The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

FIFTEENTH REPORT

Your committee, to which was referred Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, has, in obedience to the order of reference of May 30, 2023, examined the said bill and now reports the same with the following amendments:

1.Clause 2, pages 1 and 2:

(a)On page 1,

(i)replace lines 8 to 17 with the following:

“2 (1) Subparagraph 486.4(1)(a)(i) of the Act is re-”, and

(ii)replace lines 23 and 24 with the following:

“(2.1) Paragraph 486.4(2)(a) of the Act is replaced by the following:

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(2.2) Subsection 486.4(2) of the Act is amended by adding “and” at the end of paragraph (b) and by adding the following after that paragraph:

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.”; and

(b)on page 2,

(i)replace lines 1 to 9 with the following

“(3.1) Subsection 486.4(2.2) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(4) Subsection 486.4(4) of the Act is replaced by the following:”, and

(ii)replace lines 12 to 14 with the following:

“justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the victim and any witness who are the subject of the order of its existence, its effects and the circumstances in which they may disclose information that is subject to the order without failing to comply with the order;

(b) determined whether they wish to be the subject of the order; and

(c) informed them of their right to apply to revoke or vary the order.

(4)  An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.

(5) Section 486.4 of the Act is amended by adding the following after subsection (4):

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public.”.

2.Clause 3, pages 2 and 3:

(a)On page 2, replace lines 15 to 38 with the following:

“3 (1) Subsection 486.5(3) is replaced by the following:

(3) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.

(3.1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public.

(2) Section 486.5 of the Act is amended by adding the following after subsection (5):

(5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall

(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;

(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (8.2).

(3) Section 486.5 of the Act is amended by adding the following after subsection (8):

(8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have

(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence, its effects and the circumstances in which they may disclose information that is subject to the order without failing to comply with the order;

(b) determined whether they wish to be the subject of the order; and

(c) informed them of their right to apply to revoke or vary the order.”; and

(b)on page 3, delete lines 1 to 4.

3.Clause 4, page 3: Replace lines 7 to 17 with the following:

“486.51 (1) If a person who is the subject of an order made under section 486.4 or 486.5 requests that the prosecutor have it varied or revoked, the prosecutor shall, as soon as feasible, make an application to vary or revoke the order on their behalf.

(2) If an application to vary or revoke an order made under section 486.4 or 486.5 is made by the person who is the subject of the order or by any other person, including a prosecutor, who is acting on their behalf, the court that made the order or, if that court is for any reason unable to act, another court of equivalent jurisdiction in the same province shall, without holding a hearing, vary or revoke the order, unless the court is of the opinion that to do so may affect the privacy interests of any person other than the accused who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.

(3) If the court is of the opinion that varying or revoking the order that is the subject of an application referred to in subsection (2) may affect the privacy interests of any person other than the accused who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person, the court shall hold a hearing to determine whether the order should be varied or revoked.

(4) In order to determine whether the order should be varied, the court shall take into account whether it is possible to do so in a manner that protects the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.

(5) The applicant is not required to provide notice of the application to vary or revoke the order to the accused.

(6) The accused shall not be permitted to make submissions in relation to the application.

(7) If the order is varied or revoked, the prosecutor shall notify the accused.”.

4.Clause 5, page 3: Replace lines 18 to 26 with the following:

“5 Section 486.6 of the Act is amended by adding the following after subsection (1):

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.”.

5.Clause 8, page 10: Replace line 33 with the following:

“plies for life if the person

(a) was previously convicted of, or previously received a verdict of not criminally responsible on account of mental disorder for, a primary offence or an offence under section 130 of the National Defence Act in respect of a primary offence; or

(b) is, or was at any time, the sub-”.

6.Clause 32, page 25: Replace line 25 with the following:

“(1)(b) if, on or after the day on which this subsection comes into force, they have made an application for an exemption”.

7.New clause 32.1, page 30: Add the following after line 5:

“32.1 Subsection 672.501(4) of the Act is replaced by the following:

(3.1) If a Review Board makes an order under any of subsections (1) to (3), it must promptly inform the person whose identity is protected by the order of its existence, its requirements and the consequences of failing to comply.

(4) An order made under any of subsections (1) to (3) does not apply in any the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community;

(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order; or

(c) the disclosure of information is made by the victim or witness when the purpose of the disclosure is not one of making the information known to the public.”.

Respectfully submitted,

Observation to the Fifteenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-12)

Given the importance of ensuring that individuals subject to publication orders are able to avail themselves of the protections against criminalization and prosecution for disclosure of information under Bill S-12, the committee urges the government to take urgent action to (1) inform those subject to previously existing publication bans of the circumstances in which they are permitted to disclose information as well as the process for varying or revoking publication bans, and (2) encourage withdrawal of charges and expungement of convictions relating to historical actions that are now permitted under Bill S-12.