ability of some offenders from applying for relief. The amendment would ensure that these individuals would be able to apply to be exempt from registration in certain circumstances.

The bill also proposes a number of measures that would empower victims of crime through changes to the rules governing publication bans and a victims’ right to information.

A change was made by the committee to the publication ban provisions relating to the bill’s initial proposals to add the words “otherwise made available” to the list of conduct that is prohibited by the publication ban. There were strong concerns that this vague language might be construed as prohibiting the victim from discussing or communicating with their family, friends or therapist, and was removed from the text completely by an amendment. It also addressed concerns regarding material that’s in place from a prior publication ban.

Honourable senators, the objectives of the proposed reforms to the publication ban regime have received significant attention from victims’ and survivors’ groups and stakeholders across the country. The government, as well as the committee, focused specifically on the proposal that reasonable steps must be taken to ensure that the victim takes an active part in the imposition of a publication ban and in the process by which a publication ban could be revoked or varied.

The committee heard the informed and impassioned testimony of witnesses at committee, including from Suzanne Zaccour, Head of Feminist Law Reform at the National Association of Women and the Law; Morrell Andrews of My Voice, My Choice; and Pam Hrick, Executive Director and General Counsel at LEAF, amongst others.

Committee members heard from these witnesses that we must do better in listening to what victims and survivors of crime are advocating for. While many want the anonymity of a publication ban, others, for a variety of reasons, feel that they should have the power to decide whether or not their identities and their stories will be known, thus empowering them to regain the agency and control that had previously been taken from them by the original offences they suffered.

As a result of this feedback, the committee adopted a number of amendments related to these elements of the bill. First, these amendments build on the bill’s proposals that sought to ensure that victims were more directly involved in decisions concerning the imposition of a publication ban and any subsequent variation or revocation. Words like “consult with the victim” are now replaced with stronger language that directs the prosecutor to ascertain the victims’ wishes, using clearer language that sets out specific requirements for both the prosecutor and the court in regard to the imposition and variance of a ban.

In addition, the bill responds to concerns around victims being unable to share their stories with their loved ones. Some had argued that the current legal framework is paternalistic and interferes with the autonomy of victims to make their own choices. As amended, the bill addresses these varying concerns in a number of other ways, including ensuring that there is a clear and obvious path to having publication bans revoked and varied, a path that gives primacy to the interests of victims; clarifying that publication bans do not apply to certain conduct of victims and witnesses, including the sharing of information about one’s case where it is not done for the purpose of making the information known to the public; and making clear that prosecutions are only possible against persons who are the subject of a publication ban and who have allegedly breached it where they have knowingly compromised the privacy of another person who is the subject of a ban and where a warning is not appropriate.

In confirming that a publication ban is solely for the benefit of a victim or witness, the committee addressed the potential role of any accused in any proceedings for the future and in the process of a publication ban being varied or revoked. To that end, committee members made amendments to the bill that reflected that the applicant would not be required to notify the accused, nor would the accused be allowed to make representations during any varying or revocation process. Additionally, if the publication ban is modified or revoked, it is the prosecutor, not the victim, who would be required to inform the accused of this fact.

Clauses in Bill S-12 that reinforce the victim’s right to be informed by Correctional Service Canada officials when the accused’s situation of incarceration has changed remain an important part of the bill and were retained by the committee.

Honourable senators, this is an important piece of legislation made better by our careful study. I urge everyone to support its enactment as quickly as possible. Quite simply, the stakes for the victims, both now and in the future, are too high, and we cannot afford to delay. Thank you, meegwetch.