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Context: Committee Evidence - JUST-75 (JUST) - Oct/3/23

05:21:03 p.m.
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Thank you very much. Monsieur Fortin is next.

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Mr. Rhéal Éloi Fortin (Rivière-du-Nord, BQ)

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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S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act

Hon. Arif Virani

05:22:27 p.m.
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Thank you, Mr. Fortin, for your kind words and for your very important question. In order to prepare the bill and respond to the Supreme Court of Canada, many groups and organizations had to be consulted. Indeed, we consulted 31 such groups, including police organizations and Crown lawyers, representatives of victims groups, women's groups, defence lawyers groups, child protection groups and groups representing the 2SLGBTQ and other communities. All of these consultations took time. Time was also needed to draft a bill that would not only respond to the Supreme Court, but also broaden the application of current statutes to address issues like sextortion and the non-consensual sharing of a person's images. This was something we added after consulting people.

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Mr. Rhéal Éloi Fortin

05:23:47 p.m.
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I understand what you're saying, and it makes sense to me. I'm sure that all kinds of consultations are needed before a bill like this one can be drafted. However, while everyone around the table agrees that it was urgent, it took six months to get around to introducing the bill. The Senate nevertheless managed to do some relatively rapid work on it because the bill was adopted on third reading on June 22, just prior to the summer recess. The Standing Committee on Justice and Human Rights could have been consulted during the summer to speed things up, but it wasn't. My understanding is that it had to go through the House and that this was complicated. What I'm personally most unhappy about is how long it took for the bill to be introduced after everyone across Canada had become aware of the fact that there was an urgent situation. The Supreme Court told us what had to be changed, but six months were spent on consultations. Your explanation strikes me as credible, but I'm not sure that it's enough. In terms of credibility, I think the government was negligent for the first six months. And now, there's a push for the Standing Committee on Justice and Human Rights to speed things up and set things right. I'm displeased about it and just wanted to point that out to you. Having said that, as I have approximately two minutes left, I'd like you to explain something to me. You mentioned in your opening address that there might be a conflict of interest if Crown attorneys were to be required, as stated in the bill, to inform victims of the consequences of a publication ban and of any failure to comply with the ban. I find this conflict of interest rather surprising and wonder whether you could take a minute to explain to me why this is a conflict of interest. Isn't the Crown attorney supposed to be making sure that everyone understands what's going on? I had always understood that the Crown attorney had nothing to prove. That being the case, I don't understand why there would be a conflict of interest. I'll let you explain it and even perhaps suggest an alternative solution.

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Hon. Arif Virani

05:25:48 p.m.
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Okay. There are several aspects involved in answering this, Mr. Fortin. When we talk about conflicts of interest, it's one thing to explain what a publication ban is to a victim or to someone in court, but quite another matter to explain that if you do this or that, you might find that you have failed to comply with the ban. In such situations, the attorney is there not only to provide objective and neutral information, but also to give advice to the victim. It's the same office, and possibly even the same attorney, who may be there during the trial, if there is one, with the same people. Perhaps Mr. Caputo, Mr. Brock or Mr. Mendicino, who have experience in this area, could add further details. In connection with your first point, I would say that in instances where lifting a publication ban is desired in a particular set of circumstances, such as empowering a victim, the situation is rather sensitive. Publication bans are often used to protect the interests of victims, while ensuring that they are empowered and able to make their own decisions. To address contexts like these, more time was needed to draft the bill.

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The Chair

05:27:24 p.m.
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Thank you very much, Mr. Fortin. Next up is Mr. Garrison.

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Mr. Randall Garrison (Esquimalt—Saanich—Sooke, NDP)

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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Hon. Arif Virani

05:29:01 p.m.
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Let me say, first of all, thank you for your kind words, Mr. Garrison, and thank you to you and your colleague Laurel Collins for the extensive work both of you did in addressing the publication ban piece. Absolutely, I've heard about those cases, and I think that's why it's important. It dovetails a bit with Mr. Moore's earlier question and the idea of judicial discretion being an important backstop. I found it a bit troubling that the public safety committee study in this Parliament in 2010 suggested that there were two types of discretion at the time—prosecutorial and judicial—and suggested getting rid of prosecutorial, while maintaining judicial. The government at the time under Stephen Harper decided to get rid of all discretion altogether, and we now see the Supreme Court's response to that decision. Safeguarding the discretion but providing guardrails and criteria that surround it is really important, and one of the guardrails in the legislation is the age and personal characteristics of the victim. A judge needs to turn their mind to exactly that type of situation to determine whether the presumption should be rebutted and a person should not be added in a given context.

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Mr. Randall Garrison

05:30:02 p.m.
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One of the results we've seen is that, sometimes, the limited resources we have and the limited resources law enforcement have are wasted when they're applied in a universal kind of manner, rather than picking out those who are at most risk of reoffending. I also want to say the second aspect of this bill is also urgent. Certainly, in the study on victims in this committee, we heard from the victims of sexual assault about what, I think, people haven't really thought about, which is people who were prosecuted for talking about their own sexual assault cases. Sometimes, this is a question of agency for them. They feel there's nothing shameful for them in what happened, and they would like to be able to speak about it. Sometimes, some of those victims felt it was a matter of public safety and that other members of their family or community needed to know about the case. By “publication ban”, we think of putting it on TV or putting it in a newspaper, but the publication ban meant that they couldn't talk about it with other people. I wonder if you're familiar with those prosecutions and restrictions on victims.

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Hon. Arif Virani

05:31:07 p.m.
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I absolutely am, and I'm informed by some of the work that was done at this committee. Perhaps you were here when Morrell Andrews testified at this committee in October, last year. Her quote was: Begging for my right to speak was humiliating. The court's dignifying the offender with an opportunity to argue why I should be permanently silenced was infuriating, dehumanizing and traumatizing. I told myself to remember what it felt like to be shattered by the legal system, and that one day—for myself, for others I have met and for those who would come after us—I would try to do something about it. I think this bill is doing something about it. Being a victim is never easy. We don't need to revictimize victims. What we're doing through this legislation, I believe, is empowering victims to take control of their own narrative. There are some guardrails surrounding that issue, and they're required when a publication ban being lifted might affect another individual, but fundamentally, this is about empowering victims and other witnesses who have already been traumatized and ensuring that we no longer traumatize them again.

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Mr. Randall Garrison

05:32:07 p.m.
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Again, people are somewhat surprised by the number of cases. I wonder if you have any figures on the number of times publication bans have been imposed in Canada.

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Hon. Arif Virani

05:32:16 p.m.
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I don't have that, and Mr. Taylor is whispering in my ear that he doesn't have that either.

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Mr. Randall Garrison

05:32:58 p.m.
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I kind of knew the answer to that question. It's something I wish we had. We tried to find out before. I'm not quite sure why that's such a difficult problem, but I guess if we have some more time with the officials, we will be asking about it again. Certainly, the number of people I've talked to and we've heard from at the committee is quite large in terms of publication bans. Most of those people argue that publication bans were really informed by an archaic view of sexual assault being shameful for the victim. Therefore, there is an urgency that these bans not be imposed going forward. I wonder if you share the sense that not only is the sex offender issue urgent, but it's also urgent that we make the other half of the changes in this bill.

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Hon. Arif Virani

05:32:58 p.m.
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I would agree with you, Mr. Garrison, on the urgency of addressing publication bans. As I mentioned to Monsieur Fortin, if you take a nuanced view of how publication bans have operated, sometimes they're an overly blunt instrument that disempowers a victim. What we're trying to do is ensure—in the case of therapy or speaking with friends, for example—that the victim has the ability to pierce through the publication ban without being subject to the threat of potential prosecution. I think that's what this bill fundamentally does, and that's really important in the provisions.

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The Chair

05:33:40 p.m.
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Thank you very much, Mr. Garrison. Thank you, Minister, as well. We will now move into our second round for five minutes. I will go to Mr. Caputo.

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Mr. Frank Caputo (Kamloops—Thompson—Cariboo, CPC)

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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S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act

Hon. Arif Virani

05:34:18 p.m.
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Thank you for the question, Mr. Caputo. What I would say is that it's really important that we have different tools available to ensure that judges have the ability to impose sentences that meet the crime, so to speak, or that are proportionate to the crime. I think what's important is that in instances of.... I believe where you're going is this notion of a conditional sentence order. Conditional sentence orders are available in only very rare situations. One would have to be sentenced to incarceration of less than two years. Most importantly, they only apply to offenders who do not pose a threat to public safety. In the context of a child sex offender, if a judge believes that the person poses a threat to public safety, the notion of house arrest is not on the table pursuant to legislation that's been passed by Canada.

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Mr. Frank Caputo

05:35:11 p.m.
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Minister, I want to go back to that. You talked about the denunciation and the denunciatory element, and you're talking about public safety. There's an element of justice here as well. You're talking about public safety. We can talk about CSOs a lot here in the next few minutes, but strictly from a justice perspective, the person who is the victim of the sexual offence, the child, is suffering and literally imprisoned psychologically for life. Are you saying that the punishment for the person who offended against the child—the child who is imprisoned for life psychologically—should be that they serve house arrest for under two years? Is that your position?

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Hon. Arif Virani

05:35:51 p.m.
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That is not my position. I want to make sure that the record is clear. A person who has been convicted of a sexual offence against a child is actually subject to a mandatory minimum penalty. Therefore, a conditional sentence order is not available to them. The possibility of house arrest doesn't exist. I'm advised of that by my officials.

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Mr. Frank Caputo

05:36:14 p.m.
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If I have your position correct, your position is that a person cannot get a conditional sentence for a sexual offence against a child. Do I have that right?

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