44th Parl. 1st Sess.
October 19, 2023
- 03:52:52 p.m.
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Madam Chair, I'd like to comment on CPC‑3, please.
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- 03:52:59 p.m.
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I was looking at the amendment, and the purpose is to change the language describing the time limit. The Criminal Code stipulates that witnesses and the victim be informed of the order “at the first reasonable opportunity”. Bill S‑12 uses the wording “as soon as feasible”. CPC‑3 would change that to “immediately”.
I understand the idea is to make sure it's done as soon as possible, and obviously, I agree with that. The word “immediately”, however, is open to interpretation. How soon is “immediately”? Is five minutes too late?
Clearly, it doesn't make sense for the prosecutor to interrupt the judge to inform the witness in passing that there is an order. I think “immediately” should be interpreted as being done as soon as feasible, as soon as possible, at the first opportunity.
I don't think the amendment is helpful. I actually think it would have the opposite effect and complicate things by opening the door to contradictory rulings, given that the courts could interpret the word “immediately” in all sorts of ways.
I think the language Bill S‑12 uses, “as soon as feasible”, is reasonable. If we really want to change it, we're going to have to indicate what exactly “immediately” means. We could say that witnesses and the victim have to be informed as soon as feasible, but within 48 hours or something like that. Otherwise, the word “immediately” can't be enforced. It can't be done at the very moment the judge says it.
The French version even says “immédiatement”. It's the same word. I think we need a time period, however short it is.
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- 03:55:00 p.m.
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No. I'm voting against the amendment.
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- 04:07:49 p.m.
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I'd like to comment on the amendment, first, Madam Chair, if I may.
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- 04:07:54 p.m.
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- 04:08:21 p.m.
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If Ms. May wants to go first, that's fine. It's up to you, Madam Chair. I'm ready to go, but I have no objections if Ms. May wants to go first.
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- 04:09:40 p.m.
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Thank you, Madam Chair.
The only reason I voted against the previous amendment was the language it used, since obtaining written consent from a victim is nearly impossible.
The language in PV‑4 is also problematic, specifically where it says “if any witness…or the victim wishes to be the subject of an order”. The subject of an order is not the victim—rather, it's the victim's identity. The disclosure of the facts and all the evidence submitted during the trial are the subject of an order, not the victim themselves.
The English and French versions have the same problem. In certain places in the Criminal Code, it's referred to properly, but here, the language is problematic:
“the victim wishes to be the subject of an order”.
No victim who is asked whether they wish to be the subject of an order would say yes.
I think we just need to reword it to indicate that the judge must inquire whether the victim wishes to have their identity be the subject of an order, say, or whether the victim wishes to have all the proceedings and facts revealed during the trial be the subject of an order. As I said, the subject of an order is not the victim.
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- 04:12:04 p.m.
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Madam Chair, I want to speak in opposition to G‑1.
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- 04:12:09 p.m.
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As I see it, there's a problem with G‑1, and the committee heard a lot about it from witnesses: Does it put the Crown prosecutor in a conflict of interest situation when explaining the ins and outs of the order to the victim? Some say no, and others say yes. Personally, I think the Crown prosecutor can't simply inform the victim that a publication ban was issued and say nothing else. If the victim asks what that means, the prosecutor shouldn't be able to tell the victim that they have to look it up and figure it out on their own, because the Crown prosecutor's job is just to inform the victim that a publication ban is in place.
I don't think the amendment says enough. I don't think it's respectful of victims and their rights. The Crown prosecutor should explain to victims what a publication ban is or designate someone to make sure the victim is properly informed. I don't think it's right to give victims so little consideration that they are simply informed in passing of the order's existence with no explanation as to what that means, being told they have to find the information themselves. I don't think the language is comprehensive enough.
I think Bill S‑12 uses better language that is more respectful of the rights of victims and witnesses.
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- 04:20:55 p.m.
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I won't waste the committee's time. Mr. Caputo took the words right out of my mouth.
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- 04:31:34 p.m.
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I'd like to comment on PV‑7, Madam Chair.
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- 04:31:43 p.m.
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My apologies, Madam Chair.
According to PV‑7, the judge cannot make an order if doing so goes against the wishes of the victim or a witness. Consider a case involving several witnesses or victims, for instance, three rape victims. It's possible that one of them doesn't want the order, but the other two do. In that case, the judge wouldn't be able to make the order. In my eyes, that's a real problem.
We can't adopt PV‑7 in its current form, because it allows just one witness to veto the order despite the wishes of the other witnesses.
I'm sorry, Ms. May. That's not against you.
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- 04:33:38 p.m.
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Madam Chair, may I respond to Ms. May?
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- 04:33:48 p.m.
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Thank you, Madam Chair.
Ms. May, it's the same problem I laid out earlier, the language used to describe the ban. This refers to the victim being the subject of the order. If it referred instead to the victim's identity, indicating that the publication of the person's name can't be prohibited, that would be acceptable. This, however, concerns prohibiting a publication ban if it goes against the wishes of a witness. I repeat, this cannot apply when a number of victims or witnesses are involved.
The language would need to be more specific. I agree with you that it's necessary to protect the identity of a person who doesn't wish to have their name disclosed, but it's also important to respect the wishes of someone who does want to have their name disclosed.
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- 04:39:36 p.m.
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Thank you, Madam Chair.
I have a problem with PV‑8 for three reasons.
First, proposed subsection 486.41(4) is overly restrictive. It says “the court shall consider” the factors listed. The court already considers a certain number of factors when issuing a publication ban. I think the same factors should be considered when the ban is being varied or revoked. With all due respect, limiting the factors that the court can consider paves the way for decisions that make no sense.
The second problem with PV‑8 has to do with proposed subsection 486.41(5), which reads as follows: “The applicant is not required to provide notice of the application to vary or revoke the order to the accused.” How, then, will the court go about holding the accused responsible for violating the order or the varied order? The accused shouldn't have a say in whether an order is necessary or not, but the accused should be notified of publication bans, so that they can be held responsible for violating a ban where applicable.
Third and finally, PV‑8 would replace a number of provisions in Bill S‑12, including limitation provisions, those stipulating when a publication ban would not apply. Those provisions, which appear under the headings “Limitation” and “Limitation — victim or witness”, are needed, however.
With all due respect to Ms. May, I honestly think PV‑8 would be much more detrimental than it would help victims.
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- 04:48:51 p.m.
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Thank you, Madam Chair.
I support NDP‑1 and PV‑9 except for one thing. One or the other would need to be amended because there's a mistake in proposed paragraph 486.4(4)(c), which would be added to the Criminal Code through an amendment to clause 2 of the bill. It reads, “the disclosure of information is made for the purpose of providing support to the victim or witness by legal professionals, counselors, medical professionals or persons” and so on. It's the reverse, though. Instead of “by”, it should say “to”. The idea is to protect the victim's right to speak to their psychologist, doctor, lawyer or counsellor without violating the publication ban.
The French version is the same. It says, “par un professionnel du droit”, instead of “à un professionnel du droit”.
Respectfully, I propose that PV‑9 be amended by replacing the word “by” with “to” in the English version, and “par” with “à” in the French version. I'll let the English experts deal with the English version, of course, but in French, at least, I recommend replacing “par” with “à”.
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- 04:50:53 p.m.
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No. I only noticed the mistake a little while ago. It's a drafting issue, so I wanted to make you aware. If the committee wishes to adopt the amendment as is, I'm fine with that, but we have to be consistent. I'll let you decide whether the wording should be amended or not.
It's not a substantive change. We all want the same thing. It just fixes a minor drafting problem.
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- 04:52:08 p.m.
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- 04:52:43 p.m.
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I don't think I got it, Mr. Maloney.
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- 04:52:49 p.m.
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I don't see it. I'm sorry.
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