44th Parl. 1st Sess.
October 5, 2023
- 04:50:30 p.m.
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The bill seeks to codify a process for revocation or modification. Today, it is a common law process. It applies where it can be shown that there is a material change in the circumstances.
The courts have acknowledged that if the recipient of the publication ban no longer wishes to have the publication ban, that constitutes a material change in circumstances. The bill would codify a practice that would require the publication ban to be revoked or modified at the request of the victim or the witness, provided it doesn't impact on the privacy interests of another person protected by a publication ban.
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- 04:51:15 p.m.
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Thank you, Mr. Taylor.
Thank you so much to both of you for coming. We really appreciate that.
You're free to go—subject to anybody contacting you outside of the committee.
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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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- 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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- 04:53:04 p.m.
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Madam Chair, on the calendar circulated, on the 19th it says that there's a meeting. What you're saying, just so I'm clear, is that the testimony will conclude on the 17th.
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- 04:53:18 p.m.
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- 04:53:22 p.m.
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My point, then, is that the testimony will conclude after the deadline to submit amendments, and that's problematic.
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- 04:53:29 p.m.
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Yes. What do you propose?
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- 04:53:36 p.m.
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Well, I don't wish to cause an inordinate delay here, but I think that at the very least, at the end of the day that day, we would allow, if something comes up at that meeting, for people to give notice of their intent to do amendments. I just think it's not fair to witnesses who appear on that day not to have their testimony affect what we might be doing in amendments.
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- 04:54:35 p.m.
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- 04:54:35 p.m.
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The clerk is telling me that they require 48-hour notice but there's always a possibility to bring amendments on the day as well.
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- 04:54:55 p.m.
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Thank you. That was the assurance I was seeking.
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- 04:54:55 p.m.
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Thank you. That's perfect. Obviously, you would send them probably ahead of time.
Go ahead, Mr. Brock.
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- 04:54:55 p.m.
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Thank you, Madam Chair.
Just for clarification, then, for October 24 and 26 on this calendar, are we suggesting that we'll move into another study, the next study?
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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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- 04:55:20 p.m.
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- 04:55:22 p.m.
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Welcome to our witnesses.
My apologies, today was not a normal day in terms of timing. We appreciate all three of you being here. I will introduce all three of you. You were with us before, and we very much appreciate it. I concur wholeheartedly with Mr. Mendicino's remarks earlier. We very much appreciate all the work that you have done with the study.
With us we have Megan Stephens, criminal and constitutional lawyer at Megan Stephens Law; Morrell Andrews, member of My Voice, My Choice; and Suzanne Zaccour, director of legal affairs, National Association of Women and the Law.
I'm going to leave it up to you. I know you understand the time constraints we're under.
Mr. Garrison, apologies, but I had five people come to me before we started and say we need to conclude at 5:30 today. We shrank it as much as we could.
I'm going to leave it up to you. I know you all have prepared statements. Take whatever time you need, up to five minutes, and if you take less, that's quite all right as well. Then we'll move into questioning. Thank you very much.
I will ask Ms. Stephens to please commence.
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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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- 05:02:11 p.m.
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Thank you very much. That was exactly five minutes.
Next we have Ms. Andrews, please.
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