Hon. Brent Cotter moved the adoption of the report.

He said: Honourable senators, this is a report on Bill S-12, which proposes amendments to the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. It is an important bill which is intended to respond to certain provisions of the Criminal Code that were declared invalid by the Supreme Court of Canada and certain other matters of public importance, particularly to victims of sexual crimes.

Your committee actively considered the bill, received four briefs over the course of five meetings and 12 hours’ deliberation and heard from 15 witnesses, including the Honourable David Lametti, Minister of Justice and Attorney General; witnesses from the law enforcement community; witnesses responsible for the sex offender registry; representatives of women’s organizations, victims’ organizations; and victims of sexual violence themselves. The testimony was impressive and powerful and in some cases moving.

As a preamble to this report, I note that this bill was introduced in the Senate, somewhat unusually for this type of bill. It was sponsored by Senator Busson; the critic is Senator Boisvenu.

One of the advantages of this bill coming to us first — turning us, in a way, into a chamber of sober first thought — was that there was a greater degree of freedom and openness in the development of amendments to the bill, including amendments from the government itself, through the good graces of Senator Busson. Many amendments were, in fact, presented by the sponsor with the support of the government. It was as though Minister Lametti was outside our committee room, listening to the witnesses and identifying ways in which he could support a good bill being made better. I don’t think he was actually there, but that’s the way I wanted to think about it.

Senators listened to the witnesses with care and developed amendments responsive to the concerns and ideas advanced in the committee hearings and in the briefs submitted.

Next, let me speak a bit about the bill and about the amendments to the bill that were adopted by the committee. The first is a bit of repetition of remarks at second reading. I’ll try to be succinct, but this is an important bill not just in what it does but in the statements it makes about the place of respect for and agency of victims in the criminal justice process.

A central dimension of Bill S-12 responds to the Supreme Court of Canada’s 2022 decision in R. v. Ndhlovu, which held that two provisions of the Criminal Code of Canada — that relate to the registration of sex offenders in the National Sex Offender Registry — are unconstitutional. Since 2011, the Criminal Code has required the mandatory registration in this registry of anyone who has committed a sexual offence, and it required anyone found guilty of more than one sexual offence to be registered in the registry for life.

The Supreme Court struck down the provision requiring mandatory lifetime registration for repeat offenders with immediate and retroactive effect. The provision relating to mandatory registration for all sex offenders was declared invalid, but the effect of that declaration was delayed by one year to give Parliament time to respond to that decision with legislation. The provision will become invalid in October 2023 unless Parliament responds effectively.

Bill S-12 amends the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act in seeking, in particular, to address the constitutional issues, but it also introduces some other provisions.

With respect to the registration of sex offenders in the national registry, serious child sex offenders and repeat sexual offenders will continue to be subject to mandatory registration. I should say that the nature of this registry is not quite like the Canadian Police Information Centre, or CPIC, which you may be more familiar with. This registry is one that is available to police to access in conducting investigations of potentially similar crimes and, I think in some circumstances, to prevent crimes. It is a fairly substantial registry that maintains a significant amount of information about sex offenders, and it is required to be updated; that is, sex offenders are required to submit to provide additional information to keep the registry, including their whereabouts and the like, current.

I mentioned that sex offenders and repeat sexual offenders are required to be mandatorily registered. All other sex offenders will be subject to a presumption of registration in the registry. Certain offenders may be able to rebut this presumption of registration if they can satisfy certain criteria and demonstrate that they do not pose a public risk. In those cases, a judge has the discretion to decide whether to order registration or not. These provisions of the bill — the ones related to the rules around registration and some moderation of the requirement — were adopted by the committee without amendment.

Bill S-12 also seeks to amend the Criminal Code as it relates to victims, including by providing them with opportunities to have their wishes considered when courts impose, vary or lift publication bans that protect their identity. Under Bill S-12, the victims will have the opportunity to indicate if they want to receive ongoing information about the offender after sentencing as well.

I think you will appreciate that publication bans were put in place — fairly aggressively — with the view of protecting the victim and their privacy from broadly based disclosure, but this bill tries to moderate and be more responsive to the interest of the victims. I’ll focus the remainder of my remarks on this aspect of the bill, as well as the amendments made by the committee to its various provisions. In these remarks, I will not take you through the details of the support for the amendments — other than to say they were generally supported, or urged upon us, by witnesses and their submissions. Modifications were made to these publication bans, particularly by the committee.

Clause 2 and clause 3 of the bill focus on this: The first raises the issue of the scope of the publication bans. The Criminal Code currently provides for a publication ban on information that could identify a victim or witness of a sexual offence, and states that the information cannot be published, broadcast or transmitted in any way.

The original Bill S-12 expanded this publication ban to state that the protected information could also not be “otherwise made available.” The committee removed this addition. The relevant Criminal Code section, then, remains essentially unchanged. Committee members were concerned that the phrase “otherwise made available” was too broad, and could even retroactively capture publications that predate a ban, such as information contained in news archives.

The second dimension of the publication ban in these amendments focus on victim input and information. I think these are critical in the way they try to better respect the wishes of victims. The Criminal Code currently requires a judge or justice of the peace, at the first reasonable opportunity, to inform the victim or underage witness of the right to apply for a publication ban. Clause 2 and clause 3 of the bill amended the Criminal Code to require a judge or a justice of the peace — who orders a publication ban — to inform the victim or witness that they are subject to a publication ban, and that they can apply to vary or revoke the ban. The witness or victim must be informed as soon as it is feasible.

The original bill also required a judge or justice of the peace, before ordering a publication ban — the words are important here — to inquire if the prosecutor had taken steps to consult with the victim before applying for the ban. The committee did not feel that this was a strong enough statement of the victim’s agency with respect to the victim’s position regarding the imposition of the ban. This is important for victims and witnesses because if a publication ban is imposed, it applies to them and severely limits their ability, if they wish to do so, to speak about the case or the experience.

Accordingly, the committee amended the bill to require a judge or justice of the peace to do the following: If the victim or witness is present, they must be asked directly if they wish to have a publication ban imposed, and not just be consulted; and if the victim or witness is not present, the prosecutor must be asked if they have determined whether the victim or witness wishes to have the publication ban imposed.

The amended provisions also now require a prosecutor to inform the victim or witness about the following: when a publication ban is imposed, the effect of the ban, the circumstances under which the information can be disclosed and how to avoid contravening the publication ban. The prosecutor must also inform the witness or victim of their right to revoke or vary the order. The prosecutor must then inform the judge or justice of the peace when they have satisfied this duty.

I hope you will feel that this raises the sense of agency and control over a matter of great importance to victims and witnesses in these circumstances, and that it is a good deal less deferential to the decision-making process of both prosecutors and judges.

Another dimension of this, which is important, is the potential vulnerability of people who might violate the publication ban, and this would be a criminal hardship that would focus, most likely, on the victim or witness. The flip side of publication bans is the potential for criminal liability imposed on people who violate the publication ban, and, in some cases, it feels like being put through the criminal justice mill twice.

The bill provided a degree of protection for victims and witnesses in this regard. The committee expanded this protection by amending the bill so that the victim or witness would not be criminally liable for breaching their own publication ban, as long as they did not intentionally or recklessly reveal the identity of another person protected under the publication ban. Similarly, a publication ban does not apply when a victim, witness or justice system participant discloses information but does not intend for it to be shared publicly.

There is also a dimension of these provisions relating to how one goes about varying or revoking a publication ban in the future. The original bill stated that the victim or witness could apply to the court to have a publication ban varied or removed, and the court was then required to hold a hearing. The committee amended this provision to facilitate the process for the victim or witness who wishes to have a publication ban varied or revoked. The amended bill introduces that obligation on the prosecutor. The amended bill by committee requires a prosecutor, when requested by a victim or witness, to apply to vary or revoke the order on their behalf, as soon as feasible, although it’s also the case that a victim or witness could still make that application on their own if they wish.

Furthermore, a court must vary or revoke the publication ban as requested, again strengthening the agency for victims and witnesses, unless it could affect the privacy interests of another person who is also protected by the publication ban, and, in that case, the court must hold a hearing to determine whether the publication ban should be varied or lifted.

It is important in this context to note that the accused is not considered to be one of the people protected by the ban. The amended bill specifies that the accused cannot make submissions relating to the lifting or revoking of the publication ban. This, in a way, is pretty obvious since the purpose of the publication ban is to protect the privacy interests of victims and witnesses, not the accused. The only part involving the accused is that they’re entitled to be informed if the ban has been lifted, revoked or varied.

Finally, with respect to another clause — clause 5, on publication bans, again, and criminal liability — returning to the issue of criminal liability for the breach of a publication ban, the committee also amended clause 5 of the bill to specify that a victim or witness should not be prosecuted for breaching their own publication ban, unless they knowingly breached the order and, in doing so, revealed information that could identify another person protected by the ban and a warning would not be sufficient in the circumstances.

It’s fair to say at this point that the committee has enriched the respect that the criminal law will show for victims and witnesses in these often very traumatic and life-altering circumstances for victims and witnesses.

Lastly, on the publication ban point, a new clause was —

Hon. Brent Cotter: Honourable senators, I have the honour to present, in both official languages, the fifteenth report of the Standing Senate Committee on Legal and Constitutional Affairs, which deals with Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

(For text of report, see today’s Journals of the Senate, p. 1853.)