44th Parl. 1st Sess.
October 5, 2023
- 04:56:52 p.m.
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Thank you so much.
Good afternoon. Thank you for having me here today.
In my limited time, I want to focus on the treatment of publication bans in this bill.
My view, in relation to publication bans, has been informed by my work over the last two decades in criminal and constitutional law. I was a Crown attorney for more than 10 years. I was then the executive director and general counsel at LEAF, and, in January 2021, I launched my own practice to assist women and gender-diverse people in their encounters with the criminal justice system.
I now routinely represent complainants in sexual assault proceedings, including in relation to the lifting of publication bans—often on a pro bono basis—and also act for criminal defendants, predominately in the appellate context.
Through that work, I have seen first-hand that our legal system really struggles to respond in a trauma-informed way to prosecutions of sexual offences. It's no surprise to me that sexual assault remains among the most highly gendered and under-reported of crimes.
When publication bans were first introduced some decades ago, they were meant to encourage the reporting of sexual offences. Knowing that a publication ban is available does help some complainants come forward to report.
However, not every complainant wants a publication ban. Many find comfort in being able to share their experiences publicly with others. For those complainants, a publication ban that impedes their ability to do that can be retraumatizing—all the more so when those bans are imposed without their knowledge or agreement, or when they realize that the ban could actually lead to their criminalization.
With that in mind, I welcome the spirit underlying the proposed changes that would follow from enacting this bill.
Complainants need more agency when it comes to the imposition of publication bans, and they need more information to exercise that agency. If a publication ban has been imposed but a complainant doesn't want it, varying or revoking it needs to be easy. Perhaps most importantly, a complainant should never be criminalized for failing to comply with a publication ban on their own identity.
I think Bill S-12, as passed by the Senate in June, appropriately targets most of these concerns. It's much improved, but I want to talk about one key problem that I think remains today, and I heard some of this coming out in the questions for the Justice officials.
Bill S-12 would amend the code to impose a duty on prosecutors to inform the judge, after a publication ban has been ordered, that they have taken steps to inform the complainant or witness of a number of key things: currently, the existence of the order; its effects and the circumstances in which they may disclose information without being in non-compliance of the order; determining whether the person wishes to be the subject of the order; and informing them of their right to apply to revoke or vary the order.
I agree 100% that a prosecutor is well placed to inform a complainant about two key facts: that the publication ban has been imposed and that they have the right to apply to revoke or vary that order. That information isn't currently being shared routinely with complainants, even though a publication ban is routinely being imposed on almost every single sexual assault case that happens in this country. They need that information.
I'm concerned that the current language goes beyond a duty to inform by blurring the lines between a discussion about factual issues and an update and a discussion that requires them to dispense legal advice. The prosecutor is not the complainant’s lawyer, and they are not in a position to give a complainant independent legal advice. I’ve worn both hats, and one is not the same as the other.
Requiring a prosecutor to explain the effects of the ban or the circumstances in which they can speak without risking liability is crossing the border into legal advice. A complainant may have questions before deciding whether they want the ban to remain in place. They really need independent legal advice to weigh those competing considerations. They can't get it from a prosecutor. A discussion like that would be risky, not just for prosecutors but also for complainants. It could trigger disclosure obligations on the part of the prosecutor, and it could put complainants and prosecutors into a potential conflict of interest, since choices a complainant might make could affect the strength of the prosecution.
The bill really needs to be amended to impose a more limited duty to inform, which would require prosecutors to inform complainants that the ban exists, that it can be varied or revoked, and that they are entitled to get independent legal advice to make an informed decision about whether they want it to continue.
That brings me to my final point: You must accompany this bill with meaningful funding to improve access to free independent legal advice for complainants and better resourcing of organizations that support them. Complainants who can access independent legal advice from trauma-informed lawyers and community supports are much better equipped to manage the stresses of criminal proceedings.
Thank you. I look forward to your questions.
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- 05:17:10 p.m.
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I do think there needs to be more thought given to the role of independent counsel. The role of complainant counsel is a relatively new and unusual role in the criminal justice system. Typically, we think of prosecutor and defence counsel. There is a huge need to provide, at the very beginning of this stage of the process, independent legal advice to people who have survived sexual violence. I come across a lot of clients who, if they had known what the process would be like, might not have chosen to come forward and report.
I know that publication bans are intended to encourage reporting, but I think that the most important thing is agency. They've experienced something where they had no control. They come forward and report because they're told that's what they should do, and they end up in a process where they lose complete control of everything again. They don't get a voice; they don't get a say. They don't get informed about what's happening, even by well-meaning prosecutors and victim services; everyone is so busy.
I think that, at the very outset, they need to be able to access independent legal advice. I'm in Ontario, so I only know about the program that exists in Ontario. There is a program that started as a pilot project that the provincial government rolled out across the province. Every victim of sexual violence in the province of Ontario is, in theory, entitled to access four hours of independent legal advice. If you apply for a voucher, you can get it. There are 26 lawyers, maybe 27 lawyers, in the whole province who are on that list right now. I'm not one of them; I can't get on the list because the list was put together in 2016, when I was a Crown attorney. People are told that they have access to something, but they can't even access it. That's just in Ontario.
I do think there's a real need to have people help guide you through the system to explain what the process will be—whether or not that's in relation to publication bans—and to be a conduit of information to the Crown, because Crown attorneys don't want to talk to you and turn themselves into witnesses or potentially trigger disclosure obligations. That's just one way of thinking about it.
I do think that further training for everyone in the system, including Crown attorneys and judges as well, about what it actually means to be trauma-informed is an important thing.
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- 05:19:59 p.m.
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There has been training that has been implemented for federal judges, and when people are applying, they have to agree to that training. However, the majority of cases actually proceed through provincial courts. That's outside your jurisdiction, but it is a problem in terms of making sure that the training hits at all the right points in the system.
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- 05:22:12 p.m.
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I could try answering you in French, but it would take a long time, so I'll answer in English.
I think that organizing them can be difficult and complicated, and no one has really turned their mind to this option. I also think it's important to recognize that there is a perception that there is a formality to these publication ban orders, which is not reflective of reality; they are very casual.
As Mr. Brock pointed out, people walk into bail court and, as I understand the Crown policy in Ontario, you are supposed to ask for these at the first possible appearance. I don't actually think that's wrong. I think that is erring on the side of protection, but there needs to be information and communication to find out if it needs to stay. When they happen, there tends to be.... There is no formal order. There's no form that gets issued, even when we talk about someone who needs to be mailed the order. If a clerk is organized in court, it gets written on the information or the indictment that there is a publication ban in place.
Otherwise, you might have to go and get the transcript of that day's court proceedings to know whether it has been imposed, which also speaks to the problems with tracking how many of these exist. There isn't really a coordinated approach that deals with it. If we have five victims and these bans all exist, it is complicated if one wants to apply later to revoke it and others don't—
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- 05:24:12 p.m.
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I think it is certainly possible to do that, assuming that the publication ban gets applied to everyone at the outset and there is a publication ban on everyone, but if two people decide, “I want to be able to speak about this going forward”, I think this is the only situation where a judge should hesitate to immediately revoke all the publication bans. The judge should say, “I want to think about this and see if there is a way we can have the publication ban lifted in relation to the two of you and not the other three.” If, for example, they are siblings and share a last name, and one person wants to speak out publicly, they might still be able to have the publication ban lifted in relation to them, as long as they agree to protect their sibling's interest—
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- 05:24:45 p.m.
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There are some cases where it's going to be more challenging, and that is why there will need to be a judge who can weigh those countervailing concerns and decide whether or not the publication ban could be lifted.
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- 05:29:03 p.m.
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You couldn't get a legal aid certificate for this, for sure. You absolutely couldn't. In fact, legal aid certificates get issued to represent complainants in sexual assault cases when there are third party records applications or applications to admit personal records or sexual history at trial. In Ontario, those are administered by legal aid, so you do get a legal aid certificate. However, it's not paid for out of legal aid funding; it's paid for by the Province of Ontario.
I can only speak about Ontario. It is different, but it's not a category of legal aid. Most of this work gets done for free by lawyers like myself and Robin Parker.
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