THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, June 8, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:32 a.m. [ET] to study Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning.
Before we get started, I’d like to ask the honourable senators to introduce themselves.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu from Quebec.
Senator Dupuis: I am Senator Renée Dupuis, an independent senator, and I represent the senatorial division of The Laurentides, in Quebec.
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Greenwood: Margo Greenwood, British Columbia.
Senator Busson: Bev Busson, British Columbia.
The Chair: 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.
Pam Hrick, Executive Director and General Counsel, Women’s Legal Education and Action Fund: 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.
The Chair: 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.
Samantha Craig-Curnow, Secretary, Board of Directors, Indigenous Bar Association: [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.
The Chair: We’ll turn now to questions and discussion with senators.
[Translation]
Senator Boisvenu: 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]
Ms. Craig-Curnow: 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]
Senator Boisvenu: Do you agree, Ms. Hrick?
[English]
Ms. Hrick: 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]
Senator Boisvenu: 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]
Ms. Hrick: 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.
Ms. Craig-Curnow: 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.
The Chair: Witnesses, Senator Busson is the sponsor of the bill in the Senate.
Senator Busson: Thank you both for taking the time to come here by video with your views on the subject. Both of you had some very interesting and poignant views about victims and survivors, and I’d like to explore that a little bit.
As we’re all aware, section 12 makes significant improvements for survivors and victims with regard to the publication regime and aims to codify and clarify the process for the revocation and modification of such bans. However, Bill S-12 also further amends the Criminal Code to strengthen the regime by including stronger language that clearly prohibits any publishing, broadcasting and transmission.
In your experience, could you tell me whether you believe that the evolving challenges that social media poses in this regard add issues and difficulties to dealing with the definition and the adherence to the prohibitions of these publication bans?
Ms. Hrick: Yes, the evolution of social media does create new circumstances that need to be taken into consideration. On the other side of the ledger, we also want to make sure that any amendments that are adopted don’t have unintended consequences to, for example, stifle the speech of those who are subjected to publication bans, which is why the language of “otherwise make available” in expanding the scope of publication bans causes us pause and we’re actually recommending that it be removed to ensure there isn’t that unintended consequence of somebody who is subjected to a publication ban speaking and making otherwise available information about their identity that that is not within the scope of effectively a criminal offence. It’s just that attention to potential consequences that needs to be thought of.
Senator Busson: Thank you very much. Ms. Craig-Curnow?
Ms. Craig-Curnow: Thank you, senator. I would say that social media has absolutely complicated the way we address public statements and various approaches to everything in our lives. However, I would have to say that, in my opinion, the law has adapted relatively well to the use of social media in terms of criminal law and the ability to distinguish where statements and different aspects of free speech have been impeded. The language that has been proposed is sufficient to expand the scope.
While I recognize my colleague’s concerns about unintended consequences, the concern from the other side would absolutely be that without amendments there are significant gaps that can be left open without covering off those social media aspects. The language as proposed in that section is appropriate, and other case law that has addressed issues around social media will be sufficient to fill in the gaps and lend itself to preventing some of those issues. However, I will put the caveat on this that I am not a criminal lawyer, so I will say that is the take that I have on it from my perspective.
Senator Busson: Thank you very much.
Senator Batters: Thank you to both of you for being here for part of our meeting today and these important comments.
Ms. Hrick, since you’ve provided a brief but we don’t have it yet, I wanted to give you more of an opportunity to explain some of the amendments you think would be helpful to improve this bill, particularly on publication ban issues.
Ms. Hrick: Thank you very much, Senator Batters. I apologize, I didn’t realize when I sent this in that it wouldn’t make its way to you immediately. That’s on me. I’ll be happy to circulate that — with the caveat that it’s only in English at this point — to senators directly after this meeting.
Senator Batters: I think they have it, it’s just that they can’t provide it to us as a committee until we have it translated is my understanding, so that’s why. I wanted to give you additional time out of the time I have to question today to explain a little bit more about those amendments to us.
Ms. Hrick: I very much appreciate it. I’ll start with two of the most important ones. One is strengthening up front the ways in which we approach issuing publication bans, so not simply having a requirement that the Crown be asked, “Have you taken reasonable steps to get in touch with the complainant or the witness in this case,” before a publication ban is issued, but strengthening that language to inquire about whether they know about this, whether they have agreed that this is the right thing for them. Having that inquiry made is important.
If a Crown has asked for a publication ban to be imposed on a complainant’s identity without that consultation made, there has to be a mechanism that requires the legal system to inform the complainant. Speaking about the question that was raised earlier, it’s not okay that somebody would find out years later that there is a publication ban; that is a failure of the criminal legal system. There’s the opportunity with Bill S-12 to adopt amendments that better ensure that doesn’t happen, whether it’s because the judge has issued an order to serve the complainant with a notice or whether — as we have proposed — that there’s a requirement that where the complainant or the witness is present in the proceeding, that they are informed that this publication ban is in place on their identity and they have steps they can take to remove it. That information has to get to the complainant or the witness.
Another major amendment that we would propose, which is also aligned with my colleague’s suggestion in her opening statement, is simplifying that process for revoking or varying the publication ban. We’ve heard in the media of survivors having to hire lawyers, having to go through complicated processes, having to sometimes deal with a hearing in which notice is given to the accused or the formerly accused and they have the opportunity to object to the publication ban being removed. That’s not right. That shouldn’t be the case. The Senate here has an opportunity to adopt amendments to simplify a process to make it clear that where a survivor has requested or a person whose identity is covered by the publication ban has asked for it to be removed and it is just their identity at stake covered by that publication ban, there should be no discretion. It should just be removed by the court in a simplified process.
The other thing I’ll speak to is ensuring the victims aren’t criminalized for failing to comply with a publication ban on their own identity where they’re not knowingly or recklessly breaching the court order that exists. That is not something that is provided for in this legislation right now, but I think it’s obviously an important thing especially when you think of those gaps that might exist that lead to somebody not finding out that there is a publication ban in place and they’re simply speaking about their experience or identity in a way that they don’t know there’s a ban in place. They certainly shouldn’t be criminalized for that.
We also need to be narrow in the scope of criminal law when it comes to applying it to people who are subjected to publication bans.
Senator Batters: I want to interrupt you on that for clarification. Is your concern about that probably amplified on that, as mine is, because of the possibility that social media posts could even be considered publication in this type of issue?
Ms. Hrick: Right. For those who are protected by the ban, the ban is in place solely for them. We don’t want them to be criminalized for speaking about their own experience. We have put together a suite of amendments for your consideration that would give effect to that.
Senator Batters: Thank you very much. I appreciate that.
Senator D. Patterson: Following on Senator Batters and on what you said, Ms. Hrick, you have made five recommendations for amendments. Do I understand that you have prepared amendments that you could share with the committee through the clerk?
Ms. Hrick: Yes. They are contained in the brief that has not been translated which is entirely reasonable because we only submitted it a couple of days ago.
The Chair: We anticipate that the brief will be available in both official languages either later tomorrow or Monday.
Senator D. Patterson: Thank you very much. That will be helpful. I think the minister has signalled a willingness to consider amendments. You do understand that we are under time constraints here so that would be very helpful.
I would like to ask the same question of Ms. Craig-Curnow. Thank you for your recommendations about improving the bill. Has your organization been able to go so far as to draft possible amendments?
Ms. Craig-Curnow: Unfortunately, we have not. Notice was relatively short and, as we are made up of a volunteer board, it wasn’t within our capacity to do so.
Senator D. Patterson: I understand that may have been a tall order. Thank you very much to both of you.
[Translation]
Senator Dupuis: My question is for Ms. Hrick. I’d like to know whether I understand your position on the publication ban and the broadcasting or transmitting of information. The bill says “may make an order directing that any information…shall not be published in any document, broadcast or transmitted in any way or otherwise made available,” and I’d like your opinion on the last part of that list.
In other words, do you think the problematic language is the prohibition on information being “broadcast or transmitted in any way” and the prohibition on information being “otherwise made available?” Are you instead of the view that the last of the three methods — the otherwise making available — is the problem?
[English]
Ms. Hrick: Thank you. It is fair to say the general concern is ensuring that we don’t have language prohibiting the sharing of information that would capture those sorts of circumstances where a survivor is sharing in a therapeutic setting or in a support group, for example, their experience and identifying themselves. The concern is that the language of prohibiting “otherwise making available” that information might be overly broad and could also, quite frankly, be subjected to some constitutional scrutiny in terms of vagueness. That’s our concern with that particular language. Clarity in the amendments that are made to the Criminal Code on this, as in every area, is very important. That’s our concern.
[Translation]
Senator Dupuis: Thank you for your answer. I gather, then, that there’s a difference between broadcasting or transmitting information that is under a ban and otherwise making it available. If I understand correctly, if the bill referred to the information being otherwise made available publicly, it would be better than the current language. As the bill stands, the language “otherwise made available” could capture situations where a victim shares certain information with their therapist, since they are making the information available. That’s what I understood from your presentation.
If we limited the scope of the provision and referred to the information being otherwise made available publicly, would that address your concern? I’m not saying that’s the right thing to do, but I wonder. What do you think? Would that be a good way to address the concern you’ve identified?
[English]
Ms. Hrick: There is another recommendation in our brief that the Senate can consider as well. It talks about not criminalizing the sharing of information where there is no intention or real possibility of it being shared within the community. Without getting into the details of the specific legislative language and the tremendous expertise that the legislative drafters have to be able to bring their tools to this to sharpen up the language and ensure all of that intent is captured, I think some of what you will see in our proposed amendments which could be worked with would — in a belt and suspenders kind of way — ensure we are not creating a situation where survivors are inadvertently criminalized and would bring some clarity as to what is and isn’t permitted within the scope of a publication ban.
Senator Clement: Thank you to both witnesses, and thank you to Senator Batters for allowing Ms. Hrick to provide us with more information. I look forward to seeing the brief. I will start with Ms. Hrick.
First, congratulations on your election as a bencher. It is really cool to see women running and being elected. I appreciate that.
I want you to come back to something you said in your opening statement around independent legal advice and how you see that working in the current system that we have. How accessible is that? How would that work for victims in this process?
Then I want to ask about data collection. I’m all for increased judicial discretion. You said yes to that if it is evidence-based. How do you see data collection? What do you think we should be doing in this legislation around data collection?
I have a question for Ms. Craig-Curnow after.
Ms. Hrick: I will try to take that in order. First, thank you for your kind words. Second, I will take the opportunity to highlight for the senator’s benefit the organizations and individuals who submitted the joint submission, which includes the National Association of Women and the Law, LEAF, Ending Violence Association of Canada, the Canadian Association of Elizabeth Fry Societies, Legal Advocates Against Sexual Violence, Possibility Seeds, Robin Parker, Pamela Cross and Megan Stephens, just to make sure I’m giving credit to all the folks who were part of this collaboration as well.
I apologize. I lost the first question that you asked.
Senator Clement: Independent legal advice and then data collection.
Ms. Hrick: I’ll start with the data collection element. It would be helpful for the Senate to direct or request information — which I understand exists and was shared last night with the committee — about who, exactly, is registered on the sex offender registry at the moment. It seems like there’s quite a disproportionate representation of Indigenous offenders. That is very concerning to me in my role.
I think one of the comments you might have seen in the Supreme Court decision that struck down the former regime was that one of the witnesses had said they couldn’t point to an example of where the sex offender registry had been useful or involved in helping to prevent or respond to a sexual assault or any other crime. I think having that information — requesting that, for example, the RCMP collect and present that kind of information about the use of the sex offender registry, where it has been used to prevent or respond to an offence — would be the kind of evidence that would help legislators understand the usefulness of this regime.
As I said in my opening statements, I think that creates a false sense security. It feels like we’re doing something to prevent sexual violence, but there is no evidence that is the case. Those are the kinds of statistics that I think would be helpful.
Senator Clement: In terms of independent legal advice, what did you mean?
Ms. Hrick: Thank you very much, senator. Independent legal advice for sexual assault survivors. There is an Ontario program that I think is a fairly interesting one where up to four hours of independent legal advice is provided to somebody who has experienced a sexual assault, and they are able to receive advice from a rostered lawyer, not representation.
What we need is more investment in those sorts of models of advice. In this particular context, speaking about publication bans, there can be somebody that an individual of any means can go to and say, “I don’t understand what this, tell me what the publication ban is, what it means and what its implications are. If I don’t want it, how do I go about removing it, can you help me with that?” Those are the sorts of things that independent legal advice is really important for because we need to equip survivors with the information to be able to make informed choices about what is best for them.
Senator Clement: Thank you.
Ms. Craig-Curnow, I understand there are 330 registered members in the Indigenous Bar Association. That’s good; I like hearing that. I understand it is volunteer and you didn’t draft amendments. In your comments, you did talk about putting Gladue factors explicitly into the legislation. Can you lean into that and describe exactly where? I think you gave a section, but if you could give more detail around that, I would appreciate it.
Ms. Craig-Curnow: Absolutely. I appreciate the acknowledgment of the IBA. We are really working to expand our role and welcoming all of the beautiful new members, especially those taking the unique programs like the JD/JID at the University of Victoria.
Section 490.012(4) includes a number of factors that are to be considered when determining whether or not an individual has met the reverse onus burden so that they are not placed within the registry. Those factors include the seriousness of the offence, the victim’s age and their personal characteristics, nature and circumstances of the relationship between the person and the victim, et cetera. There are a number of other factors, which I’m sure you can review in your own time so I don’t take up too much time here.
I think that provisions similar to those found in the Criminal Code at section 718.2(e) would be appropriate to bring forward either through reference or explicitly reproduced within the section to ensure that the same interpretations that have been found in cases like Gladue and Ipeelee can be brought into the considerations of whether a person should be registered under the registry in these circumstances.
Senator Clement: Thank you.
The Chair: I have a follow-up question, Ms. Craig-Curnow, on that point, and then a somewhat larger and different one for Ms. Hrick.
On this question of Gladue factors, I confess I was surprised to not see it on the list of factors you identified. That’s a point with which I’m in sympathy. Yesterday, one of the senators, Senator Simons, was asking questions about the reverse onus in this exercise of whether people would be required to be on the registry. There was an awkward dialogue with the minister and one of his officials that suggested to me they didn’t want to think of this as a dimension of sentencing. I think, with the greatest respect to the minister, he was a little bit corrected by one of his officials on that point.
I’m wondering whether the reason why — since the Gladue criteria tend to operate in the context of sentencing — there was a kind of reluctance. I don’t know whether you have a perspective on that reluctance to put Gladue factors in here because then it looked like this was a sentencing provision. Have you turned your mind to that or do you have a view on that?
Ms. Craig-Curnow: Thank you for that question. I would suggest that is likely some measure of motivation. As we saw in Ipeelee, despite the fact that long-term supervision orders are linked to sentencing but are not necessarily sentencing factors themselves, I would suggest that extending this in a similar fashion to registration, which is a post-sentencing consideration, would also be appropriate.
The Chair: Me as well; the substance of the idea is the same.
Ms. Hrick, I think you made this point very well in the conversation around the engagement of victims. I think we have generally understood these orders to try to protect victims and their privacy and the like. You made a point about agency, and I thought that was a compelling one. The minister did the same yesterday when he spoke with us.
One of the things in the provision is that not just the question of the victim’s voice coming through the prosecutor and the prosecutor making reasonable efforts to inquire, but also the structure is to consult with the victim as opposed to something potentially richer than that. When we think about agency, we don’t think of just being consulted, we think of having a more powerful voice in this. Ms. Hrick, since you raised that, do you have any thoughts on whether it is not just a richer expectation that the victim actually has been consulted and has a voice, but whether consultation is actually a large enough language of agency here?
Ms. Hrick: I’ll speak to this from the practical, on-the-ground experience. I certainly hope that you might be hearing from folks who have been on the ground as Crowns or in courtrooms to understand how this actually plays out.
Very early on in the process, sometimes the first appearance happens shortly after an arrest and they are spoken to by a Crown who has a docket that is overwhelming, and there simply isn’t the ability for that Crown to reach out to the complainant to ask if they want this ban in place. There is no time for the complainant to think about what that means, and the Crown can’t really explain and give advice because the Crown is not their lawyer. The reality is, at the very outset, I do think in practice it would be a very rushed decision to ask a complainant to be asked if they want a ban in place or not. If they say that they don’t think they do and that’s the threshold for moving forward or not, the horse is out of the barn, so to speak, if we go through a first appearance, perhaps a second and third appearance without a publication ban in place. Media could be at the first appearance and could see no publication ban and be able to write about this. The person who is the complainant or survivor in that case hasn’t actually had the opportunity to get informed advice and understand the implications of the decision one way or the other.
In an ideal world, the idea would be that we don’t have a publication ban put in place at all under any circumstances unless the survivor consents to it right at the outset, but the reality isn’t as conducive to permitting that while truly preserving the ability for the survivor to choose that they want that ban in place and having the information about whether or not they want that ban in place.
The Chair: Thank you. I’ll squeeze in one last question that relates to the discussion you and Senator Batters were having about the language around broadcasting publishing and your concern about the phrase “otherwise making available.” It seems to me there may well be protections in the areas where people are meeting with therapists around professional confidentiality — doctors and the like. But one could imagine situations where in group sessions that are intended for healing, a person shares the trauma they experienced. So there certainly are vulnerabilities there.
I wonder whether the guiding principle in terms of trying to carve this out is to not interfere with a person who is on their own healing journey and needs to talk to people. Is that the answer in terms of how we provide a degree of immunity for that dialogue while, at the same time, we are able to protect the distribution of this information that could harm victims or others? Could you reflect on that?
Ms. Hrick: That is a fair way to think about it as a guiding principle. In our brief, you will notice that we made reference to a bill recently adopted that pertains to how jurors can express themselves following their service. It includes a specific reference to therapeutic settings, I believe. That same sort of principle is what we are getting at here, namely, ensuring survivors are able to have that journey and share that information in those sorts of settings even if they are subject to a publication ban.
Senator Klyne: My apologies for arriving late and missing the opening statements. This is for the Indigenous Bar Association.
As we know, Indigenous communities often face systemic challenges such as overrepresentation in the criminal justice system and limited access to justice. In light of these challenges, does the framework proposed in Bill S-12 effectively address the specific needs and rights of Indigenous survivors while also taking into account the broader issues and challenges Indigenous communities face within the criminal justice system?
Ms. Craig-Curnow: Thank you for that question. The simple answer is no. The reality for Indigenous women, especially for those who are facing intersectional challenges, is that access to things like independent legal advice and a lot of the various issues my colleague has been discussing in the last couple of questions are not accessible and not addressed in the bill. There is little to address those procedural pieces that are going to be happening on the ground when an Indigenous person — whether that person is the victim or the accused — is attempting to deal with the heightened burdens that are being placed within this bill.
While I understand that in some circumstances this is absolutely necessary and will lend itself well to ensuring that there are preventative measures in place for potential future victims, things like providing additional resources through legal aid — or through other organizations; some sort of mechanism in place that can provide victims with opportunities to consult — can provide information to those people so that they are able to make informed decisions from the publication side. That is absolutely necessary but absent.
From the accused side, there is that additional burden. We know that legal aid is minimally available for the public in general. We also know that Indigenous peoples are engaging with the criminal justice system at a disproportionate rate. The reality is that for the current burdens, there is little support — again, all of which you have stated. I don’t know if the legislation itself can address that without additional regulation or other support to be able to bring those issues forward to provide those supports.
Senator Klyne: I’ll ask a question of the Women’s Legal Education and Action Fund. The brief, as I understand it, contains a fair amount of input from a broad group of stakeholders and the answers may well lie within it for this question. However, what recommendations would your organization like to see implemented in Bill S-12? Do the bill’s proposed amendments adequately reflect the wishes of your organization? Are there any additional measures that you believe should be included to further enhance the protection and rights of Canadian citizens?
Ms. Hrick: Yes, I do think there are a number of things that could be done to enhance the bill, particularly facilitating the agency and informed choices of survivors of sexual violence, which is one of the core things to the mandate of our organization advocating for their rights and equality.
To pick up on my previous exchange with the chair of the committee, it is very important that this committee take the opportunity to propose amendments to Bill S-12 to ensure that survivors are informed of the existence of any publication ban, of the process for removing, varying or revoking a publication ban and that this process is made as simple and accessible as possible. As you go through this process, I continue to urge you to centre facilitating survivor choice and meaningful choice and agency as you consider potential amendments to Bill S-12, which I hope you will do.
Senator Klyne: Loud and clear.
The Chair: We are nearly out of time, but there are a couple of senators who would like to ask another round of questions.
Senator Busson: Ms. Hrick, your comments with regard to criminalizing victims who, one way or another, find themselves in violation of a publication ban were quite poignant. Many victims make the mistake of assuming that their prosecutors are their lawyers. That is certainly not the case. The system makes it difficult for victims under those circumstances.
The criminalization of the publication ban is something all of us are concerned about, where victims find themselves in violation. Yet, from the Criminal Code, there still needs to be an avoidance of a situation where someone, intentionally and directly, violates a ban. Could you suggest any language that might be worthy of consideration that might make that fine point differentiation? Have you thought about that?
Ms. Hrick: Yes, those of us who have been involved in putting this brief together have thought about that. We think that it may be helpful to say that the offence of breaching a publication ban doesn’t apply in respect of a failure to come comply with a ban where the person’s identity is protected by the order at issue and where that person didn’t knowingly or recklessly reveal the identity of or particulars likely to identify any other person whose identity is protected by the ban. Specifying knowledge and recklessness as standards could be a way to help tailor that.
[Translation]
Senator Dupuis: My question is for Ms. Hrick.
The Senate Committee on Legal and Constitutional Affairs examines a range of bills that make piecemeal changes to the Criminal Code. The principles of criminal law underlying the Criminal Code have not been fundamentally reviewed. We’ve asked for a review. It’s been repeatedly recommended.
My question for you is this. I completely understand the need to obtain the victim’s consent before imposing a publication ban. I have a lot of concerns about how the bill is currently written in relation to the requirement to inquire. What happens when, as you said, the Crown prosecutor doesn’t have time, is focused on other things, is juggling too many cases or hasn’t tried to contact the victim? The requirement doesn’t reflect that. I’m trying to draw the parallel with the Canadian Victims Bill of Rights, a piece of legislation alongside the Criminal Code that, in theory, gives victims the right to participation.
Section 14 of the Canadian Victims Bill of Rights says this:
Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system…
What’s the connection between the rights that victims are deemed to have been granted within the criminal justice system and what the provision in this bill says? In other words, “make sure that you’ve called the victim and you’re fine because you’ve done what the legislation requires.” I’d like to know whether you’ve given this any thought or how you see that connection.
[English]
Ms. Hrick: I think the bill needs to go further than that, although I’ll say we aren’t advocating for a requirement of strict consent in all circumstances before any publication ban is put in place specifically because of the realities that you just mentioned. But we need to have a very strong process and a very clear process to ensure that survivors know when there is any order in place, they know how to remove it and that they have a voice to be able to say, “I don’t want that,” or, “I do want that, and I’ve been given the resources to make the informed decision for myself.”
That is where that separate piece of independent legal advice, education and ensuring information is available and accessible comes in to ensure that survivors can have their voices heard and can say what they feel is right for them in the circumstances in which they find themselves.
Senator Dupuis: Thank you.
The Chair: Thank you, Ms. Hrick, and I see Ms. Craig-Curnow nodding her head in agreement.
This brings us to the end of this panel, so let me say on behalf of all the senators, thank you for joining us today and providing continuing growth in our own knowledge and understanding of this important bill, and we do appreciate the time you’ve committed, knowing it’s above and beyond your regular responsibilities.
If I might just expand on Senator Clement’s observation, Ms. Hrick, not only congratulations at being voted as a bencher but also restoring good governance to the Law Society of Ontario. I believe that’s the title of the coalition, so I wanted to say thank you in that respect. Now, that’s not for all the senators; that’s my own observation.
Colleagues, we will continue our consideration of Bill S-12. For this panel, we’re pleased to welcome from the Canadian Resource Centre for Victims of Crime, Aline Vlasceanu, and she’s here by video conference. Welcome. We also have Morrell Andrews, who is joining us in person, from My Voice, My Choice. We’ll invite you to each address us for five minutes, and then we’ll engage in questions and discussion with you.
Aline Vlasceanu, Executive Director, Canadian Resource Centre for Victims of Crime: Thank you so much.
The Canadian Resource Centre for Victims of Crime, or CRCVC, is grateful for the opportunity to provide comments to the members of the Standing Senate Committee on Legal and Constitutional Affairs today with regard to Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. Today, I’m joining you from the traditional, unceded territory of the Algonquin peoples.
The CRCVC has been working since 1993 in Canada to voice the needs and concerns of persons harmed by serious crime. We provide victims, survivors and stakeholders with support, research and education, and we work to ensure victims’ rights are recognized and respected within the criminal justice system. We tirelessly advocate for victims’ rights and firmly believe that victims of crime must be supported and empowered throughout the criminal justice process to regain control over their lives.
We believe that we can offer our expertise in this area and hope that the government will take our recommendations seriously as they come as a direct result of the needs expressed to us by crime victims that we work with on a daily basis.
At first sight, having constitutional rights for offenders is a form of inequality for victims whose rights, such as they are, often tend to be vague, unenforceable, legislatively defined at best and built around — rather than substantively changing — the power structure of the criminal justice system. They are largely a form of symbolic politics that make it look like something is done while substantively delivering very little.
The Criminal Code amendments put forth in Bill S-12 have the possibility to empower victims and improve the law on publication bans by requiring judges to ask prosecutors if they have sought victim input on whether to impose a publication ban — we have seen that not allowing victims to choose allows for further traumatization — clarifying the process for modifying or revoking a ban and requiring judges to ask if victims want to receive ongoing information about their case after sentencing and ensuring that their wishes, if known, are entered into record for the proceedings.
As a victim-centred agency, the CRCVC works with all victims and survivors of sexual offences. Today, I want to highlight specifically the amendments to the Criminal Code, as it discusses the need for expansion of victims’ rights and protection. Enhancing penalties for sexual offences ensures that the punishment for perpetrators aligns with the severity of their crimes. This aspect is crucial in providing a sense of justice for victims, acknowledging the harms that they have endured and validating their experiences. When penalties are proportionate to the harm caused, it sends a message that society takes these offences seriously and stands with survivors. That being said, we must remember that only 6% of victims of sexual assault actually report to the police, meaning that this could possibly create a false sense of security for victims of crime. We strongly believe that more must be done in the area of prevention.
The provisions in the bill to expand protection and support for victims are crucial in acknowledging their needs and empowering them throughout the process. Improved access to victims’ services ensure survivors receive the necessary support to heal and recover from their trauma. That being said, we want to make sure that we ensure that victims are properly informed and that the process is explained to them, that they have their right to their own accessible legal counsel and that they are never criminalized if, per chance, survivors are seen to not respect their publication ban. While this bill is a start, we believe it’s not fulsome enough to guarantee this.
This proposed bill requires judges to ask if best efforts remain to inquire if victims want to receive information after sentencing. The answer is then documented. This can be used as a clear mechanism to monitor whether or not victims in Canada are being respected. The challenge will, of course, be on how this will be implemented and done throughout the criminal justice process by various actors involved. What are best efforts and how will the varying definitions of that impact on this practice?
Furthermore, I’d like to draw attention to Bill S-265, An Act to enact the Federal Ombudsperson for Victims of Crime Act, to amend the Canadian Victims Bill of Rights and to establish a framework for implementing the rights of victims of crime, which was recently introduced. This bill serves as a very important reminder of the gaps that still exist within the system and the amendments that are necessary to be made with the Canadian Victims Bill of Rights. Bill S-265 addresses things like the need to strengthen the right to reparation by giving proper complaints mechanisms throughout the process, in particular, when it comes to restitution orders; developing training for actors within the criminal justice system that is hopefully trauma informed and victim-centred; as well as developing an implementation framework for victims’ rights in Canada so hopefully there are minimum standards to strive for across the board; and that implementation and progress are monitored, measured and, if need be, mechanisms for addressing that exist.
A bill like Bill S-12, while powerful, is still not addressing all needs of victims of crime in Canada, and looking at other bills such as Bill S-265 might provide a more fulsome support system for rights of victims in Canada. Thank you for your attention and for considering victims of crime as you make recommendations to address their rights.
The Chair: Thank you, Ms. Vlasceanu.
I apologize, Ms. Andrews, I didn’t acknowledge your involvement with My Voice, My Choice, and I wanted to do that now and turn the microphone over to you.
Morrell Andrews, Member, My Voice, My Choice: I would like to thank the Algonquin Anishinaabeg people whose traditional, ancestral and unceded land we are gathered upon today.
I am not a lawyer and cannot represent the views of every single victim or complainant of a sexual offence or those who face systemic burdens due to their sexuality, gender identity, race, class or disability, but I will do my best to honour their experience as well. The many people behind My Voice, My Choice have been tireless in their advocacy for a better version of the Criminal Code that captures the nuance that not every victim finds anonymity to be a protection.
We have connected with too many victims from across the country who have had publication bans imposed on their identities and who have undergone significant struggle in attempt to remove them. These people are all different. Some have guilty verdicts, while others have never had their day in court. Some of us were caught off guard by bans that halted our long-standing advocacy or limited our ability to express ourselves through art. Judges have denied our applications multiple times and the orders are so poorly recorded that it can take months for us to find out if we even have a ban and who is covered by it. Some of us have self-represented, hired lawyers or had the Crown agree to help us. At least one of us has been prosecuted for unknowingly breaching our own publication ban, and some of us are still struggling today to receive accurate and clear guidance to lift orders that we don’t want and that are actively causing us harm.
In the stories of struggles, it’s clear that victims, judges and lawyers lack a consistent understanding of how this law even works and what exactly is covers. Just yesterday in this committee you heard that officials can’t actually make a determination if emailing your therapist constitutes a breach of a publication ban. There’s an assumption that judges will always grant a victim with their right to speak if an application is made to revoke a publication ban, and that Ontario case law says that an offender or an accused does not have standing.
We as complainants have a lived reality and I can tell you that judges do deny our applications. They allow offenders to contest our applications to lift our publication bans, and no one can tell us how we can communicate when we are desperately trying to reach out for help and community. The current state of the law leaves us searching for clarity and that is a profoundly lonely journey when the system threatens criminal sanctions just for saying the wrong thing.
While Bill S-12 is on the table, you can fix these realities. We have come equipped with principles to guide you as you consider amendments to Bill S-12. Do not criminalize us for sharing our experience. In R. v. Adams, the Supreme Court wrote that section 486(4) is meant to encourage victims to come forward and report sexual offences. Why would anyone ever come forward if they knew the law could be used against them?
This was never Parliament’s intent, and for so many marginalized victims, identity is intrinsically tied to community. If you limit our ability to connect with those who share our identities with the threat of criminalization, you will have created a new and unique form of victimization. Bill S-12 must make it explicitly clear that a publication ban cannot be used against a victim.
Require prosecutors to seek our consent before applying for a ban. Bill S-12 refers to consultation, but consultation does not equal consent. Victim complainants should be able to make a choice about whether a publication ban is beneficial for them, and support needs to be provided by the legal system so they can make an informed choice well in advance of when a publication ban might be placed on their name or identity.
As Senator Dupuis mentioned, the Canadian Victims Bill of Rights enshrines the right to information and participation, and it seems to us that being informed and having somebody ask if we want a restriction on our ability to speak is a foundational element of those rights.
Prevent the offender or the accused from making submissions and gaining standing. The judge in R v. Vigon-Campuzano writes that a section 486(4) ban is exclusively for the benefit of the complainant and not the accused. Bill S-12 doesn’t make this distinction, and it should be no longer open to interpretation. To be blunt, the accused or offender has no business being involved in any aspect of the revocation of our publication bans, and when a judge allows this to happen, we are opened up to very real threats and intimidation. It’s humiliating to sit in a courtroom and listen to a judge ask your offender whether or not they consent for you to be able to speak.
Last, simplify the process to remove our bans at any time. From B.C. to Nova Scotia, every single jurisdiction has a different way of dealing with the removal of a publication ban. The current law is so broad that nobody can actually tell you how to do it. In R. v. Ibbitson, the judge found that it is not open to the court to deny an application by the person who the order is supposed to benefit. If the victim wants to remove their ban, then let them.
The process to modify or revoke a ban needs to be streamlined and simplified beyond what is proposed in Bill S-12 so we can express ourselves without being buried in legal procedure and formal hearings. Ideally, this should simply be an opt-out like the law in Australia or what is afforded to young offenders under the Youth Criminal Justice Act. If you apply these principles that are informed by our pain but also our persistence, we believe you will create a better bill and you will find support for it.
I guarantee you that nobody wants you to get this right more than victim complainants who have been harmed by this section of the code, so please be bold and use our stories so that others do not have to face the challenges that we have faced. This is about our voice, and the decision to use it should be ultimately our choice. Thank you.
The Chair: I’m going to now invite senators to engage you in questions and conversations starting with Senator Boisvenu followed by Senator Busson. Senator Busson is the sponsor of this bill in the Senate.
[Translation]
Senator Boisvenu: I want to make sure that the two witnesses are getting the interpretation.
I’d like to thank both of you for being here this morning, especially Ms. Andrews. I know you’re a victim of sexual assault, and you have to have tremendous courage to testify in a case like that. I want to thank you and recognize your courage.
You spoke a lot about the victim’s place in the process, especially when it comes to revoking a ban. In some cases, the offender has even objected to the publication ban being lifted. Usually, that has more to do with protecting their reputation, particularly in sexual assault and child abuse cases, than it does with protecting the victim’s identity.
In your view, does Bill S-12 put victims rights front and centre? Does it still give too much consideration to the offender and very little to the victim?
[English]
Ms. Andrews: From the perspective of a victim, when you are navigating the legal system, there are few opportunities where you feel that the court, the Crown or the other actors in the system are actually responsive to your needs and your rights. Publication bans, as intended, can provide protection for people, but currently in the law and Bill S-12, there isn’t enough recognition that some people do not feel that publication bans are in their interest. From our perspective, what we hope to see are these principles that I’ve outlined come to light that are informed by the victims bill of rights. We don’t often feel like our rights are being respected or heard, and publication bans are one very important mechanism.
[Translation]
Senator Boisvenu: I believe you were consulted by the Minister of Justice about the bill. I assume you shared the same views that you shared with us this morning. Was the minister open to amending the bill further to the input you gave him?
[English]
Ms. Andrews: What is heartening to see is that this is not a partisan issue. In the justice committee, when I appeared, they heard the issue and released a report in December that agreed that victims should be given the right to decide whether they have a publication ban, and the application should be granted at any point in proceedings.
This was unanimously adopted by all parties on the committee, and we’ve seen all parties come out and say that this makes sense; this is common sense. The minister has been very clear that he wants to get it right, and he does support the views that victims have brought forward. That’s why we’re happy to be here today to set you up with the principles that we think are important foundations as you consider amendments because this is something that everyone agrees on. Let’s just get it right. The section of the code has been amended a handful of times, but hopefully we can get it right this time so that it’s truly responsive to the needs of victims.
[Translation]
Senator Boisvenu: My question is for Ms. Vlasceanu, of the Canadian Resource Centre for Victims of Crime. You brought up Bill S-265, which I introduced in the Senate to strengthen the Canadian Victims Bill of Rights. Do you think the minister could have done more in Bill S-12 to strengthen victims rights? Where do you stand on what I just said?
[English]
Ms. Vlasceanu: I guess the short answer would be yes. I think this bill addresses a very specific part throughout the criminal justice process. As I mentioned in my testimony, and as the previous witness mentioned in hers, only about 6% of victims actually report to police and get to this point of the criminal justice system.
In regard to the sexual registry, it creates a false sense of safety, so there could definitely be different ways we could amend this bill to make it stronger, specifically looking at the Canadian Victims Bill of Rights as well as Bill S-265. Creating that, putting these together and making them more robust would be a start for sure.
[Translation]
Senator Boisvenu: Thank you.
[English]
Senator Busson: Thank you both for being here. Supporting victims of crime is an amazingly important part of the justice system and one that seeks to fill a gap. As Ms. Andrews aptly and passionately explained, prosecutors are not victims’ lawyers, and there is a huge gap in the system where victims are left to their own devices.
I want to thank you both and specifically Ms. Andrews for your passionate presentation around what victims go through, specifically in cases of sexual assault, but we can extrapolate that generally to victims. I am acutely aware of the issues you are talking about.
You spoke about Bill S-12 being a positive step forward. What specifically needs to be changed in the wording to satisfy your concerns around having a voice and a choice? The word “consulted” is used in the legislation. Could you be more specific about how that might be improved so the things that we’re all hoping might happen will happen?
Ms. Andrews: Consultation can cover a number of things. I think if you ask people who are part of My Voice, My Choice and have had publication bans, some of them may have met the threshold for consultation. If a Crown calls you and says, “Hey, you can have a publication ban. The media won’t report it. You’ll definitely want this, accept it,” and you, as the victim, say, “Okay, it seems like this is in my interest, and it’s only the media that is covered,” that counts as consultation. Is that really informed, if no one is actually giving you the court order and explaining to you that it’s not simply the media that is covered? It’s also any of your communications, potentially. But even then, people can’t specify what actually is covered by the publication ban.
So consultation might be included, but is that really giving victims an informed choice? Our perspective is that consent is important. The nature of a sexual offence means that a victim has often violently had their consent taken from them, and when the legal system creates this new victimization where, once again, your consent as to whether you have a publication ban on your name is taken from you, it’s very painful.
I understand the technicalities and the difficulties facing the system, but from a victims’ perspective, we’re very firm in the principle that our consent matters, it should matter and the system can figure it out. There are many things afforded to offenders and the accused in the system, and for victims to ask for their consent to be considered is reasonable and can be determined how to make that possible by those who are professionals in the system.
Senator Busson: Thank you very much.
Senator Dalphond: Thank you to the witnesses. Their contributions are most valuable, and I should have said that to the previous panel as well.
I had the opportunity to meet with you and the other members of your group, and I was shocked when I heard the Kitchener story of the victim who was not only charged but found guilty — not found guilty, she pleaded guilty — but the judge imposed a fine. Then there was an appeal to the superior court and the superior court reversed it. I think it runs against the whole spirit of the ban to make the victims the culprit, since it was supposed to be designed to protect them. I was amazed to hear that story. Thank you for bringing it forward.
You refer to the experience in Australia. Could you describe in more detail, for the benefit of the committee, how it works in Australia?
Ms. Andrews: In 2021, Australia amended their Judicial Proceeding Reports Act. Before this, there was a campaign by victims and complainants in the country under the name #LetUsSpeak. They faced similar restrictions on their ability to attribute their own experiences and said enough is enough, change the law, this is paternalistic and embarrassing, quite honestly.
So Australia amended their Judicial Proceeding Reports Act, and provided three important considerations that may be interesting to this committee. First of all, they said that a publication ban or an order restricting publication does not apply to a victim of an alleged offence who publishes any matter that contains any particulars that are likely to identify that victim. They also provide an opportunity for a victim to give consent to another person, be it the media or a family member, to publish or communicate information that might identify them.
I think this is really important because some people may consider that you have two options: You either have a publication ban, you say nothing and no one says a thing or you have a publication ban removed and then it is a free-for-all. But the reality is that victims in the system may not want the black or the white option. There is this nuance in between.
What is really good about Australia is they allow a victim to still retain their publication ban where general communication is prohibited unless the victim gives consent to another person and stipulates, for example, “CBC News, you can publish my story, you can use my photo and you can use my last name but don’t use my first name.” It’s really up to the victim and it gives agency back to the victim to choose the extent to which they want to be public. Because not everybody wants to be public, and it is really important to ensure protection is considered. A victim in this case could also, in theory, provide that consent to the offender or the accused to publish as well. It is actually mentioned in the law.
The other thing that I think is really important is that Australia provides an opportunity for a victim who is deceased to have people talk about their experience. In some cases, we have seen in the courts across Canada that a victim of a sexual offence may no longer be living but a family member wants to advocate for them, but when they come up against a section 486.4 publication ban they can’t remove it and they face really difficult challenges. I think if you look at Rehtaeh Parsons or Amanda Todd, in those cases the families did want to advocate and talk about what happened to their daughters. Australia affords this to living family members to publish even when a victim has been deceased. We have to remember that we are not only talking about survivors. Some of us are not survivors.
Senator Dalphond: Do you think that we should also recommend more and more specialized tribunals like in Quebec that are dealing with sexual offences and where the victims can walk and find some assistance through the process?
Ms. Andrews: I’ll say that I’m not a legal professional and don’t have a lot of background knowledge in the context of Quebec, but I think victims face a lot of challenges when it comes to lengthy delays. I mentioned there are some of us who still have not gone to court, who are still waiting for their day to have a trial. That is very painful to go through if you are stuck in the process. So while potentially dedicated courts could be beneficial in alleviating some of those issues, I think it is important to recognize that if you are simply duplicating a system that is still hostile to the needs of victims and still re‑victimizes them, then it’s not a full solution. Time delays are one thing, but I think you need to examine the wider system to see how a victim interacts with it in order to actually improve it and address the many issues that people face.
Senator Dalphond: Thank you.
Senator Batters: Thanks to both of you for being here. Ms. Andrews, I want to start out asking you this. Thank you very much for your passionate testimony. You really bring home how important this issue is and why there are important changes that need to be made.
You testified at the House of Commons Justice Committee in December, but now we are in June and the government’s justice minister has introduced this bill as is in the Senate very recently. Normally, a bill starts out in the House of Commons and comes to the Senate, but he has chosen to introduce it here in the Senate. So this is the government’s bill as he has drafted it. It didn’t really seem he has taken some of your important concerns into account in providing us with this bill, and now this bill has quite a tight time frame in order to be able to pass it in time for the court-imposed deadline.
Of all the different things — I know there are many — but if you were granted basically one amendment to this bill with a guarantee that the government would accept it, which one would you choose?
Ms. Andrews: It is a good question. It is hard to choose one, but I think if I had to say one thing it would be to remove criminalization for a victim whenever they breach their publication ban. I think that is how we got here today. C.L., who was the victim in Kitchener-Waterloo, I think her story outraged so many people and the fact that criminalization is even a possibility is what galvanized a lot of the support and advocacy we have seen in the last couple of years especially. Removing criminalization, I think, is what I would say is most important if I had to choose one thing.
Senator Batters: Thank you. The same question to you, Ms. Vlasceanu.
Ms. Vlasceanu: I would have to echo my colleague, Ms. Andrews. I think that’s probably the most important part for us because this is supposed to help and support victims, but it actually causes a lot more harm than good when they are criminalized. There are so many stories every single day that don’t even make it to the media that we work with, for example, who have this happen to them. Then they have to figure it out themselves. They have to hire their own lawyers, have the process explained and that sort of thing. I think maybe to tack on, making sure that they have proper legal information provided to them throughout the process.
I know the pilot program in Ontario was mentioned earlier. It is not a pilot program anymore, but something of that sort, making sure everyone has access to that because I think that is really important and that’s why most victims don’t realize they are breaching their order.
Senator Batters: Thank you. Same question to you again, Ms. Vlasceanu. First of all, you brought out a very important point in your opening comments. I think you said only 6% of victims report these types of crimes to police. That is really shocking.
You testified before the House Justice Committee last year as well. In that testimony you lamented that in spite of it being the fifth anniversary at that point of the Canadian Victims Bill of Rights, victims of crime, according to the Department of Justice Canada’s own review, still often feel victimized under the current system. Is there anything here in Bill S-12 that gives you concern that five years from now we’ll be saying the same thing about this bill?
Ms. Vlasceanu: Absolutely. I think the issue for me is always that we might have proper legislation in place, but how is it actually being put forward on the ground? How are the actors actually making sure that victims are informed? Again, it’s whether best efforts were made to inquire if victims want to receive information, for example. When it is implemented, what are best efforts and what would be the impact of the varying definitions on victims? I think the amendments might foster strong collaboration between various agencies, for example, law enforcement, victim services organizations, et cetera, but it doesn’t address the gap in service delivery when it comes to funding for organizations such as the one I am with. I think there is still quite a bit that is not necessarily addressed within the bill itself and that’s the biggest issue I see.
Senator Batters: Thank you.
Senator Klyne: Welcome to the guests. My first question is for Ms. Vlasceanu. Under Bill S-12, there are various factors a court must consider in determining whether a person should be required to register under the Sex Offender Information Registration Act, or SOIRA, including whether there is a nexus or connection between registering an offender and the purpose of the SOIRA, whether there is a disproportionate impact of the order on the individual and certain other factors relating to the offence and the person who committed it.
In that regard, my question is: Building on your experience and engagement with survivors, would you have any specific recommendations you would like to see in order to facilitate access to obtain needed services and resources and better address the rights and challenges faced by victims of sexual offences?
Ms. Vlasceanu: Absolutely. I think developing some sort of implementation framework for victims’ rights in Canada addressing the Canadian Victims Bill of Rights. I mentioned earlier we passed the five-year review mark, and I know there was a House of Commons report put forward in December. But again, we have just been putting forward recommendations and there is no actual implementation.
So I think having that framework and making sure there is adequate funding on the ground for victim-serving agencies and other organizations to actually be able to put forward these recommendations and implement them. I think a lot of the time there are high turnover rates and not enough staff, that sort of thing.
I know one of the previous witnesses was just a volunteer at the organization she came from. I know that happens with us a lot as well. We weren’t able to provide a written brief given the short amount of turnover time we had and our small staff. When it comes to funding, that’s probably my biggest thing.
Senator Klyne: Thank you. Either one of you can answer this or both of you can.
Just on that note, and dovetailing off that with regard to Bill S-12 and the amendments it proposes, would it be beneficial for heightened public awareness with an aim to provide clarity and certainty as to the impact of the amendments, how it may affect victims and to also foster dialogue among professionals providing resources and strive to raise the level of resources and support needed by victims?
Ms. Andrews: That is really important. With respect to the publication ban, of course, in some provinces you have access to free counsel and advice. I actually had no idea this existed when I was a victim. Nobody told me. You are really at the mercy of who your victim services worker is and what information they equip you with. If it is as simple as suggesting that the Department of Justice improves their website and their fact sheet on publication bans — it is really not clear. You cannot go anywhere online and have the process to remove your publication ban explained to you because you don’t need a lawyer to do it. You can put the application forward as a victim. But that information exists nowhere.
Additional investments in those areas, just as Ms. Hrick from LEAF referenced, are absolutely critical because when you are a victim and you have a publication ban, even emailing someone could potentially put you at risk, and you are truly left alone.
Senator Klyne: Thank you.
Ms. Vlasceanu: Developing training for actors within the criminal justice system is probably one of the most important aspects for us. The folks that come into contact with victims throughout the process — again, we are not necessarily — if victims are reporting, if they are not, whoever they are coming in touch with, these folks should know, and especially for something like this. I know the government website was mentioned, but a lot of the time the information that exists there is at a very difficult level of understanding. When you are going through a trauma like that, you need simple, plain language. I think it needs to be at a Grade 6 level in order to be grasped. You don’t need a lawyer to remove the publication ban for yourself, but is the information out there easily obtainable but also understandable?
[Translation]
Senator Dupuis: My question is for both witnesses. Thank you for being here. You were talking about the Department of Justice’s website, and I’m always interested in what the department recommends or provides in the way of information. The department’s website says this about criminal law:
Criminal law exists to help maintain public safety, security, peace and order in society.
Here’s my question: Should victims be considered a specific category of witness within the criminal justice system? After all, it is usually the victim’s testimony that determines whether the offender is convicted or not. In other words, the victim’s testimony is the backbone of a criminal trial. At the end of the day, the Crown and the government need the victim’s testimony.
With that in mind, shouldn’t the criminal justice system include a regime to provide victims with assistance, support and legal advice from beginning to end? The whole system largely relies on victims’ testimony.
[English]
Ms. Andrews: I think it is a really important point that you raise. If you ask many of the people who work with My Voice, My Choice, they will tell you that the system is very clearly indifferent or hostile to us as victims. Many of us have been told by Crown attorneys that we are not a team, the Crown attorney is not your lawyer and that you are simply a witness to your own crime. There is a unique experience of pain that comes from the system that you are told is there to help you, but when you ask questions and ask for help, no one is there to provide support.
If you were to map what the experience was of a victim across many different types of crimes, you will find that there probably is a need to acknowledge that victims are not just a witness and that they go through considerable stress, financial hardship, emotional hardship and personal hardship to show up and participate in processes that sometimes take years and years.
To be a victim of crime is lonely and it is isolating. When you add a publication ban on top of that and you are limited from reaching out to your community and people who can provide you support, it makes it 10 times worse. But that is a question for those who may be experts in the overall criminal legal system, but from the perspective of what I experienced, that would be very beneficial to have.
Ms. Vlasceanu: Yes. As Ms. Andrews mentioned, when you are relegated to be a witness for your own crime, that is so triggering and retraumatizing. As you mentioned, victims are crucial when it comes to this process because with their testimony you might be able to prosecute someone and put someone behind bars. But many times you are going through weeks’ or years’ worth of trials, and you don’t have funding available to you. You have to put your life on hold, and yet there is nothing offered to you, especially depending on where you are in the country.
We often refer to the system as broken, but I would say the system is doing exactly what it was intended to do. It is not broken. We need to fix it now. We are realizing that we do have victims and we are retraumatizing them.
But at the same time, when it comes to government agencies, I think of Indigenous folks and other minorities. Do they feel comfortable with going to governmental agencies, which is what brings me to the idea of community organizations and how important they are to this entire process.
Senator Pate: Thank you to our witnesses for the work you do and for attending today. Thank you also, Ms. Andrews, for meeting with our office last month. It was very helpful.
I know you mentioned — because the criminal law in Australia is state by state — the state of Victoria law and the way it allows victims to have publication bans lifted but not necessarily others if there are groups of victims, so I understand you would support that.
As some of my colleagues have mentioned, many folks don’t know just how many women are criminalized in this context. You have mentioned a highly publicized case. I am thinking of some of the various women I have known who have refused to testify because they are being threatened and then face criminalization. It is not part of the publication ban per se, but what’s your view in terms of the criminalization of individuals in that context where, as you have already said — and this stems from the conversation you had with Senator Dupuis — it stems from this notion that it is the only area of criminal law where you require the victim in order to be a witness to have the actus reus determined. No other area is that true except in cases of misogynist violence.
What’s your view on expanding that protection to not be criminalized in cases where there are situations where women — particularly racialized, Black and Indigenous women — face that situation when they are being called to testify to prove a case that really is the job of the Crown prosecutor to prove?
Ms. Andrews: The system asks a lot of victims. Under no circumstances, from our perspective, do we feel victims should ever be criminalized for coming forward and being part of the criminal legal system. Again, just as a publication ban is intended to help and provide you protection in the way that the law is written today, we should be prioritizing the protection and we should not be criminalizing people.
I want to clarify one thing. In Australia, they do specify that if there are groups of victims, the victims shouldn’t identify other people. I think what’s really important — and it’s a balance to strike — is that even when there are groups of victims, just because one victim wants to remove their publication ban doesn’t necessarily mean that they are going to identify another victim. There shouldn’t be the presumption that you might identify another victim, so we are not going to lift your ban.
There is a person in our group whose offender was a youth and is subject to a publication ban under the Youth Criminal Justice Act. She was able to lift her publication ban, but she doesn’t identify the offender in her case because she is not allowed to.
Victims should be able to come forward even when there are multiple people in the case, and should be afforded the opportunity to speak and not be criminalized for speaking. We should ensure that in that situation we are giving people as much agency and opportunity as possible to attribute their experience if that feels right for them. Criminalizing victims is never appropriate, from our perspective.
Senator Clement: I want to thank both of you. You are so eloquent.
Ms. Andrews, I like how you said you are not a lawyer, but you might as well be. Go to law school immediately. I wanted to thank you for speaking from a place of lived experience.
You have answered a lot of my questions through Senator Pate, Senator Dupuis and Senator Klyne. I used to represent victims of crime as a legal aid lawyer, not having all the resources and funds that we should have to represent victims. People often say, “We’ll simplify it and you don’t need a lawyer.” I would argue that’s not the case.
Many of my clients over the years have been traumatized. They also have difficulty reading and accessing things on fancy websites.
Can you speak about how simplified a process there could be or is that an illusion? Do victims really need lawyers throughout this process?
Ms. Andrews: Every single person is different, and every person’s approach to navigating the legal system is different and is informed by their lived experience and identities. As I mentioned, for some people, a publication ban is really important and provides them with protection. That should always be afforded to them. But for those who say, “At the end of my trial, I want to remove my publication ban,” it could be as easy as amending the victim impact statement form with a check box. You already have a check box that says, “Yes, I want to present this in court.” You could add another check box that says, “If I, as a victim, am subject to a section 486.4 ban, yes, I want it removed.”
Senator Clement: Automatic.
Ms. Andrews: You could do that. I have had a Crown suggest that as one mechanism.
When a Crown asks for a publication ban, sometimes they just stand up in court and say, “Yes, we still want a publication ban on this case,” and then everyone continues on with their work. Why are we not making it as simple for the Crown to then ask a victim, “Do you want a publication ban or not? If you don’t want it, I can go to court and say during the proceedings that we are halfway through a trial or at whatever part of the process and the victim doesn’t want the publication ban.”
I think what is really important is that not everyone can access the information. One of the things I have been adamant about is that I reported in Ontario and I speak English as my first language. However, if I was a francophone, I don’t know that I would have support, or if I was an immigrant to Canada and English was my second or third language. When you are resorting to CanLII and trying to read through the Criminal Code of Canada, I have a hard time and I don’t have a legal background. I’m a federal public servant, I speak English as my first language and I went to university. It was impossible for me to navigate on my own. The only reason I was able to remove my ban was because I went to the Toronto Star. They put my story in the paper, the Crown got in touch with me and said, “We have been really busy. We have someone who will help you now.”
For people who don’t feel like they have that access, I don’t know how it’s possible. Again, if you are someone who is precariously employed, if you are undocumented, if you are a temporary foreign worker or if you face a multitude of barriers in the system, how do we expect these people to have the time or mental space to sit down and say, “I’m going to look up the Criminal Code and look at the Department of Justice website, and I understand how the administration of justice is different between the federal government and the provincial government.” Nobody gives you that information.
I can sit here as a privileged White woman who is a federal public servant and explain to you my experience. As I said, I can’t properly convey the experience of everyone else who may face many more barriers than I do. But if I’m facing these obstacles, I’m not sure that we have gone far enough or raised the ambition enough so that all these other people are not lost in the legal amendments and parliamentary perspective.
Senator Clement: Thank you.
The Chair: I have a couple of observations that I’d invite comments on. With your indulgence, we might go a couple of extra minutes for a second round.
This is a question or comment for you, Ms. Vlasceanu. During the last panel, I wrote a little note to myself: Where do people get information in order to navigate the process of initially having their voice at the front end, or the trial, or having those removed?
Both of your testimonies here have reinforced not just the need for that but the complexity of it, where the offender might have been a young offender or there might be multiple victims. The process is a bit more sophisticated than one would have thought.
Could you speak a bit about that, Ms. Vlasceanu, and what we need to think about in order to get that in place? It’s not necessarily an amendment to the legislation, but what’s the story there?
Then I have a comment or question for Ms. Andrews.
Ms. Vlasceanu: With regard to the issue of having the information made readily available to victims, as we were just talking about, I think victims have different levels of understanding. English or French might not be their first or second language. I think it’s about having all the resources readily available to everyone and made accessible. We have to think of folks in remote and rural communities. They might not have the same access as someone living in the downtown core of Toronto.
It’s about making sure that we have some sort of framework such that everybody has equal access, regardless of where they are, regardless of their status within Canada and regardless of the language they need the information in. I think that is where a lot of community organizations come in.
I also think that, depending on the situation, religious organizations and things like that are places that people seek support from. Building these networks and making sure we are engaging with all the stakeholders involved throughout the process would be really important. Even public education and awareness might be something to consider. I don’t think anyone wants to think about being victimized, but it does happen. Having some sort of knowledge base is really important.
The Chair: Ms. Andrews, it’s really, again, a comment about agency. It strikes me that what we have here is a model that is intended to try to protect victims from being re-victimized by the publication of their stories. But the control and agency of that have to pass through prosecutors and, ultimately, judges. I don’t like to use this word an awful lot, but it feels unbelievably paternalistic and actually a denial of the autonomy that a victim might want to exercise in these kinds of circumstances.
We did hear some witnesses who weren’t urging us to consider going as far as deferring to the consent of the victim, but I take it that’s a fairly strong point in your perspective on this concept of agency. Am I understanding that?
Ms. Andrews: Consent is really important, but it can be sought at different points. I think the law can be amended in a way that captures that consent is important.
If the judge is inquiring of a prosecutor whether all steps have been taken to consult the victim, why not say, “Have all reasonable steps been taken to obtain consent of the victim?”
If, for some reason, consent is not possible to be obtained because someone is unconscious in the hospital or can’t provide consent at that time, that mechanism is built in to inform the victim, to explain to them what their publication ban means and then have the Crown remove it, if that’s what in the interest of the victim.
[Translation]
Senator Boisvenu: I would again like to thank both of the witnesses.
Ms. Andrews, my question is for you as a victim.
The minister made a choice to subject only those convicted of offences against children to mandatory registration. Offenders who have sexually assaulted women won’t be subject to mandatory registration. Do you think that creates an imbalance? Should women be given the same consideration as children? In other words, whether the offence was committed against a child or a woman, the offender would have to be on the registry.
[English]
Ms. Andrews: I would defer to legal experts on the registry. I don’t know enough about it. However, in my case, the offender was charged with sexual assault but resulted in the plea for the lesser included offence of assault. My offender could have never been registered as a sex offender. That’s true for many of the people I work with in My Voice, My Choice. From my perspective, the sex offender registry was never even on the radar because his probation is already over and he has less than one year of orders and conditions left because he received a conditional discharge. For many of us, the registry is not even possible, even when your offender has pleaded guilty twice to the same thing and was a driving school teacher who worked with children.
Senator Busson: I’ll try to be brief as well. I want to thank both witnesses for their perspective on this incredibly difficult and emotional topic. Senator Batters raised the question with you about a choice, more or less a Sophie’s Choice. You were asked to pick one of the amendments, and you picked a very important one.
In recap, last evening when the minister was with us, I specifically asked him if he had pondered the definition of “consult.” I think you were listening to that testimony. He used the words “consultation plus,” leaning towards consent. Does that give you any comfort when it comes to how this bill is going and, as we move forward, the intention of the legislators being part of how these things get interpreted?
Ms. Andrews: I think intent is one thing, but what really matters is how it’s interpreted by Crowns and judges. From the perspective of a victim, the more explicit that we can be — not overly prescriptive but clear — is what matters. Under the legal definition of what “consultation plus” might entail, I’m not sure. I think other experts may have a better sense of what that might mean than I do. However, from my perspective, if we have the law today, which is being interpreted in seven different ways in every single province and territory, what we need to see as victims — and what will help us — is very clear, explicit instructions. Don’t leave this up to interpretation because a different judge will have a different interpretation.
Some Crowns have no clue what this section of the Code is. If you ask them, they tell you it’s automatic, and they ask you for the case law to justify why it should be removed. They’ll say, “We’ll delay it later on down the road, but I can’t do it right now.” To avoid those situations where we’re throwing victims into these situations of harm, we should just be explicit. If we mean more than “consultation,” then if we can articulate that in the law, I think it will help everyone involved in the system.
Senator Busson: Thank you very much.
The Chair: An important answer for the sponsor’s question in particular.
This brings this session of our committee deliberations on the bill to a close. I want to extend my thanks to Ms. Vlasceanu for the helpful, clear and, in some cases, inspiring contributions to our consideration, and also to Ms. Andrews for both the human dimension that you brought to our deliberations and the courage to share those perspectives of yourself and the colleagues that you work with.
I do want to kind of channel Senator Clement. I used to be the chair of the admissions committee at Dalhousie’s law school. In fact, that’s probably how Senator Pate and I first met. If I had the power, and I could convince you to change careers, I might offer you a place at Dalhousie’s law school. Thank you very much for the precise contributions you’ve made today, and thank you for joining us.
Senators, I think I’m sharing that view on behalf of all of us. This is going to bring this session to a close, but for members of the steering committee, would you stay behind for a few minutes for further consideration? If you’re developing amendments for this bill, could you share those with the law clerk so they’re in excellent condition when we turn our mind to clause-by-clause consideration? Thank you all.
(The committee adjourned.)