(Chair) in the chair.

[Translation]

Good morning and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.

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

I am Senator Pierre-Hugues Boisvenu from Quebec.

[English]

Senator Denise Batters, Saskatchewan.

Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.

[Translation]

I am Éric Forest, and I represent the senatorial division of the Gulf, in Quebec.

I am Bernadette Clement from Ontario.

[English]

Good morning. Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.

[Translation]

Good morning. I am Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.

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

[English]

Welcome. My name is Bev Busson, and I’m a senator from British Columbia.

I’m Brent Cotter, a senator from 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.

We are joined today for this panel of our deliberations, from the National Association of Women and the Law, by Suzanne Zaccour, Director of Legal Affairs. She joins us by video conference. The floor is yours to do a presentation, followed by which there will be questions and discussion with you from the senators.

I want to thank the committee for this invitation to testify on Bill S-12. NAWL, or the National Association of Women and the Law, is a national not-for-profit organization that has advocated for women’s rights in Canada since 1974.

NAWL has been working on the issue of publication bans in collaboration with various other feminist organizations, lawyers and victim survivors. You should have received our joint brief outlining some of the problems and proposed solutions to better empower victims and survivors who have been subjected to an unwanted publication ban and/or who want to share their story without having the threat of criminal liability. We understand that many victims and survivors want a publication ban to protect their identity but that some victims and survivors do not want this prohibition on sharing information about their identity. It was important to us to highlight what changes might be made to Bill S-12 to achieve the primary objective that we have identified.

The most important objective that that I would like to share with you is to ensure that victims are not criminalized for failing to comply with a publication ban on their own identity. That is especially important in circumstances where there are no other privacy interests at stake or if the failure to comply with the publication ban is not intended to make the information known in the community — for example, a victim or survivor who shares their information or story with a support group, therapist, or a group of friends — or a victim or survivor who shares their identity when they are the only victim or only person whose identity is protected by a publication ban.

For us, it is our understanding that the publication bans are meant to protect the victims, so they should not be used as a tool of revictimization. We have heard from victims and survivors, and I am sure that you have too, that there is often confusion on the publication ban. Some people do not know if one is in place or not. They can be hard to remove. We see it as very important that victims are not revictimized through that threat of criminal liability.

We also anticipate that the threat of prosecution could be used as a tool by abusers against victims. For example, an abuser who tells their victim, “If you tell our religious community or a group of friends that I sexually assaulted you, I will call the cops on you and you will get deported or detained.” It is important for us that the bill clarify that the victims should not be, themselves, subject to criminal liability.

Another very crucial objective is to clarify and simplify the process for revoking or varying a publication ban. Obviously, there are very high costs to revoking a publication ban if a victim or survivor needs to hire a lawyer to help them understand the process and to make an application. We believe that it should always be the prosecutor’s duty to apply to have the publication ban varied or revoked. We have to understand that this publication ban may have been asked for by the prosecutor without even consulting the victim. We have heard from victims that, after the trial is over, it can be very complicated to get a prosecutor to go and then have the order revoked.

We also believe that we should not need a hearing to determine if a publication ban should be revoked unless in very limited circumstances. For example, if there are several victims’ interests at stake, maybe one victim wants the publication ban and another does not want it. It may be hard to reconcile, for example, if the victims are related so one can guess one identity based on the other. But in general circumstances, unless we have these exceptional cases, the order should simply be revoked if the victim wants it revoked, and the process should be as simple and streamlined as possible.

Finally, it is essential to ensure that victims are adequately informed throughout the process. Once again, we have heard that publication bans are often or at least sometimes imposed without the victims’ knowledge or consent, and that can be an experience that is, of course, disempowering and problematic if the victim feels that they are being silenced. We do understand that sometimes it will be necessary to impose a publication ban before being able to communicate with the complainant for expediency reasons. Obviously, once the information is out, it is too late to act. Oftentimes, it might be necessary to impose that publication ban. But it is, of course, very stressful for a victim not to know whether there is a threat of criminal liability or not understand the parameters. It should be the case that the prosecutor and the court share a duty or a responsibility to adequately inform the victim at the earliest opportunity and ask them if they want a publication ban, and if a publication ban is in place, they should be informed and know what it means and that they can have it revoked.

I am also here this morning to share with the members of this committee that NAWL has, with other groups, been working closely with the government to work on improvements to the bill based on the language that we shared with the committee in our brief. We expect that the amendments that will be proposed will generally align with what we have recommended, even if the language is not exactly the same. I would like to invite senators to support these changes to make sure that the bill can really achieve its objectives to better protect and respect victims.

Thank you. I will be happy to answer the senators’ questions in English or in French.

Thank you, Ms. Zaccour. If I am correct, you were referring to the brief that was submitted by NAWL and the Women’s Legal Education and Action Fund.

Yes, and other groups too. But it was submitted by LEAF, and it’s signed by NAWL; LEAF; the Ending Violence Association of Canada; the Canadian Association of Elizabeth Fry Societies; Legal Advocates Against Sexual Violence; Possibility Seeds; and then, as individuals, Robin Parker, Pamela Cross and Megan Stephens. This is the joint brief that I referred to.

Thank you very much for that.

We will begin questioning initially with Senator Boisvenu, followed by Senator Busson. For your information, Senator Boisvenu is the deputy chair of the committee and the critic with respect to the bill, and Senator Busson is the sponsor of the bill in the Senate.

[Translation]

Welcome, Ms. Zaccour, and thank you for your opening statement.

I want to ask you about a part of the bill relating to the National Sex Offender Registry that seems rather weak to me and perhaps even worrisome for women.

The bill makes registration mandatory for child abusers sentenced to more than two years. We are all familiar with the statistics on domestic violence and sexual abuse crimes perpetrated against women. Those two types of crimes are up the most in Canada, if you don’t include firearms offences.

We know that superior courts, including the Court of Appeal and the Supreme Court, signalled to lower courts a number of years ago that they need to be tougher on sexual assault, domestic violence and other such crimes because they consider them to be endemic in Canada.

I’d like to hear your view on imposing the same requirement on abusers, rapists and men who batter women who commit these crimes and are sentenced to more than two years. Should they automatically be subject to registration, as will be the case for those who commit offences against children?

Thank you for your question. First off, I want to say that publication bans were the focus of my work and observations given the deadline for studying the bill, so that’s what I looked at more carefully and what our brief deals with.

For the National Association of Women and the Law, registration on the National Sex Offender Registry is a solution or approach in response to sexual offences that is based on the idea of what we call back alley rape or rape by an unknown assailant. That approach does not adequately address the problems that most women and girls who experience sexual violence face. In many cases, the sexual violence is at the hands of a partner, as the senator mentioned. When the violence is perpetrated by an intimate partner, it’s not clear that registration on the registry would really make women and victims safer.

As I understand it, that provision was developed to take into account the difference with violence against children. In the case of domestic or family violence, registration should not necessarily be used punitively. Rather, it’s a preventive measure. It hasn’t so much been shown to be an effective strategy for those more common cases of violence.

In our view, other approaches need to be found to better protect women, including those that address the limits or barriers women face when they want to leave an abusive partner.

[English]

Thank you for being here, Ms. Zaccour.

You mentioned in your presentation — and it was very concise — that you have been working with the government to deal with proposed amendments to Bill S-12 as we move forward through this committee and through the legislative process. I appreciate that. The minister repeated the same thing, namely, that he had spoken and was intending to have officials continue to consult with stakeholders regarding the advancement of Bill S-12 and any amendments we might propose.

You had three suggestions of how you believe that Bill S-12 ought to be focused to become better legislation. Out of those three, would you recommend one above the other, or do you believe that these are all equally important?

They are all very important. These are three out of six in the brief. These are already the most important, but I would say that ensuring that victims are not criminalized is really at the top of my list. Obviously, I believe it is also very important that they are able to have the publication ban removed easily, bu removing the threat of criminal liability would be the priority. I do hope we can get all of these issues addressed, but that would be the priority for us.