44th Parl. 1st Sess.
October 3, 2023
- 04:58:41 p.m.
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Thank you very much, Madam Chair. I'd like to begin by congratulating you on being elected chair of this committee.
This is my first time here as the minister, but it's not my first time here on the committee. I'm a regular. I'd like to thank the committee for giving me the opportunity to be here to discuss Bill S‑12, which proposes a series of reforms to the national sex offender registry and to the Criminal Code provisions pertaining to publication bans.
The publication ban reforms would give victims of criminal offences more autonomy with respect to publication bans and enhance their right to ongoing information. The reforms with respect to sex offenders would give more teeth to the national sex offender registry and be consistent with the Supreme Court of Canada's 2022 decision in R. v. Ndhlovu.
I am very pleased to see the committee recognize the urgency of this issue and begin a prestudy of this legislation. I thank you sincerely for doing that and taking that initiative. As you know, we are under a court-imposed deadline. If the legislation before us does not receive royal assent by October 28, sex offenders will no longer be able to be added to the sex offender registry. That is an outcome that I believe none of us wants to see happen.
I'll begin by discussing the reforms in this legislation that have been proposed by the victims and survivors of sexual assault and also by their advocates. I'm very grateful for the lived experiences that victims and survivors shared with my office as Bill S-12 was being developed. Very much thanks to their leadership, Bill S-12 will help craft a criminal justice system that better serves the needs of victims in Canada.
Bill S‑12 advocates a victim-oriented approach that empowers victims. It accomplishes this by requiring that courts and attorneys verify whether victims wish to be protected by a publication ban, and if so, that they be informed of the impact of a publication ban and their right to request its revocation or alteration.
Bill S-12 aims to eliminate the threat of prosecution for individuals when they share their own identifying information. Victims and survivors should not be prosecuted for telling their own stories. That is fundamental to the conception and understanding of this bill.
I want to thank committee members for showing leadership on the subject of publication bans. I know that this issue was examined by this very committee during last year’s victims of crime study, and many people in this room right now were participants in that study. I also know that many of you have met with and listened to members of a group call My Voice, My Choice, as well as other advocates. Support for these reforms, thankfully, crosses partisan lines. We now have the opportunity to get this package across the finish line in a timely manner that respects the deadlines imposed by the Supreme Court.
Upon further review of Bill S-12, the Senate made amendments to the publication ban reforms to respond to the concerns it heard from witnesses during the bill’s study. While these Senate amendments have generally led to a more robust bill, I am concerned about some of the amendments and would like to draw your attention to two of them.
First, an amendment was made by the Senate that would require the prosecutor to inform victims and witnesses who are subjects of a publication ban about the circumstances under which they could legitimately disclose information without facing legal consequences. While I appreciate the objective of a change of that nature, it does raise serious questions about prosecutorial independence and conflicts of interest.
Some of the very Crown attorneys who would be providing that advice would be the same individuals who would ultimately be handling a prosecution. I am very conscious of the fact that in this committee we have no less than three former prosecuting Crown attorneys, and I'm sure they may share some of the concerns that I have with respect to this proposed Senate amendment. In fact, I have already received correspondence from some provincial attorneys general raising this very concern.
Second, I am also concerned with the amendment to clarify what is or is not captured by a publication ban. As amended by the Senate, Bill S-12 currently specifies that individuals who are protected by a publication ban may disclose information about themselves as long as they do not identify another person who is protected by the same publication ban. The problem here is that sometimes there are victims or witnesses who are subject to different publication bans and who still may wish to keep their identities private.
I want to move now to other components of Bill S-12, so I'm moving away from the Senate amendments.
Another victim- and survivor-centric element of Bill S-12 relates to information that is received from the courts. Under the Victims Bill of Rights, victims can decide whether they want to stay informed about all case developments, like appeals or parole. They can also decide that they do not want to be contacted about the case. They have the right to move on and to not have to hear about it again.
Bill S-12 significantly simplifies and streamlines the process for registering for information by requiring judges to ask victims their preferences and by making receipt of ongoing information a simple box to tick on a form. I am grateful to the advocates who brought this issue to light, and would like to emphasize that this measure is a key priority of the federal ombudsperson for victims of crime.
I now want to outline the measures in Bill S-12 that relate to the national sex offender registry.
In response to the Supreme Court’s decision in Ndhlovu, Bill S-12 proposes to replace automatic registration with a presumption of registration, meaning that an order to comply with the registry must be imposed in all cases involving a sexual offence, unless the offender can show that registration would be grossly disproportionate or overbroad. However, the bill would retain automatic registration for two categories. The first is repeat sexual offenders. The second is those who commit sexual offences against children and are sentenced to two years or more of imprisonment, on indictment, even in the case of a first-time offender in that category.
Restricting automatic registration to these situations reflects current social science evidence that these categories of individuals are at a higher risk to reoffend in a sexual manner. This responds directly to the Supreme Court’s judgment in Ndhlovu that automatic registration is only justified for individuals who pose an elevated risk of reoffending. The court has called for the tailoring of this provision, and that is the tailoring we have done.
It is my view that including these individuals on the registry will always be related and proportionate to the objectives of the registry. Sexual offences against children are despicable crimes that I condemn in the strongest terms, and I presume all parliamentarians would condemn in the strongest terms. I'm speaking to you not just as the Minister of Justice or a member of Parliament from Toronto, but as the father of two young boys.
In addition, we know that repeat sexual offenders—that's the second category of those who would be automatically registered—are five to eight times more likely to reoffend than individuals who have non-sexual criminal histories.
There is another piece in the Ndhlovu decision that relates to mandatory lifetime registration. What Bill S-12 proposes to do is to allow a court to order lifetime registration for certain individuals. We are talking about people convicted of more than one designated offence in the same proceeding, where the offences demonstrate a pattern of behaviour that shows an increased risk of sexual recidivism. This addresses the concerns of the Supreme Court, while allowing lifetime registration in appropriate cases.
In addition to the proposals resulting from R. v. Ndhlovu, there are also some amendments whose purpose is to strengthen the offender registration regime as a whole and to make it more effective. These amendments include a requirement for registered sex offenders to give prior notice of at least 14 days for any travel, as well as a specific destination address. This gives the police more time and information to assess risks, and where required, to alert their international partners responsible for enforcing the act of an individual's travel plans.
Other key amendments include the addition of more offences for which an individual could be required to register, including the non-consensual distribution of intimate images and sextortion, and a new arrest warrant to address non-compliance with an offender’s registration obligations.
What I'm saying is that we not only revisited the issue of the sex offender registry, making it compliant, in my view, with the Supreme Court's guidance, but we are actually improving the registry, including the number of offences that would be captured by the registry.
The new arrest warrant is critical from a law enforcement perspective. Again, this is not a partisan issue but an issue that all of us take seriously. What I would emphasize to you is that many stakeholders have talked to my office about this bill, including law enforcement stakeholders such as the RCMP and the Canadian Association of Chiefs of Police.
What I will say to you is that they've said they would like the sex offender registry to be maintained. They see it as a very valuable tool for fighting crime, including for repeat sexual offenders. What they said to me—which was quite shocking, and I'll share it with you—is that the stats vary on a weekly basis. Between 46 and 75 times per week in Canada, names are added to the sex offender registry. That is quite staggering, but it would be more staggering to lose the ability to do that and keep Canadians safe.
I will conclude by saying that I'm convinced all of the reforms proposed in the bill would strengthen the national sex offender registry, comply with the Canadian Charter of Rights and Freedoms, and make the criminal justice system more responsive to the needs of victims of crime.
I hope that all parties in this committee and all parties in the chamber can work together to pass this legislation in the coming weeks, since time is of the essence.
Thank you, Madam Chair.
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- 05:14:47 p.m.
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Minister, thank you.
The decision that we're addressing here.... The Supreme Court stated that someone who is on the registry, an offender, is eight times more likely than the general population to commit a sexual offence. That is why a mandatory listing in the sex offender registry of those who are convicted of sexual offences and a mandatory lifetime listing of those who have multiple offences are so essential.
It was a 5-4 decision. In the dissent, it says:
It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.
Have you given consideration to casting a wider net? What has been carved out in Bill S-12 are some fairly narrow provisions that would result in mandatory listing in the sex offender registry when previously any conviction for a sexual offence was listed.
Have you considered casting a wider net?
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- 05:16:29 p.m.
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I would be happy to. Thank you, Ms. Dhillon.
First of all, to Mr. Moore, the important takeaway from Bill S-12 is that the vast majority of individuals will remain registered. That's the first point.
I say that because there's an automatic registration in two categories, and for everyone else you're going to get registered unless you can demonstrate a rebuttable presumption why you shouldn't because it would be overbroad or grossly disproportionate. That's important.
Have we given it careful thought? Absolutely, we have, but the most reflection that I gave to the bill was simply the fact that the Supreme Court said, in its majority view, that lacking any judicial discretion is a violation of the charter under section 7, because it's overbroad and doesn't meet the minimal impairment test under section 1. Therefore, we had to make changes, and we've carefully tailored those changes in a manner that I believe conforms to the charter.
Thank you, Ms. Dhillon.
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- 05:20:14 p.m.
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The compliance warrant is an interesting one. The law enforcement community reached out and said that they not only want this registry, but they also want the ability to act on the registry. They said it's sometimes difficult to get offenders to provide the registry with their information or to update their information.
Bill S-12 will create a situation that authorizes the police to seek a warrant to arrest an offender who is non-compliant with their registry obligation and to bring them to a reporting centre to facilitate compliance. That's an important step. We don't want to have a situation where people are out there believing they can just flout the law. This compliance warrant measure allows us to provide an additional enforcement tool for law enforcement to maintain the integrity of the registry itself.
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- 05:21:07 p.m.
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Thank you, Madam Chair.
Good afternoon, Minister. I too would like to congratulate you on your appointment as Minister of Justice. The members of the Standing Committee on Justice and Human Rights will be pleased to work with you.
As you mentioned, we are at the pre-study phase with Bill S‑12, because it has not yet been referred back to us. I agree that it's a good idea to proceed in this manner. You were right to point out that the end-of-the-month deadline set by the Supreme Court of Canada would mean that it would no longer be possible to add sex offenders to the national sex offender registry, and that this would be problematic. We agree.
However, can you explain why the bill was only introduced in the Senate on April 26, 2023, when the Supreme Court decision dates back to October 28, 2022, almost a year ago? That means there were six months between the time the Supreme Court ruled that the act had to be amended and the introduction of the bill. Can you explain why it took so long, Minister?
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- 05:27:29 p.m.
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Thank you very much, Madam Chair. I'd certainly like to welcome you to your role as chair in our first public meeting.
Of course, I'll echo the comments about welcoming the minister here today. With his previous experience on the committee, I'm sure he'll be willing to come back and speak to us many more times. As he's a new minister, there are several things I'd like to talk to him about, such as decriminalizing HIV non-disclosure, decriminalizing sex work, reforming our extradition laws and the bill that's before the House, Bill C-40, on the miscarriage of justice. However, I do accept the urgency with which we're dealing with Bill S-12, so I will limit my comments and questions to Bill S-12 today.
I fully accept the urgency of maintaining the sex offender registry, but I thank you, Minister, for emphasizing that Bill S-12 not only preserves the registry but also improves the registry. We have had some cases in my riding where people have been added to the sex offender registry and no one in the community would reasonably believe that they should have been added. Sometimes those are people who are neurodiverse or who have intellectual disabilities and have ended up in the sex offender registry. I have spoken with advocates and those people. This bill will provide an opportunity, or that's the way I see it, for a judge to decide whether all those people should automatically be added.
I just wondered if you were aware of those kinds of cases.
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- 05:33:49 p.m.
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Thank you, Madam Chair.
Welcome to your new role, Minister, and congratulations on your new role.
Minister, you said at the outset that sex offences against children are despicable and you condemn them in the strongest terms. I think we all would at this point. You've also spoken about Bill S-12 and its role in the protection of children.
I take it that you would support the elimination of house arrest as a sentencing option for those who are convicted of sexual offences against children.
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- 05:56:51 p.m.
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I would say to you, Mr. Housefather, it's duly noted. I think it's important to take a close reading of the legislation.
I share a concern if there's any ambiguity insofar as the target of this regime under Bill S-12 is meant to be the victims or witnesses, but to the exclusion of the accused. We are not concerned with the privacy interests of the accused here. Any Senate amendment that would purport to raise that issue is unnecessary ambiguity that doesn't conform to the objectives of the bill.
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