Hon. Paula Simons: Honourable senators, I rise today to speak to Bill S-12 at third reading. In my second reading speech on the bill, I explained the historical genesis of the Supreme Court ruling which found that it was unconstitutional to put sexual offenders on the sex offender registry automatically and without appeal or recourse. I also explained the reasons why victims and survivors of sexual assault who choose to speak publicly should be allowed to do so. Therefore, today, I shan’t “chew my cabbage twice.” I will, instead, concentrate on one specific problematic phrase in the bill, which we unanimously agreed to delete at committee.

The phrase sounds innocuous. It was simply the words “otherwise made available.” Let me read you those three words in the context of Bill S-12.

. . . a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document, broadcast or transmitted in any way —

— or otherwise made available —

— if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

Today, I want to explain why the addition of those three little words amounted to a delicate stealth assault on press freedom, one that could have put even more people — reporters, librarians, survivors — at risk of criminal prosecution for breaching publication bans.

Given that one of the ostensible arguments for this bill was that it would give sexual assault victims back their voices and some measure of autonomy, how did this problematic phrase slip into Bill S-12? Well, that starts with another Alberta legal case. Let me warn you, if you are listening here live or online, the case involves the murder and sexual assault of a child.

On Friday, March 4, 2016, the body of a 14-year-old girl was found in an apartment in the town of Edson, Alberta. The Grade 9 student had been smothered, stabbed and sexually assaulted. The story was horrifying and received wide media coverage. The girl’s mother and schoolmates also posted widely about their loss on social media. The CBC in Edmonton published its own news report about the girl’s death on its website on March 5 and a follow-up story on March 8, stories that included the teen’s name, her photograph and some identifying information about her.

A few days later, police subsequently arrested Tyrell Perron, who was then 21, and charged him with first-degree murder and offering an indignity to a body.

On March 16, Perron had his first court appearance. At that time, the provincial court judge ordered a publication ban on the victim’s name under section 486.4 of the Criminal Code. The CBC then quite properly ceased to name the girl in any of its subsequent stories, but it neither retroactively censored nor removed any of its previous online stories, even when told to do so by the Crown.

The Crown then singled out and charged the CBC with criminal contempt and applied for an interim order to force the CBC to take down its original stories. That application was denied. Undeterred, the Crown continued with its criminal prosecution of the journalists.

In May of 2017, Mr. Justice Terry Clackson found in favour of the CBC. The judge concluded that it was “. . . practically impossible to remove a story once it is online. . . .” Clackson found that simply making the stories which predated the publication ban accessible and available did not qualify as “broadcasting” or “transmitting” them. He noted that such a broad definition could even end up criminalizing libraries that held copies of newspapers which had named the victim before the publication ban was in place.

But the Crown was not done. It launched an appeal. Finally, in November of 2018 — a month after the killer, Tyrell Perron, was convicted of murder — the Court of Appeal of Alberta ruled unanimously that the CBC was not guilty of criminal contempt.

Writing for the court, Madam Justice Patricia Rowbotham concluded that by passively maintaining an original story about the victim on its website, the CBC would likely have “made it available” but did not broadcast or transmit it. The judge noted that the relevant section of the Criminal Code “. . . does not list ‘making available’ or ‘making accessible’ as prohibited conduct.”

If the government wanted publication bans to apply retroactively when identifying information is published and transmitted before a publication ban is issued, Justice Rowbotham concluded, it would need to amend the statute to include the words “made available.”

And that, my friends, is exactly what Bill S-12 sought to do — to add the words “made available” and “making available” all through the relevant provisions of the Criminal Code, as it relates to publication bans in sexual assault trials.

This, my friends, bothers me. I feel that it was sneaky, to put it politely, to attempt to add this clear limitation to press freedom to the Criminal Code under the cover, as it were, of allowing more liberty to sexual assault victims to reclaim their own names.

Let us consider the implications of the government’s proposed new language. It would have allowed for ex post facto publication bans, requiring newspapers and broadcasters to go back in time and scrub their websites and archives of identifying information that they had been legally allowed to publish at the time those stories were posted to the web.

As Justice Clackson noted in his verdict, retroactive publication bans would be next to impossible, technically speaking, to carry out, and that would leave publishers criminally liable for having posted important breaking news stories, which were not subject to a publication ban at the time they were reported. Adding those words would have put journalists in an invidious position. In order to avoid criminal prosecution, reporters and editors might have had to pre-censor themselves and avoid naming any victims, including murder victims, if they had any intuition that a publication ban might someday later be imposed.

It wouldn’t only be journalists who might have found themselves criminalized. If it were to become a crime to make available such information, any library that put print newspapers on its shelves might be criminally liable. And what about independent archives? Infomart, one of Canada’s largest online databases of news stories, was once owned by Postmedia. Today, it still maintains a digital archive of all Postmedia stories, but it is owned independently. Such a third-party company might well be held liable for making available stories that were published in good faith before a publication ban was imposed.

Then there’s the complicated question of social media platforms. Right now, platforms such as Facebook, Twitter and others are not considered publishers or broadcasters, so they are not covered by publication bans, although individuals who post content on their platforms may well be. The same is true of search engines such as Google or Bing. I think there’s an argument to be made, though, that social media platforms and search engines make available the news — well, at least they do now; what happens after Bill C-18 comes into force is anybody’s guess. Might social media platforms and search engines be captured by the phrase “otherwise made available” and subject to criminal prosecution? I don’t know, but I think it’s a fair question to ask.

What about victims themselves? Suppose a sexual assault victim were to write posts on Facebook, make a TikTok video or create a podcast, all before the police were able to make an arrest and before a publication ban was imposed. Suppose they wrote a long blog post about their ordeal and how they survived, and then police were able to make an arrest months later. The court might then impose a publication ban and ex post facto criminalize the victim who decided to leave up that post, TikTok video or Facebook page.

“Otherwise made available”: three seemingly mundane words that could have had corrosive effects on press freedom and freedom of speech. But I am happy to report that the Legal and Constitutional Affairs Committee unanimously accepted my motion to amend the act to take out the first instances of that phrase. I’m even happier that my friend Senator Busson, the sponsor of the bill, moved an entire series of amendments of her own, which further removed that troublesome phrase throughout the text of Bill S-12.

This suggests to me that the Minister of Justice and his department have recognized, albeit belatedly, that this small phrase could have had huge repercussions for libraries, archives, newspapers, broadcasters, social media platforms, search engines and anyone else who makes available the news. I sincerely and optimistically hope that all of our amendments on this topic will remain in place when the other place takes up the debate, knowing that we are all working against the clock set by the Supreme Court.

I was honoured to be part of the debate on Bill S-12 as a sort of visiting backup member of the Standing Senate Committee on Legal and Constitutional Affairs, and I want to thank all my committee colleagues who made my participation possible. I also want to thank the media law team at Reynolds Mirth Richards & Farmer, who have fought long and hard for press freedom in this country, who represented the CBC in the Perron case and set an important precedent about the dangers of retroactive publication bans, and who also took the time this month to walk me through the legal implications of Bill S-12.

In committee, senators from all four groups worked together to make Bill S-12 a better bill. I ask you to send it now to the other place for their consideration, with the hope that the amendments and observations we crafted together will receive the respect they rightly deserve.

Thank you, hiy hiy.

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