(Chair) in the chair.

[Translation]

Good morning.

Before we get started, I’d like to ask the honourable senators to introduce themselves.

[English]

Senator Denise Batters, Saskatchewan.

[Translation]

I am Senator Pierre-Hugues Boisvenu from Quebec.

I am Senator Renée Dupuis, an independent senator, and I represent the senatorial division of The Laurentides, in Quebec.

I am Bernadette Clement from Ontario.

[English]

Margo Greenwood, British Columbia.

Bev Busson, British Columbia.

I’m Brent Cotter, senator for Saskatchewan and chair of the committee.

Senators, today we continue our study of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. For the first panel today, we welcome by video conference Pam Hrick, Executive Director and General Counsel at the Women’s Legal Education and Action Fund; and from the Indigenous Bar Association, Samantha Craig-Curnow, Secretary of the Board of Directors.

We had anticipated and hoped that Annamaria Enenajor from the Criminal Lawyers Association would be able to join us, but technical difficulties prevented that and we’ll have her join us on another occasion during our deliberations next week.

We’ll begin, as we usually do, with presentations from each of our two witnesses for five minutes each. Following that, we’ll engage them in questions and discussions. Ms. Hrick, I would ask you to begin your presentation.

Good morning and thank you for inviting me here today, senators.

The Women’s Legal Education and Action Fund, or LEAF, is a national charitable organization that advocates for the equality of women, girls, trans and non-binary people. We do this through litigation, law reform and public legal education. I’ll focus my opening comments on two aspects of Bill S-12 — the amendments concerning publication bans and the proposed amendments to the Sex Offender Information Registration Act.

On the first issue, we are encouraged to see the willingness of this government and Parliament to make improvements to how publication bans are imposed, varied and revoked. This work has been driven to the forefront of public attention by sexual assault survivors themselves, with support from feminist lawyers, advocates and organizations, like ours, who echo the calls for change to centre survivor choice.

We’ve heard loud and clear from some survivors that they want the ability to speak about their own experiences. Publication bans imposed without their knowledge or consent feel like a retraumatization at the hands of the criminal legal system. We also know that some survivors do wish to avail themselves of the privacy protections provided by a publication ban. As one expert said in The Globe and Mail earlier this week, publication bans can serve as:

. . . one layer of support and protection for racialized women in a system that does nothing to actually support them or protect them — and in fact goes out of its way to blame them . . . .

Both choices are valid — to have a publication ban in place or not. The important thing for this committee to keep in mind is that amendments related to publication bans must seek to give effect to survivors’ choices and make it as easy as possible to exercise agency in making those choices.

This is why we have submitted a brief to this committee jointly with multiple other feminist organizations and lawyers with expertise in this area. We have submitted a series of proposed amendments to strengthen this portion of Bill S-12. We’ve also been actively collaborating to share our views with the office of the Minister of Justice. We’ll be listening to the evidence this committee hears over the next couple weeks. LEAF’s perspective is that these proposed amendments should not be seen to be set in stone.

We have five overarching recommendations for amendments to strengthen the bill: First, ensure victims are not criminalized for failing to comply with a publication ban on their own identity; second, ensure that people whose identity is protected by a publication ban can still disclose their identity in contexts such as with a therapist or support group; third, remove the language of “otherwise make available” in relation to the expanded scope of prohibited publication; fourth, clarify and simplify the process for revoking or varying a publication ban; and, fifth, ensure that victims are informed both when a ban has been imposed solely at the request of the Crown and about how to remove or vary such a ban.

In addition to these recommendations for amendments to Bill S-12, we also need to see investments in independent legal advice and education in order to ensure survivors fully understand what a publication ban does, how it can be imposed and how it can be removed. We need these investments to ensure survivors can make informed choices about what is best for them in their circumstances.

I’ll now turn briefly to the bill’s proposed amendments to the Sex Offender Information Registration Act. We support the increased discretion in relation to the national sex offender registration regime. Discretion allows judges to make informed decisions about the risks presented by the person in front of them and to weigh the harms of registration against any potential benefits. Decisions about risk must be evidence-based and not grounded in harmful stereotypes or discrimination based on race, indigeneity, class, transphobia or mental health status.

Although we support increased discretion, we are concerned overall that the registry creates a false sense of security. There’s a lack of evidence that the registry is actually effective in preventing sexual assaults. At the same time, it can harm members of marginalized communities. If these amendments pass, we urge you to require systemic data collection about the registry, including both its effectiveness and harms. In addition, given that only 6% of sexual assaults are reported to police, we need to focus on investing in prevention and alternative justice mechanisms outside the criminal legal system.

Thank you. I look forward to answering any questions you have for me.

Thank you, Ms. Hrick. You may get a few questions in relation to your brief. We have it only in English, so we’re not able to circulate it until it’s translated. Members of the committee have not seen it yet, but I might ask you to expand on it a bit. Sorry to have interrupted.

[Indigenous language spoken]. Good morning. I’m Samantha Craig-Curnow, [Indigenous language spoken].

Thank you for inviting me, as a member of the Indigenous Bar Association, or IBA, in Canada, to speak to you all this morning. I’m honoured to be able to provide comments on behalf of the IBA on Bill S-12.

As you may know, the IBA is a not-for-profit professional organization for Indigenous lawyers, judges, legal academics and scholars, articling students, law clerks, paralegals and law students. Currently, IBA has over 330 registered members from Indigenous communities across Canada. Our objectives include promoting the advancement of legal and social justice, promoting the reform of policies and laws affecting Indigenous peoples and fostering public awareness within the legal community, Indigenous communities and the general public in respect of legal and social issues of concern to Indigenous peoples in Canada.

The IBA would like to comment on the following three considerations with respect to Bill S-12. First, there is a need to prioritize approaches that foster rather than frustrate access to justice for Indigenous women, girls and 2SLGBTQQIA people. There’s a need to consider systemic racism, bias and discrimination, as well as the overrepresentation of Indigenous people as part of the registration provisions found in the bill. Finally, there’s a need to support women through their healing journey as victims of these traumatic crimes.

I’ll speak to each of these in a bit more detail over the course of these five minutes.

First, the Senate needs to prioritize approaches that foster rather than frustrate access to justice for Indigenous women, girls and 2SLGBTQQIA people. The proposed amendments to Canada’s Criminal Code and consequential amendments to the Sex Offender Registration Act are expected to address the significant harms caused by crimes of a sexualized nature in Canada.

Further, they’re intended to support oversight of individuals with a history of recidivism for these types of crimes. While the proposed changes provide legal mechanisms for increased oversight, the reality for Indigenous peoples, especially Indigenous women, girls and 2SLGBTQQIA people, continues to be that there’s a lack of adequate policing to uphold the current statutory requirements, let alone additional responsibilities for police forces.

The bill attempts to provide protection to the public against recidivism through a presumption that an offender will be required to register and by imposing a reverse onus burden on the offender. As we know from reports such as the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls, access to justice is a significant challenge for Indigenous peoples and other racialized individuals. This compounds the challenges associated with addressing this heightened burden. The Senate must consider alternatives to the reverse onus burden imposed in the proposed amendments to section 490.012(3) of the Criminal Code.

Second, in addition to the challenges in accessing resources, Indigenous peoples are also more likely to experience systemic racism, bias and discrimination, as well as overrepresentation as a result of the registration provisions. Unlike in sentencing, the factors to be considered in determining whether a person should be required to register include neither considerations specific to indigeneity, the history of colonialism in Canada nor the ongoing impacts of racism on Indigenous peoples in Canada.

As was seen throughout the process of incorporating the previously mentioned considerations into Canadian law, particularly sentencing, systemic racism and bias were prominent barriers to success. Prior to the Supreme Court of Canada’s decisions in Gladue and Ipeelee where the courts were required to consider Gladue factors in all sentencing decisions, the judges required clear guidance to establish that the factors needed to be taken into consideration in each and every sentencing situation. For reference, these factors include:

. . . the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts . . . .

That is found in R. v. Gladue at paragraph 93.

Ipeelee specifically made it clear that long-term supervision orders must be subject to considerations under section 718.2(e) of the Criminal Code. Like long-term supervision orders, the registration provisions being proposed in Bill S-12 must also be subject to the Gladue factors as a means of determining the propriety of requiring a person to register in the sex offender registry.

Given ongoing systemic racism, direct racism, bias and other considerations, the Senate must consider an explicit requirement that courts consider the Gladue or Gladue-like factors in section 490.012(4) as a means to limit registrations to only those circumstances where it’s necessary for the protection of the public. This will ideally result in a reduction in harm to Indigenous people by the Canadian justice system.

Third, as Ms. Hrick has already referenced, the Senate must consider how victims of sexualized crimes can be supported in their healing journeys. The Indigenous Bar Association in Canada would like to applaud the steps being taken by the Senate to respond to the National Inquiry into Missing and Murdered Indigenous Women and Girls Call for Justice 5.3 in which commissioners of the inquiry called on the federal government to review and reform the law about sexualized violence and intimate partner violence. However, Call for Justice 5.3 goes further in requesting this review and reform to utilize the perspectives of feminist and Indigenous women, girls and 2SLGBTQQIA people.

The Indigenous Bar Association in Canada recognizes the short timeline on which the Senate is operating to address the R. v. Ndhlovu decision. We urge you to use this opportunity to consider the voices of Indigenous women and girls and 2SLGBTQQIA people to ensure that this facet of society — which is 13% more likely to experience sexual violence than non-Indigenous women and 17% more likely to experience intimate partner violence than non-Indigenous women — is heard. Given the prevalence of sexual violence against Indigenous women, it follows that they will make up a significant proportion of the victims impacted by the proposed publication ban-related amendments. As such, the needs of Indigenous women in this process should be of primary concern.

Senator Pierre-Hugues Boisvenu’s comments regarding the lack of control over publication bans or their revocation are important factors that will impact Indigenous women who are victims of these crimes. The victims must be empowered to embrace their own healing at their own pace without barriers to undertaking this work. As such, while the presumption that a victim’s privacy should be protected seems to be well-intentioned, this paternalistic approach fails to consider the needs and wishes of each victim as they are found.

Further, the requirement that a victim must pursue legal action to change their mind or achieve a new level of healing that allows or propels them to acknowledge the harm publicly has the potential to derail efforts by a victim to overcome trauma. Ultimately, a simplified process that can be easily accessed by the victim at minimal cost should be considered.

Thank you for your time today.

We’ll turn now to questions and discussion with senators.

[Translation]

I want to make sure the two witnesses have access to the interpretation.

My first question is for you, Ms. Hrick. I have heard from victims who said that, in some cases, they learned very late — even years later — that the trial in which they had testified as a witness was subject to a publication ban.

Do you think Bill S-12 has enough tools to ensure that victims are adequately informed throughout the legal process in relation to a publication ban?

[English]

Thank you so much for the question. The short answer to that is, absolutely, no. While the provisions that require that counsel commit to consulting with victims are available, there isn’t enough robust language involved in the bill that will allow victims to be sufficiently involved in the process. We know that victims quite often are left out of criminal trials and considerations are not often given to them. Given the traumatic nature of these crimes, I don’t believe that there is enough in the bill that would address that.

[Translation]

Do you agree, Ms. Hrick?

[English]

I do. I will take this opportunity to highlight that what the bill says right now isn’t even that there’s a duty to consult with the individual — the survivor — before a publication ban is put in place. It is simply a requirement for the judge to ask the Crown if they have had the opportunity or taken reasonable steps to consult with that person. I think there’s a real opportunity here to strengthen the law, and I think some positive amendments can be adopted and recommended by this committee.

[Translation]

This next question is for you as lawyers, but also as women. Bill S-12 makes registration mandatory for those convicted of offences against children, so pedophiles and other such offenders. However, it makes no mention of mandatory registration for those convicted of sexual offences against women.

Don’t you think that amounts to an imbalance between the protections afforded to women and the protections afforded to accused or offenders under the Canadian Charter of Rights and Freedoms?

[English]

I think in this circumstance, with so many that arise in the legislation that senators are asked to debate, amend and adopt, there’s the issue of the balancing of rights. Our view is that discretion in deciding whether or not someone should be added to the register is, quite frankly, a good thing. As I said in my statement, it allows for an individual evaluation based on the evidence to be made about the pros and cons of registration, whether it will be effective and serve the purpose of registration and weigh those against the harms of registration. I want to echo my colleague Ms. Craig-Curnow’s suggestion about the desire and the need to have the Gladue factors baked into the consideration of discretionary registration.

Meegwetch. I want to first say thank you to Ms. Hrick. I absolutely agree that those are the same thoughts and the same considerations that the IBA would put forward. Were the appropriate considerations and factors embedded into the legislation, it would result in a situation where all necessary registrants would be registered, whether that crime was committed against a woman or a child, and it would take into account the vulnerabilities of the situation appropriately, assuming the factors were as robust as they need to be. I think a consideration of those is the appropriate next step.