Hon. Brent Cotter moved the adoption of the report.

He said: Honourable senators, I have the honour of presenting to the chamber the report of the Legal and Constitutional Affairs Committee’s report on Bill S-231, which began consideration before our committee before December 13, 2023. Our report came to the Senate on December 13, 2023. This constitutes my brief speech with respect to the committee report. I want to thank the chair of the committee, Senator Jaffer, for making this opportunity available to me.

The bill, sponsored by Senator Carignan, is entitled “An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.” The short title of the bill, which better conveys its import, is “Increasing the identification of criminals through the use of DNA Act.”

Generally speaking, the bill proposes legislation that amends a series of laws — the laws I have just mentioned — so that the collection of DNA from people convicted of serious criminal offences and people found not guilty on account of mental disorder would be expanded in terms of the categories of persons and offences where DNA can be collected and placed in the DNA data bank.

The bill would also expand, in limited circumstances, the ability of investigative police agencies to obtain information with respect to investigations under way in what are known as familial searches. This is when there was not a direct match between the DNA found in an investigation and a person whose DNA profile is in the data bank, but there shows a match with a person who has a genetic affiliation to the person whose DNA is in the bank. These are known as familial searches. The bill was substantially amended at committee. In a moment, I will highlight these amendments.

Your committee met on four occasions to consider the bill, beginning on November 9, 2023. There was one committee meeting for a clause-by-clause study, which was held on December 7, 2023.

Three amendments proposed at committee were adopted, and four clauses of the bill were defeated. The key changes to Bill S-231 are as follows:

First, clause 3 of the bill regarding mandatory DNA orders was defeated.

The Criminal Code currently requires a defendant to provide a DNA sample where they have been convicted of or received a discharge for what are known as “primary designated offences.” Primary designated offences are serious offences under the Criminal Code, including several sexual offences, murder, manslaughter, aggravated assault, robbery and others.

A court also has the discretion in these circumstances to order a defendant to provide a DNA sample where they have been convicted, discharged or found not criminally responsible in cases of what are known as “secondary designated offences.”

Clause 3 of the original bill would have amended the Criminal Code to require a DNA order following conviction, discharge or a finding of not criminally responsible on account of a mental disorder for any primary or secondary designated offence, with some exceptions.

The committee removed this clause from the bill, leaving the Criminal Code unchanged with respect to the authority of the courts to either have the power to or make a requirement to issue these DNA orders.

Second, clause 4 of the bill, which is the timing for such orders, was also defeated.

Clause 4 of the original bill set out the timelines during which a court would have been required to make a mandatory DNA order. This clause was connected to and followed the proposed amendments under clause 3, about which I have spoken.

The committee — by majority — removed this clause from Bill S-231.

A third clause related to what are known as “familial DNA searches” was also defeated.

Clause 18 of the bill would have amended the DNA Identification Act to allow familial searches of the National DNA Data Bank in certain limited circumstances. This would have enabled a search of the National DNA Data Bank for a DNA profile that could identify a biological relative of the person whose DNA was in the data bank.

The committee — as I say — removed this clause from the bill.

Fourth, clause 20 deals with amendments related to destroying DNA profiles contained in the convicted offenders index of the data bank if the person is acquitted of the charges tied to the original DNA order, and if the accused had no other findings of guilt, discharges or findings of not criminally responsible for a designated offence that could have triggered a DNA order originally. The committee amended this clause to remove references to findings of not criminally responsible.

The result of this amendment is that an individual who has been acquitted of a designated offence may request that their DNA profile be removed from the data bank despite a separate finding of being not criminally responsible for another designated offence.

Finally, in terms of major amendments, clause 24 of the bill requires that the Minister of Public Safety and the Minister of Emergency Preparedness report on the advisability of taking a DNA sample on the same basis as fingerprints taken under the Identification of Criminals Act. The committee amended this clause to require that such a report proceed, and should include specific analysis of the inculpatory and exculpatory effects toward the liability or the absence of liability that DNA sampling might have on Indigenous, Black and racialized populations.

I think it’s fair to say — and I’m about to conclude — the committee has conducted serious and often spirited consideration of the bill, and was assisted greatly by the 17 witnesses who appeared before the committee. On the committee’s behalf, I want to extend our thanks to the witnesses who met with the committee.

I would like to make two final observations — if I may — which are a little more personal than the committee report. I think it’s fair to say that committee members did not oppose the use of DNA for investigative purposes. However, a majority of the committee was concerned about the specific situations where the capture and use of DNA would be expanded by this bill, leading to clauses that were uncomfortable for them, and leading to their defeat or amendment.

I anticipate that members of the Senate, members of the committee and its sponsor, Senator Carignan, will expand on these bare-bones comments during the Senate’s study of this report. Thank you.

(On motion of Senator Clement, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Housakos, for the second reading of Bill S-220, An Act to amend the Languages Skills Act (Governor General).

Hon. Brent Cotter moved the adoption of the report.

He said: Thank you, Your Honour.

I rise to speak to the Standing Senate Committee on Legal and Constitutional Affairs’s seventeenth report on its study of Bill C-48.

To assist in your recollection of this bill, it is referred to as An Act to amend the Criminal Code (bail reform).

I’ll say more about the bill in a few moments. To give you a sense of the central thrust of the bill, it is to increase the number of offences in the Criminal Code for which, when a person is charged, he or she faces a so-called reverse onus, such that it rests with the accused person to persuade the judge or justice of the peace on a balance of probabilities that they should be released on bail. For these offences, it transfers the “burden of proof,” in legal language, onto the accused in order to get released pending trial.

First, I’ll provide a bit of context. As a general rule, people who are accused of crimes are let out on bail. The presumption is for release, but the Criminal Code provides three situations where a person can be detained: to ensure attendance in court, for the protection of the public and any victim and, third, to maintain confidence in the administration of justice. Usually, it is for the prosecution to establish that one of these situations or conditions for denial of bail exists or is met.

However, for some offences, the Criminal Code has established what is referred to as a reverse onus; that is, it is for the accused person to make the case that he or she should be released. The legal language is that the onus, or burden of justifying release, rests not with the prosecution but the person accused of the crime. This reverse-onus approach for offences, where it has been applied, has been held to be constitutional by the Supreme Court of Canada.

As I say, Bill C-48 will add a series of offences to this category of reverse-onus situations for bail. The categories are generally in the following range: a range of offences associated with the use of a firearm. This is the thrust of clause 1(2), 1(3) and part of what’s referred to as 1(4) of the bill, as well as offences associated with intimate partner violence where the accused person had been previously granted a discharge for a similar offence.

To assist in your understanding of this dimension of the bill — and it’s important, and also the subject of an amendment — a discharge is an outcome in a court where a person has admitted guilt or been convicted of guilt, but the sanction imposed by the judge is to discharge the person of the offence, either absolutely or on conditions. Once the conditions are met, while the record is maintained, the conviction is essentially not recorded against them — generally thought to be at the low end of sanctions for criminal offences.

Now, Bill C-48 came to us in a slightly unusual way. It was introduced in the other place on May 16, 2023. It had been the subject of periodic debate in late spring of 2023. The subject matter of Bill C-48 had been discussed among federal, provincial and territorial justice and public safety ministers prior to its introduction. The bill was supported by the provinces and territories, as well as police leadership in the country.

As many of you will have observed, over the past number of months there has been a good deal of attention paid to occasional events where a person out on bail, or out from custody on an analogous basis, is alleged to have committed a very serious crime, often a crime of violence, with tragic consequences for the victims. The sentiment around these events motivated expeditious action respecting Bill C-48.

On September 18 of this year — that is, approximately a month ago — the bill received second reading, Committee of the Whole consideration and third reading in the other place all in one day, and was adopted unanimously — and I emphasize this — without reference to the Justice Committee there. Unlike nearly all bills of this type, it received no committee study prior to its adoption in the House.

This conveyed two messages to our chamber: first, obviously one of urgency with respect to the consideration of this bill in the Senate; second, given the absence of the study in the other chamber, there was a compelling argument that the bill received meaningful, timely consideration when it was referred to the Standing Senate Committee on Legal and Constitutional Affairs on Thursday, September 21 of this year.

In this case, the bill required sober first thought, if I may say so, and that is what it received in our committee.

Your committee held four meetings and heard from 26 witnesses, including the Minister of Justice, the Attorney General of Canada, officials from the Department of Justice, the Attorney General of British Columbia, police and legal associations, advocacy groups, academics and experts, Indigenous representatives and other stakeholders.

The committee also received nine written submissions.

I would like to briefly highlight aspects of what we heard at the committee and indicate the three places where the committee adopted amendments to the bill.

I anticipate colleagues will expand on these comments and provide perspective. I will also briefly say a bit about observations adopted by the committee.

Comments here then fall into four general categories aligned with your committee’s report.

First, many witnesses underlined the importance of collecting comprehensive and accurate data on bail in Canada to better understand and address the problems plaguing the bail system, a point we heard from nearly every witness, and to analyze the impact of legislation like Bill C-48, particularly on groups already overrepresented in the justice system.

The fact of the matter is that data collection regarding bail is the responsibility of the provinces and territories and not prioritized in the gathering of justice statistics and information. Many witnesses, however, underscored that federal legislation like this bill must be evidence-based and grounded in comprehensive, empirical data. I think it’s fair to say that the empirical basis for the adoption of this bill is weak.

As one of the observations notes, it’s critical that we know more about the bail system generally and exactly what effects, positive and negative, amendments like this to the bail system ultimately produce.

The second point concerns public safety. Witnesses expressed divergent views on the necessity, usefulness and impacts of the measures produced and proposed by this bill with regard to public safety.

In the wake of recent tragic incidents of violence involving individuals on pretrial release, several witnesses noted the importance of preserving public safety and confidence in the Canadian criminal justice system by ensuring that accused individuals are detained when that detention is justified to ensure public safety.

The committee heard testimony explaining that the bill includes targeted measures intended to respond to concerns raised by law enforcement across the country, and specific requests to expand reverse onus provisions to include select offences were received from 13 provincial and territorial premiers, including a co-signed letter in January of this year.

In contrast, some witnesses questioned the potential effectiveness of the proposed amendments, arguing that prosecutors could already argue for the detention of an accused when it is justified, including for reasons of public safety.

Some witnesses stated that the bill would not lead to a reduction of violent crime — as it does not address the root causes of violent crime — and investments in so many areas that could assist were critical.

This brings us to the first amendment to the bill adopted by the committee. Some witnesses recommended the removal of one of the provisions in the bill that would expand the reverse onus provision to apply to an accused who has received an absolute or conditional discharge for a previous conviction involving intimate partner violence. That is one of the provisions that would be a reverse onus provision in the initial bill. The witnesses argued that it would inappropriately target and criminalize survivors of intimate partner violence, as there is often a significant overlap between perpetrators and survivors of intimate partner violence. In some respects, this tends to scoop up relatively vulnerable people in this net, who are captured by the reverse onus clause. Others, including provincial and territorial governments, supported the bill in its existing form as a means to protect survivors of intimate partner violence.

The committee considered and adopted an amendment on this point to remove the reverse onus clause in these discharge and intimate partner violence cases. This was done on division, although I think that’s only technically the correct way of saying it. Senator Batters pointed out to me that, in fact, there was a roll call vote on this, and the vote was 8 to 5.

Third, the report summarizes what the committee heard in relation to the impact of Bill C-48 on Indigenous, racialized and marginalized communities. Some witnesses were concerned that the adoption of the bill would lead to prolonged litigation in bail court, increased demands on the legal aid system, longer bail delays and increased times in detention, exacerbating existing delays in the bail system. Several witnesses warned that these adverse effects would be visited disproportionately upon Indigenous, racialized and marginalized groups who are already overrepresented in the justice system, and already disadvantaged in obtaining release on bail.

All of this led the committee to consider and adopt an amendment proposed, in this case, by Senator Clement. This amendment requires additional consideration of the circumstances of vulnerable persons in judges’ and justices’ decisions respecting bail. The committee amended clause 1 of Bill C-48 to require that a justice presiding over a bail hearing state in the record of proceedings how they went about considering whether a person fell into one of the categories of people in section 493.2 that deserved special consideration — Indigenous or otherwise vulnerable people — and, if such a person is identified, how the justice applied his or her mind to that question of pretrial release.

My fourth and nearly last comment relates to the contemplated five-year review of the impact of Bill C-48. Strangely, as was noted here and at committee, clause 2 of this bill contemplates a five-year review by the Justice and Human Rights Committee of the House of Commons — period; full stop. Perhaps this was an oversight. It’s not the most critical point to be decided because the Senate would have the authority to initiate a study without any legislative blessing from the other place. Nevertheless, the committee expressed its view, noting the oversight, and introduced and adopted an amendment unanimously, as I recall, to Bill C-48 that a directive for a Senate committee — most likely the Legal and Constitutional Affairs Committee — be included in the clause 2 provision, which is the five-year review provision.

Finally, I will highlight four themes in the committee’s observations.

The first point is one that I’ve made already about the need for a comprehensive database reform of Canada’s bail system. It’s frustratingly fragmented and not a priority, but when you’re the one who has to sit in jail waiting for your trial, it’s pretty darn important.

The second point is regarding gender-based violence and violence against women: There is an observation to the effect that the vulnerabilities surrounding gender-based violence — and the need for a comprehensive response to these concerns — need to be a broad and general priority, as has been noted in previous reports.

The third point is an observation that this is an ideal topic for the Law Commission of Canada to consider in its review of the criminal law. The Criminal Code has been amended in a piecemeal way — sometimes by this chamber — for decades, and, no doubt, there are cumbersome, repetitive or inconsistent provisions that need comprehensive reform.

The final theme is the need for Gender-based Analysis Plus. I think it’s fair to say that the committee continues to experience frustration with the government in that it does not provide timely information regarding gender-based analysis. That was also the case with this bill. We received that information only days before clause-by-clause consideration, and I think it’s fair to say that the committee was disappointed not to receive that information prior to hearing the minister testify. In order to study a government bill in a serious and comprehensive way, the committee requires timely access to this analysis. The result in this observation is that the committee urges the federal government to provide Gender-based Analysis Plus information in a timely way when the bill is referred to the committee. Failing to do this, the committee may delay consideration of a bill until the committee receives this information.

I want to extend my thanks to the committee members and to the staff who supported the committee in the work on the bill, especially in the unusual circumstance where we had to be both the house of sober first thought and the house of sober second thought with respect to the bill.

Thank you.

Hon. Brent Cotter moved the adoption of the report.

He said: This report pertains to Bill S-212 introduced by Senator Pate some time ago in this chamber. I’ll take a moment to give you background on the bill and its consideration at our committee.

This bill relates to the reform of the records suspension mechanism at the federal level, contained primarily in the Criminal Records Act. The consideration of this bill included four amendments at our committee, brought by colleagues at the Legal and Constitutional Affairs Committee.

Primarily, this bill constitutes a more streamlined — and in most cases, automatic — process by which criminal records are suspended. We often think of this as a pardon, although the real, technical structure in the bill is a record suspension. More specifically, the bill amends the Criminal Records Act to provide for the automatic expiry of a criminal record, with certain exceptions. In most cases, an individual’s criminal record would expire automatically if they have had no further criminal involvement for a set period of time after completing their sentence. For indictable offences, that period is five years; for summary convictions, that period is two years.

In consideration of the bill, senators met eight times and heard from 28 witnesses — as well as the sponsor of the bill, Senator Pate — and I think we gave comprehensive consideration to the bill over an extended period of time.

To return to the description of the bill, as I said, it constitutes a primarily automatic process by which records are suspended. There are certain exceptions to that process that apply in circumstances when an individual is convicted of another offence during that waiting period I mentioned, or where there are outstanding charges against the individual — or the individual was under investigation for such charges — at the end of the waiting period, or where the record relates to the conviction for a Schedule 1 or Schedule 2 offence under the Criminal Code. These are sexual offences. In these cases, an individual would be required to apply to the Parole Board of Canada for a record expiry.

Just so that it is clear — under Bill S-212, an expired record is not erased but must be kept separate from other criminal records at the federal level.

I think other members here will speak in somewhat greater detail about the bill. The process I just mentioned — by which records are kept separate — is similar to the existing system. Furthermore, an expired record must not be released or shared without the approval of the Minister of Public Safety and Emergency Preparedness.

The bill was amended in four respects at our committee; two of the amendments are of substance, and two are technical in nature, realigning the numbering of sections. I won’t speak to those. The more substantive amendments were along the following line and were proposed by Senator Pate. Given the expressions of concern that we heard from — among others — the policing community, with respect to access to information in the interest of justice or in the case of national security, under clause 11, the minister’s approval to disclose an expired record is not required in certain circumstances for offences related to unpaid fines and victims’ surcharges. The clause was amended to limit this type of disclosure to police only when it is in the interests of the administration of justice or the safety or security of Canada and its allies.

The second amendment allows for the definition of the circumstances where the release of an expired record relating to unpaid fines would be, again, in the interest of the administration of justice or the safety or security of Canada and its allies. As I said, the last two amendments were technical amendments.

I think this bill was given meaningful consideration, and I trust that in third reading here, it will receive the same treatment. Thank you, Your Honour.

(On motion of Senator Martin, debate adjourned.)

The Senate proceeded to consideration of the sixth report of the Standing Senate Committee on National Security, Defence and Veterans Affairs, entitled Arctic Security Under Threat: Urgent needs in a changing geopolitical and environmental landscape, deposited with the Clerk of the Senate on June 28, 2023.

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 moved the adoption of the report.

He said: The Judges Act applies to federally appointed judges, as many of you will know, who are often called superior court judges. This applies to judges, for example, of the Supreme Court of Nova Scotia or to the Court of King’s Bench of Saskatchewan, the Tax Court of Canada, federal courts, the Federal Court of Appeal, courts of appeal across the country and the Supreme Court of Canada. It doesn’t apply to provincial court judges. Those are governed in provincial jurisdictions.

This bill, Bill C-9, is intended to amend the Judges Act by modernizing the regime by which federally appointed judges are investigated for misconduct pursuant to the responsibilities of the Canadian Judicial Council. This would be a new system for judicial misconduct proceedings.

The objectives of this bill — as I hope we will hear eventually from its sponsor, Senator Dalphond — are to improve the effectiveness and efficiency of the system and, in turn, reduce delays and costs. Some of these, as you may conclude from earlier discussions when this bill was spoken to in this chamber, indicated that in some cases millions of dollars of public money have been expended in lengthy and sometimes questionable processes leading to consideration of judicial misconduct.

Key changes to the bill include the ability to impose sanctions other than merely the recommendation for removal from office; the limiting of a judge’s ability to seek judicial review; judicial review by the federal courts is replaced with an internal Canadian Judicial Council mechanism; and a right to seek leave to appeal directly to the Supreme Court of Canada.

The new Canadian Judicial Council misconduct process has five possible steps for the review of a complaint against a superior court judge. The proposed new process — and I will try to be brief here — begins with an initial screening by a council official. Any complaint that cannot or should not be dismissed as completely without merit is then reviewed by a review member followed by the review member being able to dismiss the complaint or refer it to a review panel. The review panel can dismiss the complaint or uphold it and impose remedies up to but not including removal from office, such as requiring an apology or mandatory professional training.

If a judge wishes to appeal the decision, they can appeal the decision to a reduced hearing panel for a matter that, ultimately, can go to a full hearing panel if it is serious enough to warrant potential removal from office. A full hearing panel functions like the public court with the process structured as an adjudicative and adversarial hearing. The full hearing panel determines whether a judge should be recommended for removal from office.

If the judge who is the subject of the complaint or the presenting counsel — that is, essentially the person, usually a lawyer styled as the prosecutor — wishes to appeal the full hearing panel decision, then that matter is referred to an appeal panel and that appeal panel functions like a Court of Appeal and has the same powers. If, ultimately, the appeal panel recommends removal from office, according to the version of the bill received in the Senate, the judge’s remaining recourse would be to seek leave to appeal to the Supreme Court of Canada. If the decision in favour of recommended removal from office is sustained and all of these options for appeal are exhausted, a recommendation for removal from office is reported to the Minister of Justice, who may place the question before both houses of Parliament to decide. It is a process intended to be rigorous but to respect judicial independence.

At committee, in consideration of Bill C-9, six amendments were made to Bill C-9. I will try to highlight them briefly so you will know the changes that were made for our consideration in the chamber.

All of the substantive amendments that were made to the bill apply to clause 12. Now that sounds like a simple matter. However, clause 12 has 81 sections. It is the heart of the change.

I will not read all 81 sections, but they make up the bulk of Bill C-9. That is where the changes are set out with one technical exception. The first amendment adopted by the committee, which appears in your report, is that various sections of clause 12 were amended at committee to add a layperson at every stage of the decision-making process in judicial misconduct consideration.

The bill provides for a layperson to be one of three members on a review panel, one of five on a full hearing panel and laypersons are now included in the decision making with respect to anonymous complaints and on what is called a “reduced hearing panel.”

The composition of the appeal panel was initially designed to be five judges. The amendment changes the composition of that appeal panel to three judges, one lawyer and one layperson.

The second amendment is in relation to diversity. The original bill stated in section 84:

As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.

There will be a pool of judges and a pool of lay people who will then be drawn upon to participate in the consideration of complaints against the judges, and the language “as far as possible” was thought to be a challenging, unfortunate and unnecessary phrasing. It was suggested that it weakened the commitment to diversity, and this amendment removed the “as far as possible” phrase.

A third amendment was the publication of decisions. An amendment was adopted at committee to require the Canadian Judicial Council to publish all decisions as soon as possible. Under the bill, the Canadian Judicial Council is already required to publish decisions and reasons of full hearing panels and appeal panels. This amendment goes further and will require the Canadian Judicial Council to publish all dismissals of complaints, and essentially provide the reasons for those dismissals of screening officers, reviewing members and review panels throughout the process.

A fourth amendment was related to sexual misconduct. In the original version of Bill C-9, complaints alleging sexual harassment or discrimination on a prohibited ground could not be screened out at an initial screening stage and had to go to the next level. Committee members were concerned that the phrase “sexual harassment” was too narrow and would not capture other forms of sexual misconduct. Various sections of clause 12 are amended to add “sexual misconduct” to the types of allegations that cannot be screened out at the initial stage.

The fifth amendment is related to disaggregated data collection. The committee also adopted a series of amendments to expand the collection of data and reporting requirements of the Canadian Judicial Council that address ethnic and national background, Indigeneity, race, religion, sex, gender and disabilities, as well as that the annual report capture a range of those reporting-by-category pieces of information.

Finally, an amendment was adopted by committee to restore the ability of a judge or the presenting counsel — that is, the prosecutor — to appeal directly to the Federal Court of Appeal prior to any consideration by the Supreme Court. The bill had limited a judge’s ability to appeal outside of the Canadian Judicial Council process other than with leave to the Supreme Court of Canada, and an additional level has been returned to the bill in this amendment. The amendment is intended to permit Canadian Judicial Council decisions to go to the Federal Court of Appeal, and then, ultimately, either the judge or presenting counsel would have the entitlement to seek leave to appeal that decision to the Supreme Court of Canada.

As well, there is a small coordinating amendment to align clause 16 with this last amendment, which brought back the Federal Court of Appeal into the picture.

In conclusion, let me say that this bill has an extensive series of amendments by the committee. The bill is the modernization of a 40-year-old or so process that has come under significant criticism, and I think it deserves this chamber’s consideration in modernizing the judicial misconduct process.

Thank you.