44th Parl. 1st Sess.
October 5, 2023
- 04:29:40 p.m.
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No. That's a fair point.
We will have a four-minute round with the witnesses. We'll start with that. Our apologies for the delay.
Welcome to meeting number 76 of the House of Commons Standing Committee on Justice and Human Rights.
Pursuant to the order of reference adopted by the House on October 5, 2023, the committee is meeting in public to continue its study on the subject matter of Bill S‑12.
After the first panel, I'll ask for a motion on Bill S‑12, but I think right now, due to the fact that we're so delayed, we'll simply start with questioning the witnesses for four minutes each.
I will start with Mr. Van Popta, please.
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- 04:30:35 p.m.
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Thank you, Madam Chair, and thank you, witnesses, for being here.
On behalf of all of us, I apologize for the delay. We had very important work in the House of Commons today, voting on precisely the bill we're discussing here, Bill S‑12. Thank you for being here and thank you for lending your expertise to this very important discussion.
Bill S‑12 is about amending the Criminal Code as it relates to the national sex offender registry. That discussion was instigated by a Supreme Court of Canada decision, R. v. Ndhlovu.
I just want to quote from the minority. It was a split decision of five to four. The minority cited evidence that was apparently before the trial judge. In their opinion, “offenders convicted of a sexual offence are five to eight times more likely to reoffend than those convicted of a non-sexual offence.” They also said that “it cannot be reliably predicted at the time of sentencing which offenders will reoffend.” Then the minority came to this conclusion: “In the face of that uncertain risk, Parliament was entitled to case a wide net.”
We had the Minister of Justice here just the other day. He made reference to social science data that, in his opinion, supported this current legislation, Bill S‑12, which I would say has a lower standard when it comes to making it mandatory to have people registered on the sex offender registry.
Are you aware of the data he was referring to? Does it contradict the evidence that apparently was before the trial judge and that the minority judges refer to?
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- 04:32:29 p.m.
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Thank you for your question.
I think I will start answering the question by reiterating what the minister said when he was here, which was that if Bill S‑12 is enacted, everybody who receives a conviction for a sex offence will be required to register, unless they can demonstrate that the registry is overbroad or grossly disproportionate. It's a very strong presumption of registration for those offenders.
The data you cite, which the minority articulated, was the arguments that the Attorney General of Canada made before the Supreme Court when he intervened to defend the legislation when the Supreme Court heard arguments on that. That data was not sufficient to uphold the law. The data that is now being relied on for the two categories of automatic registration relates to repeat sex offenders. Those individuals pose an even higher risk of reoffending than first-time offenders, which was the target of the original legislation.
For the other category of automatic registration for children—victims under 18—a sexual interest in children is a very well-validated risk factor for sexual recidivism. Coupled with the two years or more on indictment, it is expected that this constellation of factors will provide the evidence that the government would use to justify those two automatic categories.
However, everyone will be presumed to be registered.
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- 04:34:06 p.m.
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I want to zero in on sexual offences against children.
Bill S-12 requires it to be mandatory that a person's name be listed in the registry if they are convicted of a sexual offence against a child, but only if it was prosecuted by way of indictment and the sentence was at least two years.
Why is it not for offenders—child molesters—who were prosecuted by way of summary conviction? Aren't they equally dangerous?
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- 04:34:41 p.m.
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They will be presumed to be registered under the proposals in Bill S-12. That is the answer. They're all presumed to be registered.
What the bill does is list risk factors, as well, for judges to use to exercise their discretion. Those factors were intended to counter the criticisms and concerns raised by the minority judgment to curb the risk they saw in judicial discretion.
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- 04:38:18 p.m.
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Happy birthday.
I'd like to take a brief moment to thank the survivors and victims who are present here to testify. On behalf of the members of this committee and all parliamentarians, thank you for your advocacy. I can tell you that, in my experience—not only in this job on the Hill but also before, as an actor in the criminal justice system—your work is incredibly important to this legislation. We thank you very much for bringing forward the ideas you're going to articulate later today.
Colleagues, we know Bill S-12 proposes to do three things: strengthen the Sex Offender Information Registration Act, make certain amendments to the International Transfer of Offenders Act and, finally, strengthen some of the rights that ought to be afforded to victims in the context of criminal justice proceedings. I think we can all agree there is still a lot of work to be done there.
I want to zero in on the concerns that have been expressed by victims' advocates and survivors themselves about how we can ensure they are provided with timely and accurate information on applications that involve publication bans. A couple of days ago, we heard from the minister, who expressed concern about one of the amendments that were put forward by the Senate, which would require that Crown prosecutors communicate directly with victims about said publication bans.
Before I get into those concerns, I'm going to give the officials an opportunity to elaborate on that, Madam Chair. I think we can all agree that it is important for victims to be treated with professionalism, courtesy and, more importantly, sensitivity—in particular, taking a trauma-informed approach. That's regardless of who is communicating with them, whether it is a Crown prosecutor, a member of the law enforcement branch, a member of the profession, or any of the social service providers in the system. I think we can all agree we have to do better there.
That said, the minister said he was worried the Senate amendment as expressed would infringe on prosecutorial independence. I'd ask you—very briefly, in a matter of seconds—to tell us what the job of a Crown prosecutor is. I'll then come back to you and ask a follow-up question.
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- 04:40:06 p.m.
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Thank you, Madam Chair.
Happy birthday, Mr. Taylor.
My Conservative Party friend didn't have that information, or I'm sure he, too, would have wished you a happy birthday.
Mr. Taylor and Ms. Wells, I, too, am concerned about that aspect of the information to be disclosed to victims, which I see as essential. Obviously, Bill S‑12 covers more than just that. It also covers registration on the National Sex Offender Registry, which I believe almost everyone agrees on, so I don't want to waste time discussing that.
However, with respect to disclosure of information to victims, yesterday I heard the minister raise questions about conflict of interest. You even talked about that earlier with my Liberal party colleague.
I listened to the answer you gave Mr. Mendicino about the Crown prosecutor's role. My understanding is that the Crown prosecutor represents the public interest but that they're a disinterested party. Correct me if I'm wrong, but their role is to ensure that the facts are clearly and fully established before the court so that a just decision may be rendered. As such, I don't see how there could be a conflict of interest.
I can see that there might be a role conflict and the Crown prosecutor might wonder how to ensure that the victim has a good understanding of the situation so that, six months, a year or two years down the line, if they charge the victim for violating a publication ban, the victim can't say the Crown prosecutor or their colleague misinformed them at the time.
That seems like a legitimate concern to me, but I humbly suggest that there must be a way to guard against that kind of situation. I think the information the Crown prosecutor discloses to a victim is essentially the same in every case. It might have to be adapted depending on the case, but there's probably a way to standardize the information to be disclosed to victims.
Can you comment on that? What do you think? Is there a way for the Crown prosecutor to make sure victims are properly informed without placing themselves in a conflict of interest?
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- 04:42:52 p.m.
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Thank you for the question.
In essence, you explained the Crown prosecutor's role. There are a number of ways to inform victims about the criminal justice system. I think the government recognized that it's important to strike a balance between adequately informing the victim and respecting the Crown prosecutor's role.
When Bill S‑12 was in the Senate, there was debate about the connection between disclosure of information and the Crown prosecutor's role.
I think the issue has more to do with a phrase that appears in three different places in the bill.
The text reads, “in which they may disclose information that is subject to the order without failing to comply with the order”.
I think the issue is whether, for the Crown prosecutor, this phrase is compatible with the kind of information that can be disclosed to the victim.
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- 04:48:51 p.m.
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Would the text of Bill S-12 do anything to clarify that situation?
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- 04:48:59 p.m.
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There are amendments in Bill S-12 that were passed by the Senate and that speak to the issue of the accused.
The concern that was discussed in the Senate when those amendments were debated was whether that would suggest to the courts or the criminal justice system that an accused currently has an interest in these proceedings and that Parliament is presumed to be acting for a reason. The counterpoint was made that this was really meant to reflect the status quo of the law.
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- 04:49:37 p.m.
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In terms of the requirement that victims be informed when there's a publication ban, does the current text of Bill S-12 require that victims be informed if they have a right to request a publication ban, if they should so desire, or is this simply an after-the-fact notification?
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- 04:51:40 p.m.
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I have probably only 60 seconds, given what just happened in the House and the bill now coming to our meeting.
I need someone to move a motion that all testimony received in our study on the subject matter of Bill S-12 be deemed heard in our study of the said bill.
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- 04:53:03 p.m.
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Mr. Maloney, thank you very much.
Please take a look if you have not; I think this was sent to you. Also on your desks there is a calendar. We really worked very hard in anticipation of this coming so that we don't waste any time, because we kind of foresaw that we might be starting late.
If you take a look, we have a break week—happy Thanksgiving, by the way, to everyone. When we return the week after that, on the 17th, the deadline will be noontime to submit amendments for Bill S-12. Then, on October 19, we will have our study of Bill S-12, our clause-by-clause. On the 17th, we'll have a meeting as usual, with witnesses on Bill S-12. Does that work for everyone?
Some hon. members: Agreed.
The Chair: Thank you very much.
We now have three witnesses.
Yes, Mr. Garrison.
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- 04:55:08 p.m.
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What we will probably do is have a steering committee meeting—and we'll decide that on the 17th, because we haven't gone beyond Bill S-12 at the moment—so that we can decide on what needs to happen.
Are you okay with that?
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- 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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- 05:02:21 p.m.
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Thank you.
I would like to thank the Algonquin Anishinabe people, whose land we gather upon today. I will once again encourage this committee to integrate the calls to action from the Truth and Reconciliation Commission into your report.
I'll be quick. I'll skip over some things, but I want to make it clear that I do not speak for all victims and cannot come close to encompassing the lived perspectives of those who face a number of barriers in accessing the system and accountability for the crimes committed against them.
I think the Senate did good work on Bill S-12, but we're here to ask you to be even more ambitious. From our perspective, a better bill would feature amendments that do a few more things, like ensuring that prosecutors are directed to immediately inform the victim of their right to request a publication ban before it is ordered. Right now, the bill talks about judges doing that. It's not realistic. It doesn't happen in real life. Someone needs to tell victims before the ban has been put on their identities that they have the right.
You should clarify, in section 486.4, that publication bans are available for witnesses under the age of 18 and victims of sexual offences, because there's still confusion about this in the system.
The bill should also require prosecutors to act in accordance with the wishes of the victim. We like to use the word “consent”, but for some people that might not make sense in the context of the Criminal Code. The wishes of the victim should matter. You need to make sure that this is in the bill and that there aren't justice system actors like judges or Crowns who are acting without the consent or the wishes of the victim being taken into account.
We want to make sure that publication bans are not put on the identities of victims who have made it clear that they do not wish to be subjected to such an order.
We want to make sure that victims are provided a copy of their publication ban. Victim services simply do not give us that information. They don't know about publication bans. They are not equipped to do so. It doesn't happen in real life.
I also want to make sure that the way applications are dealt with for sexual offence victims is separated from section 486.5 of the Criminal Code. Right now, Bill S-12 lumps discretionary bans for any justice system participant with this type of publication ban for sexual offence victims. It doesn't make sense to have them combined. You should separate them and make it clear that there are only limited factors that a judge can consider when someone comes to them and asks them to remove their publication ban if it has to go to a hearing. Ideally, victims should just be allowed to have their publication bans lifted without having to go to a hearing.
Finally, we want to make sure that you expand the limitations section to ensure that trusted people, including professionals who provide support to victims, are not criminalized for communicating. Right now, the bill carves out a limitation for victims sharing their own information, but people who have to converse back and forth with victims when they need support should not be criminalized.
We want to make sure that there are no more egregious delays for victims removing their bans, like what happened to Patty or Maarika. We don't want any more victims having to hunt for and go to the court to try to find their publication ban orders, like what happened to “Deborah Lyn” this very week. We want to make sure that there are no more defence attorneys who are reintroducing publication bans on the names of victims who have already had their publication bans removed, like what happened to “Cassandra” last month, and we want to make sure that Crowns are no longer acting on assumptions without involving victims, like effectively every single person we have been connected to.
These suggestions are crowdsourced. They are based on the lived experience of victims. We have done our very best to consult on these recommendations very widely, but it is literally impossible to capture the nuance of every individual's issues, perspectives and interactions with the legal system.
We've done everything humanly possible to give you amendments on paper and to help you in this process, but the reality is that this should not be our responsibility as victims. We are not lawyers, but we are trying to do our very best to help you. Inevitably, some people will say that it's not good enough, but we're here now and we're doing what we can.
Quite honestly, the last year and this process have left so many of us feeling retraumatized, depleted and extremely tired. We have been placed in the very unenviable position of wondering if tweaking on the margins of the current Criminal Code will be good enough.
For that reason, these recommendations are not a panacea. This Parliament will still be confronted with the fact and the reality that complainants face a shameful amount of barriers throughout the continuum of seeking help and accountability, and long after.
Your police still don't believe us. Your Crown attorneys are not trauma-informed. Your judges don't understand how to properly apply the law, at our expense. You have not invested sufficiently in the resources outside of the system that can be there to provide important support that is culturally appropriate for victims of all different kinds of backgrounds. After Bill S-12 is complete, you will still have work to do, including educating Crown attorneys and judges, implementing guides for the provinces and territories, reviewing legislation to make sure you get it right and producing accessible information for victims, who deserve to know what is happening to them in the system.
The people behind My Voice, My Choice have done everything expected of us—and far beyond that, to be honest. I know you are facing tough deadlines and I know this is not the ideal way to write a bill, but here we are, and this is what we have. I want you to continue to consider our amendments, as many of you have, and I want to know that they matter. I want to know that the stories we've shared with you matter, so please do the honourable work and collaboration across party lines and take this seriously. If you do and if you amend the law so it's at least a bit better, we can finally rest and take some time to do the healing that a lot of us still need to do.
Thank you.
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- 05:09:08 p.m.
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I'll be brief because I think everything has been said.
My name is Suzanne Zaccour, and I'm the Director of Legal Affairs for the National Association of Women and the Law.
NAWL is a not-for-profit organization that works to advance women's rights in Canada, including in the legislative process.
I'm always happy to come here and talk to you about legal issues that are gendered and that affect women in Canada.
We worked with other feminist lawyers and organizations to submit a brief when Bill S‑12 was in the Senate. We collaborated to highlight three important objectives.
We highlighted the need to ensure that victims are not criminalized for failing to comply with a publication ban. We highlighted the need to clarify and simplify the process for revoking or varying a publication ban. Quite frankly, it needs to be much clearer. These are not necessarily lawyers who are engaging with this process. We also highlighted the need to ensure that victims are adequately informed throughout the process.
Our position is that the Senate amendments are positive and have brought about a lot of progress in this bill to fulfill these three objectives.
I will call to your attention a minor detail. It's the language about a person being “subject to the order” rather than “subject of the order” in the “Limitation” section of the bill. I'm not so concerned, since the French version is correct, but we know how difficult this process is, so perhaps we can avoid litigation or having to do complex interpretation by just clarifying that the limitation applies to people who are “subject of the order”, whose identity is protected by the order, rather than to those who are “subject to the order”, which is everybody, because everyone needs to respect a publication ban.
I have more to say, but I know we're pressed for time, so I'm going to stop here. We'll be happy to answer questions.
Thank you.
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- 05:20:22 p.m.
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Thank you, Chair.
I thank the three witnesses for being here. Their testimony is extremely important.
We don't have much time, so I won't waste any more than I have to, but I agree with what my colleague, Mr. Brock, said. I can't figure out why it took six months for Bill S‑12 to be introduced in the Senate after the Supreme Court's decision. We literally wasted six months. Now we find ourselves rushing you to testify, which is just rude, if you ask me. I apologize on behalf of all my parliamentary colleagues. I'm sure they're no happier about this than I am.
That said, we don't have much time, so I won't look at every aspect of the bill. Pretty much everything has been covered. However, there's one thing we haven't really looked at, and I'd like to hear what you have to say about it, Ms. Stephens.
Just a side note, Ms. Andrews, I have your proposed amendments in both French and English. That's good, and I can assure you I'll take them into account.
Ms. Stephens, the issue is publication bans when there are multiple victims. For example, there might be a 14-year-old girl, a 20-year-old woman and a 30-year-old woman. Some want a publication ban for their and their family's peace of mind, but others want to talk about it because that's therapeutic. There are many different points of view, all of them equally valid.
How should a publication ban be set up when different victims have different perspectives and different needs?
I realize that a 14-year-old girl needs to be protected whether she wants that or not.
Would you please comment on that, Ms. Stephens?
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- 05:25:22 p.m.
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Thank you very much, Madam Chair.
I want to start by saying thanks to all the survivors, not just Morrell but the others who are in the room today, and all those who have come forward. It's a very difficult thing to talk about. Some of you may know that I'm also an adult survivor.
I also thank Laurel Collins, the member for Victoria, because when we started our study on victims, Laurel came to me and said, “I don't think they were thinking about this when they were studying victims, so I really want to make sure that you, as the justice committee, include this in your study, and I can tell you whom you need to talk to.” So Laurel Collins, the member for Victoria, was very influential. She had a private member's bill, which is running faster, and I guess I am frustrated by timing.
Both halves of Bill S-12 are urgent, and I think, Morrell, your comments today really underlined that for me when you were talking about how many times.... I've been trying to get somebody to admit how frequent this is in our society, because this is the most under-reported crime, yet we have dozens and dozens of cases before the courts all the time. I wonder if you could say a bit more about the frequency and the number of people who are subjected to the bans, not just subjected to sexual assault—I don't want to skip over that—but subjected to those bans.
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