THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 14, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 5:01 p.m. [ET] to consider Bill S-12, An act to Amend the Criminal Code, the Sex Offender Registration Act and the International Transfer of Offenders Act.
Senator Brent Cotter (Chair) in the chair.
The Chair: Honourable senators, before we begin the meeting, I would ask the senators to introduce themselves, starting on my left.
Senator Tannas: Scott Tannas, Alberta.
Senator Busson: Senator Bev Busson from British Columbia.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu, La Salle, Quebec.
Senator Dalphond: Pierre J. Dalphond, De Lorimier, Quebec.
[English]
Senator Simons: Senator Paula Simons, Alberta Treaty 6 territory.
[Translation]
Senator Forest: Éric Forest, Gulf region, Quebec.
[English]
Senator Arnot: David Arnot from Saskatchewan.
Senator D. Patterson: Dennis Patterson, Nunavut.
The Chair: Brent Cotter, senator for Saskatchewan and the chair of the committee. I would like to welcome everybody.
Senators, today we continue our study of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. We have with us today the sponsor of the bill, Senator Busson.
For our first panel today we welcome, from the Royal Canadian Mounted Police, Mark Penney, Acting Executive Director of Technical Operations; and Alain Gagnon, Non-Commissioned Officer in charge, National Sex Offender Registry and High-Risk Sex Offender Program. They are joining us in person. Thank you, gentlemen.
And from the Canadian Association of Chiefs of Police, Francis Lanouette, Chief, joining us by video conference. Thank you for joining us, chief.
As we normally do, we will invite each group to present for approximately five minutes, followed by questions and discussions with senators. From the RCMP, gentlemen, take it away.
[Translation]
Mark Penney, Acting Executive Director, Technical Operations, Royal Canadian Mounted Police: Hello, Mr. Chair and members of the committee. I am joined today by Staff Sergeant Alain Gagnon, Non-Commissioned Officer in charge of the National Sex Offender Registry, RCMP. We are pleased to be with you today to assist you in your study of Bill S-12.
[English]
Since 2004, the Sex Offender Information Registration Act, which I will refer to in short as SOIRA, and the National Sex Offender Registry, or NSOR, represent vital complementary components of Canada’s response to crimes of a sexual nature, the protection of children and adults and the safeguarding of our communities.
As part of these efforts, the RCMP is responsible for the management of NSOR, the national registration system for sex offenders who have been convicted of designated sex offences and ordered by the courts to report annually to police among other obligations. NSOR helps police prevent and investigate crimes of a sexual nature by providing up-to-date information relating to convicted sex offenders and also provides an instant list of sex offenders who are registered and living within a particular geographic area.
The access to information housed within the NSOR is highly restricted. Only police agencies can access NSOR through the Sex Offender Registry Centre in their province or territory. The centres are responsible for offender compliance and for the administrative aspect of the database. The public does not have access to information contained in NSOR.
Police agencies use the information in NSOR for police purposes as authorized by law. International police agencies may also be provided with information from the database but only if this information sharing meets specific criteria outlined in SOIRA. Under the act, the RCMP may only share NSOR information when necessary to prevent or investigate a crime of a sexual nature. Any departure from this threshold would present a substantial risk of non-compliance under the act, including potential legal ramifications for RCMP employees, as it is a summary offence under the act to make an unauthorized disclosure.
The RCMP supports Bill S-12’s proposed amendments, including those concerning SOIRA. In particular, Bill S-12’s proposal to require a sex offender to provide 14 days advance notice prior to travel would allow the RCMP the time required to ensure that a thorough risk assessment can be completed prior to the offender’s travel within or outside of Canada. As well, offenders would be required to report every address at which they will be staying during their travels. This would allow for more effective and efficient location of registrants if and as needed.
Mr. Chair and members of the committee, thank you for the opportunity to be with you today. We welcome your questions.
The Chair: Thank you, Mr. Penney. Chief Lanouette?
[Translation]
Francis Lanouette, Chief, Canadian Association of Chiefs of Police: Hello and thank you for this opportunity to address the committee on Bill S-12.
The Canadian Association of Chiefs of Police (CACP) is generally supportive of this bill, which focuses primarily on the notions of automatic and lifetime registration in the National Sex Offender Registry. We recognize the challenge of striking a balance between individual rights and the collective good.
The CACP is reassured to see that Bill S-12 maintains the presumption of automatic registration in this registry. For us, this is an essential element. In our opinion, the proposed legislative amendments recognize the rights of victims, promote public safety, and respect the rights of the accused.
We support the proposal to reverse the onus of proof, giving convicted offenders the opportunity to convince the judge at sentencing that registration in the registry is unnecessary.
We favour maintaining registration in the registry after the person has served his or her sentence unless he or she can demonstrate to the judge that its effects on him or her would be totally disproportionate.
Bill S-12 also recognizes the rehabilitative potential of certain offenders by ending lifetime registration if the person is able to convince the authorities that he or she poses no risk of reoffending.
However, in the interest of public safety, it is essential to impose automatic registration for offences of a sexual nature committed against minors, and to impose lifetime registration in cases where a person is convicted of committing more than one offence of a sexual nature.
We welcome the addition of factors to be considered by judges when exercising their discretionary power; in particular, the victim’s age and personal characteristics. We believe that this element addresses a need to protect the most vulnerable members of our society, such as minors, victims of intimate partner violence, people with disabilities, the frail elderly, and so forth.
In this regard, we note and support the increase in the maximum sentence for the offence of sexual exploitation of a person with a disability. We also welcome the addition of certain designated offences, including the offence of non-consensual dissemination of intimate images.
We would like to emphasize that the National Sex Offender Registry is an invaluable tool and source of information to support police investigations. From an operational standpoint, we invite the committee to consider three legislative amendments to the Sex Offender Information Registration Act that could have a significant impact on police investigations. First, amend section 4.1 (1) to include the obligation to report any change in the vehicles used by the offender within seven days of the change, immediately upon registration in the registry and at any time between the annual reports that are currently mandatory.
Second, amend section 5(3) to eliminate any ambiguity in authorizing the police to take all necessary photographs of the offender and any physical characteristics, observable or not, such as tattoos, scars, marks or deformities, in order to facilitate identification of the offender.
Third, amend subsection 16(4) to add the power to disclose to a witness or victim involved in the investigation of a crime of a sexual nature photographs obtained from the registry database for the purpose of identifying a suspect.
In conclusion, the CACP believes that Bill S-12 proposes a decision-making and review process that aligns registration and duration of registration with the severity of the offence.
The mission of police services is to prevent crime and track down its perpetrators. We believe that this bill contributes to achieving this mission. As a result, we are in a position to use our resources appropriately to offer our populations safe living environments, while protecting the most vulnerable members of our society. Thank you.
[English]
The Chair: Thank you, gentlemen.
We are not used to the presenters using less than their full time. Thank you for your precise, direct and clear presentations to us. We now turn to a list of senators who have questions for you, beginning with the deputy chair of the committee, Senator Boisvenu.
[Translation]
Senator Boisvenu: Welcome to our witnesses. My first question is for the officials from the RCMP. The first National Sex Offender Registry dates back to 2004. The act was amended in 2009-2019. I was there.
The troubling finding at the time was that the percentage of registrations left to the discretion of judges varied from province to province. In the Maritimes, it was about 30%, about 50% in Quebec, and close to 70% in western Canada. That is why the government of the day decided to make changes to the registry to include more offenders because we were missing about 50% of them in Canada.
Will this bill, which is very close to the 2004 legislation, lead to a similar situation in which the percentage could vary from province to province?
Mr. Penney: Thank you for the question.
[English]
We certainly cannot predict Bill S-12 — if it is to pass, to come into force — what the ramifications will be. However, the RCMP are of the position that we are fully supportive of Bill S-12, and what we’re seeing will definitely make improvements to some challenges that we see today with NSOR.
As far as the potential effectiveness or policy alternatives to the changes between the 2004 legislation and the current bill, we would defer to our colleagues at Public Safety Canada and Justice Canada.
[Translation]
Senator Boisvenu: My question is as follows. The bill we are considering is very similar to the 2004 legislation. The percentage of registrations varied from one province to another, which made the registry nearly useless in practical terms in certain regions where one in three predators was registered, while in other provinces one in two or two in three predators were registered.
Might we end up in the same situation in five years, with the percentage of registrations varying from province to province, depending on the leniency of judges? Judges are more lenient in Quebec, whereas they are stricter in western Canada. Will we find ourselves in the same situation?
[English]
Mr. Penney: Thank you for the question and clarification. Again, I do not think that we can predict what judges will decide or what prosecution services will provide. As our colleagues at Justice Canada have said, there is a goal to provide clarification and training around what is being proposed in Bill S-12, around the presumption of a registration in the NSOR. It will remain to be seen how things will play out. Unfortunately, I cannot predict what the changes will be.
[Translation]
Senator Boisvenu: My question is for Mr. Lanouette. Mandatory registration for offences involving children will be exclusively for cases in which the sentence is more than two years. In Quebec, there are four times as many sexual predators in provincial jails as compared to federal penitentiaries.
In view of the registration of sexual predators who have committed an offence involving a child and who receive a sentence of more than two years... Is there a risk that a lot of offenders will be left out?
Mr. Lanouette: As I understand the bill, there are two elements. First, it is presumed that it is up to the person convicted to prove to the judge that they do not need to be registered. That answers the former question. In the past, registration was not presumed. So it was often up to the Crown prosecutor to ask the judge for registration, whereas now it is presumed that the offender is registered, and it is up to the offender to prove that they do not have to be. In this regard, the bill is a bit stronger than the initial registry bill.
As to your specific question about persons convicted of a crime and receiving a sentence of more than two years, once again, working from the premise that those who do not meet the criteria set out in the paragraph but who are nonetheless presumed to be registered from the outset, I think the result in terms of registration will be satisfactory.
[English]
Senator Busson: Thank you all for making yourselves available for us today, and thank you for your service.
Following the Ndhlovu case, the Supreme Court of Canada gave Parliament a year to respond to the decision that automatic registration in the National Sex Offender Registry was unconstitutional, and if this is not responded to properly, it will effectively render the National Sex Offender Registry null as of October 28 of this year, and there will no longer be an ability to order offenders to comply.
Could you explain generally how the National Sex Offender Registry is used as a tool for law enforcement? Also, could you explain generally what would happen if October 28 passed and this legislation were not dealt with?
Mr. Penney: Thank you for the question.
I will defer to my colleague, Staff Sergeant Gagnon, who has worked intimately with the system for the past five years and can certainly speak to its effectiveness around day-to-day police enforcement actions. Thank you.
Alain Gagnon, Non-Commissioned Officer in charge, National Sex Offender Registry and High-Risk Sex Offender Program, Royal Canadian Mounted Police: Thank you for your question.
The first part is on the legislation itself. On October 28, the repercussions would have to be answered by Justice Canada. We have no influence to the courts.
What I can answer is what happens to the information we collect from sex offenders within the database and its effectiveness.
When someone is sentenced in court for a designated sex offence, the courts issue a Form 52, it is called in Canada, and the courts are under an obligation to share that form with the provincial or territorial centre responsible for the National Sex Offender Registry. From there, the information is entered into the database until the offender registers, which is seven days after they are released from prison or after the court hearing. Then we collect our information as to what their obligations are in accordance with the law. This information is in a database and is available to police to help them prevent or investigate crimes of a sexual nature.
We have approximately 1,500 to 2,000 queries a year of the database, which assists police in their investigations of crimes of a sexual nature throughout the country.
We have many successful results that we can share with the committee, which proves that the registry itself helps police in Canada solve sex crimes.
Senator Busson: Thank you very much.
Staff Sergeant Gagnon, you mentioned the risk assessment being taken. Mr. Penney spoke about a risk assessment around people who may be travelling abroad.
What does a risk assessment look like?
Mr. Gagnon: Thank you for your question. Any time a registered sex offender reports travel internationally, we examine that absence notification and verify where the person is going and when they are leaving. If we are authorized under the law, we inform the police service in the other country.
We use a risk assessment tool called Static-99R. This is a widely used tool for the purposes of determining recidivism of sex offenders and child sex offenders. We look at the travel notification, and if there is a risk assessment and the person comes back as high risk, we then have the authority to inform the police in another country.
We do risk assessments on child sex offenders in the registry on a day-to-day basis. We do 3,000 to 3,500 risk assessments per year. The authority for us to do risk assessments is under section 16(4)(j.3), which basically says that if we determine someone to be a high-risk sex offender against children, we can disclose that information to CBSA for compliance purposes.
We do risk assessments and we disclose to CBSA for compliance purposes. If an offender did not disclose to us and they are high risk, when they come back into the country we will find out and then charge them for not notifying us.
We take it a step further. If we go to section 16(4)(c)(ii), for prevention or investigation, we will disclose high-risk child sex offenders on our Canadian Police Information Centre, or CPIC, system and to the police of jurisdiction where the offender lives.
Senator Busson: Thank you very much.
[Translation]
Senator Dalphond: My questions are further to your answers about the use of the system and its effectiveness.
You said 3,500 risk assessments are conducted every year. How does that work in practice? How many times per week or per year do police services in Canada consult your database for verification purposes? That is my first question.
Mr. Gagnon: Thank you for the question. There are several steps. When police services consult our database, we call that a tactical query. Every year, there are about 2,000 tactical queries on our database in support of investigations by police services in Canada, strictly for sexual offences.
Further, risk assessments are conducted daily for persons who committed sexual offences against children in order to comply with the criteria in subparagraph 16(4)(j.3) regarding disclosure to border services.
Senator Dalphond: You are saying that, in some cases, you provide information to the police in the country where the person is headed. We know that in some countries, such as Thailand, there is a sex trade. Do you collaborate with Thailand, so that when you are given information they just close their eyes?
Mr. Gagnon: That is an excellent question. If I may, I will answer in English.
[English]
Mr. Gagnon: Section 16(4)(j.1) authorizes us to disclose to foreign police services when it is necessary for the prevention or investigation of a crime of a sexual nature.
We disclose only in certain circumstances: when it is a high-risk child sex offender travelling or a transnational child sex offender. When we disclose, we’re careful. We cannot disclose to any country. We have to go through a board to ensure that the disclosure will not cause harm to the offender. Certain countries, of course, we cannot disclose, but most we can.
When it comes to collaboration, we disclose through the RCMP liaison officer responsible for the country where they are. In Thailand, we would disclose directly to the RCMP officer in Thailand, who knows — feet on the ground — where to disclose this information. It goes to the police in Thailand to act according to their laws and policies.
Sometimes they would come back to the liaison officer and let us know that the offender was returned to Canada, which happens often. Or sometimes the offender was admitted into the country, which also happens. But, again, maybe the offender has citizenship. We don’t know the reason, but we see both results.
Senator Dalphond: Are the Thai police providing you with information? For example, if someone is having sex with children in Thailand and paying for it, do they report that type of thing? Will they inform the liaison officer, who will then inform you about that?
Mr. Gagnon: Now we are talking about a foreign conviction.
Senator Dalphond: Not a conviction. For example, a traveller who is involved in things that the police can observe, but they are not arrested.
Mr. Gagnon: It depends on the country. That is not our mandate at the National Sex Offender Registry. For example, the United States will disclose sex offenders who travel to Canada, but that disclosure is made to CBSA or to the local police, not to our section. That is apart from our mandate.
Senator Dalphond: Thank you.
Senator Klyne: Welcome to our guests.
My first question is for Staff Sergeant Gagnon. As the primary organization responsible for maintaining the National Sex Offender Registry, or NSOR, how do you assess the effectiveness of SOIRA’s current framework and the framework proposed in Bill S-12 in terms of preventing and investigating crimes of a sexual nature? Are there any specific areas that you believe need improvement or enhancement?
Mr. Gagnon: Thank you for the question. We have been working with Justice Canada and Public Safety for many years and have recommended improvements. Many of those improvements are in this bill. The RCMP fully supports the implementation of this bill.
We see many positives. For example, the 14-day notification for offenders who are travelling makes a big difference to us because we will have time to do a risk assessment to see if we should notify another country. It was frustrating when we would have offenders call from the airport and say, “I am on a plane in one hour. Good luck.” That does not leave us a lot of time to make that notification.
Senator Klyne: This question is for either of the witnesses from the RCMP.
SOIRA operates in conjunction with the Criminal Code provisions — namely, sections 490.011 to 490.032 — that allow courts to order offenders convicted of designated offences to supply information for NSOR.
How does the RCMP collaborate with the judicial system to ensure the effective implementation and enforcement of these orders? Are there any challenges or opportunities for improvement in this area?
Mr. Gagnon: Currently, when an offender is ordered to report to the National Sex Offender Registry, the courts are under an obligation to let us know. We have no influence on when those orders are given. We are reactionary, meaning we receive these orders and, from then on, manage the database with the offender information. When someone is non-compliant, that is not managed by our office; it is managed by the territorial or provincial offices.
On a daily basis, we would go into the database and see who has not been reporting, for example. We gather evidence and report this back to the police of jurisdiction for a charge under the Criminal Code for failing to comply with their obligations under SOIRA.
Senator Simons: In the Supreme Court case that led to this change, the court wrote:
Despite its long existence, there is little or no concrete evidence of the extent to which [the National Sex Offender Registry] assists police in the prevention and investigation of sex offences.
The court was a bit skeptical that this is actually something more than just security theatre.
Mr. Gagnon, you said that you had some examples that you could provide. I am curious to know exactly how this practically helps police officers and parole officers to manage people who have been released.
Mr. Penney: Thank you for the question. I will provide an example and refer to Mr. Gagnon who has many more.
Going back to Thailand, we had a recent case in January 2023. We were advised that a high-risk child offender was going to be travelling to Thailand. We had sufficient notification from the individual. The team was able to do a risk assessment and determine that it met the threshold to be shared with the Thai authorities. They denied entry to that individual. Upon return to Canada — because we also disclosed this information to the Canada Border Services Agency, or CBSA — CBSA had the individual through secondary and were looking through some of the things they had with them, their phone and stuff. It was identified that this individual, despite having a court-ordered prohibition from interacting with children, seemed to have messages that suggested that he was babysitting children. This information was relayed from CBSA to RCMP, to our unit, and we reached out to the field. Through the multiple tools and databases that we have available to us, like CPIC and others, we were able to identify who the potential mother of these children was and engage with them. Through further investigation, we determined that this individual was in the lives of many children. This one is still ongoing, but it is a great example of the objective of SOIRA and the NSOR. We have many other examples that we would be happy to provide to the committee in writing.
Senator Simons: That would be great. If there is another example you could provide now, that would be terrific.
Mr. Gagnon: Yes. We were not engaged in that case so we couldn’t provide the information that we have.
When I started in the unit five years ago, I wanted to collect all this information. We have a list of what we’ll call success stories that are unclassified. We’ve uploaded them to the database. Whenever a Crown attorney is facing a constitutional challenge, they can contact our office and we can share that information with them and we can share it with you.
A good example that occurred in Montréal a few years ago was a sexual assault investigation where the offender was on a public bus, transit, and spoke to a female. They got off the bus. He offered her some drugs and he eventually assaulted her and left the scene. She called the police. A tactical query of our database was done. We were able to identify him because he used a nickname with her and he also disclosed that nickname in our database. There was a full match and arrest.
We have many examples where the database is of use in investigations of crimes of a sexual nature.
Senator Simons: Until this last decision, people were automatically put in the database. Now there will be more discretion for judges to be able to say that if the person makes an application that their crime was more minor, they shouldn’t automatically be in the database.
Is it perhaps a more effective tool if it’s not cluttered up with people whose crimes are minor compared to the more serious offenders? I wonder if it gets to a point that there are so many names in it that it becomes dysfunctional and if it might not be better to have it be the most serious cases and not cases, for example, of a 19-year-old with his 16-year-old girlfriend.
Mr. Gagnon: I get the question but it is difficult to answer a hypothetical like that. The system is never cluttered. We have 63,000 offenders. They each have their own characteristics, geographic area where they live, vehicles that they drive and telephones that they use. All that information is available to investigators to help them solve these crimes.
We also do queries on known offenders. Sometimes an offender is arrested and they will ask us for all the information pertaining to this person. That is also helpful. We had a case recently in New Brunswick where someone was wanted. We were able to provide the address where that person was and could arrest the person because we had that information in our database.
Senator Batters: Thanks very much to all of you for being here. My question is for the police witnesses. When the minister was here last week, I asked his department officials about the compliance warrant in this bill. That warrant allows police to arrest sex offenders who are required to register but don’t. I asked them how this gets us any further. The warrant allows police to escort the non-compliant offender to the registration place, but, at the end of the day, the ultimate sanction is still the offender being charged. That’s the same as right now. It is something which, apparently, 20% of offenders really aren’t very concerned about.
The answer I got back from the department counsel when I asked this question on June 7 is this:
It is hoped what it will do is facilitate the ease. If people are not coming maybe there is a reason why they can’t come. I guess maybe the better option is it gets them to the reporting centre and provides them with the opportunity to do it.
Basically, the police essentially become a free Uber service for sex offenders. Can you comment on that and on how the compliance warrant gets us any further than what’s in place now?
Mr. Gagnon: Thank you for the question. Yes, Bill S-12 is suggesting a warrant section, which is used currently in the Ontario act called Christopher’s Law. They have this.
Our priority at the sex offender registry is not to arrest people, not to charge people. It is to have the most accurate information in our database to assist in investigations.
If someone is not compliant, basically I think we’ll have two routes to take. First, get an arrest warrant and charge for the crime of not reporting, which we’re doing now. The problem with this, however, is that we keep arresting them and they never register. At least now we’ll have a tool to enforce a registration and to ensure that our database will be accurate and up to date. This is to afford us the opportunity to force that registration. Instead of us charging them all the time and they never register, this will give us a tool to be able to force a registration and capture their information.
Senator Batters: I hope it works for you.
Mr. Gagnon: We all do.
Senator Arnot: Thank you, witnesses. I have two short questions for both witnesses.
First, can you describe how the National Sex Offender Registry is similar or different from other databases you have such as CPIC, the Canadian Police Information Centre databases?
Second, we heard Chief Lanouette identify some legislative amendments that he would like to see. Are there any immediate flaws or gaps that you’ve recognized that should be addressed before passage of this bill?
Mr. Penney: Thank you very much for the question. To the first question, it was around —
Senator Arnot: The differences between NSOR and CPIC and what falls off the table.
Mr. Penney: Regarding the difference between NSOR and CPIC, the obligations under NSOR involve an annual update or an update any time an offender is changing address and employment. The difference between an offender in NSOR and that database versus CPIC would be the more current up-to-date information, including photos of tattoos, markings, things like that, which we know can change. The original mug shot of a conviction can be 15 or 20 years ago in CPIC, but on NSOR we have the latest and greatest photo that can be, potentially, up to 12 months old.
To your second question around the suggestions from our colleague with the Canadian Association of Chiefs of Police, or CACP, the RCMP welcomes any suggestions or changes around that ultimate goal, as my colleague has said, namely, ensuring that the information is current. Anything around changing it or stronger enforcement action around compliance and offenders’ updating would be of great benefit to the NSOR program.
Senator D. Patterson: I have one short question to Chief Lanouette. First, thanks to the witnesses for being here.
You made three specific recommendations for amendments to improve the bill, I believe. Have you had those amendments put in writing and could this be shared with the committee, please?
[Translation]
Mr. Lanouette: Yes, indeed, the three recommendations were put into writing. I think the committee has them already. If you need further details, we could produce another document. It is part of the statement.
[English]
The Chair: Chief, Senator Patterson was asking whether you have them in the form of a legislative text?
[Translation]
Mr. Lanouette: No, that was not done. We could however review the CACP’s amendments with the committee.
[English]
The Chair: It’s not fair to delegate our work to you, but if there were something you could share with us in legislative form, am I capturing that, Senator Patterson?
Senator D. Patterson: Yes, Mr. Chair. I took notes on the amendments as I understood them, but I was wondering if we could have a little more detail, either if you have the ability to have them turned into legislative language, that would be great; otherwise, if they could be spelled out in a little more detail than I got from your presentation. They sounded very specific and referred to certain sections of the bill, so I thought it would be useful for the committee to have that more detailed information.
The Chair: Just not to assign too much responsibility, Chief Lanouette, we do have some more detailed language that we just received today. Once it’s in the proper form bilingually, we will make sure it’s circulated to all senators.
Senator D. Patterson: Okay.
The Chair: They do good research for us.
Senator D. Patterson: Very good. That answers my question. Thank you very much.
The Chair: I have a couple of questions in follow-up to the data information, I think, Mr. Gagnon, that you indicated. Here I’m interested in the degree to which you have information and can share with us about quantitatively the effectiveness of the database in providing material information that has led to the identification of people who have committed sexual offences or the prevention of problematic situations. I know, and we heard from the minister, that a review is planned, but the effectiveness of the database would be of some interest to us.
My second question is: You get these inquiries. How are you able to determine that the inquiry that might be coming from a police force or an investigator is an inquiry that is connected to something of a sexual nature? Is there a mechanism or a standard that has to be met for the inquiry in order for the information in the database to be made accessible?
Mr. Gagnon: I’ll answer the second question. Yes, there is a threshold to me, and it’s in accordance with section 16-4(c)(2) which says that we can share or disclose information if it’s necessary for the prevention investigation for a crime of a sexual nature. That’s a threshold. In the database, when a request comes in, we look at the request and ensure that the threshold is met. It includes details of the crime they’re investigating and a file number.
If it’s a request, for example, for a stolen vehicle and they want to check the plate, it will be refused. It’s got to be in accordance with the law.
The Chair: Are there very many that you refuse?
Mr. Gagnon: Not that I know of. Our office in Ottawa does not do these tactical queries. They’re done by provincial and territorial centres, but we do audits. When we perform an audit, we do look at the threshold in tactical queries.
The Chair: Thank you. That’s helpful. Since Senator Forest is entering for the first time, over to him.
[Translation]
Senator Forest: I am replacing Senator Dupuis.
I am curious, regarding the three interesting recommendations from Mr. Lanouette, does that mean that, right now, the first recommendation was to request that any change of vehicle in a period be included? Under the National Sex Offender Registry currently, if there is a normal change of vehicle, there is no requirement to inform you? Another thing that I thought would be automatic: The authorization to receive photos and distinctive marks and tattoos is not currently part of the National Sex Offenders Registry?
Mr. Gagnon: Thank you for the question. On the first question regarding vehicles, sex offenders are required to register once a year. When they do that, they have to provide a lot of information, including information about the vehicles they use. They are not required to provide an update on other vehicles they may have had during the year. Vehicles are reported just once per year. It is a good idea to amend the act to require offenders to report the vehicles they drive.
On your second question regarding photos, do you mean taking photos or showing photos to victims and witnesses?
Senator Forest: I think that was Mr. Lanouette’s third recommendation, to show photos. My understanding is that authorization can be given to take photos of tattoos and distinctive marks to get a full physical picture of the individual.
Mr. Gagnon: Thank you. I think the request is to clarify the wording in the legislation. Currently, the act says that photos can be taken of observable characteristics. An offender wearing a long-sleeve sweater could say that his tattoos are not observable. We do of course take pictures. We would like the wording to be more specific, clearer, to authorize us to do that.
As to sharing photos of an offender or photos of tattoos with a victim or witness, that is not in the act. That contravenes the act and subsection 16(4), which says that nothing can be shared with members of the public. Victims and witnesses are members of the public. The recommendation would be to be authorized to share the photos we have in our database in order to identify sex offenders.
Senator Forest: If I understand correctly, the National Sex Offender Registry exists, but you are not allowed to use it in an investigation, to move the investigation along and to verify suspects?
Mr. Gagnon: No, we disclose all the information to the investigators, but the investigators are not authorized to disclose the information to a victim or a witness.
Senator Boisvenu: My question is for the officials from the RCMP. I want to talk to you about the preventative aspects of the National Sex Offender Registry. Currently, not all police officers can consult the National Sex Offender Registry, unlike the Canadian Police Information Centre (CPIC); it is the investigators who may check or consult the database if a crime is committed. The registry is not available to all police officers, the way CPIC is; access is limited.
In Alberta, I met a family whose mother and child were murdered by a sexual predator who had faced eight to ten charges and was registered in the National Sex Offender Registry. For four and a half years, he had been living next to a school with children and had been subject to an order prohibiting him from having contact with children. Does this bill include any tools that would enable the police to work on this preventative aspect, or will you use the National Sex Offender Registry only when a crime has been committed?
Mr. Gagnon: Thank you for the question. With respect to prevention, disclosure from foreign countries would be for prevention purposes.
Senator Boisvenu: I mean in Canada. In the case of the woman who was murdered, the offender had been living close to her, a school and play areas for four and a half years. Why was he not monitored during that time? He was in the National Sex Offender Registry.
Mr. Gagnon: That would be a question for the local police. My mandate is for the National Sex Offender Registry.
Senator Boisvenu: The RCMP does the work of the municipal and provincial police in the provinces.
Mr. Gagnon: That would be a question for them. For that kind of investigation, that would be a question for them.
Senator Boisvenu: Will this bill enhance crime prevention?
At present, the registry is used only when a crime is committed. It does not really serve a preventative purpose.
Mr. Gagnon: I’m not sure I understand your question, senator.
Senator Boisvenu: What I mean is that the National Sex Offender Registry is a tool that is used in investigations when a crime has been committed, but it does not help prevent crime. It does not have a preventative effect.
Mr. Gagnon: The information that can be disclosed to police officers serves a preventative purpose. For example, if someone calls the police to report a suspect in an area or near a school, the police arrive and have a description. They can certainly do a tactical query for that crime in the database in order to identify the person.
Senator Boisvenu: You can understand that we have to wonder about cases such as the woman who was murdered with her child, while the offender lived beside her for four and a half years and was not bothered by the police.
[English]
Senator Klyne: Thank you. I do have a question on which I would like to hear the RCMP’s perspective and then Chief Lanouette’s perspective on behalf of the Canadian Association of Chiefs of Police.
SOIRA emphasizes the importance of protecting the public while respecting the privacy interests of sex offenders and their potential for rehabilitation and reintegration. Does Bill S-12 achieve the desired balance between public safety and offenders’ Charter rights? How can we be sure that the right decisions are being made about which offenders pose a risk of reoffending and should be placed on the National Sex Offender Registry, and which offenders should be exempted?
Mr. Penney: Thank you very much for the question, Mr. Chair.
Whether it’s striking the right balance, that definitely falls outside the RCMP’s mandate of running and administering the system and ensuring that it has current information on offenders. That would really fall to the judicial system and the courts to determine whether the balance is correct. We would have to defer that matter to our federal colleagues.
Senator Klyne: Maybe I’ll just offer this for Chief Lanouette. In that regard, do you have the same or similar view? Can you see anything that could improve things, as I posed the question, for reoffenders? And which offenders should be exempted?
[Translation]
Mr. Lanouette: If I understand correctly, you’re basically asking about the balance between individual rights and the public good. It’s a very delicate balance, and it’s often about walking a fine line, as I’m sure you can appreciate.
Police officers have two duties, of course. First, they have to respect the Canadian Charter of Rights and Freedoms and ensure that individual rights are protected. At the same time, they are responsible for keeping the public safe, and that’s where the public good comes into play.
The position of the Canadian Association of Chiefs of Police on the bill — and I mentioned this in my opening statement — also takes into account people who are vulnerable, victims who are vulnerable. We want to make sure they are protected under the legislation.
By vulnerable people, I mean young people under the age of 18, of course, but other types of victims as well. Victims of intimate partner violence come to mind, as do frail seniors, who could also be victims of these types of crimes.
What we like about the bill is that the judge has to consider the personal characteristics of the victim when exercising their discretionary power. In our view, the judge is able to assess the characteristics that make the victim more vulnerable. The judge could therefore impose registration on the National Sex Offender Registry.
[English]
Senator Dalphond: If I properly understand, the NSOR is a bit like the database of DNA. It can be used to search when a crime has been committed first and not as a preventive device.
[Translation]
Mr. Gagnon: Not necessarily.
[English]
Senator Dalphond: Maybe, if you go to Thailand and you obstruct the police.
[Translation]
Mr. Gagnon: Precisely. There’s also the case I mentioned earlier, where an individual is out walking around and we have their description. It’s possible to do a tactical query in the database to prevent a crime.
Senator Dalphond: You flagged a second problem. You can require someone who reports further to Form 52 that they register at a centre in their province. Are you allowed to ask them to pull up their sleeves to see whether they have any tattoos, for instance?
Mr. Gagnon: Absolutely. It’s common practice in registration centres to take photos of the individual’s physical characteristics.
Senator Dalphond: You can ask the person to take off their clothes so you can see all of their identifying marks, such as a tattoo on their lower back. However, you can’t show the photo of the tattoo to a victim who is filing a complaint and describes the attacker as having a particular mark. If the victim doesn’t bring it up, you aren’t allowed to show them the photo. Is that correct?
Mr. Gagnon: That’s exactly right. No information in the database is disclosed to members of the public, and victims and witnesses are members of the public.
Senator Dalphond: That means the investigating officer couldn’t discreetly mention a lower back tattoo and show the victim a photo to see whether it’s similar to what they saw. Is that right? You can show the victim a lineup of people or a series of photos to identify the offender. However, if the victim describes a tattoo, you can’t show them a bunch of photos of tattoos. Is that correct?
[English]
Mr. Gagnon: That type of disclosure would be illegal under the act, and the police officer may be subject to charge under section 17.
Senator Dalphond: There is a problem there.
Mr. Gagnon: There is no disclosure now to witnesses or victims.
The Chair: Senator Boisvenu has asked for a little question on the third round, but, just before, may I ask this question? You’re not responsible for the inquiries that you receive. Those are police investigators out in the field, but on this question of prevention, do you maintain a record of how many lines of inquiry were made for those purposes, as opposed to investigating an actual crime that may have been committed? Within the database, can we know whether the police are thinking this is a valuable tool for preventive purposes in what you called a tactical situation?
Mr. Gagnon: No. When requests come in for tactical queries, we’ll make sure it meets a threshold before we disclose information, but they’re not separated in the categories of prevention or investigative. The information is provided to the police. Just to clarify some comments I heard, the investigating agency is not querying our system. They ask our employees to query the system, and we disclose to them information from the database.
[Translation]
Senator Boisvenu: Mr. Gagnon, you said something that surprised me. You said that the information in the National Sex Offender Registry can’t be disclosed to the public.
In 2015, however, a bill was passed so that provinces could make that information public. Alberta has its own national sex offender registry or public sex offender registry. Ontario makes the information public. The Criminal Code was amended to allow provinces to release that type of information publicly.
Why did you say that the information can’t be made public, when it’s allowed under the law?
Mr. Gagnon: The information in the database can’t be disclosed publicly. However, if an individual is convicted of an offence, that information appears in another database. The information in the National Sex Offender Registry database can’t be made public.
Senator Boisvenu: That comes back to what I said earlier. Only a police officer can consult the information, usually one police officer per police station. Not everyone has access to it.
Mr. Gagnon: Any investigator in Canada investigating a sexual offence can query the database.
Senator Boisvenu: They can query the database, then.
Senator Forest: I’m going to pick up where Senator Dalphond left off.
Let’s say you have a photo in your database. Does that mean that, if you had a catalogue of tattoos that are not associated with the offender, you could show the image without identifying the individual and you could then consult the database, similar to how it works with fingerprints?
Mr. Gagnon: Not legally, no.
Senator Forest: Not legally?
Mr. Gagnon: Not legally, no.
Senator Forest: Can you give me an explanation? That significantly limits the scope of the registry.
Mr. Gagnon: Section 16 of the act is very clear. No information in the database can be disclosed to the public. Victims and witnesses are members of the public. They are not police officers.
Senator Forest: Let’s say Mr. Lanouette’s third recommendation were implemented. Do you think it would make the registry more effective for the purposes of identifying an individual during an investigation?
Mr. Gagnon: Yes, we think it’s an excellent recommendation.
Senator Forest: Thank you.
[English]
Senator Busson: Just for clarification, again around this preventative part of the legislation, and, of course, in our regime, thankfully, you can’t just stop anybody on the street and ask them who they are, but in the circumstance that Senator Boisvenu described, if a person were brought to the attention of someone, then they would be discovered as part of the database when their name was run, et cetera. Would that not be a preventative part of the legislation?
Mr. Gagnon: I can confirm that we have known offender queries in our database, so if an offender is arrested, they can query our database, and the information can be disclosed to any investigator for that purpose.
Senator Busson: Thank you very much.
The Chair: This brings us to the end of a very rich discussion and questions with each of you.
I want to extend my thanks and the thanks of the committee to you for joining us and taking this much time. Next time you might give longer speeches to reduce the number of questions that you get, but let me say that I think it was extremely helpful for us, and it is very much appreciated by the committee.
Colleagues, turning to the second panel of our deliberations at today’s meeting, we are joined in person by Benjamin Roebuck, who is the Federal Ombudsperson for Victims of Crime, from the Office of the Federal Ombudsperson for Victims of Crime. I would like to welcome you, Mr. Roebuck. I should say to colleagues that I have indicated to Mr. Roebuck that he may have up to ten minutes, since he is our only witness. He has indicated that he will only speak for 7.5 minutes, so we are on an amazing roll of witnesses not using their full time. We will put the clock on anyway, Mr. Roebuck.
The floor is yours.
Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsperson for Victims of Crime: Thank you. Yes, I heard the secret to being successful today is to speak for longer at the beginning. If I pass 10 minutes, you can definitely stop me.
Honourable chairperson and members of the committee, it’s nice to see you again. I look forward to discussing Bill S-12.
Today, we are on the traditional, unceded unsurrendered territory of the Algonquin Anishinaabe people. That is an important starting point. As a white settler, I know that it is not my place to define what reconciliation means or what it requires because I’m not the one who has been harmed. I honour the leadership, strength and wisdom of Indigenous communities and humbly offer my gratitude to those who found the grace to accept me as worthy of reconciliation.
This past month, I have been reflecting on how absurd it would be to try and pursue reconciliation without Indigenous people. Without listening, there can be no justice. Yet somehow, the criminal justice system continues to make the mistake of pursuing justice without truly listening to the people who have been harmed, making decisions on their behalf without consultation, making assumptions about what would be best for them and constantly reminding them that it is not their trial, the Crown prosecutor is not their lawyer and the rights they thought belonged to them on paper are not binding.
For Indigenous survivors who contact our office, that is what colonialism looks like. The criminal justice system appropriates the suffering of victims and survivors.
Since Bill S-12 was introduced, our team has been hearing from survivors of sexual violence across Canada about their interactions with the legal system, which is a term I have heard repeatedly used for years because many survivors refuse to call it a justice system. As Federal Ombudsperson for Victims of Crime and as a person, I try my best to lean into optimism and try to inspire people with my genuine belief that we can choose to change our approach and do better.
Right now, the weight of these conversations with survivors is sitting with me, and we have to do better, please.
[Translation]
I am happy about Bill S-12. If passed, it includes two steps toward stronger implementation of the Canadian Victims Bill of Rights. I will focus my comments on publication bans and the provision of information after sentencing.
Publication bans, while meant to protect victims of crime, have had unintended consequences.
Many victims do want their identities protected. However, others have been harmed when bans are imposed without their consent or knowledge.
[English]
You’ve heard directly from survivors and victim advocates, and we support the proposals that were championed by My Voice, My Choice. Survivors are harmed when the criminal justice system violates their identities, and there are many complex barriers to getting a ban lifted. We have heard from victims who were humiliated or felt betrayed when they learned that the offender had standing on their request to remove a ban. That means the offender and their lawyer can object to a survivor asking to use their own name.
Bill S-12 would ensure that victims are consulted before a publication ban is ordered. That is a great step. At the same time, based on concerns we have heard from survivors, we believe this should be a process of informed consent. The advantages and disadvantages of publication bans need to be explained to victims before a ban is ordered, and they should be provided with resources that explain their options and their rights. Since victims do not have an equivalent right to independent legal advice, providing resources is the least we can do.
Our office previously recommended that a clear procedure to lift a publication ban should be added to the Criminal Code. We’re pleased to see that in Bill S-12. The proposed measure would still require a victim to attend a hearing before a judge. I will just highlight how painful and traumatic the courtroom environment is for many survivors as they proceed through the justice system. We recommend that a simplified ex parte administrative process be developed for cases with a single victim or that the application is allowed to be heard by a justice of the peace.
If passed, Bill S-12 would require a judge at sentencing to ask the prosecutor if reasonable steps were taken to determine whether the victim wishes to receive information regarding the sentence and its administration. The bill also adds a check box to request this information on the form for victim impact statements used at sentencing. That might not seem significant, but it is a major advancement in access to victim rights that I identified as one of my top priorities for my three-year term as Ombudsperson.
At the federal level, Correctional Service Canada and the Parole Board of Canada already allow victims to register to receive information, and in recent years, they’ve developed a secure online portal to share information with victims. The system can provide automatic notifications, information about victim rights, inmate transfers, restorative justice, parole hearings and release dates. Victims are offered multiple opportunities to submit victims’ statements where they can share safety concerns or other perspectives they would like to have considered, and there are clear instructions on how to participate in parole hearings. However, if victims do not register, they will never hear from the system again. No one will tell them about transfers, parole hearings or when the person who harmed them has been released.
This is a major source of complaints to our office. Currently, only 27% of federally sentenced offenders have registered victims in their case. Prior to Bill S-12, no one had a legislated responsibility to tell victims about registration. So the mechanisms provided in the bill bridge a substantial gap.
I recommend that you pass this bill with some amendments.
Number one, provide resources to support informed consent. Decisions about publication bans or receiving information after sentencing, have consequences for survivors. The pros and cons should be clearly presented with supporting print or digital resources that provide further information. Trauma can make it difficult to process information, so having something to review can improve decision making. We would like to see language about resources added to the bill.
Number two, simplify the process to remove publication bans. Develop an administrative process to remove a ban without a hearing in court. Simple cases could involve an application to the Crown for judicial signature or a meeting with a justice of the peace. An offender should not have standing on a victim’s identity.
Thank you for the head nod. It is important.
Finally, clarify information on the sentence and its administration. This language is too vague and offender-centred. Victims need clear language to understand how this relates to them. I would like to see examples added in form 34.2, the victim impact statement, to ensure victims understand that this includes information on victim services, how to participate in parole hearings, release dates and how to share safety concerns. These examples should also be explained by the prosecutor as part of the threshold to inform a judge that the victims have been offered a choice.
Thank you.
The Chair: Thank you, Mr. Roebuck. You were slightly under the 10 minutes — much appreciated.
[Translation]
Senator Boisvenu: Good evening and welcome. You said something that surprised me. You encouraged victims to register on the victim’s registry. How do victims benefit if Correctional Service Canada doesn’t notify them when inmates are being transferred from one prison to another?
[English]
Mr. Roebuck: Currently the policy is mixed, so for transfers to minimum security, victims are notified in advance. For transfers to medium or maximum security, victims are notified after. We would like to see advance notification in all matters of transfers so people can present safety concerns or an updated victim statement that should be taken into consideration.
[Translation]
Senator Boisvenu: The families of the victims of little Tori Stafford’s killer and Paul Bernardo should have been notified prior to those inmates being transferred from a maximum security institution to a medium security one. They weren’t notified. The same goes for the Parole Board.
Families are notified when there is a hearing, but they aren’t informed beforehand. The current system leaves victims out in the cold. You have a lot of work to do. Your predecessor made some very significant recommendations for improving victims' rights, including their right to protection. Where does this bill protect victims? This bill will limit the number of registrations on the registry to about half, because it restores what existed in 2004. How is this bill a step forward for victims?
[English]
Mr. Roebuck: Thank you. If people don’t understand how to register, they will never hear about a parole hearing or about the release of the offender who harmed them. That is significant.
This bill offers a mechanism so that families can find out about parole and the release of the offender. It is explained how to receive notifications. There are certainly limits, but progress has been made. Every victim with a federally sentenced offender has a right to know.
[Translation]
Senator Boisvenu: After Mr. Gagnon’s remarks, we are realizing just how close the registry is. The information can’t be disclosed to the victims or the public, so I still have the same question: How will this registry prevent crimes if the information on it can’t be disclosed?
[English]
Mr. Roebuck: Thank you. I apologize that I misunderstood earlier.
In terms of the actual sex offender registry, with any law that passes through Parliament right now, the Canadian Victims Bill of Rights has quasi-constitutional status, and its provisions need to be considered with all legislation. That introduces questions.
[Translation]
Senator Boisvenu: Don’t you think the registry should be available to regional police officers? They don’t have access to these records. They have to ask the RCMP, which then asks its own questions before sending the information. It’s not a proactive two-way registry. I’m trying to understand why the government isn’t opening the registry up to regional police forces so they can consult the information themselves, as they do for the Quebec and Canada police information systems.
They get the person’s full criminal history, but in this case, when dangerous criminals are involved, police can’t even consult the database.
[English]
Mr. Roebuck: Yes. I think there is room to explore what the victim rights to protection look like in relation to the register. The right to information about the status of an investigation as well comes to mind. I apologize; I have been more focused on the other components.
Senator Boisvenu: Thank you.
The Chair: Mr. Roebuck, Senator Busson is the sponsor of the bill in the Senate.
Senator Busson: Thank you, Mr. Roebuck, for being here. Thank you, Mr. Chair.
It’s interesting when you gave your presentation — and I thank you for that — you exhibited a very strong advocacy for victims. I appreciate that a great deal. You mentioned that many of the people you run into refer to the system as the “legal system” rather than the “justice system.” I think that says a lot about the tensions that we all deal with.
I would like to ask you vis-à-vis the Canadian Victims Bill of Rights. You spoke about its status in the legal framework we all deal with. In your opinion, the tension between the rights of victims and the rights of offenders seem to be what is at the crux of what we are dealing with today when it comes to the subject matter.
Do you think that Bill S-12 strikes a better balance with regard to that tension between the two entities and their rights under this system that we call the “justice system”?
Mr. Roebuck: Thank you. What a great question. I sometimes think there’s tension and sometimes there’s not. Often, greater access to victim rights doesn’t conflict or interfere with offender rights. I sometimes think the assumption is that in all cases it does.
For me, one of the things that I appreciate about the bill is the addition of the component about victim registration to receive information. Currently, the sex offender registry itself isn’t a tool that victims can use. In reintroducing that tool or responding to the Supreme Court feedback on it, I’m pleased that a measure victims can use was included in the same bill. It might seem like a strange add-on, but actually, for victims of serious sexual violence that proceeds to a federally sentenced offender, they can meaningfully engage with a system and get support, information, share their views and all of those things, improving the status of victims of crime.
Senator Busson: Thank you.
[Translation]
Senator Dalphond: Good evening. This is the third time you’ve appeared before the committee since January, in other words, since you’ve been on the job.
You want to see a much simpler process for lifting publication bans. The organization My Voice, My Choice also recommended that the Criminal Code include a provision stipulating that a victim is not violating the publication ban when they disclose the information. What is your position on that recommendation from victims' rights groups?
[English]
Mr. Roebuck: I agree with the perspective that it’s absurd a victim should ever be charged for telling their own story, sharing their own experience and revealing their own identity. That is a continued form of violence that allows the perpetrator to continue to silence and marginalize the victim. I think it’s part of, clearly, why we have such low reporting rates in Canada.
The survivors we have been speaking to have put in so much work to navigate the legal system. We have heard repeatedly from people saying if I had the choice, I would not do it again. If I were assaulted again, I wouldn’t report it. That’s a problem.
This component of publication bans is part of that puzzle that people’s identity is the most sacred thing. It has to be protected.
[Translation]
Senator Dalphond: Are you following what Quebec is doing, with its pilot to create a court specialized in family and intimate partner violence? The Quebec government has committed to establishing support services for victims, ensuring that the same prosecutor always handles the proceeding and providing ongoing information. You said that more resources were needed to inform victims so they can understand what’s going on, including what a publication ban is. The measures Quebec is taking seem to be promising. Is your office following Quebec’s experience?
[English]
Mr. Roebuck: There is amazing innovation happening in Quebec around victim’s rights. With the more recent revised provincial bill of rights for victims of crime, it has allowed greater access to victims services and a proactive offer of assistance.
We have been speaking with representatives from CAVAC, Association québécoise Plaidoyer-Victimes, or AQPV and Université de Montréal to learn more. I think there is a lot that we can actually learn federally from the way that some of those pieces have been interpreted that opens up new possibilities.
[Translation]
Senator Dalphond: You also talked about a simpler process for removing the obligation… First, you recommend that the Criminal Code specify that the attacker — or the person convicted, once they have been found guilty — no longer have standing to prevent a proceeding to remove a publication ban.
Second, you talk about a simpler process for removing the ban. Can you elaborate on what you think would be a very simple process for victims?
[English]
Mr. Roebuck: I think this is an area that can be explored. Currently, a justice of the peace at a bail hearing can impose a publication ban, so it makes sense that there would be continuity. It’s really easy at the courthouse to meet with a justice of the peace; it’s a lot easier than going to a hearing. You can go and contest your traffic tickets and have a private conversation. I think we could tie something into that. I understand that is within the provincial domain, but I think partnership on a solution to this is important because, across the provinces and territories, survivors are unsatisfied.
I think if we’re not going to provide legal representation to victims of crime, they shouldn’t have to have legal representation to navigate the system we’re asking them to navigate. It’s not fair.
Senator Simons: I want to tell Mr. Roebuck why I made that naughty face. I was a journalist before I became a senator, my paper and I once challenged a publication ban on a man who had been charged with the sexual assault of his girlfriend’s daughter. His name had been publication-banned for fear that naming him would serve to identify her. We went and argued that he was not a father figure, he was just a guy her mom slept with sometimes. When we challenged the publication ban, his lawyer stood up and said, no, we couldn’t name him because then he would be imperiled in remand. I argued that was not my problem. So I think it absolutely does happen.
Because I’m so sensitive to the issues around publication bans, I’m homing in on the language in the bill that adds to broadcasting, transmitting and publishing — the phrase “otherwise making available information.” Even when Minister Lametti was here last week, he signalled that by adding that language he may have expanded the scope of people who could be held liable more broadly than he’d intended. I’m wondering if you have any concerns that, even though this bill purports to make it easier for victims to regain their voice, by broadening the definition of broadcasting and publishing to include “otherwise making available,” that it could accidentally criminalize victims of sexual assault, men and women, who want to speak out about what’s happened to them on Facebook, in a private chat community or in some forum? Are you’re worried that this could actually lead to charging victims for attempting to tell their own story.
Mr. Roebuck: I’d love to respond to what you shared. I’ve heard from survivors that often the impact of the publication ban — the actual lived experience — is that it just protects the identity of the offender and doesn’t serve the interests of the victim. I think the Canadian Victims Bill of Rights talks about considering the privacy of victims, and I think we’ve been considering it wrong.
There are some people who want a ban and they should have that option. Certainly for children and people who are vulnerable and need that protection, it should be available. For people who don’t want to talk about it, who don’t want it out there, it should be available.
For people who do, we’ve heard concerns from survivors asking how this is different than partner violence. It would be ridiculous to say that I couldn’t talk about my partner who has been abusing me, and yet somehow when there is sexual violence involved, it is quiet and we’re not able to discuss it. That piece I think is important.
Regarding “otherwise make available,” I absolutely think it’s concerning, because it’s very broad. Certainly, judges would use discretion and there would be a whole area of case law that would involve defining that better, but what we’ve heard from survivors is that they don’t want it to go to that place where there is case law and hearings and that it could be simpler.
Regarding the informed consent piece, while we’re here, we’ve heard from survivors who are very concerned that people would remove or refuse a publication ban without considering the long-term consequences of the availability of that information online for the rest of their life. That’s where we really want to see a requirement that these pros and cons are presented in the decision.
Senator Simons: I mean, you raise an excellent example. If a husband is charged with sexually assaulting his wife, the publication ban would apply to him too. If it’s your spouse, if you identify it as the spouse, then you’re plainly identifying the victim. Often there are unintended consequences where these bans ricochet to protect the offender and not the survivor.
Mr. Roebuck: When I reflect on the status of victims’ rights, it has been very incremental. We’ve added something here and there, a little bit at a time. If you take a step back and look at what we’ve built, it might not be what we would intend to build if we were approaching it strategically. I think publication bans and the impacts on survivors are one of the things we’ve come to accept somehow and normalize, when it really doesn’t make sense to silence survivors like that who are saying they want to be heard. The survivors we’ve been speaking with have often had to invest years of their life in removing publication bans. That’s very unfortunate and sad.
Senator Batters: Thanks very much for being here, Mr. Roebuck.
Thank you for referencing today that last week we heard a litany of very legitimate complaints about how victims get the short end of the stick when it comes to how publication bans are handled. We’ve heard about everything from inadequate processes to informed victims by the Crown about publication bans to victims innocently contravening a ban that they didn’t know was in place. As well, in talking about one of the amendments you mentioned that you would like to see, and we also heard about the cost that accrues to victims if they want a ban revoked or modified. I’m wondering if you have received complaints from victims on the current process for publication bans, and if you have an estimate for us about how many. If you don’t get complaints about what seems to be a real issue for victims, why do you think that is?
Mr. Roebuck: Thank you for that very important question. We certainly receive many complaints about publication bans. We’re currently changing our case management software to be able to better pull data from our complaints. Right now, it’s actually difficult to collate the numbers without quite a bit of time spent manually going through cases. However, in the current conversation that is going on, we’ve been registering many complaints. As this topic has come forward, people have been approaching our office, we have been meeting, and in most of those cases, people wanted it registered as a complaint. Part of our complaint resolution is coming to committee and advocating for what we’ve heard and say this doesn’t make sense, it’s hurting people, hurting survivors, and that’s not okay.
We want to expand the work that we’re doing to look more broadly at how survivors of sexual violence across Canada are experiencing the legal system, because we’ve somehow normalized that we expect that it’s going to be terrible. I don’t know how we’ve arrived at a point where we tell survivors that it’s going to be rough and it is not going to serve your interests. We do all of the normalizing of how terrible it is without taking a step back and asking, what does justice look like? What does justice require? How do we build a system delivers on that and is more victim-centred? We can be trauma-informed; it is time for change. I feel that there is momentum moving us in that direction.
There are many concrete, tangible things we’ve been hearing in the current process that would be easy to fix or change for survivors and that would improve for any type of victimization.
Senator Batters: That’s an excellent point. Yes, instead of telling people that it’s going to be horrible, why don’t we try to take it less horrible and something whereby they feel they’re taking their power back to really be less victimized? They’ve already been victimized; we should do everything we can, so they’re not victimized again. Obviously, you’re doing your job if you’re trying to find ways to do that.
Something else that came up last week was the fact that — this is not the olden days of when it would only be in a newspaper, on television or something like that — such would be considered as publication; we heard last week that publication could conceivably include things like emails and social media posts, which could be by victims telling their story about their own victimization and sexual assault.
I’m wondering if you’re concerned about that further traumatizing the victim.
Mr. Roebuck: Sometimes a helpful exercise is bracketing. It’s looking at the problem and swapping it out for a different social issue. For example — I’m so sorry, HR government people — there are challenges with the Phoenix Pay System. If, for some reason, we made it illegal to talk about that, that would be absolutely absurd. How much more personal, violating and important is it that people have space to talk about what they’ve experienced?
What we’ve been hearing is that when people have been able to get the publication bans lifted, they’ve often actually been able to connect with other people — other survivors — who have become sources of support. In some cases, people have identified multiple victims of the same perpetrator as they started to talk and share.
There are consequences to victims and to public safety with the current approach to publication bans.
Senator Batters: Just to zone in on that issue I was talking about, are you concerned, given the wording of the bill, that emails and social media posts could be included in publication?
Mr. Roebuck: I think we need to put a pause on toying with what counts and what doesn’t, and really respect survivors.
Senator Klyne: You had listed some recommended amendments, which I tried to keep up with but got a little lost with that. In that regard, there are three items I want to ask you to consider with those recommended amendments.
I’ll just ask three questions, and then you can give me your position. Do your recommended amendments positively enhance the voice of victims as they navigate the criminal justice system? I guess I can ask if your main consideration of that. Are there any considerations or safeguards in your recommendations that you believe are crucial to ensure that victim rights are protected, while maintaining an effective system for preventing and investigating crimes of a sexual nature?
Finally, while remaining cognizant of the need to ensure — I’m sure your recommendations are cognizant to ensure a Charter-compliant framework — but do you feel that your amendments, in fact, are cognizant of a Charter-compliant framework? Are there any of your recommendations that you want to underscore, highlight or “don’t let go of those”? Are there any that you want to reflect upon that you might have omitted or really want to fortify?
Mr. Roebuck: Thank you for that opportunity to speak to the big picture. Three quick things come to mind.
It is very clear to survivors who contacted us — I think you heard in committee that 99% of the people on the sex offender registry are male and that, predominantly, the victims are female. When we look at the Charter and the rights given to the accused, who are predominantly male, we don’t give equivalent rights to predominantly female victims of sexual violence. There is no obligation right now even in the Victims Bill of Rights to automatically provide victims with information about their rights. If we don’t do that with an accused — if we don’t tell them what their rights are — there can be a mistrial. We still don’t have legislation that requires victims to be informed of what their rights are.
In that regard, we’re failing victims of crime. What we’ve heard are the consequences: People have spent so much time and money trying to figure out the legal system, and no one told them they were entitled to four hours of independent legal advice through a private program in the province for sexual assault survivors. They could have saved so much pain and time of their life through that. They think we’re failing in terms of overall — and this does intersect with provincial — but of the amount of access to therapeutic resources that we provide to survivors, particularly regarding something like having to deal with a publication ban. That prompts a need to talk to a therapist; it brings it all back to the top.
This bill does something very interesting, which might not be obvious: It introduces and reinforces a growing mechanism that is emerging within the Criminal Code where there is a repeated obligation to inquire with victims what they’d like, or at least get their input. That’s a really easy thing to embed throughout the process at every stage. If there is an obligation in the Victims Bill of Rights for participation, and that participation and consultation is actually an obligation of the state and not victims, then we have to embed opportunities for participation and consultation at every stage of the criminal justice system to comply with the Canadian Victims Bill of Rights.
Senator Klyne: Is that another recommendation?
Mr. Roebuck: Absolutely, yes.
Senator Klyne: Thanks.
Senator Clement: I’m not sure now what to ask.
Thank you for your opening statement and for the way that you approached the land acknowledgement and the work we have to do. It was very moving.
I will go back to your opening statement. You were giving three recommendations. Are you familiar with the submission from LEAF and the group of organizations? Did you look at it — the justice, safety and autonomy for women’s groups?
Mr. Roebuck: I believe I have.
Senator Clement: No, I’m just wondering, because some of your suggestions seem to fit in with what they’re recommending.
I’ll ask you about your third recommendation — you gave a section 34.2. Could you lean into that more? We have some discussions about resources, but I think you’re talking about victim services or examples. What would that look like as an amendment?
Mr. Roebuck: This is beautiful. On the national federal forum for victim impact statements, Bill S-12 adds a little check box that says, “I would like to receive information about the sentence and its administration.” It is amazing there is such a simple mechanism for people to request that, but it’s not clear to me that people would know what that means. Certainly, it’s not clear that if I don’t check that box and if I don’t say that I want this that nobody will tell me about a parole hearing.
We have victims who contact our office who participated in the National Inquiry into Missing and Murdered Indigenous Women and Girls. They’ve been active for years, and they never knew they could register for the type of information that’s available. They find out after multiple hearings and releases. That shouldn’t happen. It’s a really easy thing to fix.
One of the pieces that this bill bridges is that it explicitly allows the transfer of victims’ contact information from the courts to CSC, when people consent, to facilitate the registration process. We transfer offender information in every single case of a federally sentenced offender. I’m confident we can figure out how to transfer victim information when they’re requesting that service.
I would like there to be clarity for victims to know what that check box really means.
Senator Clement: What does that clarity look like in terms of what needs to be done?
Mr. Roebuck: I think it’s clear examples. People don’t understand —
Senator Clement: To put on a form?
Mr. Roebuck: Right after the sentence and its administration, there could be in brackets, “for example” and give a few clear ones that matter to victims. I said that the current language is very offender-centred. It is still about the offender and their sentence and how it’s going to be administered, but it doesn’t speak to participation or safety and protection. I think those are the concerns that people really want to engage with as well.
Senator Clement: All right, thank you.
Senator D. Patterson: Thank you to the witness. I was curious about the first amendment you recommended, which I understood was to provide resources to support informed consent. Could you tell me what that would look like in a piece of legislation?
Mr. Roebuck: I think that it could remain open and up to provinces and territories to choose what materials they would like to provide. Certainly, with a federally sentenced offender, there are federal resources.
What we’ve heard from survivors is that they put so much work into trying to find information that we’ve got survivors who have invested so much time into building guides for other survivors because nobody in the court system is providing them with documentation or an explanation of what happens at this hearing or that hearing and do you get to speak at this one or not at that one.
So having something that clearly maps it out would be important. I sometimes find the resources that we provide to survivors — and this is very evident if you listen to complaints to our office — describes the best-case scenario, which is rarely what actually happens. You have to submit this within 30 days, but you were only given 15 days’ notice, then you assume you don’t get to submit it, but really maybe there is flexibility, or if this requires an exception, contact this person. We can do better with those exceptions, like the nitty-gritty of how these things play out in real life. I think survivor-informed resources on publication bans should be provided to everyone who’s navigating that choice. It’s a simple thing.
Every time one of my children runs into a wall at school, we get a little packet of information about head injuries. How much more serious the difficult decisions around your own identity and protection? And we’re not providing legal advice or a lawyer. The Crown often says, “I’m not your lawyer.” That deserves — that’s worthy — of information.
Senator D. Patterson: By “resources,” you don’t mean money. You mean, as I understand it, guidelines or user-friendly explanations of the process, something like that.
Mr. Roebuck: Print or digital resources that provide further information. Often just coming into a courtroom or talking with a Crown attorney can be an overwhelming process. It’s difficult to understand everything that has been explained. So having access to accurate information would go a long way.
Senator D. Patterson: Okay, thank you.
The Chair: One question from me, Mr. Roebuck. You were discussing early on the issue of moving away from just being consulted to informed consent. You drifted back a little bit to that consultation observation when you were talking about the Victims Bill of Rights, but let me take you back to the informed consent idea.
Right now, the structure appears to be that the judge asks the prosecutor: Did you take reasonable steps to consult with the victim in dealing with respect to the publication ban and the like? I’m wondering if you could talk us through the process here. One of the worries is the prosecutor can’t find the victim or at least for the time that the prosecutor has to inform the judge. I’m sympathetic to the point about consent, partly because we’ve talked a lot about giving the victims more agency in something that matters an awful lot to them. Consultation doesn’t feel like “agency,” if that’s the phrase. But could we run into problems if we do so blindly without remembering the machinations that occur in the courtroom and the process that the various participants have to play? Can you offer any thoughts on that?
Mr. Roebuck: That’s a great question. It’s normal in high-trauma contexts to run away to a safe space or to engage in numbing behaviours that affect your ability to show up and be present at something. So I do support the default publication ban when somebody can’t be contacted. I think we need to be clear that the effort has to be put in.
There was a really interesting case from Nunavut where a judge suspended a sentencing hearing because after the judicial inquiry into whether or not the victim had been given the opportunity to present a victim impact statement — which is in the Criminal Code — the judge wasn’t convinced that that had happened. He asked the person to go and contact the victim and then come back when that choice had been offered. I think that matters and sets a precedent. We can’t let it be, oh, we tried our best; we didn’t reach them.
That’s also why it’s very important if we know that they will be imposed by default, that as people appear later on that there is a clear, simple process. If you didn’t know that something was imposed on your identity, that they should be informed. Most police reports have contact information in them, although not always entirely accurate.
The Chair: Thank you. That’s very helpful. I appreciate that. We are now able to have a brief second round. Mr. Roebuck took a full nine minutes for his original presentation.
Senator Simons: We have been using the term “survivors.” But sometimes there are cases where the victim has died. I’m wondering what supports there are for family members of somebody who subsequently died, whether as a result of the attack or something else. Is there any provision that you see in the act for a family member to have a publication ban lifted after the death of a loved one?
Mr. Roebuck: What a great question. Wow. I don’t see a provision in the act at the moment for that. I think it’s a great thing to consider and respond to. I’m sure that there are families affected by that.
Senator Simons: I mean, not just the primary victims, but the survivors of a —
Mr. Roebuck: Absolutely, and family members. I’ll highlight, related to your question, just today we met with a family who’d experienced a multiple homicide in their family and the police intervention also killed the perpetrator. In cases where the perpetrator dies, there’s such a gap in providing longer-term victim assistance because it’s all tied to the offender. Even our provision of victim assistance is offender-centred. This is a family that nobody had an obligation to let them know about a compensation fund for families with a murdered child. It shouldn’t be us introducing that a year later to a family that’s dealing with the financial loss as well as time off work and coping. We heard about therapy bills of $600 a month after the most horrific experience. We can do better.
Senator Simons: Thank you, and thank you for what you do.
Senator Busson: As you were answering this question from my colleague, it just occurred to me to get your opinion around a lot of these problems that you’ve described. I think that a lot of those problems stem from the fact that the administration of justice is a provincial and not a federal matter. I understand you’re a federal ombudsperson, but would we benefit from doing more integration of those kinds of responsibilities? Some provinces have incredible responses — you were talking about Quebec — and others, regrettably, not so much. Is there room to do more integration? Have you pondered that at all?
Mr. Roebuck: Yes, and I don’t know if my answer is legally aligned, particularly, but I think that the administration of justice, the way we define it in the Constitution may be provincial, but there are different responsibilities. The Criminal Code is federal. All of these enactments of the Canadian Victims Bill of Rights coming into the Criminal Code, are our responsibility at the federal level to ensure that in the criminal justice process — not just in the way that the provinces are organizing it, but in the foundational up to Charter provisions — that victims are at the centre, right?
It is not fair. I think that I mentioned in a previous committee appearance, I met with a family who talked about feeling like a nuisance in the courtroom for a month after their daughter was murdered and saying, “We could get better treatment by just walking into Walmart and getting greeted by someone than we can in a place where we were not acknowledged for a month.”
We can do better, yes.
The Chair: Thank you. That brings our questions and conversation with you to a close, Mr. Roebuck.
On behalf of all of the committee, I thank you for coming here and answering our questions openly, frankly and helpfully. Each visit becomes more valuable to the committee. The consequence of that, whether you like it or not, is that we’ll continue to invite you back.
Colleagues, we continue with our third panel today. We have two witnesses joining us today, one in person, from the Criminal Lawyers’ Association, Annamaria Enenajor, Criminal Defence Lawyer, Criminal Lawyers Association. Thank you, Ms. Enenajor. Then a special guest from halfway around the world where the time is about 12 hours difference, Nina Funnell, Campaign Creator and Manager, #LetHerSpeak/#LetUsSpeak joining us by video conference. Welcome, Ms. Funnell, perhaps the first time that you have joined the committee in its deliberations and we are grateful that you have carved out the time, as inconvenient as I’m sure it was for you.
I will invite each of you to speak for about five minutes and then, as is our pattern — I think that Ms. Enenajor is more familiar with this than you, Ms. Funnell — we will follow with rounds of questions and discussions with the senators. We usually provide them about five minutes each to engage with you. We will continue for the better part of an hour. I will invite Ms. Enenajor to begin her remarks, roughly five minutes, please.
Annamaria Enenajor, Criminal Defence Lawyer, Criminal Lawyers’ Association: Thank you, chair.
I come to you today on behalf of the Criminal Lawyers’ Association, the nation’s largest criminal defence lawyers’ association in the country.
I wish to speak with you today about the proposed amendments to aspects of the Criminal Code that seek to impact the registration of sex offenders, the National Sex Offender Registry. In the case of R. v. Ndhlovu, the Supreme Court of Canada held that two provisions of the Criminal Code which provided for automatic and lifetime registration on the National Sex Offender Registry were unconstitutional.
The court found that the scope of the personal information that was registered, the frequency at which offenders are required to update their information, the ongoing monitoring by the state and the threat of prosecution and imprisonment all interfere with what it means to be free in Canada. It held that these provisions, particularly the provision that the registration applies automatically in cases, as well as the fact that there is a lifetime registration, were unconstitutional because they had a severe impact on the lives of people who are not at risk of committing a future sex offence.
Why do I start by describing this case? It is part of the reason why we’re here today. The provisions in the proposed bill purporting to amend sections 490.012 and 490.013 of the Criminal Code are in direct response to the Supreme Court of Canada’s finding of unconstitutionality of these provisions of the Criminal Code.
The court found that in capturing the information by the state created by the act of registration, that act could only be justified where the information it captures could be used by the police to prevent and investigate sexual offences, not to further punish sexual offenders. Information gathered from offenders who are not at risk of offending again, therefore, does not fulfill that valid law enforcement objective. Subjecting sex offenders who, in addition to their sentence, now have to register but who do not pose an increased risk of reoffending that reporting requirement, will not be connected to Parliament’s purpose of capturing information that assists police in preventing and investigating sexual offences.
Since the mandatory registration of those offenders who are not at an increased risk of reoffending does not assist police, it is inconsistent with the principles of fundamental justice for overbreadth. To the extent that the proposed provisions under study today replicate an automatic regime on the National Sex Offender Registry for people who are not at risk for committing future sex offences, these provisions are vulnerable to the same constitutional defect. We would argue that the risk of overbreadth persists in this legislation.
The current legislation, as drafted, maintains the presumption of automatic registration with no option for judicial discretion when three conditions have been satisfied: A designated offence prosecuted by indictment, a sentence of two-plus years and that the victim of the designated offence was under the age of 18. Based upon the reasoning of the Supreme Court of Canada in the Ndhlovu case, in order for these three conditions to render an automatic registration constitutional must be an adequate proxy for recidivism and risk. It is not necessary that that is the case.
Indeed, the rates of recidivism among individuals convicted of sexual offences are generally low and it varies widely among sex offenders — so much so that the degree of risk posted by an individual offender can only be examined on a case-by-case basis with evidence from an expert witness, usually a forensic psychiatrist or psychologist, presented before the court.
As the regime does not allow for that kind of individualized assessment and risk because of the automatic imposition of a registration under the act, there will be cases where there will be individuals who have been convicted of an offence that meets those three requirements but they have been assessed to be of lower risk. In this case, the judge would have no choice but to impose a mandatory registration and we’ll find ourselves in the same place that we are again today with an Ndhlovu 2.0 being decided by the Supreme Court of Canada in response to a challenge to this legislation for the same reason, and I’ll see you again in a few years.
How do we make this new provision more constitutional? It is simple: Add judicial discretion. Judicial discretion should always be present in the assessment of whether or not an individual poses a risk because it is that risk element that renders the registration constitutional per the decision of the Supreme Court of Canada in the Ndhlovu case.
Thank you for the opportunity to testify before you today. I look forward to your questions.
The Chair: Thank you, Ms. Enenajor. I now to invite Ms. Funnell to speak.
Nina Funnell, Campaign Creator and Manager, #LetHerSpeak/#LetUsSpeak: Hello, everyone. I’m really pleased to be here today. I’m zooming in from beautiful Gladigal Country from the Eora nation which you’d better know is Sydney, Australia.
I would like to start by acknowledging all the traditional custodians of the lands on which we are meeting today and to say that in Australia, Aboriginal and Torres Strait Island women are four times more likely to experience sexual violence than non-indigenous women.
I’m not a lawyer. That is not why I’m here today. I’m here because I’m a sexual assault survivor. In Australia, in 2018, I started a campaign to overhaul similar sexual assault victim gag laws to what you are currently debating today.
I’m also a journalist. But my story began back in 2007, when I was sexually assaulted as a 23-year-old while travelling home from university. I made the decision at that time that I was going to publicly reveal my own identity in the media in order to advocate around my own case and as a result of going public the DNA was tested and found on my body.
I was able to self-identify in the media because in New South Wales, the jurisdiction that I’m from, in order to be public a survivor merely has to give their consent to media, be over the age of 18 and provide that consent in writing. Fast forward several years and I became a journalist in my own right, specializing and reporting on sexual violence. In 2017, I discovered that Australia, which is made up of eight jurisdictions, still had two jurisdictions where it was not legal for survivors to do what I had been able to do. That is, in order to self-identify in media, they would have to go back to court and seek court orders or permission in order to self-identify. That process, I discovered, was extremely onerous for those sexual assault survivors. It would cost between $10,000 and $40,000 of their own money. It also reinscribed them back into a system that they often found to be traumatic in the first place, where they were having to ask permission to say their own name in public. In addition to that, it exacerbated shame, stigma and trauma.
We know that the nature of sexual violence robs us of power, control and agency over our own bodies and lives. Sometimes, all we have left is our story. To have to ask permission from another person to say your name, to tell your story, exacerbates those feelings of powerlessness, helplessness and vulnerability — the very things we experienced during the assault itself.
As a result of the campaign that I led, those two jurisdictions in Australia who were the two outliers have now reformed their laws. I’m pleased to say that in Australia sexual assault survivors all have the right to remain de-identified in media but if we want to say our names, we do not have to return to court in order to do so. We have to be over the age of 18 and provide consent in writing to the media outlet.
As a result of these reforms, we have seen a range of benefits, first, to individual survivors. The first thing is that more survivors are choosing, in their own time, to go public to tell their stories. As a journalist, I always ask survivors two things before I will tell their story. First, what is their objective in speaking out? Overwhelming, people say things like, “I want to tell my story to raise awareness about the need for consent education.” Or, “I want to tell my story to raise awareness about the need for more funding for counselling and sexual assault services or for various law reforms.” What all those answers have in common is an altruistic desire to reform the process so that the next person doesn’t have to experience what I did.
The second question I always ask is what are you afraid of in telling your story. Over and over I hear the same things, I’m terrified that I will not be believed or that I will be blamed or shamed for the violence that I have experienced.
Yet despite those fears, survivors in Australia are increasingly speaking out under their real names, and doing so has a benefit for them in terms of reclaiming ownership, agency and control over their own narrative. We’re seeing it have a range of positive impacts and outcomes for the community.
In particular, we’re seeing that there has been a 13% increase in survivors coming forward and reporting to police. The reason for that is every time a survivor puts a name and face to the story, it empowers other survivors in the community to come forward.
We’re also seeing that survivors are increasingly able to participate in education and policy reform initiatives in the community. When you have laws similar to the laws that you currently have in Canada, one of the impacts of that is it prohibits and prevents survivors from actively participating in policy and education initiatives, including those that directly affect their own community.
We’re also seeing that there has been a lot more public discussion about sexual violence in Australia since survivors are able to lead those discussions. This, in turn, has had impacts on shame and stigma within the wider community.
Finally, I want to finish by saying that I’m really proud of what has happened in Australia and I’m really pleased to be here with you today. I was really surprised when I learned that Canada was facing a similar situation to what we had faced in Australia. I note that around the world Canada is now out of step with other culturally similar countries.
I also want to acknowledge and endorse the recommendations from the My Voice, My Choice campaign, and in particular that we should not criminalize sexual assault survivors who wish to say their own names or talk about their identities.
I believe that we should require survivor consent before applying for a ban on their identities, prevent offenders from having or making submissions about that issue. I would recommend that you drastically consider simplifying the process for survivors so as to not exacerbate that existing trauma and harm. Thank you.
The Chair: Thank you, Ms. Funnell. That was helpful. Thank you for the very disciplined way that you made your presentation within a limited period of time. Our normal practice is to invite senators to pose questions for roughly five minutes. We will begin with the deputy chair and critic of this bill, followed by the sponsor of the bill. Deputy chair and critic is Senator Boisvenu and his questions and comments will be followed by Senator Busson.
[Translation]
Senator Boisvenu: You said at the outset that you think the bill is relatively severe on accused and convicted individuals. You said that the recidivism rate was fairly low in relation to what’s in the bill. Do you know how the recidivism rate in Canada is calculated?
[English]
Ms. Enenajor: Just a correction. I do not think that this bill is severe in terms of its impact on the accused because the impact on the accused was not the question that was before the Supreme Court of Canada. It was the constitutionality of the automatic imposition of that ban. Where discretion is permitted by a court, the impact can be judged and weighed, balanced against the severity of the crime.
My understanding of the rates of recidivism is that they are calculated based upon multiple convictions and statistics kept by Correctional Service Canada.
[Translation]
Senator Boisvenu: Are you familiar with the Auditor General’s 2019 report on the calculation of recidivism rates in Canada?
[English]
Ms. Enenajor: No, I’m not.
[Translation]
Senator Boisvenu: It’s important to correct wrong information when relying on Statistics Canada and Juristat recidivism data. According to the Auditor General, Canada does not do a good job of calculating recidivism rates because it disregards those who receive sentences of less than two years. Only offenders sentenced to more than two years — so those in federal prisons — are taken into account. It’s calculated that approximately 15,000 individuals per year are sentenced to more than two years, but nearly 60,000 receive sentences of less than two years. That means the percentage of recidivism to be calculated is three times more. All those who serve a prison sentence are not taken into account.
Ultimately, the bill would be much more severe in relation to those who are sentenced to more than two years, because it would automatically mean that they couldn’t appeal, whereas those sentenced to less than two years could appeal. Basically, that logic is based on a false premise. You’re saying that the recidivism rate is low, but if everyone convicted of sexual offence were taken into account, the official rates would have to be multiplied by four. Should the registration requirements in the bill be tightened since the information being presented doesn’t reflect the day-to-day reality or the criminal reality?
[English]
Ms. Enenajor: First of all, the sentences that are handed down for sexual offences by and large are over two years, especially where there are the conditions that are listed for the judge to take into consideration where there is a minor under 18. Where it’s by indictment, it actually can’t be a sentence lower than two years.
Most of the offenders in our system are sentenced to two years less a day in provincial custody but not most of the sex offenders. Our sex offenders are, by and large, in penitentiaries.
To the extent that the data we have doesn’t reflect what is less than two years, it is not as skewed and improper to rely on it in the case of sex offences, because I understand what you are quoting, the 60,000 number is for all offences in Canada. For sex offences, we are by and large looking at penitentiary sentences, and that we do have data on.
[Translation]
Senator Boisvenu: In Quebec, the number of sexual predators in provincial prisons is proportionately four times greater than it is for penitentiaries.
Therefore, your claim that most sexual offenders receive very severe sentences of more than two years is false. Most of them are sentenced to less than two years. Recently, we’ve even seen cases in Quebec of offenders receiving conditional sentences, which means they are serving their sentences at home instead of in a penitentiary. It’s very important to make those distinctions.
[English]
The Chair: Thank you for your evidence, Senator Boisvenu.
Senator Busson: Thank you very much. I have a question for both witnesses here.
First, I could probably spend all day debating with your legal opinion around whether or not the balance has been struck on the rights of the accused in Bill S-12. I would love to do that sometime.
My comment is that although the constitutionality of a bill is often the tension between the rights of the offender and the rights of the public to be safe, and victims to be recognized, the judicial discretion component of Bill S-12 is satisfied in the part of the bill that talks about the reverse onus. We’ll call it a reverse onus on the offender to show the court that they would not be a danger to the public, reoffend or be a repeat offender. The bill chooses or certainly seeks or tries to find some balance between those tensions.
Would you comment on whether or not the fact that repeat offenders and child victims in any way addresses the issue of what is at stake and how this balance of rights might be struck?
Ms. Enenajor: Sorry, could you rephrase that question?
Senator Busson: At the end, I would love to have your comment on whether or not you think that judicial discretion is in any way addressed by the provision for the ability of the accused to make his case that he is not a danger.
Ms. Enenajor: The bill provides for automatic registration where these three conditions are met. In that case, the accused will not have an opportunity to make the case or to persuade the court about whether or not they are at risk. The presumption is that they are at risk and there is no way for them to rebut that presumption. Where it is an indictable offence, the victim is under 18 and they’ve been sentenced to more than two years, in that case, there is no wiggle room for the judge to exercise discretion. It is only in other offences that you get the opportunity for the accused to bring evidence before the court that speaks to the risk that they pose individually.
Senator Busson: You don’t think that distinction satisfies the constitutionality of the provisions?
Ms. Enenajor: Not necessarily. It doesn’t allow for when an individual sentenced to an indictable offence, where the victim is under 18 and where they are sentenced to over two years, but for some reason they have been assessed and they do not pose a risk. There are numerous factual scenarios that can result in that. There is no way for them to demonstrate that to the court and for them to ask for discretion to be exercised for it not to be imposed.
Senator Busson: I appreciate your point of view. Like I said, we could spend a lot of time talking about that.
Another part of the bill is around the point that the offender might have standing in any kind of a hearing where a publication ban is being discussed. Could I get your comment on that?
Ms. Enenajor: This is about a publication ban before the court to determine whether or not the name of the complainant would be made public. Generally, I think that the public and the accused benefit from the open-court principle that justice must be seen to be done as well as being done.
My opinion is that the measures that were brought in prior to this bill to protect the complainant who is meant to rebut that, or the impact on the complainant where that caused trauma and harm to them, it appears there is evidence that that is not always the case. In fact, the agency of participants in the criminal justice system demonstrates that the integrity of the justice system is better served by allowing the open-court principle to work in the way it’s meant to work and that there are benefits to that.
I’ve seen that oftentimes an accused will not take a position. The open-court principle is what the accused has always had to deal with in the sense that their name would not be touched by a publication ban. The entire country would know what’s going on, except in exceptional circumstances. To bring complainants into the same position I don’t think would bring any harm to the interests of the accused.
Senator Busson: Thank you so much.
Senator Dalphond: Thank you to the witnesses, including those for whom it is early in the morning.
My first question is to you, Ms. Enenajor. You have referred to the fact that the Supreme Court has said there were constitutional problems with a long list of mandatory registration. The bill before us makes most things not automatic but subject to evaluation on a case-by-case basis. That should meet the constitutional requirement as established by the court. Yes, you agree with this. Nevertheless, you said you thought there was overreach or that it was too broad.
Could you explain what you mean by that? I see only two provisions, subparagraphs 490.012 (1) and (2), where registration is mandatory, where the judge must order it. All the other cases are up to the person who was not only accused, but convicted, to show to the court that the person should not be registered.
Ms. Enenajor: That’s why I limited my comments to that provision. Only in that one place where there is mandatory registration and there is no opportunity for discretion. The narrow list of offences that fall within that provision that you’ve just cited is where the constitutional frailty lies.
Where there is reverse onus and discretion for the judge, that is more in keeping with the constitutional balance that has been articulated by the courts.
Senator Dalphond: As defined by the courts?
Ms. Enenajor: Yes.
Senator Dalphond: If we look back at the first case, where it’s automatic that registration will happen and there is no way for the offender to escape it, that is the case that was prosecuted by indictment. When the charge was laid, he or she — but mostly it’s a man — was exposed to two or more years of imprisonment and the victim was under 18 years, a minor. It’s a serious offence against a minor.
Ms. Enenajor: That’s right.
Senator Dalphond: The justice minister told us that in his opinion and that of the department, he doesn’t see a real problem there because this is something that would meet the test of section 1. In such a case, in a free and democratic society, you could have automatic registration because the need to preserve minors will prevail. Do I understand that you don’t agree with this?
Ms. Enenajor: No. I think that the way the Minister of Justice is justifying it makes sense. But in a particular case, in any given case for the court, there may be an individual who falls into that category. It’s a serious offence, but some facts exist that point to the fact that that person will not pose a risk in the future. There is no way for them to provide that evidence to the court but for a constitutional challenge to this piece of legislation.
Senator Dalphond: Do you think there are cases where society can draw a line and say that if you cross that line, there is no way you can escape? The test is really that there is no connection.
The other and most important one that you referred to is the impact of the order on the person. Is that going to be disproportionate?
For the protection of minors, don’t you think it calls for balance? If you do it, the consequence might be disproportionate. No, it won’t be disproportionate, because when we balance the interest of the victim versus your interest, because it is a minor, it carries the day. Many offences in the Criminal Code are related to whether you are in a position of authority. When it is a minor, it is a much more severe sentence.
In your view, that would not reach the test because it could catch in the net something that, in theory, could happen and would be disproportionate?
Ms. Enenajor: It opens the door to a constitutional challenge to this legislation by any accused who can provide evidence that the impact of this would be disproportionate to them. It would be open for them to challenge the legislation. The judge may find, under a broad constitutional challenge to the validity of that particular provision, that it’s constitutional, but they may be required to provide a remedy under section 24(1) of the Constitution, an individual remedy for that person.
If that is going to happen, in cases where you have individuals who can rebut this presumption but are not permitted to, why should it not just be built into the legislation? Because it’s going to happen anyway.
Senator Simons: Ms. Funnell, I was going to say you’re a day ahead of us, but I think you’re actually a decade ahead of us on this issue. You’ve admirably explained the clarity and simplicity with which Australia is dealing with this, whereas we’re just constructing a different way for people to petition a judge to be able to say their own names.
When we raised this issue here, the government said to us they’re concerned about protecting the privacy of a second victim who might be identified if you identified the first victim. Say if it’s a stepfather who has abused two daughters, two sisters. I’m wondering in Australia how you’ve worked out that problem if one victim wants to speak but others don’t want to be identified.
Ms. Funnell: It is an excellent question and we have absolutely wrestled with it here. The way we deal with it in Australia — and the eight jurisdictions are broadly consistent in this — is that at the level of reporting, a journalist cannot name a survivor or identify a survivor if doing so will lead to the secondary identification of another victim.
Now, there are a range of ways in which that is dealt with. Basically, what we do is we have to look at what is in the public domain about this case. Will naming this person lead people to be able to directly or indirectly identify a second victim? If they can, then we can’t publish.
Sometimes, though, you will find that you can publish certain aspects. It might be that, say, a victim survivor just wants to say:
My name is Susie Jones and I identify as a survivor, and I am saying I am a survivor because I want to highlight the need for better consent education.
They’re not giving away any of the specifics of the case, and in doing so they’re not identifying which case they belong to or the fact that there may be other victims who could then be traced down and identified. They can still often find ways in which a person can self-identify.
We believe in Australia that — overwhelmingly, the evidence shows that most survivors won’t want to be publicly identified and that should always be protected as sacred. We know that survivors, if they don’t want to be identified, they absolutely should not have to against their will. But for those who do, carving out provisions which allow them to do that is empowering for them but also empowering for the survivor community more broadly because it creates visibility on the issue. It means that we have available survivor role models.
We’ve dealt with it in legislation but also in terms of media and journalism ethics, and we have these debates and discussions in house within journalism as well to ensure that we’re not indirectly causing harm.
A previous question was asked about whether or not offenders should have the right to make submissions in these cases about complainants seeking the right to identify. We had the same discussion in Australia. In Australia there were some cases where offenders attempted to have standing in those proceedings, and in every case it was knocked back; they weren’t allowed to. But they were attempting to have standing in those proceedings in order to further weaponize their feeling of mastering control over the victim. For a victim, even learning that your offender is going to try to hobble your ability to say your own name in public was causing further distress.
As my learned colleague said before, we know that at the end of the day the reason why these protections exist for complainants in the first place had nothing to do with the offender. It was about the complainant’s right to privacy, should they wish to remain de-identified in public.
I would certainly strongly recommend that the offenders or the accused not have standing in terms of being able to make submissions.
Senator Simons: But you make the point clearly, it’s misogyny and in some cases homophobia that have led us to create a system in which we treat people who have been the victims as though they are some kind of social pariahs that we have to hide away to protect their shame.
Here is my question for you. I was a journalist for 30 years before they let me come and be in this place. What you’re describing sounds like it could have real bear traps for publishers, because if the publisher can be held criminally liable for identifying someone and now they have to — I mean, at least with a publication ban it’s black and white. In the case you’re describing — I know this because I’ve been a journalist and an editor. You have to work backwards and see, is there information here that could lead to the identification of a secondary victim? Is there information here that maybe you have written consent, but what if the person has a buyer’s remorse the next day and changes their mind? Have there been cases where newspapers have been prosecuted because they thought they were in the clear and then it turned out they weren’t?
Ms. Funnell: That’s an excellent question. The first thing is the reason why consent needs to be written consent is so that there isn’t confusion around the buyer’s remorse or changing their mind the next day.
Yes, publications can be prosecuted in Australia if a second victim is identified, which is why we have rigorous in-house processes to stop that from ever occurring. I have certainly reported cases where there have sometimes been second or third or more victims involved. Either you do not do the story because it’s too risky, or the way that it would be dealt with is that you may then go to the second or third victim and either obtain consent or partial consent.
To my knowledge, there are not cases where publications have been prosecuted, because we are very careful around that issue of secondary victims and we intrinsically recognize that it is absolutely paramount that a person has the right to privacy and that should never ever be compromised.
Senator Simons: Thank you very much.
Senator Klyne: The first question is for Ms. Enenajor. From the Criminal Lawyers’ Association’s perspective as a voice for the criminal justice and civil liberties in Canada, how might Bill S-12 affect and address the emerging challenges posed by the increasing prevalence of technology-facilitated sexual offences such as cyberharassment and non-consensual sharing of intimate images?
Ms. Enenajor: How might this bill?
Senator Klyne: Yes.
Ms. Enenajor: The inclusion and recognition of it as a designated offence and recognizing that the offence of distribution of intimate images without consent is a sexual offence with a sexual nature that deals with power, and it’s not just about sharing of information, that it is abusive in that sense. I think that is a strong recognition and an attempt to bring our understanding of the way technology operates in line with our understanding of how sexual violence operates, which is about domination and power. That’s how I would see this bill responding to that challenge.
Senator Klyne: Thank you.
I have a question for Ms. Funnell. #LetHerSpeak aims to abolish sexual assault victim gag laws in Tasmania, the Northern Territory and Victoria, Australia, allowing survivors the right to tell their own stories in the manner they please to the extent they want to be public without risking prosecution. The campaign combines legal advocacy, media advocacy and systems-based advocacy to support survivors and secure tangible outcomes and policy reform. Your campaign’s efforts have resulted in legislative changes in Tasmania, the Northern Territory and Victoria.
Can you comment on how the issue of sexual assault victim gag laws in Australia aligns with or differs from the challenges faced by victims subject to publication bans in Canada? And if there’s time, could you share your perspective on the public’s perception of attempts at reform and the responsiveness of Australian legislators to implement reform?
Ms. Funnell: Sure. I think that the ways in which we are similar is that the impacts on victim survivors have been almost identical in terms of exacerbating trauma. I think where we differ is the mechanism by which you’re proposing that it be dealt with. In Canada, my understanding — and I’m not a lawyer so please take this with a grain of salt — is that you’re looking at introducing steps to ensure that a publication ban is not automatic and that there is some discussion that happens initially so that the survivor is consulted and included in that discussion.
We deal with it very differently, where there is an automatic assumption that the victim survivor is not going to be identified at all in the media, but in order to waive that, the survivor does not need to go back to court at all, because all they need to do is provide consent in writing to the specific media publication and that exempts them from that process of having to go back to involve the courts.
We find it’s simpler, less traumatic, less onerous on the courts and also less costly. I think that is the primary way in which we differ.
In terms of the public response to it in Australia, the #LetHerSpeak/#LetUsSpeak campaign which I ran was huge. It had a 96% approval rate with the public. The way that I ran the campaign was I would fund individual survivors to go back to court, apply for that court order in Tasmania and the Northern Territory. We would do the legal work for them to exempt them from the gag law, and then I would break their story saying, this person had to go back to court to ask for permission to say their own name.
The public response was enormous. People couldn’t believe that survivors had to ask a judge’s permission to say their own name, and it led to the very first case study in my campaign, Grace Tame, going on to be named Australian of the Year. Since then, she has become one of our most popular and respected and revered public figures. She has continued to advocate for multiple other law reforms that impact on sexual assault survivors. She is able to do that precisely because she has a public name and face. It is very hard to advocate for other reforms from the shadows. It is very hard to get media interest in other issues which might be problematic about the criminal justice system if you can’t say your name and face in the media. It’s had a range of benefits, and the public response in Australia has been overwhelming.
I remember when we did the petition in Victoria. Victoria later introduced gag laws. We received over 200,000 petition signatures very quickly. Particularly in the wake of the #MeToo movement, there is strong public sentiment that if a survivor wishes to be identified, they should have that right. It is not just a freedom of speech issue, it is also about recognizing that we have entered a new era where the stigma and shame of sexual assault should be left behind, where if people are brave and we do want to tell and share our stories as part of our own re-empowerment, healing and therapeutic process, that should be nurtured and supported and even commended by the wider community, as opposed to erecting roadblocks in our way.
Senator Klyne: I assume it was huge public response that led to the legislative changes?
Ms. Funnell: Yes, absolutely. That partly helped inform the legislative changes.
The other thing that helped was when I put the campaign together; obviously, I am both a journalist and a survivor. I put together a collective of news organizations, victim survivors, a law firm and two survivor advocacy groups, and we were working on this problem collectively. It was very clear to the lawmakers that this push from reform wasn’t just coming from media organizations who wished to suddenly name a whole bunch of sexual assault survivors for ratings. It was coming from survivors ourselves saying, this matters to us, our names matter, our stories matter. We want agency and control over whether or not we share them.
What I’ve been really interested in Canada is the fact that it’s also coming from victim survivors themselves and, in particular, the My Voice, My Choice campaign. Once again, it’s not coming from media or journalists saying, we really want to be able to name these people because it is good for ratings; it is coming from the complainants themselves saying, we are now in a new era where we believe that we should have some input and decision making over this mechanism which was initially put in place to protect our identity in a time and era where — it was the same in Australia — there was an automatic assumption that no one would ever want to self-identify in the media as a complainant in a sexual offence matter because it was seen as so intrinsically stigmatized. Thankfully, those days are over.
Senator D. Patterson: I would like to thank both the witnesses. Very compelling in different ways.
My question would be for Ms. Enenajor. With the mandatory registration of serious categories of sex offenders as outlined in the bill, the protection of the public is behind the provision, I believe. You’ve argued that there should be an element of discretion where offenders do not present a risk of reoffending.
I’m curious, how easy a task is it to determine the risk of reoffending? Is that not quite a subjective criteria that would not be easy for judicial discretion to make the right decisions? How is that done?
Ms. Enenajor: It is a difficult process, but it is the same process that any judicial officer undertakes when they are deciding whether or not to release an accused on bail, what sentence to give an accused. These kinds of assessments based on risk to bail, for example, are entirely risk assessments. It is an assessment of whether or not the individual poses a risk of likelihood that they will reoffend while on bail, that they will abscond or things like that. It is based on evidence before the court.
Where we have cases like with sexual offences, the seriousness of the offence may invite us to impose more serious sentences on the individual, it is not necessarily a strong or accurate enough proxy to demonstrate the risk of reoffence. There are some individuals who might commit very serious offences but their risk of recidivism is less. There are other offenders who might have a very high risk of recidivism but the offence they committed is not serious.
As part of many sentencing processes and hearings which the evaluation courts undertake on a daily basis, they assess risk. Also, with offences of sexual nature, things like psychiatric evaluations and risk assessments do play a huge role in the decision-making process that judges have to undertake already.
Senator D. Patterson: You’re saying there is quite a body of practice in case law that makes this a rigorous process that is not entirely subjective?
Ms. Enenajor: Yes, that’s true.
Senator D. Patterson: Thank you.
The Chair: Briefly a second round. Perhaps three minutes each. We will go, with your indulgence and the indulgence of the witnesses, to five past the hour. I don’t know, Ms. Funnell, what time it is in Sydney, but it is five to 8 p.m. here. Another 8 or 10 minutes.
Senator Dalphond: Ms. Funnell, could send to us by email some documents or studies that report on the impact of these changes and what the problems are, if any, despite the impacts and how you deal with social media. I can understand with a traditional newspaper, you could have a written agreement, but I don’t know how you work with social media. I’ll leave you to send us something about that.
Ms. Enenajor, my question is very short. Will you agree that we provide in the act that the accused once convicted has no standing in any further proceedings in connection with the ban?
Ms. Enenajor: With the publication ban?
Senator Dalphond: Yes.
Ms. Enenajor: Would I agree that the accused should not have further standing?
Senator Dalphond: Should not have any legal standing once he or she has been convicted. I refer to the convicted not to the accused, because some may say that it is necessary to preserve the jury system and everything else. Once the person has been convicted, would you agree that the person no longer has standing if the victim asks for a lift of the publication ban?
Ms. Enenajor: I cannot, with the 30 seconds that you’ve given me to think about that question, imagine a scenario where the accused’s privacy rights would be impacted by that kind of scenario. The publication ban is meant to protect the complainant. The default is open court, everybody knows everything. That’s how we’ve always functioned. We have this unique instrument that’s meant to protect the complainants that goes against that presumption. Removing that, I don’t see what the impact on the accused would be. I would agree.
Senator Simons: I have one question for each of you. For Ms. Funnell, I will ask Senator Dalphond’s question: How does social media deal with this in Australia?
For Ms. Enenajor, I noted with interest in the original case from the Court of Queen’s Bench in Edmonton that dealt with Ndhlovu the judge said that one of the reasons she wasn’t going to put him on the list was he was a young black man, a student from Zimbabwe. She said that every time there is a report of a Black man, the Black population being rather small, that he would be automatically targeted. Do you have concerns that the list itself is prejudicial to racialized Canadians?
Ms. Funnell: The way that we deal with social media in Australia, if a complainant is outed on social media and they haven’t given their consent to that publication, then that publication or the person who wrote the post could be prosecuted because they have revealed a person’s identity without their consent.
Once a complainant or survivor has consented to a specific publication, they have waived that right to anonymity which means that after that it would be fairly normal then for that article to be shared on social media. Then at that point, other people can discuss the complainant’s identity because they have waived that right.
When survivors are making that decision about whether or not to go public, it is a significant decision. We talk them through the implications and ramifications of that decision once you have waived your right. As I often say to survivors, you cannot put that genie back in the bottle. Once your identity is out there, that is a decision that you have made and then, from that point on.
But overwhelmingly in Australia, most of our jurisdictions, six of the eight, have previously always allowed survivors to waive that right. We have long-established evidence to show that it does not cause significant problems because survivors understand that once you go public that this is what will often happen.
In the event that people make malicious comments on social media or they harass or further shame that survivor, then social media would deal with that in the same way they would deal with any form of malicious discussion on social media.
Senator Simons: Not very well these days.
Ms. Funnell: Yes, it is true. In Australia we have a few additional mechanisms that I do not think that you have in Canada. We have a commission and various protocols in place to pull things down and so on.
But I suppose that is a separate discussion as to how social media responds and the legislative frameworks which govern that, how they deal with all forms of hate speech, not just against sexual assault survivors.
Again, what we have found overwhelmingly is that survivors do not rush into this decision. They make informed, rational decisions about whether or not they wish to self-identify in public, and they recognize that once you are named in a particular mainstream media outlet that has flow on impacts.
The other thing, of course, that I should just flag is that a lot of sexual assault survivors are increasingly choosing to self-author their own stories, for example through autobiographies or through other means such as music, for example. The legislation that we did have in place in those jurisdictions which prohibited self-identification was also criminalizing their works that they themselves were producing.
In Canada, I’m really interested to know, if someone wanted to write their autobiography about being sexually assaulted and going through the courts, that they wouldn’t be able to do that if there is an automatic ban. That, for me, as an outsider, is astounding.
Senator Simons: And so you cannot just —
The Chair: I will interrupt you. Briefly, Ms. Enenajor, on the other question and then we will turn to Senator Busson with the last question.
Ms. Enenajor: This is a very loaded question. There are ways in which systemic racism has resulted perhaps in the over-representation of certain groups on the list. There are ways in which the use of the list can be used in a way that is racially discriminatory, but the maintenance of the list, in and of itself, is the product of a process.
In order to determine whether or not it disproportionately reflects a certain group of the population and reflects the exercise of systemic racism, you would have to go back to the decision to charge, the decision to prosecute and the decision by any judge that has that discretion to place them on the list and understand and do an empirical study about how race impacts the names on the list that landed there. It is not an easy assessment to make. But it can reflect systemic racism and then be used to racially profile.
Senator Simons: Which is what the judge was concerned about. Thank you.
Senator Busson: First of all, I would like to thank both witnesses. If nine Supreme Court judges cannot agree on the balance that is to be achieved in this victim versus offender balance, I will not indulge myself in any more debate with you. But I want to say Ms. Funnell, we’re fascinated with the solution that you have come to in Australia and wonder, in 25 words or less, even though you are the advocate, is there a downside to the avenue that you have taken? Have you any warnings for us around this regime?
Ms. Funnell: No.
Senator Busson: Thank you. That was very brief.
The Chair: Thank you for that question and that very brief answer. This brings to a close our discussion with you and this session of the committee’s consideration of Bill S-12.
I would say, particularly for Ms. Funnell’s benefit, that the Senate of Canada is usually thought of as a recipient of work that is worked up for us by our House of Commons and we think of ourselves, rightfully, boastfully or not, as a house of sober second thought. In this case, the bill is being initiated, unusual for us, in the Senate of Canada and sponsored by Senator Busson. We are really engaged in sober first thought this time around. Your contributions to our deliberations have been extremely helpful. I speak on behalf of all of the members of the Standing Senate Committee on Legal and Constitutional Affairs.
I want to thank Ms. Enenajor for joining us, and in particular Ms. Funnell for making yourself available, providing us with insightful information about a regime that is much more sophisticated and advanced than the one we are working on here. Also, I wanted to thank you for making yourself available at an early hour to help us with our deliberations. I am not sure that we will need you again, but we really have appreciated you joining us today.
If I could highlight this for you, senators, tomorrow we will have two more panels. It will make it possible for us to operate in our regular time slot of two hours, one with witnesses and one with officials. You will recall that we have asked officials to come back and give us feedback on technical questions we may have.
As well, a plan has come together for us to obtain time to sit on Monday evening to proceed to clause by clause. I have had some discussions with steering. We are aiming now for 5:30 p.m. for up to three hours on Monday.
With respect to amendments, as usual, please contact the law clerk’s office, if you have not already done so, should you have amendments. I would encourage senators in all groups to speak with one another and cross-pollinate your conversations to determine the degree to which there may be common ground with certain amendments.
I am hopeful that will occur, given that we are the house of first thought with respect to this, that we will have a freer and probably constructive and more coordinated effort at clause-by-clause consideration of the bill.
I want to thank all of you for your patience in hanging in here for three hours, particularly to the staff who support the work of the committee. We have asked a lot of them today. We continue to do so on this committee. We are a workhorse committee. But that also somewhat disguises the terrific work of the workhorse team that enables us to do our good work. I extend my thanks to them.
(The committee adjourned.)